AH (Disputed Nationality, Risk on return, Rohingya Muslim) Burma [2004] UKIAT 00085 (27 April 2004)


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United Kingdom Asylum and Immigration Tribunal
You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> AH (Disputed Nationality, Risk on return, Rohingya Muslim) Burma [2004] UKIAT 00085 (27 April 2004)
URL: http://www.bailii.org/uk/cases/UKIAT/2004/00085.html
Cite as: [2004] UKIAT 85, [2004] UKIAT 00085

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    APPEAL No. AH (Disputed Nationality – Risk on return – Rohingya Muslim ) Burma [2004] UKIAT 00085

    IMMIGRATION APPEAL TRIBUNAL

    Date of hearing: 16 April 2004

    Date Determination notified: 27/04/2004

    Before

    His Honour Judge N Ainley (Vice President)
    Mr P R Lane
    Mr P Bompas

    Between

     

      APPELLANT
    and  
    Secretary of State for the Home Department RESPONDENT

    For the appellant: Ms K Maciel of Counsel instructed by Amin Welch & Co. Solicitors.
    For the respondent: Mr G Saunders, Home Office Presenting Officer.

    DETERMINATION AND REASONS

  1. This is an appeal from the determination of Mr Mitchell sitting on 13 October 2003. The claimant, whose appeal this is, claims to be a citizen of Burma. He says that he is a Rohingya Muslim of Bengali ethnicity from the far west of Burma. The Adjudicator came to the conclusion that he was not Burmese at all and also came to various other conclusions about his claimed history.

  2. Although there were challenges to the Adjudicator's credibility findings in the grounds of appeal these were not pursued before us in oral argument, with the exception of the Adjudicator's findings as to the nationality of the claimant.

  3. We will first, therefore, deal with the facts as presented before us insofar as they appear to be relevant to the issues we have to decide.

  4. The claimant was born on 1 October 1962. His language is Bengali. He said that he left Burma on 4 February 2003 and arrived in the United Kingdom on 11 February 2003 by lorry from France. He applied for asylum only on 5 March 2003 but stated that he had attended at a firm of solicitors the day after his arrival to set an asylum claim in motion.

  5. On his account he was born and lived until adulthood in the village of Necharbagal in the region of Maungdaw in Burma. He was a farmer.

  6. He said that he had been arrested in May 1990 because of political activities but was released after a few days. Then, in March 1992 he and his family were forced out of Burma into Bangladesh and remained there in a camp until 1996 when they were returned under the supervision of the UNHCR to Burma.

  7. The account that he gave of what happened to him thereafter as accepted by the Adjudicator was that he had little or no trouble from the authorities from 1996 until 2003 and lived his life as a farmer.

  8. He did assert, however, that he was arrested and detained in January 2003 although he did not give consistent reasons behind his detention. However, whatever the reason for his detention was, if it occurred, he was released on payment of a bribe having been detained only for a very short period of time. He then decided to leave Burma.

  9. The Adjudicator was not satisfied that his account of being Burmese was true at all. In coming to that conclusion the Adjudicator relied heavily on the Secretary of State's reasons for refusal letter. That letter makes a number of assertions which the Adjudicator adopted, amongst which were that the claimant did not speak the particular dialect of Bengali which he would speak were he of the Rohingya tribe, that he did not have any sufficient knowledge of the area of Burma from which he said he came, that he could not speak Burmese at all, and, although this is not specifically mentioned by the Adjudicator that he said he was being persecuted by people called the "Maugh" of whom the Secretary of State could find no trace. The Adjudicator also came to the conclusion that his geographical knowledge was imperfect because the Adjudicator, on materials before him, could not verify the geographical details provided by the claimant, such as rivers, villages or town names that were given.

  10. We have been provided with better material than the Adjudicator had and we have also had access to the Times Atlas which covers Burma in considerably greater detail than that available to the Adjudicator. That shows that close to where the claimant says he came from there is indeed a river called the Naf as he asserts. This river forms the southernmost part of the border between Bangladesh and Burma and flows past the town of Maungdaw to which the claimant also referred and to which municipal area he said his village belonged.

  11. It seems to us that the point that appeared to the Adjudicator to be of importance; that is his relative lack of geographical knowledge of the area he claimed to come from, is not a strong point, and we are of the view that his geographical knowledge is stronger than had been thought.

  12. Another point that clearly impressed the Adjudicator was the assertion by the Secretary of State that he did not speak the right dialect of Bengali. This was mentioned specifically by the Adjudicator in his determination.

  13. When granting leave the Tribunal also was concerned with this point and specifically mentioned it in the grant of leave as being a matter of importance. This was reinforced when further directions were given on 3 March 2004 and the parties were invited to submit expert evidence as to the linguistic question. The reason this matter appeared to be of importance was because it seemed to be capable of being decisive of the factual issues in this case.

  14. In submissions before us the Home Secretary stated through his representative that he also considered this a matter of vital importance. In those circumstances it is greatly to be regretted that the Home Secretary has not provided any evidence whatever to back up the assertion as to dialect in the reasons for refusal letter. We have no idea whether there is any validity in that assertion whatever. Counsel for the claimant told us that on their part her solicitors had attempted to obtain expert evidence but had not succeeded in the time available. That cannot excuse the Home Office's failure to adduce such evidence if it exists, because this has been a matter that they have considered to be of importance and of which they claim to have had knowledge since the date of the reasons for refusal letter, which was 18 June 2003.

  15. We are left in the position where the only evidence of a linguistic nature that is before us is the evidence of the claimant himself and he says that the dialect that he and other Rohingya speak is a dialect of Bengali that is distinct but not greatly distinct from the main form of that language. There is no evidence to contradict this, the Home Secretary has had sufficient notice to adduce evidence, if it exists, to the contrary but he has not done so and therefore we accept the claimant's evidence that the dialect that he speaks is the dialect that one would expect a Burmese Rohingya Muslim to speak.

  16. A further point that was made was that of the inability of the claimant to speak Burmese.

  17. The background material shows that the Rohingya are largely excluded from mainstream Burmese society and further that they live in an area of Burma very close to the Bangladeshi border and would seem to have little contact with the remainder of the country. In those circumstances it does not seem surprising to us, in the absence of any evidence to the contrary, that a poorly educated farmer immersed in his own Rohingya Muslim culture and surroundings would speak Bengali and no other language despite the fact that the language of the state is Burmese.

  18. A final point that was in the refusal letter is the identity of the Maugh. This matter has been cleared up to our satisfaction by the claimant's solicitors who have produced an ethnologue document which shows that the Arakanese, who are Burmese speakers, albeit they speak a distinct dialect, are known, amongst other names as the Maugh or Mogh both in Burma and in Bangladesh.

  19. We have come to the conclusion, having had the benefit of greater detailed explanation of the various factual matters than the Adjudicator had, that to the lower standard the claimant has established that he is indeed what he claims to be, which is a Rohingya Muslim from Burma.

  20. That being the case the question that falls to be decided is whether, as a Rohingya Muslim, he would be at real risk of persecution on return to Burma. This would be against the background that he had been part of a mass expulsion by the Burmese authorities in the earlier 1990s but had returned in 1996 and had been arrested but released after a very short period on payment of a bribe in early 2003. He gave three reasons for his arrest and detention in January 2003 all of which were rejected by the Adjudicator, but as the Adjudicator went on to say, even if he had been detained as he claimed it appears the authorities have got no interest in him.

  21. The first point that was made on his behalf was that the Burmese do not accept deportees back to Burma. That may be the position but we cannot allow that to influence our judgment as to whether this claimant has the status of refugee in this country, for that turns on whether, if actually back in Burma, he would be at real risk of persecution.

  22. The next matter that was raised was that because he left the country illegally to go to the west he would be perceived to have a particular political opinion. We can deal with this point shortly because we have no evidence that that would be the case. There is no material before us that shows that a failed asylum seeker is at risk of persecution on return unless he has a political profile.

  23. Finally it was submitted that because he is of the ethnicity that he is that in itself would put him at real risk of persecution. There was not a great deal of information placed before us that would assist on this particular point but we did have the benefit of the CIPU Bulletins on Burma that have been produced and are dated June 2002 and February 2003. These show that large numbers of Rohingya fled across the border to Bangladesh in 1991 and 1992 because of security force atrocities in Burma. Repatriation began in 1995 when about two hundred thousand people were marked as returnees. In 1996 a further twenty three thousand were repatriated amongst whom the claimant says he is one. They were felt by the UNHCR to be safe in October 1997 although the Burmese authorities were reluctant to grant full citizenship and maintained travel restrictions upon them. Since then there have been occasional returns of Rohingya, the most recent known to us being on 24 November 2002 when either three thousand five hundred or five thousand arrived outside the UNHCR office in the relevant region of Bangladesh.

  24. The position of Rohingyas in Burma appears to us to be one of marginalisation. They are not fully accepted by the Burmese authorities as being equal citizens and they are subjected to restrictions on travel by those authorities. There is, however, no evidence before us to show that being a Rohingya, or more particular being a Rohingya with the background of this claimant, would lead to a real risk of persecution on return. The claimant it will be remembered lived without difficulty from 1996 to 2003 in his area and when detained was released after only a short period of time. We infer from the material that has been placed before us that being a Rohingya could well lead one to harassment and to discrimination but that is not the same as persecution.

  25. It seems to us that if the claimant were returned to Rangoon he would almost certainly be found by the authorities to be in breach of the travel restrictions on Rohingyas, but that in our judgment would lead to the Burmese authorities returning him to the area where Rohingyas, according to them, should be and remain.

  26. In all the circumstances, therefore, and for the reasons which we have given above we consider that this appeal must be dismissed, albeit our findings on fact are different from some of those of the Adjudicator.

    27. His Honour Judge N Ainley

    Vice President

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URL: http://www.bailii.org/uk/cases/UKIAT/2004/00085.html