Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA000252015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25 May 2016
On 17 June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

[k k]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr D Coleman of Counsel
For the Respondent: Miss A Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS

Introduction

1. The appellant is a Sri Lankan national born on [ ] 1994. He appeals to the Upper Tribunal (UT) with permission of Upper Tribunal Judge Coker given on 13 April 2016. Judge Coker identified an arguable error of law in the decision of the First-tier Tribunal (FTT) in that he said that the immigration judge who heard the case considered the evidence before him without reference to the medical evidence but then assessed the medical evidence discounting it because of his adverse credibility findings. She thought the other grounds to be "not so strong" but gave permission to argue all grounds.

Background

2. The appellant first came to the UK on 2 December 2014. He claimed asylum shortly thereafter. A screening interview was conducted the following day. The substantive asylum interview took place on 17 December 2014. The appellant claimed in interview to be a Tamil of Hindu religion. He claimed to be from Kaithady Jaffna. He claimed that his father was in charge of the Kaithady LTTE finance and that this involved other members of the family collecting money from people for the LTTE, for example, the appellant's grandmother collected money for them. The appellant's sister was required to go to Vanni with his father but the appellant, his father and sister had no contact with each other since November 2005. The appellant claims that his own problems began on 25 May 2014 when he was blindfolded and put in a van by two men. He was then taken to a camp run by the Sri Lankan Army. There, he claims, he was put in a room and tortured for five or six days. He claims that he was physically beaten about the head and punched on his nose. He claims that they wished to know the whereabouts of his father and sister. Eventually, the appellant was driven to an unknown place where an elderly man on a bicycle found him and took him to a house. From there, the appellant was taken by rickshaw back to his home town of Kaithady. When he got home he told his grandmother what had happened to him and the appellant's grandmother told his uncle what had happened. The appellant did not seek medical treatment for the injuries he received. The appellant claims that following his release the army came to his house once but they did not search his house. The appellant did not dare to go with them but stayed inside. They "peeped their heads" into the lounge and then left.

3. The appellant claims that on 16 November 2014 he was taken again and tortured for further information. On this occasion he was blindfolded by men of the CID who came to his house. They told him that they knew where his father and sister were as they had them in custody. They accused the appellant of telling lies and physically beat him. They also sexually tortured him. They said he would be transferred to a different camp and gave him his clothes back. The appellant had his fingerprints taken and he was made to sign some papers. The appellant was then taken to his uncle's house and he stayed for about three days. The appellant's uncle paid a ransom to get him released. Following his release, the appellant decided, with the help of his uncle, to escape from Sri Lanka. He therefore flew to Singapore and from there to an unknown country before entering Uzbekistan. From Uzbekistan he took a direct flight to the UK.

4. The respondent rejected the application because he did not accept it was true. He took account of the background information but it was not accepted that the Sri Lankan government would wish to detain the appellant. His allegations of torture were noted but not accepted. The respondent considered the appellant had knowingly entered the UK using a false passport and therefore Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 was engaged. The respondent did not accept the appellant had a genuine fear of future persecution or a need for international protection.

5. The appellant's appeal against the decision to refuse asylum/recognise his claim for human rights protection/humanitarian protection came before Judge of the First-tier Tribunal Manyarara who rejected it. The Immigration Judge did not accept the appellant's account and noted that the appellant had not had any contact with his father since 2005. He commented on the lack of detail and referred to a number of authorities on scarring. The appellant's injuries were referred to in a medical report by Mr Martin which was before the judge. The judge concluded that the appellant had been unable to discharge the burden which rested on him and as a "healthy man" could return to Sri Lanka safely. So the Immigration Judge concluded that the appeal should be dismissed on all grounds on which it had been argued.

The Upper Tribunal Proceedings

6. The respondent submitted a response under Rule 24 of the Upper Tribunal Procedure Rules 2008 stating that there was no material error of law as the Immigration Judge had given clear reasons for rejecting the appellant's account, due to the narrative not being credible. Furthermore, the adverse findings in relation to the appellant's father's involvement with the LTTE and the lack of ongoing interest by the authorities in the appellant would not be altered by the medical evidence. The Immigration Judge was aware of the medical evidence and therefore this was not a case where the error was material.

7. At the hearing I heard submissions by both representatives. Mr Coleman submitted that the Immigration Judge had dealt with the other evidence first and then the medical evidence. He pointed out that paragraph 44 of the decision consisted of a rejection of the appellant's claim whereas paragraph 50 contains the Immigration Judge's adverse credibility findings in relation to certain scarring found on the appellant. Mr Coleman submitted that the Immigration Judge was wrong to conclude the appellant had not suffered these injuries as the result of torture. He referred to a case called SA Somalia [2006] EWCA Civ 1302 which, he claimed, said that all the evidence had to be considered before an adverse credibility finding could be made. In any event, his client suffered from psychological trauma and it was not accurate of the Immigration Judge to say, as he did, that the appellant was in "good health".

8. Ms A Brocklesby-Weller, for the respondent, said that she relied on Rule 24 response. Even if there was some error in the approach to the medical evidence this had not been the main issue in the case. The Immigration Judge had made comprehensive findings. The decision of the First-tier Tribunal (FTT) was not tainted by any failure to approach the medical evidence in the correct way. In relation to a number of issues, including the father's involvement with the LTTE, whether the appellant was tortured as claimed and his ongoing interest to the authorities of Sri Lanka, the Immigration Judge had been able to make clear findings and it was not clear how they were related to the medical evidence. It was fundamental to the appellant's case that his father was an LTTE member if that account was to be believed. However, this was rejected by the Immigration Judge. The medical evidence was not likely to assist this issue. Ms Brocklesby-Weller noted that the appellant's case was that he had lived with his grandmother in Sri Lanka and had extensive family or friends there. There was no corroboration of his account as his father had been a volunteer in the LTTE.

9. I was referred to the leading case of GJ, which suggests that the authorities of Sri Lanka are only concerned with persons who pose a genuine threat to the state of Sri Lanka. It was submitted that there was no immediate risk of reprisals. It is the respondent's view that there was no immediate risk of reprisals to the appellant. The appellant's complaints relate to 2014 some five years after the cessation of hostilities. Ms Brocklesby-Weller accepted that corroboration was not a legal requirement but nevertheless it was relevant to look at the quality of the evidence overall and there was an absence of any evidence to corroborate the appellant's account. Allegations relating to the appellant's father were not supported by anyone else.

10. The Immigration Judge had commented at paragraph 38 on the absence of contact between the appellant and his father since 2005. This was described by her as "remarkable". The Immigration Judge was entitled to look at the inherent implausibility of the account and to treat critically the evidence of scarring.

11. In addition to the case of GJ the Immigration Judge also referred to the leading case of KV. These references demonstrate that the Immigration Judge had the up to date country guidance material in mind throughout his decision.

12. Ms Brocklesby-Weller thought the medical evidence was not determinative of the case and the FTT had made clear findings of fact which could be sustained by the Upper Tribunal. There were a large number of "holes" in the appellant's account. As far as the medical evidence was concerned the Immigration Judge was entitled to reject it. She failed to see the relevance of the psychiatric evidence. She particularly relied on paragraph 30 of the decision where the Immigration Judge states that he had considered both the burden and standard of proof and had looked at the evidence in the round. He had taken account of all the evidence both oral or written.

13. As far as the medical report by the A&E consultant was concerned, this was largely based on the appellant's own account, the truthfulness of which was challenged by the respondent. As far as the psychiatric report was concerned, there were no significant memory lapses nor was this suggested. Overall, the Immigration Judge would be entitled to reject the medical evidence as well as the other evidence.

14. Ms Brocklesby-Weller conceded that in the event an error of law was found by the UT it would be necessary to remit the matter to the FTT to hear the case de novo.

15. By reply Mr Coleman accepted only the last point. He said that the Immigration Judge had made numerous factual errors about the appellant's health, for example at paragraphs 76 and 71 of the decision. The Immigration Judge, fundamentally, had not looked at all the evidence before reaching his decision and his decision was "not good enough".

16. I reserved my decision as to whether there was a material error of law and if so what the most effective and fair means of disposal would be if I found such an error.

Discussion

17. The appellant claims that since he was 3 years old his father was a supporter of the LTTE and had worked in their finance department. He claims that his father had to move to Vanni in 2005. He claims that his father remained in charge of the Kaithady LTTE Finance Section. He also claimed that his grandmother collected money for that organisation. However, his own problems only began in 2014 when he was taken away by the Sri Lankan Army. At that time the appellant lived with his grandmother. The appellant was blindfolded, placed in a van and taken to a camp. Whilst blindfolded he was placed in a room for five or six days. Three men physically beat him by hitting him around the head. However, he was eventually released and was found by an elderly man on a bicycle. When the appellant explained what had happened to him he was taken by auto rickshaw to his house in Kaithady. There he decided to escape to the UK.

18. I have been referred to two authorities in support of the proposition that in considering medical evidence a judge should consider that evidence as an inherent part of his credibility findings. He should not "compartmentalise" that evidence, as happened in the cases of Mibanga [2005] EWCA Civ 367 and SA Somalia [2006] EWCA Civ 1302. I would add that a judge should keep an open mind as to all the evidence and ideally should give his conclusions in a clear and logical way explaining why he rejects any evidence.

19. I have considered carefully whether the Immigration Judge here dealt properly with the medical evidence or whether he reached conclusions on the credibility of the appellant and then, as Judge Coker thought, asked himself whether it altered his conclusions. Those conclusions included making comprehensive adverse credibility findings.

20. I have concluded that the Immigration Judge did not fall into the error of reaching conclusions first and then asking himself whether the medical evidence altered these conclusions. He clearly demonstrated that he considered all the evidence before reaching his conclusions. The Immigration Judge's decision could have been better structured but he set out the burden and standard of proof in paragraph 8 of his decision and in paragraph 19(f) set out fully the arguments for the appellant including the argument that he had suffered PTSD. This was supported by a psychiatric report which indicated that he had been sexually assaulted. The Immigration Judge noted that one of the issues he had to deal with was whether the appellant's injuries, including his physical injuries, had been inflicted in the manner complained of - i.e. torture. He made it clear that these were preliminary findings. The Immigration Judge's consideration of the case included looking at the risk factors in the leading authority of CG [2013] UKUT 00319, which has subsequently been approved in the case of MP [2014] EWCA Civ 829. Essentially, the Immigration Judge considered that whatever the historical involvement with the LTTE, the authorities in Sri Lanka did not have the inclination to pursue every past member of the LTTE. They were concerned with those who would be a genuine threat to the unity of the Sri Lankan State.

21. It seems that the Immigration Judge reached clear conclusions looking at all the risk factors and setting them against the appellant's account and the medical evidence. He found that the appellant was not of interest to the authorities, having not been a member of the LTTE in the past. Crucially, he rejected the appellant's account of his father's involvement in that organisation. He looked at the scale of scarring described in the Istanbul Protocol. He noted that the scale of consistency ran from "consistent" to "diagnostic of" torture in paragraph 46. He also noted that the report relied on in this case by Dr Martin described the scarring as "consistent with torture".

22. The Immigration Judge was specifically criticised by Mr Coleman for suggesting that the injuries the appellant suffered were "typical" of those caused by a third party and that third party must have caused those injuries at the appellant's instigation. It was suggested that there was no evidence to back up such a conclusion. I am satisfied that the Immigration Judge kept an open mind as to the possibility that the physical injuries found by Dr Martin should lead him to reach a different view of credibility despite the other unfavourable conclusions he had reached. However, the Immigration Judge made it clear, for example at paragraph 64 of his decision, that he had considered "all" the evidence "cumulatively". In my view the Immigration Judge had not closed his mind to the medical evidence leading him to a more favourable view of the appellant's case, despite his preliminary view that neither the appellant nor his father had been involved with the LTTE. However, the Immigration Judge found the appellant's account to be untrue.

23. The Immigration Judge considered the appellant's account to be untruthful. However, that finding was reached after considering all the evidence. He did not treat credibility as being determined prior to considering the medical evidence. The Immigration Judge said at paragraph 51 of his decision that the account in the medical report of Dr Martin was "largely based" on the appellant's evidence and this was so. He bore in mind that the appellant had many injuries consistent with torture.

24. The criticisms of paragraph 67-77 are unfounded. Here, the Immigration Judge is dealing "belt and braces" with the question of whether the appellant has psychological or psychiatric injuries which themselves would bring him within Article 3 of the ECHR. He clearly concluded that the appellant had no such injuries in this case. Again, the Immigration Judge reiterated in paragraph 69 that he had considered the case of Mibanga and considered whether the indication in the psychiatric report that the appellant had suffered past stress ought to lead him to conclude that the appellant's overall account was reasonably likely to be true. Although these passages contain some errors (such as the reference to the appellant being a "healthy man") they do not, in my view, essentially undermine the Immigration Judge's overall conclusions.

25. Paragraphs 78-83 of the decision deal with the question of whether an Article 8 claim arises and these have not been challenged before the Upper Tribunal.

Conclusion

26. The Immigration Judge reached conclusions that he was entitled to come to on the evidence. I agree with the respondent's Rule 24 response that whatever weight the Immigration Judge gave to the medical evidence, the appellant faced the fundamental difficulty that his account of his father's past involvement with the LTTE was rejected. The Immigration Judge did not accept that he was of any potential ongoing interest to the authorities. In any event, following the case of GJ, even if historical problems had existed and even if the appellant had been detained in 2014, as he claimed, I doubt the appellant would be of a sufficiently high profile figure to be at risk on return. This too was a conclusion the Immigration Judge was entitled to come to on the evidence.

Notice of Decision

The decision of the First-tier Tribunal does not contain any material error of law and this appeal is dismissed. The decision to refuse the appellant asylum and find that he does not qualify for humanitarian protection and/or there would be no breach of his protected human rights under the ECHR stands.

No anonymity direction is made.

Signed Date 16.6.16

Deputy Upper Tribunal Judge Hanbury

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 16.6.16

Deputy Upper Tribunal Judge Hanbury