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You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> UI2024000488 [2025] UKAITUR UI2024000488 (27 March 2025) URL: https://www.bailii.org/uk/cases/UKAITUR/2025/UI2024000488.html Cite as: [2025] UKAITUR UI2024000488 |
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2024-000488 |
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First-tier Tribunal No: PA/55187/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 27 th of March 2025
Before
UPPER TRIBUNAL JUDGE REEDS
Between
M A M
(ANONYMITY ORDER CONTINUED)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Bashir, Solicitor advocate instructed on behalf of the appellant
For the Respondent: Ms Young, Senior Presenting Officer
Heard at (IAC) on 12 February 2025
DECISION AND REASONS
3. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.
The background:
4. The factual background can be summarised as follows. The appellant is a national of Bangladesh. His immigration history is summarised as follows. He arrived in the United Kingdom in July 2008 on a working holiday visa (VAF 418984). This expired on the 13 July 2010. He remained in the UK without leave until 22 September 2014 when he was arrested for immigration offences and served with an IS151a, IS86, IS98, IS98a, B1 bail and IS91. He was asked to report every 2 weeks to a Home Office reporting centre beginning on 13 October 2014. He failed to comply with those instructions. The appellant was encountered by the police on 8 December 2019, who arrested him for non- compliance and overstaying. He was served with a fresh IS151A, Red 0001 and IS 86 and was detained at Morton Hall detention centre on 9 December 2019 for 28 days.
5. The appellant claimed asylum on 10 December 2019 while detained.
6. The factual basis of the claim as made to the respondent was summarised in the decision of the FtTJ at paragraph 4. The appellant's grandfather owned a piece of land in Bishwanath and upon his death in 2000/2001 the land was split half in half between the appellant's father and his step siblings. The appellant's stepbrothers (his uncles) and their sons (the appellant's cousins) took this land of the appellant's father by force in 2004/2005 and submitted false legal claims in order to support their application. The land has now been built on.
7. The appellant claimed that one of his uncles is married to the sister of a man called PK who was said to be a senior politician within the Awami league who the appellant claimed was the governing party in Bangladesh at the time.
8. In 2005 and 2007 the appellant's father was attacked and left for dead in a tunnel. In the alternative he was attacked and then dumped in the canal. In 2015/2016 he received threatening phone calls from his cousins warning him against returning to Bangladesh. The appellant claims that false cases have been levelled against him in Bangladesh that warrants have been issued for his arrest.
9. In a decision letter dated 6 May 2021 the respondent refused the application for asylum. In summary the respondent did not accept the appellant's claims about the land dispute noting that it lacked detail; that the area appeared to be a commercial area rather than a residential one and the appellant had given an inconsistent account of the other claimants for the land and also had been inconsistent about the inheritance. The respondent noted that he had not submitted documentation in relation to the claimed court cases. It was also stated that the respondent did not accept that "divine intervention" prevented the appellant being killed when attacked in 2005 and 2007 or that he could run away after being stabbed in the leg. While the appellant claimed that his father had been attacked in 2010/2011, he had been inconsistent about the details. No further attempts to be made on his life since then.
10. The respondent considered that it was unclear why the group would now wish to harm the appellant given that his father no longer owned land that they could acquire. Given that the appellant did not own the land, and his cousins already possessed it, it was also unclear why the appellant would be targeted. It was also unclear how they obtain the appellant's number or why they wished to threaten him given that they already occupied the land.
11. The appellant had not established a family link between PK and his uncle. Whilst the appellant claimed that a warrant for his arrest been issued, no copies had been provided.
12. In respect of his immigration history he entered the UK in 2008 with leave expiring on 13 July 2010 but failed to claim asylum until 10 December 2019 following his arrest on 8 December 2019. It also been encountered by the immigration authorities in September 2014 but failed to claim asylum then. It was asserted that his account was therefore not credible, and in the alternative he could also internally relocate.
13. The appellant appealed the decision, and it came before the FtT on 19 October 2023. In a decision promulgated on 23 November 2023 the FtTJ dismissed his appeal. The FtTJ heard oral evidence from the appellant during the hearing and the submissions made by the advocates on behalf of the respective parties. The FtTJ's findings of fact are set out between paragraphs 10-24 relating to the asylum claim. Paragraphs 25 - 27 deal with the article 8 ECHR claim.
14. The FtTJ summarised the factual findings made at paragraph 24. The FtTJ stated as follows:
"24. After considering the evidence in the round, I reached the following findings. I find that the appellant's account is not reasonably likely to be true for the following reasons. I find that the circumstances in which the appellant claimed asylum fundamentally undermine his credibility. If the appellant genuinely feared persecution in Bangladesh, I find that he would have claimed asylum long before he was detained in 2019. I find that the appellant has been unable to give a clear account of the land dispute and has been confused about basic matters such as whether his father had any brother and in any event the documents all postdate the appellant's claim for asylum in 2019 despite in many cases purporting to be documents created many years earlier. I find that the legal documents relied upon are not reliable. The photographs on Facebook evidence do not assist the appellant. For these reasons. The appellant therefore has not established that he has a well-founded fear of persecution there. I dismiss the appellant's appeal on asylum and humanitarian protection grounds".
The appeal before the Upper Tribunal:
15. The appellant sought permission to appeal the decision. Permission to appeal was refused by the FtT but on renewal was granted by UTJ Keith on 27 February 2024.
16. UTJ Keith stated that : Permission to appeal is granted in respect of grounds (1) and (3), as numbered by this Tribunal below. Permission is refused in respect of grounds (2), (4) and (5).
REASONS:
1. The appellant's grounds largely take issue with the weight that the Judge attached to evidence said to relate to the appellant's credibility in his protection claim. I am conscious that such weight is usually a matter for the Judge, absent an allegation of perversity. Nevertheless, at ¶¶12 to 15, the Judge has placed significant weight on alleged inconsistencies in the appellant's answers during an asylum interview, when the skeleton argument before the Judge makes clear that there were significant problems in the interpretation of the interview, such that the appellant did not understand the questions (ground (1)). The issue of interpretation does not appear to have been resolved and as a consequence, there is at least an arguable error of law on ground (1).
2. Ground (2) discloses no arguable error. Ground (2) takes issue with the Judge's rejection of documentary evidence at ¶24. That conclusion was in the context of the Judge's analysis of evidence (¶¶17 to 21), including the legal evidence. That analysis was detailed and unarguably open to the Judge and is not arguably perverse.
3. In relation ground (3), and the assessment of plausibility in the context of country evidence, the appellant did raise the issue of country evidence in the context of his skeleton argument, and it is unclear where this is resolved. While it is unnecessary to recite all of the evidence, where such evidence is not accepted, the judgment is arguably deficient. Ground (3) discloses an arguable error.
4. In relation to ground (4), the assertion that it was impermissible for the Judge to draw inferences based on poor memory and inconsistencies adds no more to ground (1) and discloses no arguable error.
5. Finally, ground (5) discloses no arguable error in the Judge's analysis of the appellant's article 8 ECHR claim. Contrary to this ground, the Judge did not find there to be family life and considered his private life, including the medical issues raised, at ¶¶25 to 27.
6. DIRECTIONS Pursuant to EH (PTA: limited grounds; Cart JR) Bangladesh [2021] UKUT 11 and having regard to the limited grant of permission above: 1. The scope of the 'error of law' hearing is limited to grounds (1) and (3), as numbered in this grant of permission, only.
17. At the hearing before the Upper Tribunal the appellant was represented by Mr Bashir Solicitor Advocate and the respondent by Senior Presenting Officer Ms Young. Both advocates provided their oral submissions in relation to the issues relevant to this appeal. As set out in the grant of permission, this was a limited grant permission in respect of grounds 1 and 3.
18. Mr Bashir relied upon the grounds as follows.
Ground 1:
19. The written grounds state as follows:
20. Ground 1 Discrepancies the FtTJ put considerable weight on the discrepancies between the screening interview, substantial interview and his oral evidence. A raised serious concern about the accuracy of the screening and the substantive interview on which R based his decision. This was raised in his witness statement and before, Judge Cox and as directed by Judge Cox the significant part of the oral interview recording was transcribed, which clearly confirmed that R interview recordings were inaccurate. A subsequently, updated his witness statement following the review as directed by Judge Cox, which was not challenged by R at the hearing. The FtTJ has based his findings on an inaccurate refusal letter, which is unfair and unlawful. Disclosure of the sister in the UK and other alleged omissions at the above interviews cannot be relied upon because of the interview problems and hence an inaccurate written interview recording.
21. Mr Bashir made the following oral submissions:.
22. He submitted that the FtTJ did not consider the transcript and the refusal letter. He submitted that there were serious problems with the interpreter at the interview and this was raised. For the assistance of the Tribunal Mr Bashir was asked to identify when and under what circumstances the appellant had raised that there had been problems in the interview. He helpfully assisted the Tribunal by reference to the documents including the skeleton argument uploaded to the CMS on 5 August 2022 and the CMR held in May 2023 and the provision of documents thereafter.
23. Mr Bashir submitted that there were serious problems in the interview, and this was demonstrated by the transcript. He stated that the transcript was a small section of the interview, but they showed inaccuracies or serious interpretation problems and therefore what was set out in the decision letter was wrong. Throughout his submissions Mr Bashir submitted that the respondent should have taken action about this. He submitted that it was not possible to base the decision on an inaccurate refusal letter and that the appellant's witness statement challenged the matters.
24. Mr Bashir was asked to assist the Tribunal by going through the differences were relied upon between the interview responses and what was set out in the transcript.
25. The first issue identified related to paragraph 37 of the decision letter. Mr Bashir submitted that the appellant has set out what he said in relation to this paragraph in his witness statement (26/6/23) at paragraph 13 (c) where he said he had use the word "khal" and that this was a ditch or canal. The interpreter had made an error. Mr Bashir also relied upon the transcript in support referring to page 45 (last paragraph).
26. Thus he submits that when looking at those documents the interpreter had made a mistake by interpreting it as a tunnel and therefore the respondent was wrong. As the FtTJ accepted this point as adverse the appellant this was significant.
27. The second issue raised by Mr Bashir related to paragraph 32 (paragraph b) of the witness statement. It reads:
" in relation to paragraph 29, I gave the exact size of the land that is 90 - 95 decimals and that the land was supposed to be split half and half. I did not know how many decimals of land in an acre but after the interview I asked someone and now I know that 100 decimals are in an acre. The interviewer appears to blame me for his lack of knowledge of the land measurement."
28. Mr Bashir did not identify where in the transcript this was said to be an interpretation error.
29. The third issue identified on behalf of the appellant related to paragraph 30 and when read in the context of the appellant's witness statement at paragraph 13 ( c). It was submitted that when this was read in the context of the transcript at page 43 the word used is "adjacent", but the transcript had set out " near the market". This was a significant discrepancy.
30. Mr Bashir made submissions about the family tree. He submitted that there had been total confusion by the FtTJ. This had been set out in the decision letter at paragraphs 31 and 32. Mr Bashir referred to the family tree stating that it was difficult for the interpreter to interpret this properly.
31. The FtTJ made his finding at paragraph 14 and the judge says that the appellant said the dispute was with his father's stepbrothers. Mr Bashir submitted that what he had said in interview was in total confusion and that the family tree was correct.
32. Mr Bashir referred the tribunal to the appellant's witness statement paragraph 1 (e) where he stated that, " in relation to paragraph 33, I clearly stated that the land was supposed to be split half and half (Q86) it is clearly recorded in the interview records and I did not say it was split half and half, but my father ended up with 60% because he exchanged another piece of land. My answers are very clear."
33. Mr Bashir submitted that the other point that the judge found against him related to paragraph 12. He referred to the transcript at page 47 where reference was made to having a sister called F who was in the UK. He submitted that the FtTJ was in error by accepting a flawed decision letter due to the interpretation.
34. In summary Mr Bashir submitted there was an error of law because the whole basis of the hearing was based on a flawed interview which did not accurately reflect the appellant's claim and therefore his credibility was put in doubt.
35. Ms Young relied upon the Rule 24 response dated 15 March 2024. It stated as follows:
36. The grant of permission relating to ground 1 refers to weight given to discrepancies in paragraphs 12-15 of the FtT determination.
37. The discrepancy between the screening interview and the substantive interview at ground 1 relate to a peripheral matter. The FtT appeared to make allowance for the change in the appellant's evidence about the ownership of the disputed land. The point taken against the appellant appears to relate to the appellant saying at his screening interview that he had no documents and no intention to seek any. He did then provide documents issued long after the events which they are said to describe or relate to.
38. At paragraph 14, the judge based his adverse finding on the appellant's apparent inability to accurately describe which relatives he was in dispute with.
39. Paragraph 15 concerns the issue in the dispute and the appellant's inability to explain the nature of the dispute.
40. In her oral submissions she submitted that in relation to the grounds the FtTJ's findings are at paragraph 10 onwards.
41. The first point relates to paragraph 12 and to whether the appellant had a sister in the UK. There is no error of law. Paragraph 12 related to the screening interview and the appellant's response to question 3.4 . Ms Young submitted that this was what the FtTJ had recorded at paragraph 12 and that it was put to the appellant in oral evidence during the hearing and he explained he did not understand the question. However it was open to the judge to reject this. The submission made by Mr Bashir which relied upon the transcript referred to the asylum interview ( see Q21-26) however the FtTJ relied upon the screening interview and that the appellant was given an opportunity at the hearing to address this, but the judge rejected it.
42. The FtTJ's decision at paragraph 14 refers to the family tree. The FtTJ was aware of the additional document, and this was considered as part of the FtTJ's decision. As set out the FtTJ referred to the account given that the dispute was with his father's stepbrothers (Q73-174). The FtTJ considered the family tree but found that it indicated that the dispute was with the descendants of the appellant's grandfather's half-brother, i.e. his father's cousins. This was what the appellant's representative has said today. The judge makes the point at paragraph 14 that the appellant said in interview it was his father's stepbrothers not his grandfather. Thus the judge considered the evidence in the family tree but are given reasons why he did not accept the appellant's evidence, and the grounds failed to identify any error of law at paragraph 14.
43. In any event the asylum interview questions refer to at paragraph 14 of the FtTJ's decision do not appear in the transcript therefore cannot establish that the interview record is inconsistent.
44. When addressing the issue raised by Mr Bashir and the issue of whether there was an error in the interpretation at the interview relating to tunnel or canal, Mr Bashir had relied upon page 45 of the transcript ( see bottom of transcript). The transcript does not provide the question number which is transcribing but the question is at Q112 (p110) and demonstrates that the transcript and the interview response is the same and therefore does not show any interpretation error.
45. As to the point relied upon in relation to the location of the land, this has to be read in the light of the decision letter at paragraph 30. The point made by the respondent is that the appellant's evidence was inconsistent with the external country information set out at paragraph 30. Mr Bashir is wrong about the source of the material as it is clear from the decision letter where the source material came from. It is there where the inconsistency lay and there has been no challenge to paragraph 30 and the external evidence at any stage of the proceedings.
46. Ms Young submitted that Q 80 and Q81 and Q82 referred to at paragraph 30 of the decision letter when read with the transcript (p43) it matches the interview. When that is read in the light of the transcript relied upon (p43) and set out earlier the transcript states the same as that set out in the interview. Furthermore page 44 of the transcript is the same as the responses the appellant gave a question 82 with no inconsistency. Even if there was it makes no material difference and it was not a point relied upon by the FtTJ.
47. Ms Young submitted that the FtTJ was aware of the issues and the documents that were before him and had the opportunity to hear the evidence and the representations made by the advocates. Mr Bashir has said that the transcript was discussed, and arguments made. The purpose of this hearing is not to reargue the appeal but to establish that the judge made a material error of law and from the appellant's own submissions FtTJ Sills was aware of the transcript, he considered the evidence but did not have to refer to every point or every document. This is an approach encouraged by the president of the FtT and also as set out in the decision of Volpi v Volpi and therefore ground 1 is not established.
Ground 3:
48. The written grounds set out ground 3 as follows:
49. Ground 3 -Plausibility the FtTJ does not give much weight to the documentary evidence, he states that they are inadequate, or the dispute has not been explained, arrest warrant, etc Country report and internet sources, clearly state the level of corruption in Bangladesh and how easy to make false allegations and obtain arrest warrant. Substantial documents were provided, including details of the current case, which is confirmed online.
50. The FtTJ lacks knowledge of the corrupt system in Bangladesh, which resulted in him making an unreasonable finding on the legal processes and reclaiming of lands. His assessment and findings were from a Eurocentric perspective.
51. The appellant claim is highly plausible, The JTT failed assess plausibility in accordance with the Home office guidance and the following authorities, see, January 2018 CPIN, "Opposition to Government" § §2.2.3/6.1.1/6.1.2/6.1.6/6.1.8- 6.1.10/ 7 .1.2-7 .1.2) available at: https:// assets. publishing. service. gov. uk / government / uploads / system/uploads/attachmentdata/file/679716/_Oppn-CPIN_v2.0_January_2018_ pdf, e.g.: "6.1.6 According to the USSD Report 2016, political affiliation sometimes appeared to be a reason for the arrest and prosecution of people on criminal charges, including through spurious charges under the pretext of responding to national security threats. The report noted, 'Opposition party members claimed that security forces arrested approximately 2,000 of their members during mass arrests in early June [2016], although in general they were not charged or imprisoned; some were reportedly released after paying bribes.'
52. Indeed, in terms of the plausibility of the applicant's claims of being of adverse interest, the FtTJ's or the Respondent's own assessment makes no reference whatsoever to any country evidence by reference to which the critique of implausibility is raised. This approach is contrary to that adumbrated in Gheisari -v Secretary of State [2004] EWCA Civ 1854. See also KS (Burma) & Anor v Secretary of State for the Home Department [2013] EWCA Civ 67. Inherent improbability was also discussed in Awala -v- Secretary of State [2005] CSOH 73.
53. In his oral submissions, Mr Bashir submitted that the skeleton argument set out that "The political landscape in Bangladesh is essentially binary and deeply polarized, with support split between the AL on the one hand and the BNP on the other. Political connection with AL gives considerable powers to influence the Police and the Judiciary, which is the case in the appellant's case"( see paragraph 4).
54. Mr Bashir also relied upon his skeleton argument ( paras 16-18) which stated:
"Those connected with AL, such as, P K is able to fabricate criminal charges and extortion as a means of oppressing the opposition BNP's supporters, Individuals and businesses (and in turn the nonavailability of protection) with their powerful influence. This is well-recognised by country information ( See e.g. January 2018 CPIN, "Opposition to Government"), §§2.2.3/6.1.1/6.1.2/6.1.6/6.1.8- 6.1.10/ 7.1.2- 7.1.2) available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/679716/Bangladesh-Political_Oppn-CPIN_v2.0 January_2018_.pdf
e.g.:
"6.1.6 According to the USSD Report 2016, political affiliation sometimes appeared to be a reason for the arrest and prosecution of people on criminal charges, including through spurious charges under the pretext of responding to national security threats.
The report noted, 'Opposition party members claimed that security forces arrested approximately 2,000 of their members during mass arrests in early June [2016], although in general they were not charged or imprisoned; some were reportedly released after paying bribes.'
55. Mr Bashir submitted that this related to the man PK and corruption and that PK was a leader and it was difficult for them to get justice from the law as it links the disputed facts with PK having a highly influential position.
56. Ms Young relied upon the Rule 24 response which stated that:
Upper Tribunal Judge Keith granted permission in respect of ground 3. The first tier tribunal judge made findings of fact about the appellant's credibility at paragraph 24 of his determination he considered inconsistencies in his claim, the reliability of the documents and the long delay by the appellant making his asylum claim.
The omission of a reference to the background evidence does not mean the judge overlooked it. His conclusions relating to the appellant's subjective account cannot be shown to be irrational.
57. In her oral submissions Ms Young submitted that the FtTJ considered all the evidence but relying upon the decision in Volpi v Volpi the judge was not required to make specific reference to the material and the fact that he did not does not mean that he had not considered it. Paragraph 3 of the FtTJ's makes it clear that the judge was aware of the background for the appeal and the documents which were set out and contained in my HMCTS. She submitted that the judge had dealt with all the issues and had made findings on the account.
Discussion:
58. It is by now well-established that appropriate restraint should be exercised before interfering with a decision of the tribunal below, which will have read and heard the evidence as a whole and which had the primary task of reaching findings of fact and attributing appropriate weight to relevant considerations: see, for example, UT (Sri Lanka) [2019] EWCA Civ 1095 , at [19]-[20] - observations subsequently endorsed in a number of other judgments of the Court of Appeal.
59. Ms Young in her oral submissions referred the Tribunal to the decision in Volpi v Volpi [2022] EWCA Civ 464. This decision sets out the constraints to which appellate tribunals and courts are subject in relation to appeals against findings of fact per Lewison LJ who summarised them as follows:
"2. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:
i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb 'plainly' does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract."
60. Before considering the substance of ground 1 it is necessary to set out some of the background to that ground and in the context of the claim made that there were problems with the interpreter at the interview. For the assistance of the Tribunal Mr Bashir was asked to identify when and under what circumstances the appellant had raised that there had been problems in the interview. He responded by referring to the skeleton argument which was a document not in the appellant's bundle for this hearing but had been a document that was on the CMS for the FtT ( uploaded on 5 August 2022). However when reading the skeleton argument and in the context of the decision letter of 6 May 2021 and the corresponding paragraphs where the interview was challenged, it did not appear to relate to the interview that took place with this particular appellant. Whilst Mr Bashir initially referred to paragraphs 7 - 12, the matters set out in the skeleton argument do not correspond with the circumstances of this appellant's case and the decision letter of 6 May 2021. Looking at the notes on the case management system it was accepted that the skeleton argument was submitted in error and as Mr Bashir submitted the problems of the interview were raised at the directions hearing in May 2023 following the adjournment of the final hearing in April 2023. It was recorded that the appellant sought to rely on the transcript of the interview but there had not one been provided therefore a direction was made for the appellant to lodge any further documents relied upon. Subsequently a revised skeleton argument dated 29 June 2023 was provided with the appellant's witness statement along with the transcript of parts of the interview. Mr Bashir submitted that the FtTJ could have directed the respondent to review the interview following the directions hearing but that was not undertaken.
61. The appellant relies upon the matters set out in the revised skeleton argument where it is argued that there were significant doubts about the accuracy of the interview recording and thus the responses given ( see paragraph 12). At paragraph 14 (d) it is said that the interpreter had made errors but that it was not possible to transcribe 3 hours of interviews. Therefore for the purposes of the hearing only a partial transcript of the full interview was provided. It is right to observe that the partial transcript of the interview does not identify which questions are transcribed. The submissions made on behalf of the appellant rely upon this transcript to demonstrate that the FtTJ erred in law when making the adverse credibility findings based on the submission that there was a flawed interview. It is said that it was argued before the FtTJ, but he made no reference to it. Ms Young submits that the FtTJ set out at paragraph 3 that he had regard to all the documents set out on MyHMCTS and as Mr Bashir said he referred to it must include the transcript.
62. I have carefully considered the submissions made by each of the advocates and have done so by reference to the material I have been directed to and that which is contained in the consolidated bundle. Much of the substance of the submissions made on behalf of the appellant refer to what has been described as a flawed decision letter whereby the respondent made errors and therefore meant that the FtTJ erred in law when reaching his adverse credibility findings. However, as submitted by Mr Young, the burden is on the appellant to establish that the FtTJ made errors of law which were material to the outcome and on the findings of fact made. The findings of fact relevant to the asylum claim are set out between paragraphs 11 and 24 with the omnibus summary at paragraph 25.
63. Having considered the submissions of the advocates and in light of the material, I am not satisfied that ground one establishes that the FtTJ erred in law when reaching his credibility assessment of the appellant's claim. I set out my reasons below.
64. Dealing with the specific points raised, the first issue raised on behalf of the appellant relates to paragraph 37 (decision letter) and the inconsistency identified by the respondent were it was stated by saying his father was attacked in the tunnel and left for dead there (Q72) and then later stated he was dumped in a canal (Q112).
65. Mr Bashir relied upon the witness statement of the appellant and the part of the transcript which he identified at page 45.
66. Paragraph 37 of the decision letter sets out as follows:
"37. You claim that your father was attacked by your cousins in 2010/2011 (AIR Q72), your account of this attack is inconsistent. You initially state that your father was attacked in a tunnel and left for dead there (AIR Q72), you later state after the attack it was dumped in a canal (ARQ112). Further, you claim your cousins still intended to murder him (AIR Q113) but despite your father being weakened and housebound, no further attempt was made on his life."
67. The appellant in his witness statement (26/6/23) at paragraph 13 (i) (not paragraph c as submitted) states:
" in relation to paragraph 37, the account I gave of those incidents are accurate and true. I father was not ditched in a tunnel. The exact word I said was "khal" throughout the interview, which is a ditch or canal for water drainage. The transcript shows the interpreter made an error. At 1 st he translated the word "khal" as tunnel and later it was translated as canal. They have lodged a new case in court against my father."
68. Mr Bashir relied upon the transcript at page 45 ( last paragraph) which reads:
" Officer: but you do not even own the land, your father does, and they have not killed him?
Interpreter: (in Sylheti Bangla) script
Interviewee: (in Sylheti Bangla) script
Interpreter (in English) they didn't you know the kill him but they you know the planned to kill him, they assaulted him badly and then they put him in a canal then he was taken to the medical he says (Bangla script). Interviewee: (Bangla script) he stayed in the Osmani medical for fifteen about fourteen fifteen days.
69. Mr Bashir submitted that when looking at the decision letter at paragraph 37 it refers to a tunnel and the transcript refers to a canal. This can mean a canal or a ditch. The respondent interpreted it as a tunnel and as a result the appellant's credibility was attacked. This was a mistake. The respondent said that the appellant referred to a tunnel, but he said " canal" and therefore the respondent was wrong. It was a significant point and the FtTJ accepted this point made as adverse to the appellant.
70. Ms Young directed the Tribunal to the question in the interview. As set out previously the transcript does not provide the question number which it purports to transcribe but the question is set out at Q112 (p110). It reads as follows:
Q112: but you do not even own the land, your father does, and they have not killed him?
Answer: they did not kill him, but they plan to kill him as they assaulted him badly and put him in a canal and he was taken to the medical and he stayed there and stayed in the Usmani hospital for 14 - 15 days.
71. By way of comparison the part of the transcript relied upon at page 45 is the same as the interview recording. In other words the transcript matches the interview record and therefore there is no inconsistency.
72. Although it was not referred to in the submissions the part of the transcript at p48 relates to Q72 where it is said "tunnel" but should say "canal or ditch" and therefore this is the relevant part. However any error even if it is shown is wholly immaterial. Firstly, the decision letter at paragraph 37 in terms of inconsistency referred to Q113 and the appellant's claim that his cousins still intended to murder him but despite his father being weakened and housebound, no further attempt was made on his life. This linked with paragraph 38 of the decision letter that it was inconsistent that those relatives possessed a motivation to harm the appellant as his father no longer owned any land that they could acquire ( see Q102) but that was put to him at interview, and he did not give a plausible explanation. Therefore paragraph 37 of the decision letter did not only rely upon where the attack took place but that his claim that they were intent on harming him was not consistent with his account of his father remaining unharmed. Secondly, the FtTJ did not rely this evidence when reaching his findings of fact.
73. The second issue raised by Mr Bashir related to paragraph 32 and (paragraph b) of the witness statement. It reads:
" in relation to paragraph 29, I gave the exact size of the land that is 90 - 95 decimals and that the land was supposed to be split half and half. I did not know how many decimals of land in an acre but after the interview I asked someone and now I know that 100 decimals are in an acre. The interviewer appears to blame me for his lack of knowledge of the land measurement."
74. However as Ms Young submits Mr Bashir did not identify where in the transcript this was said to be an interpretation error and therefore cannot be supportive of the claim made that the interview response in this respect was inaccurately recorded.
75. The third issue relied upon by Mr Bashir related to paragraph 30 of the decision letter. This states as follows:
" you stated that the land is adjacent to both Bishwanath police station and the local market, Phona Ullah market (AIRQ 80, 81). This is inconsistent with external information which shows the market next to Bishwanath police station is Named Jobbar market ( https://www.google.com/maps/place/Bishwanath + Police+Station , https://www.google.com/maps/place?jobbar=Market/@24.8125794,91.7551041,19z accessed 17 March 2021). Further, this area is a commercial, rather than residential area, which is inconsistent with your statement that your family built houses there (AIR Q70).
76. The appellant said in his witness statement paragraph 13 ( c) :
" in relation to paragraph 30. I stated that the land was located in Poonallah market or Bazar (Bazar occupies a large area) and Poonaullah was located halfway between Bishwanath and Kamal Bazar (Q83 response). I never said it was next to the Bishwanath police station. In Bangladesh the areas are split according to the police station areas it covers. The police station is based in Bishwanath and Poonaullah Bazar is about 9 miles away from the police station at Bishwnanth. The transcript confirms the appellant's version, and that respondent got this wrong."
77. Mr Bashir referred to the transcript at page 43. It reads as a follows:
Officer: where is the land located?
Interpreter: (In Sylheti Bangla) script
Interviewee: (In Sylheti Bangla) script
Interpreter: (in English) Near the market.
Officer: what is the name of the village or area it was in:
Interpreter (in Sylheti Bangla) script
Interviewee: In sylheti Bangla) script
Interpreter: In sylheti Bangla) script
Interviewee: In sylheti Bangla) script
Interpreter: (in English) the name of the market called Phoaullah market, I can spell it for you.
Officer: okay yes please.
Interpreter: (in English) PHONA then ULLAH market, Phonalluah market.
Officer: okay in what town or city this market was located in? {My note Q82)
Interpreter: In Sylheti Bangla ) script
Interviewee: In Sylheti Bangla ) script
Interpreter: (in English) this is very close (this is not correct it should be near Bishwanath to the Bishwanath you know the Thana or police station. Bishwanath BISHWANATH so near Bishwanath Police Station.
Officer: what town/city/village or area is this in?
Interviewee: In Sylheti Bangla ) script
Interviewee: In Sylheti Bangla ) script
Interpreter: In Sylheti Bangla ) script
Interpreter: (in English) this is a in the middle of Bishwanath and Kamalbazar... Kamal KAMALBAZAR.
Officer: okay
Interpreter: (in English) in the middle of Bishwanath and Kamalbazar.
78. Mr Bashir submitted that the refusal letter at paragraph 30 referred to the land being adjacent to the Bishwanath police station and the local market, Phona Ullah market (AIR Q80-81), he highlighted the word "adjacent" whereas the transcript says, "near the market". The respondent said that it was in Bishwanath next to the police station, but the transcript said that it was in the middle of Bishwanath and Kamal Bazar. He submitted that there was discrepancy in the interview.
79. I accept the submission made on behalf of the respondent. The point relied upon in relation to the location of the land, has to be read in the light of the decision letter at paragraph 30 as recorded above. The point made by the respondent is that the appellant's evidence was inconsistent with the external country information set out at paragraph 30. It is clear from the decision letter where the source material came from as support is placed on the external material as to the location. It is there where the inconsistency lay and there has been no challenge to paragraph 30 and the external evidence at any stage of the proceedings. Whilst Mr Bashir in his reply to the respondent's submissions stated that there was no specific village and the police station was 9 miles away, however the burden lay on the appellant to demonstrate that the objective source of material was in error. There was no objective evidence advanced on behalf of the appellant in support of the claim in his witness statement as to the location.
80. Q 80 and Q81 are referred to at paragraph 30 of the decision letter. They are as follows:
Q80: where was the land located?
Answer: near the market
Q81: what is the name of the village or area it was in?
Answer: the name of the market is Phona Ullah market
81. When that is read in the light of the transcript relied upon (p43) and set out earlier the transcript states the same as that set out in the interview.
82. At Q 82 states: in what town or city was this market located in?
Answer: " this is very close to the Bishwanath police station.
Q83 : "which town/city/village or area is this in?
Answer: "the middle of Bishwanath and Kamal Bazar."
83. Therefore the transcript at page 44 is the same as the responses the appellant gave a question 82 and there is no real inconsistency in the documents. The transcript says that it should have said " near Bishwanath" rather than " very close to Bishwanath". The dispute is about the phrase as to whether it was "very close" or "near" and therefore there is no material difference to the extent in which it can support the submission made that the decision letter is flawed. In any event it was not a specific point taken by FtTJ Sills in his decision.
84. Mr Bashir made submissions about the family tree. He submitted that there had been total confusion by the FtTJ and Mr Bashir directed the Tribunal's attention to paragraphs 31 and 32 of the decision letter.
85. Paragraphs 31 and 32 read as follows:
31. When asked, a number of times, about the other claimants of the land, you gave inconsistent and incoherent answers, alternatively describing them as your father's brothers (AIR Q 58), his step siblings (AIR q 57,73 and 74), your grandfathers step siblings and your paternal uncles (Q 58). You elsewhere state that your grandfather had only daughters beside your father (AIR Q 90). However, you were also inconsistent on the number of daughters, initially stating that your father had one sister (AIR Q87) and then stating that he had 2 (AIR Q59), and then finally three (AIR Q 90).
32. Elsewhere you list your 3 uncles, and your father's 3 step brothers as referring to different people (AIR Q73) but also state that he had no brothers, and you are not referring to his sisters' husbands (AIR Q91). Your answers to these questions are inconsistent and do not clearly establish either the relations of the land claimants to you, your father and grandfather, and your father's siblings/relatives. You were given several opportunities to clarify this at interview (AIR Q90-94) but failed to do so in a manner that was clear and consistent."
86. Mr Bashir referred to the family tree stating that it was difficult for the interpreter to interpret this properly.
87. The FtTJ made his finding at paragraph 14 and the judge says that the appellant said the dispute was with his father's stepbrothers. Mr Bashir submitted that what he had said in interview was in total confusion and that they family tree was correct.
88. There is no error of law based on that submission. The FtTJ did have the family tree provided and this was referenced at paragraph 14 of his decision. As set out the FtTJ referred to the account given that the dispute was with his father's stepbrothers (Q73-74). Q73 refers to fearing from "3 of my dad's stepbrothers and Q74 refers to Q : how did this problem begin 18 - 19 years ago? A; "so after my grandfather passed away this problem started since 18 - 19 years ago, my father was alone, and they are his 3 stepbrothers that is why the problems started with the land." And see Q75 which also refers to dispute with "3 stepbrothers".
89. In his assessment of the evidence, the FtTJ considered the family tree but found that the appellant's description of who the dispute is with has been inaccurate. The FtTJ was entitled to take into account the asylum interview at questions 73 - 74 that the dispute was with his father's stepbrothers. The transcript provided on behalf of the appellant does not challenge the interview responses given by the appellant in interview by reference to questions 73 and 74. The FtTJ clearly had regard to the family tree and was entitled to find that it was not consistent with what the appellant had said in his interview, where he found " the family tree shows otherwise. The appellant's father has no brothers, whether full, half or step. The family tree indicates the dispute is with the descendants of the appellant's grandfather's half- brother. So this would be his father's cousins. I take into account the appellant's claims about his level of education. But even taking that into account, I consider the appellant would know what a brother, or heart or stepbrother, is. Given that this is the core of the appellant's claim for protection, it is reasonable to expect the appellant to be able to accurately describe who exactly the dispute is with, and the appellant has not been able to do this." Consequently the factual finding made at paragraph 14 was open to the FtTJ to make and he gave reasons as to why he did not accept the appellant's evidence. There is no error of law on that basis.
90. As Ms Young submits, the asylum interview questions referred to at paragraph 14 of the FtTJ's decision do not appear in the transcript and therefore cannot establish that the interview record is inconsistent.
91. Mr Bashir submitted that the other point that the judge found against him related to paragraph 12.
92. Para 12 reads : "in evidence Mr Bhurton drew to my attention interview answers that were inconsistent with his account. His oral evidence was that 1 of his sisters lived in the UK. However at SCR 3.4 when asked if the appellant had any family in the UK, his answer was "no close family father's sister is here I do not know her." In evidence the appellant said he did not understand the question. I do not accept this. The question is clear. I consider that the appellant deliberately withheld the information that his sister was in the UK at the screening interview, and while this is not the core issue in the appeal, this does damage his credibility."
93. In this respect Mr Bashir referred to the transcript at page 47 where reference was made to having a sister called F who was in the UK. He submitted that the FtTJ was in error by accepting a flawed decision letter due to the interpretation.
94. There is no error of law established by reference to paragraph 12 of the FtTJ's decision and the account as to whether the appellant had a sister in the UK. The point made by the FtTJ related to the screening interview and the appellant's response to question 3.4 ( see p 81 27/12/2019) where he was asked "do you have any family in the UK or any other European country? The appellant's response is, "no close family and father's sister is here. I do not know her. Nor do I have any contact with her."
95. This was what the FtTJ had recorded at paragraph 12. As submitted by Ms Young, that it was this discrepancy which was put to the appellant in oral evidence during the hearing where an explanation was provided that he did not understand the question. The FtTJ took account of that evidence but rejected it and he was entitled to do so having had the opportunity to hear the evidence. The submission made by Mr Bashir which relied upon the transcript referred to the asylum interview ( see Q21-26) however the FtTJ at paragraph 12 relied upon the screening interview and that the appellant was given an opportunity at the hearing to address this, but the judge rejected his evidence. The judge was therefore not mistaken on the appellant's evidence on the basis that there was an inconsistency explained by the transcript.
96. In order for the appellant to succeed on ground 1 there needs to be established a material error of law in relation to the FtTJ's decision and the findings he made not the decision letter. For the reasons set out above, the challenge made to the factual findings on the basis that they were not open to the FtTJ to make because the transcript identified problems with the interview, is not made out.
97. There are other factual findings that are not challenged. At paragraph 11, the FtTJ set out that the appellant's credibility was severely damaged by his delay in claiming asylum. The FtTJ found on the evidence, " the appellant claimed his problems began before it came to the UK. He became an overstayer in 2010. He was encountered by the authorities in 2014 but did not claim asylum. He did not claim asylum until 2019, and even then only after he was detained. I do not consider that the appellant has provided a good explanation for delaying so long in claiming asylum. I consider that if the claims made by the appellant were true, it is likely that he would have claimed asylum at least around the time that his leave to remain expired in 2010. The lengthy delay in claiming asylum damages the appellant's credibility."
98. When considering Section 8 of the 2004 Act in the context of delay in claiming asylum, the Judge concludes at paragraph 11 that the appellant did not have a reasonable explanation and considers that this damages his credibility. This analysis is one part of the Judge assessing the appellant's credibility and is, in my judgment, in line with the 2004 Act and the interpretation of it in JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878 at [20] where the court of Appeal decided that the explanatory clause in s8(1) which states that "the deciding authority shall take account, as damaging the claimants credibility, of any behaviour to which the section applies" is to be read as either "as potentially damaging the claimants credibility", or "when assessing any damage to the claimants credibility".
99. At paragraph 13 the FtTJ records the differences in the account he gave at the screening interview and his subsequent account. In essence that the appellant had relied upon an account which referred to his cousin stealing some of his land whereas he subsequently claimed that the issue related to his father's land and not his own land. The transcript does not deal with the screening interview. Other findings relate to the description of who the dispute was with (paragraph 14), and at paragraph 16 the FtTJ set out that even on the appellant's account it was unclear why he would still be of interest the family who have seized the land. His father continued to live in the same area and even on the appellant's own case had no problem for a number of years. The cousins that had seized and occupied the land had built upon it and assuming the appellant did not take any steps to try and reclaim the land, the judge found it was hard to see why he would still be of interest to his cousins. The judge also found that that fact also made it surprising that the appellant's cousins would suddenly make contact with him to threaten him in 2017, which was a period of at least 9 years from when they last saw him.
100. The factual findings made between paragraph 17 - 19 relate to the documents. Whilst the grounds at paragraph 2 asserted that the FtTJ was confused about the arrest warrants and the legal proceedings and PK's links to the dispute, as set out above the Upper Tribunal refused to grant permission on Ground 2 having stated that it discloses no arguable error and gave reasons that where ground 2 takes issue with the Judge's rejection of documentary evidence at paragraph 24 that conclusion was in the context of the Judge's analysis of evidence between paragraphs 17 to 21 including the legal evidence. That analysis was detailed and unarguably open to the Judge and is not arguably perverse.
101. For those reasons, Ground 1 has no not been made out.
102. Dealing with ground 3, it is argued on behalf of the appellant that the FtTJ failed to consider objective material . The grounds highlight specific documents for example, the January 2018 CPIN "opposition to the government" and Bangladesh political opponents (see the written grounds). In essence what is submitted on behalf of the appellant is that political affiliations appear to be reasons for arrest and spurious charges. Additionally it is argued that those connected with the Awami League such as the man identified as PK are able to fabricate criminal charges.
103. Having considered those grounds in the context of the decision of the FtTJ, it is not established that the FtTJ erred in law on the basis advanced in ground 3. The FtTJ plainly had regard to the evidence and there is no requirement to set out each and every reference in his factual assessment. The lack of specific reference to any particular material did not mean that he had not considered it. In the context of the evidence in this particular appeal, the appellant had not established before the FtTJ the underlying facts to demonstrate that there were either false charges brought against him or that he had any links to the man PK.
104. The FtTJ made a number of factual findings upon the documentary evidence relating to the legal cases which were claimed to have been brought against the appellant between paragraph 17 - 19 of his decision. In essence, the FtTJ did not find the documents to be reliable documents upon which he could place weight (see summary at paragraph 25). The factual findings made upon the assessment of that evidence was that the appellant was unable to provide explanatory evidence as to why the case had been lodged against his father ( see paragraph 17), that the content of the documents was not factually correct (18 and 19) and that the timing of the documentation and when it was provided was not consistent with the claim (see paragraphs 18 and 19). As set out above UTJ Keith did not grant permission to challenge those factual findings having found that the rejection of the evidence and the analysis was detailed and unarguably open to the FtTJ. That being the case the appellant has not demonstrated any factual basis to support the country material which related to false claims being brought. In other words whilst the material referred to political affiliations as reasons for arrest and prosecution the FtTJ concluded that the documents provided were unreliable for the reasons he gave and thus rejected the factual claim that he was facing false proceedings in Bangladesh.
105. As regards the individual PK, the FtTJ addressed that evidence at paragraph 20 of his decision. The FtTJ took into account the Facebook evidence that PK was a person and was a political figure of some description but reached the finding that the documentary evidence did not establish any connection between PK and the claims made by the appellant. Whilst Mr Bashir relied upon the same objective evidence to demonstrate that politicians are able to fabricate criminal charges to political opponents of the BNP and other individuals, that ignores the factual claim made that it had not been established that PK had any links to the appellant's factual claim concerning the land dispute.
106. For those reasons it has not been established that the grounds demonstrate any errors of law in the decision reached by the FtTJ. In conclusion and when properly analysed, the grounds of challenge amount to no more than a disagreement with the decision. Consequently it has not been demonstrated that there were errors of law which vitiated his overall adverse conclusions on the appellant's credibility, his account and the issue of risk on return as the grounds assert therefore the decision of the FtTJ shall stand.
Notice of Decision:
107. The decision of the First-tier Tribunal did not involve the making of an error on a point of law; the decision of the FtTJ shall stand.
Upper Tribunal Judge Reeds
Upper Tribunal Judge Reeds
24 March 2025