Upper Tribunal (Immigration and asylum chamber), 2017-11-10, PA/13152/2016
| Jurisdiction | UK Non-devolved |
| Date | 10 November 2017 |
| Published date | 23 November 2017 |
| Hearing Date | 08 November 2017 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/13152/2016 |
Appeal Number: PA/13152/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/13152/2016
THE IMMIGRATION ACTS
|
Heard at Stoke |
Decision promulgated |
|
on 8 November 2017 |
on 10 November 2017 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
Muhammad [A]
(anonymity direction not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Singer instructed by Hamlet Solicitors LLP
For the Respondent: Mr C Bates Senior Home Office Presenting Officer.
ERROR OF LAW FINDING AND REASONS
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This is an appeal against a decision of First-tier Tribunal Judge Juss who dismissed the appellant’s appeal on protection and human rights grounds.
Background
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The appellant is a national of Bangladesh who claims to have been born on [ ] 1985 and who arrived in the United Kingdom on 22 November 2007 as a Working Holidaymaker with leave valid to 6 November 2009. On 30 May 2014, the appellant applied for Leave to Remain on family/private life grounds as he claimed to be in a relationship with a British national female in the UK although this application was rejected on 18 September 2009. The appellant claimed asylum on 17 May 2016. His claim was refused on 15 November 2016 against which the appellant appealed.
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Having considered the evidence the Judge sets out his findings of fact from [14] of the decision under challenge which can be summarised in the following terms:
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With the application for asylum made in 2016 the appellant submitted an FIR which was verified as being fraudulent by the British High Commission in Dhaka [14].
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The evidence submitted by the appellant in the form of DVD recordings needs to be seen in light of his having previously submitted fraudulent evidence. The Secretary of State rightly rejected (1) appellant’s membership of the BNP in Bangladesh, (2) political incidents in Bangladesh in 2004 2007 and (3) BNP activities in the UK. The appellant has been unable to confirm that he was ever listed as a named speaker to speak at a BNP event, and initially claimed he had not, there was no one before the Tribunal from BNP to support the appellant’s claim as the appellant claimed he felt unable to ask anyone [15].
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The appellant will not be at risk of ill-treatment in Bangladesh because he attended on behalf of the cultural wing of the BNP. Even though the appellant claims some of the footage would have been shown on Bangladeshi channels there was no evidence that the few minutes or seconds in which he is appearing will be shown to be picked up by the authorities. Even if it was the fact is the appellant is of no interest to anyone there. The evidence the appellant has contrived to great lengths to submitted fraudulent evidence designed only to secure him asylum status in the UK [16].
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The appellant’s activities in Bangladesh were rightly found to be lacking in credibility because of their striking vagueness. The appellant failed to explain why is at risk first life for the BNP if he had scant knowledge of its policies. The appellant claimed to have no interest in named policies. It was not credible he had been an active member of the BNP since 2001 or that the political incidents of 2004 and 2007 took place. The appellant did not report the alleged incidents to the police and there is no case assert of international surrogate protection that the appellant has been able to make out [17].
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The Judge finds that even if the appellant’s story is true, which the primary finding is that it is not, it was open to him to enlist the help of the state authorities if he requires protection [17].
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The appellant had not satisfied the Judge of a well-founded fear of persecution or right to qualify for humanitarian protection [18]. The appellant had failed to establish his claim engaged article 3 ECHR [19].
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The Judge did not accept the appellant is entitled to succeed on human rights grounds as he had not established an ability to satisfy the Rules, there was no basis for concluding exceptional circumstances exist such that it should be granted discretionary leave, the Judge adopts the reasoning in the refusal letter [20].
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Permission to appeal was refused by another judge of the First-tier Tribunal but granted on a renewed application by Upper Tribunal Judge Kekic on 8 September 2017. The operative part of the grant being in the following terms:
It is arguable that given the numerous mistakes in the determination, highlighted in the grounds, that the judge did not give anxious scrutiny to the case before him. Reference to the wrong country, the wrong language, the wrong date of application and the misspelling of the appellant’s name do not inspire confidence in the determination and the judge’s brief assessment of the claim, including the appellant’s sur plas activities, is arguably inadequate.
Further, it is arguable that the judge commenced his assessment of the evidence with s.8 matters and that this, when combined with the factual errors highlighted above, renders the findings unsafe.
Error of law
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The alleged mistakes in the determination include (i) the Judge misspelling the name of the appellant as Mohammad rather than Muhammad (ii) wrongly recording the interpreter as being Arabic when in fact he was Bengali, (iii) at [1] referring to the appellant being proposed to be removed to Libya when it should be Bangladesh, (iv) at [2] wrongly referring to the application made on 30 May 2014 as being refused on 18 September 2009 when it should have been 2014. Whilst it is preferable for there to be no errors in a decision of any judicial body the reality is that at times errors do occur. The correct spelling of the appellant’s first name appears throughout the First-tier Tribunal file in all places bar the header of the Judge’s decision. The Judge was clearly aware of the appellant’s name and identity, the issue being the substitution of the letter ‘u’ with the letter ‘o’. This is clearly a typographical error. In relation to the interpreter the Judge was clearly aware of the language being used during the course of the hearing and both a reference to the interpreter being Arabic and the place of return to Libya are clearly typographical errors arising as a result of a lack of anxious scrutiny when proof reading the determination. The Judge refers in the body of the determination to the appellant being a Bengali speaker and to the appellant’s true nationality – see [2] and [6]. The reference to 18 September 2009 is, again, clearly a typographical error and lack of checking in the final decision as it would be physically impossible for an application made on 30 May 2014 to have been refused in 2009. In any event, the decision under challenge before the Judge is the refusal of 15 November 2016. In relation to these issues no arguable legal error arises either individually or in support of an assertion that they demonstrate the Judge failed to apply the required degree of anxious scrutiny when considering the evidence.
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A more serious assertion raised by Mr Singer is that the Judge had failed to consider the evidence with the required degree of anxious scrutiny or given adequate reasons for the findings made generally. This allegation is coupled with the allegation at Ground 2 of the renewed grounds that the Judge took section 8 of the 2004 Act as a starting point for the assessment of the appellant’s credibility and, at Ground 3, that the Judge failed to properly consider the appellant’s sur place claim.
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The Judge is criticised for placing too much reliance upon the respondent’s reasons for refusal letter when it is argued there was a considerable amount of evidence provided by the appellant in support of his claim that the Judge failed to adequately or properly examine. It is argued the Judge did not deal with the interview, medical evidence, evidence of past persecution regarding the Awami League, evidence from Bangladesh, and substantial photographic and electronic evidence relating to the sur place activities. Mr Singer submitted there was no assessment of the oral evidence, photographic evidence, or points raised in submissions.
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To ascertain whether there is any merit in the challenge to the decision one needs to consider the determination carefully. The Judge had before him the evidence relied upon by both parties. The Judge clearly understood the appellant’s immigration history for, bar the...
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