Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00195/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11th October 2016
On 26th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE I A M MURRAY

Between

Arshad Ahmed Mohamed Najabi
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Benfield, Counsel for C K Law Solicitors, Ashford, Kent
For the Respondent: Mr Nath, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Sri Lanka born on 8th November 1990. He appealed against the decision of the Respondent dated 20th January 2016 refusing his asylum claim, his claim on humanitarian protection issues, his claim under Articles 2, 3, 5 and 8 of ECHR and his claim under the Immigration Rules. His appeal was heard by Judge of the First-tier Tribunal Hussain on 5th August 2016 and was dismissed on all grounds in a decision promulgated on 15th August 2016.
2. An application for permission to appeal was made on behalf of the Appellant and permission to appeal was granted by Upper Tribunal Judge Martin on 8th September 2016. The permission states that it is arguable that the judge erred in finding that the Deed of Gift and valuation did not refer to the same property, as both contain the same number relating to the land in question and it is arguable that this evidence is capable of adding to the Appellant's credibility. The other ground of application refers to the judge's failure to consider the medical evidence when assessing the credibility of the Appellant. The permission states that this ground is less persuasive.
3. A Rule 24 response was lodged dated 21st September 2016. This states that the judge gave a series of clear reasons for rejecting the Appellant's account and the adverse credibility findings at paragraphs 15 to 19 are more than sufficient to underpin the judge's decision. The response states that there were credibility issues arising from the Deed of Gift and the Appellant's assertion that the land was bequeathed to him by his father when it never belonged to his father and was actually gifted to the Appellant by his uncle. The response goes on to state that the judge was not obliged to consider the medical evidence in any particular order. The case of S v Secretary of State for the Home Department [2006] EWCA Civ 1153 is referred to relating to medical reports and credibility. The case of HE (DRC) [2014] UKIAT 00321 is also referred to. This states that a doctor does not usually assess the credibility of an applicant. It is not usually appropriate for him to do so. A medical report will nearly always accept at face value what a patient or client says about his history. The case goes on to state that this limits the weight which can be afforded to such a report when assessing the credibility of the claim.
The Hearing
4. Counsel for the Appellant submitted that the Appellant's claim is based first of all on the family dispute and then on government interference which the appellant claims resulted in him being tortured.
5. He submitted that there is a clear error of fact in the judge's decision about the Deed of Gift and the family home and this affects the credibility assessment. He submitted that because of this the judge has rejected the medical evidence.
6. I was referred to the Appellant's original bundle at pages 25 to 33. In these pages are the Deed of Gift and the valuation report referred to in the decision. I was asked to note that the Deed of Gift refers to land numbered 6925 as does the valuation report. I was referred to the Appellant's statement at paragraph 37 in which the Appellant states that these are the only two documents which Mr Affan's wife was able to find, to support the Appellant's claim. Counsel submitted that the judge did not realise that these two deeds related to the same property. I was referred to 2.0 in the valuation report re ownership. This reads: "Mr Mohomed Nasabi Arshad Ahamed claims absolute freehold ownership to the property by virtue of Deed of Gift N6925 dated 21st May 1993 attested by Mr A.C.M.A. Masood notary public." Counsel pointed out that the address appears to be different in the Deed of Gift from the valuation report but he submitted that the Deed of Gift gives a descriptive property address whereas the valuation gives the actual address. He submitted that the property is one and the same.
7. Counsel submitted that in paragraphs 10 to 15 of the decision the judge states that the Appellant was only able to produce one title document being a Deed of Gift and a valuation report for the family home. He submitted that the judge erred at paragraph 12 when he stated that there was no valuation for the land owned by the Appellant as the valuation report actually refers to that land. He submitted that the judge states at paragraph 15 that the Appellant failed to show that the land was valuable, which was the reason he states he was persecuted. He submitted that this is central to the Appellant's claim and this error of fact has affected the judge's other findings.
8. Counsel submitted that at paragraph 15 when the judge states: "It is unnecessary for me to deal therefore with what the Appellant says happened to him in police detention" that this is only stated because of the error of fact made by the judge about the land and it is because of this that the judge finds the Appellant not to be credible.
9. Counsel submitted that the judge should have used a holistic view of the evidence and had he done so, based on the correct facts, the Appellant would not have been found to be incredible.
10. The judge then goes on to consider the medical evidence. Counsel submitted that for the judge to state that the Appellant should have obtained another medical report relating to sexual abuse which happened many years ago, cannot be a valid comment as no medical report would show this years after anal rape had taken place. He submitted that what was produced by the Appellant was a psychiatric assessment. He referred to paragraphs 18 to 21 of the decision in which the judge states that the PTSD the Appellant suffers from cannot be related to his time in detention as due to a lack of credibility, he finds that he was not detained and tortured for the reasons given by the Appellant.
11. I pointed out that the judge has referred to other credibility findings being Section 8 issues (paragraph 23), his dishonesty as to how the land was inherited (paragraphs 13 and 14) and the fact that he did not declare sexual abuse until he was giving evidence for this hearing. Counsel submitted that the Appellant was too embarrassed to admit to sexual abuse and that was the cause of that delay.
12. The Presenting Officer made his submissions submitting that the Rule 24 response deals with all of these issues. He submitted that the judge has given a detailed decision and his reasoning is set out properly. He deals with the medical evidence based on the approach in HH (medical evidence; effect of Mibanga) Ethiopia [2005] UKAIT 00164 and he also points out a number of discrepancies in the Appellant's evidence. The Presenting Officer submitted that the judge considered the Appellant's general credibility pointed out the Section 8 issues because of his delay in claiming asylum and referred to the fact that the property belonged to the Appellant's uncle and not his father. He submitted that these are core issues. He submitted that at paragraph 29 onwards Article 8 is dealt with and the judge has carefully considered the psychiatric report which is in the Appellant's bundle.
13. The Presenting Officer submitted that the issue about the valuation report and Deed of Gift do not go to the core of the Appellant's claim. The judge has made a tight decision and has considered everything. He has made a clear finding on public interest and there is no error of law in the judge's decision.
14. Counsel submitted that because of the error of fact made by the judge he did not properly consider the medical report and the Appellant's PTSD. He submitted that delay in admitting to sexual abuse is common in a case like this and the judge gave less weight to the medical report because he made the error of fact.
Decision and Reasons
15. The Appellant's application is based mainly on the issue that the judge did not find that the valuation report and the deed of Gift refer to the same property. The submission put forward by Counsel for the Appellant is that because the number N6295 is on the valuation report and the number 6295 is on the Deed of Gift, both of these refer to the same property. The Deed of Gift refers to the property as 362 Matugama Road, Kurunduwatta, Dharga Town and makes it clear that the donor is the Appellant's uncle not his father but that his father had a liferent interest in the property. The valuation is for the property number 143 Main Street, Dharga Town, Sri Lanka. The only connection between the valuation report and the Deed of Gift is the number 6295. It is easy to see how the judge made this mistake if it is indeed a mistake. It is true that the Deed of Gift is referred to in the valuation but the judge has pointed out that the valuation was instructed by the Appellant when he was still a minor. It was not instructed by Mr Affan. Based on the evidence the judge had found that Mr Affan appeared to hold any deeds belonging to the Appellant's father, (paragraph 9) and found it strange that the valuation was not obtained by him. In the valuation report the land is described as "an allotment of land depicted as lot 01 in plan N1332 dated 17th June 1993". It is named in the valuation as Fazi Marrikkarwatta alias Para Addarawatta. The land in the Deed of Gift is described as Pasimarikkarwatta alias Para Addarawatta situated along Alutgama-Matugama Road in Dharga Town. There could still, based on these descriptions, be an argument that the valuation does not refer to the same piece of land as the Deed of Gift.
16. In the Appellant's statement he refers to his father's friend Mr Affan and he states that Affan told him that he could only do something about the properties when he was 18. The Appellant also stated that there are many properties belonging to him but no evidence has been produced of this.
17. The judge gives a number of reasons for rejecting the Appellant's account. I shall deal with the Deed of Gift and the valuation first of all.
18. At paragraph 10 the judge states that he was surprised that the only evidence of any properties belonging to the Appellant was the Deed of Gift and the valuation. He states that the only property apparently owned by the Appellant is the land identified in the Deed of Gift and he is surprised the Appellant has not been able to produce the title documents to the family home. The Appellant's argument is that this Deed of Gift is for the family home. The judge goes on to refer to the valuation report not being a legal document and not establishing the ownership of the property and he points out that it was requested by the Appellant before he was 18. This goes against the Appellant's statement that he was unable to do anything about the properties until he was no longer a minor.
19. At paragraph 11 the judge states that because of this he may have been wrong to accept that Affan had legal authority in connection with the Appellant's father's estate. He finds that the property never belonged to the Appellant's father; it belonged to his uncle which is another credibility issue. He states at paragraph 13 that there is no evidence to show that what the Appellant owns is valuable and produces an income. This is what Counsel is stating is an error of fact but he then goes on to state that in spite of what the Appellant states he has not shown that he owns vast tracts of land which produce substantial rental income. At paragraph 14 the judge mentions the Appellant's dishonesty about the donor in the Deed of Gift. The Appellant accepted that he was wrong to tell the Tribunal that his father owned this land. He accepted that it was his uncle who owned it.
20. At paragraph 15 the judge finds that the Appellant's claim that Mr Senaratne is his stepfather's partner is likely not to be true. The judge refers to there being no evidence of any relationship between his stepfather and Mr Senaratne. The Appellant's claim was that it was because of Mr Senaratne that he was arrested and detained.
21. The judge has considered the psychiatric report. He does this after stating what was quoted by Counsel that he does not need to deal with what the Appellant says happened to him in police detention. He deals with it to illustrate the implausible and unreliable evidence given by the Appellant. It is true that any medical report would show not sexual abuse from the time when the Appellant states he suffered this and there is a lack of logic when the judge refers to this.
22. At paragraph 19 the judge states that the Appellant was evasive in his evidence as he would not accept that he had lied to obtain his visa in 2009 although he later admitted that he had. In the Appellant's statement he states that he had no intention of studying when he came to the United Kingdom. He originally entered on a student visa. The Appellant lied about his passport claiming that he left Sri Lanka on a false passport because his stepfather had burnt the original but in his screening interview he said he had sold his passport to the agent. At paragraph 23 the judge finds that Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 applies as the Appellant travelled through safe countries to come to the United Kingdom. Although he was originally in the United Kingdom in 2009 he returned to Sri Lanka for three months and then came back in 2011 but he did not claim asylum until after he was arrested for handling stolen goods. Any delay by the Home Office in issuing their decision must be weighed against this Appellant's delay in claiming asylum. The judge believes that had he not been encountered he would still be at large and would still not have claimed asylum.
23. The judge finds the Appellant's evidence to be lacking in credibility not only because of the Deed of Gift and the valuation report on the property in Sri Lanka but also for these other reasons, all of which have been specified in the decision by the judge.
24. Because of the general lack of credibility the judge finds the Appellant was not arrested, detained and tortured as claimed. The judge also notes that treatment for PTSD is available in Sri Lanka and points out that the appellant has previously lived in Colombo and internal relocation would be a possibility for him.
25. The judge has dealt properly with the medical evidence as per the said case of HH (medical evidence; effect of Mibanga) Ethiopia. He has taken all the evidence before him in the round and has reached his decision. As stated in Mibanga there is no rule of law as to the order in which judicial fact-finders should approach the evidential material before them.
26. The judge finds that the Appellant is not in any risk category and based on credibility he has dismissed the appeal. Adequate reasons have been given for this and although there is an arguable error of fact it was not sufficient to adversely affect his decision.
Notice of Decision
27. There is no material error of law in the judge's decision.
28. The decision of First-tier Tribunal Judge Hussain promulgated on 15th August 2016 must stand.
29. Anonymity has not been directed.

Signed Date

Deputy Upper Tribunal Judge I A M Murray 26th October 2016