[2003] UKIAT 201
- Case title: JJ (Assessment of credibility)
- Appellant name: JJ
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Sri Lanka
- Judges: Mr J Freeman, Mr C Thursby
- Keywords Assessment of credibility
The decision
KH
Heard at Field House
JJ (Assessment of Credibility) Sri Lanka [2003] UKIAT 00201
On 12 December 2003
IMMIGRATION APPEAL TRIBUNAL
Corrected transcript of decision given at hearing
Signed: 15.12.2003
Issued: 19.12.2003
Before:
Mr J Freeman (Chairman)
Mr C Thursby
Between
APPELLANT
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
RESPONDENT
Representation:
For the appellant: Mr J Martin, counsel instructed by M K Sri & Co.
For the respondent: Mr P Deller, Home Office Presenting Officer.
DETERMINATION AND REASONS
This is an appeal by a Tamil citizen of Sri Lanka against the decision of an adjudicator, Mr N J Blandy, sitting at Hatton Cross on 13 May 2003, dismissing his appeal on both asylum and human rights grounds.
2. This appellant says he had been a medical orderly for the Tamil Tigers between 1990 and 1993. However, his first brush with the authorities had come in January 2000. He deals with this in his witness statement: the army had come to the family house, saying they were looking for his brother, but also telling the claimant they suspected him of involvement with the Tamil Tigers. As a result of that incident, he says his parents made arrangements for him to go to Colombo, which he did without incident.
3. However the claimant describes what happened there as follows:
On 23 March 2000 when I had been in Colombo for about two days the police came to the lodge to carry out checks. I was arrested with eight other people who were staying in the same lodge, I was detained for four days they interrogated me accusing me of being involved with the LTTE. They asked me why I had come to Colombo and what my connections were with the LTTE, I denied having any such connections. They hung me upside down for about half an hour on three occasions, they kicked me and beat me with batons, they pushed me against the wall, on one occasion they shut my penis in a drawer. On three of the days of my detention they burnt me with a candle.
The statement goes on to describe how the appellant left Sri Lanka and came to this country. There was some confusion about the dates, but it is clear that on his case they were all in the middle of the year 2000.
4. The adjudicator did not accept the first January detention and nothing further turns on that. He did accept that the appellant had been detained in Colombo but these were his views (at § 6.2) on what had happened:
He produces no medical evidence in support of his allegation. He produces a series of photographs of scarring which he alleges was caused by candle wax being spilled upon him. The reason why candles are in general use and are not regarded as hazardous is that candle wax in fact melts at a relatively low temperature and simply does not cause any injury to adult skin. In his SEF form he mentioned being hung upside down and being beaten seriously with boots and batons but mentioned nothing about his penis being shut in a drawer or being burned by candle wax. There is no allegation of being burned by candle wax at his interview either. Notwithstanding the submission made by Mr O’Brien I do not find it credible that the appellant’s scarring shown in photographs 1-5 was caused by candle wax and I consider his allegation to this effect to be a complete fabrication and highly damning to his credibility. I also note that the appellant has produced no medical evidence in support of his allegation that his penis was shut in a drawer. Such an event, if true, would be likely to cause serious permanent injury to such soft tissue.
5. Leave was given to challenge those credibility findings, no point of law being required at that time. The grounds (not Mr Martin’s) on which leave was given suggest that the adjudicator was not entitled to reach the findings he did, either on the penis incident, or the candle-wax burns without medical evidence. Mr Martin very realistically did not pursue what we must apologise for describing as the penis point; but he did pursue the candle. He suggested that a candle might be used to cause burn injuries in a number of ingenious ways; and made the point that not all items on public sale are safe.
6. That is no doubt true; but most people have dropped candle wax on themselves in the course of their lives: it is a matter of ordinary knowledge of life that the temperature at which it melts is not such as to cause any significant harm to adult skin. We have no doubt at all that the adjudicator was well entitled to use his common sense as he did on this, as it is now acknowledged he was on the penis point. (We note in passing (see § 3.2) that the appellant had said at interview that his captors would place his penis in a drawer and shut it tight).
7. Adjudicators are constantly exhorted to consider cases as would a jury, and we have no doubt what a jury would have made of this one. The only difference between the function of an adjudicator and that of a jury is that an adjudicator, like other professional tribunals, is required to give reasons. Mr Blandy did so, and in our view they are not challengeable. The suggestion that some medical evidence was required comes ill from an appellant who was best placed to provide it if it had been. There is and was none in this case.
8. The adjudicator’s credibility findings leave this appellant as somebody who was subject to a routine arrest in Colombo in March 2000, eighteen months before the ceasefire. There was no serious ill-treatment, nor anything else on the adjudicator’s findings to show that he was an exceptional case in terms of Jeyachandran [2002] UKIAT 01869, or that he might still be “wanted” in terms of Selvaratnam [2003] EWCA Civ 121.
9. Realistically Mr Martin put forward only one point to suggest that he might either have been “exceptional” or “wanted”. That comes from the appellant’s witness statement at paragraph 10:
After coming to the United Kingdom I heard from relatives in this country that my father had been detained I understand that he was arrested after the army had come to the house looking for my brother and me. I also understand that he has now been released.
10. That was not a point pursued by counsel (not, as we have already made clear, Mr Martin) before the adjudicator or in the grounds of appeal. It is always an easy type of allegation to make in these cases. There may be arguments, to which Mr Martin alluded, as to what documentary evidence of the claimant’s father’s arrest might or might not have been available; but if it had seriously been intended to pursue it before the adjudicator, then at least the relations who had been the source of the original information could have been called.
11. Even taken at its highest that passage from the witness statement gives no indication whether this incident occurred before or after the ceasefire. It follows that in our view it provides no basis, even if it were true, which for the reasons we have already indicated we do not accept, for displacing the adjudicator’s findings.
The result is that the appeal is dismissed.
John Freeman
(chairman)
Heard at Field House
JJ (Assessment of Credibility) Sri Lanka [2003] UKIAT 00201
On 12 December 2003
IMMIGRATION APPEAL TRIBUNAL
Corrected transcript of decision given at hearing
Signed: 15.12.2003
Issued: 19.12.2003
Before:
Mr J Freeman (Chairman)
Mr C Thursby
Between
APPELLANT
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
RESPONDENT
Representation:
For the appellant: Mr J Martin, counsel instructed by M K Sri & Co.
For the respondent: Mr P Deller, Home Office Presenting Officer.
DETERMINATION AND REASONS
This is an appeal by a Tamil citizen of Sri Lanka against the decision of an adjudicator, Mr N J Blandy, sitting at Hatton Cross on 13 May 2003, dismissing his appeal on both asylum and human rights grounds.
2. This appellant says he had been a medical orderly for the Tamil Tigers between 1990 and 1993. However, his first brush with the authorities had come in January 2000. He deals with this in his witness statement: the army had come to the family house, saying they were looking for his brother, but also telling the claimant they suspected him of involvement with the Tamil Tigers. As a result of that incident, he says his parents made arrangements for him to go to Colombo, which he did without incident.
3. However the claimant describes what happened there as follows:
On 23 March 2000 when I had been in Colombo for about two days the police came to the lodge to carry out checks. I was arrested with eight other people who were staying in the same lodge, I was detained for four days they interrogated me accusing me of being involved with the LTTE. They asked me why I had come to Colombo and what my connections were with the LTTE, I denied having any such connections. They hung me upside down for about half an hour on three occasions, they kicked me and beat me with batons, they pushed me against the wall, on one occasion they shut my penis in a drawer. On three of the days of my detention they burnt me with a candle.
The statement goes on to describe how the appellant left Sri Lanka and came to this country. There was some confusion about the dates, but it is clear that on his case they were all in the middle of the year 2000.
4. The adjudicator did not accept the first January detention and nothing further turns on that. He did accept that the appellant had been detained in Colombo but these were his views (at § 6.2) on what had happened:
He produces no medical evidence in support of his allegation. He produces a series of photographs of scarring which he alleges was caused by candle wax being spilled upon him. The reason why candles are in general use and are not regarded as hazardous is that candle wax in fact melts at a relatively low temperature and simply does not cause any injury to adult skin. In his SEF form he mentioned being hung upside down and being beaten seriously with boots and batons but mentioned nothing about his penis being shut in a drawer or being burned by candle wax. There is no allegation of being burned by candle wax at his interview either. Notwithstanding the submission made by Mr O’Brien I do not find it credible that the appellant’s scarring shown in photographs 1-5 was caused by candle wax and I consider his allegation to this effect to be a complete fabrication and highly damning to his credibility. I also note that the appellant has produced no medical evidence in support of his allegation that his penis was shut in a drawer. Such an event, if true, would be likely to cause serious permanent injury to such soft tissue.
5. Leave was given to challenge those credibility findings, no point of law being required at that time. The grounds (not Mr Martin’s) on which leave was given suggest that the adjudicator was not entitled to reach the findings he did, either on the penis incident, or the candle-wax burns without medical evidence. Mr Martin very realistically did not pursue what we must apologise for describing as the penis point; but he did pursue the candle. He suggested that a candle might be used to cause burn injuries in a number of ingenious ways; and made the point that not all items on public sale are safe.
6. That is no doubt true; but most people have dropped candle wax on themselves in the course of their lives: it is a matter of ordinary knowledge of life that the temperature at which it melts is not such as to cause any significant harm to adult skin. We have no doubt at all that the adjudicator was well entitled to use his common sense as he did on this, as it is now acknowledged he was on the penis point. (We note in passing (see § 3.2) that the appellant had said at interview that his captors would place his penis in a drawer and shut it tight).
7. Adjudicators are constantly exhorted to consider cases as would a jury, and we have no doubt what a jury would have made of this one. The only difference between the function of an adjudicator and that of a jury is that an adjudicator, like other professional tribunals, is required to give reasons. Mr Blandy did so, and in our view they are not challengeable. The suggestion that some medical evidence was required comes ill from an appellant who was best placed to provide it if it had been. There is and was none in this case.
8. The adjudicator’s credibility findings leave this appellant as somebody who was subject to a routine arrest in Colombo in March 2000, eighteen months before the ceasefire. There was no serious ill-treatment, nor anything else on the adjudicator’s findings to show that he was an exceptional case in terms of Jeyachandran [2002] UKIAT 01869, or that he might still be “wanted” in terms of Selvaratnam [2003] EWCA Civ 121.
9. Realistically Mr Martin put forward only one point to suggest that he might either have been “exceptional” or “wanted”. That comes from the appellant’s witness statement at paragraph 10:
After coming to the United Kingdom I heard from relatives in this country that my father had been detained I understand that he was arrested after the army had come to the house looking for my brother and me. I also understand that he has now been released.
10. That was not a point pursued by counsel (not, as we have already made clear, Mr Martin) before the adjudicator or in the grounds of appeal. It is always an easy type of allegation to make in these cases. There may be arguments, to which Mr Martin alluded, as to what documentary evidence of the claimant’s father’s arrest might or might not have been available; but if it had seriously been intended to pursue it before the adjudicator, then at least the relations who had been the source of the original information could have been called.
11. Even taken at its highest that passage from the witness statement gives no indication whether this incident occurred before or after the ceasefire. It follows that in our view it provides no basis, even if it were true, which for the reasons we have already indicated we do not accept, for displacing the adjudicator’s findings.
The result is that the appeal is dismissed.
John Freeman
(chairman)