Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00688/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 13 January 2017
On 20 January 2017

Before

Deputy Upper Tribunal Judge Pickup

Between

T V
[No anonymity direction made]
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the appellant: Mr S Muquit, instructed by A&P Solicitors
For the respondent: Mr P Armstrong, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, Vikna Thiruggunapalasingam, date of birth 1.8.94, is a citizen of Sri Lanka.
2. This is her appeal against the decision of First-tier Tribunal Judge Loughridge promulgated 14.11.16, dismissing her appeal against the decision of the Secretary of State, dated 26.4.16, to refuse her asylum, humanitarian protection and human rights claims.
3. The Judge heard the appeal on 1.11.16.
4. The matter came before me on 13.1.17 as an appeal in the Upper Tribunal.
Error of Law
5. In the first instance I have to determine whether or not there was an error of law in the making of the decision of the First-tier Tribunal such that the decision of Judge Loughridge should be set aside.
6. The First-tier Tribunal Judge accepted the appellant's history as credible, including that she was subjected to torture whilst under detention in Sri Lanka, and that she had participated in some sur place demonstrations. However, applying the country guidance case law of GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC), and for the reasons set out between [44] and [60] the judge concluded that despite both her history in Sri Lanka and her diaspora activities, the appellant would not be at risk on return.
7. The grounds of application for permission to appeal to the Upper Tribunal complain at [5(a-i)] that the finding of risk is "legally untenable."
8. Ground [6] also complains that the judge failed to deal with the separate submission that the appellant would suffer mental anguish if returned to Sri Lanka, which would, it is asserted, be a breach of her human rights.
9. First-tier Tribunal Judge Dineen granted permission to appeal on 6.12.16.
10. Having heard the submissions of the representatives for both the appellant and the Secretary of State and having re-read the decision, I find, for the reasons set out herein, that there is no material error of law in the decision of the First-tier Tribunal. I am satisfied that the judge properly considered all the relevant facts and applied the correct law to those facts, reaching conclusions that were open to the Tribunal and for which cogent reasons were given. I cannot agree with the submission that the decision was 'legally untenable,' or irrational or perverse, but find that it was fully reasoned and justified. The grounds of appeal amount to no more than a disagreement with the judge's conclusions, dressed up as an argument of irrationality.
11. GJ makes clear that the Sri Lankan government's objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state. Its focus is on preventing both (a)the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka. [7] of the guidance sets out the current categories of persons at real risk of persecution or serious harm on return to Sri Lanka.
12. Mr Muquit accepted that the First-tier Tribunal's was correct at [45] to regard the country guidance of GJ as the starting point and accepts that the focus of the Sri Lankan authorities is whether a person is or is likely to be a destabilising threat. He also agreed that there was no basis for the judge to depart from the guidance of GJ.
13. The seriousness of the appellant's mistreatment in Sri Lanka was not ignored or underestimated. The judge also took into account that her brother had a greater degree of LTTE involvement than she, and yet he remains living in Sri Lanka with no apparent difficulties. Having accepted the appellant's core account, the judge reached the conclusion that she had been a low-level LTTE member and even taking into account her activities in the UK, she was not and would not be perceived as a threat to the integrity of Sri Lanka as a single state and would not be perceived to have any significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.
14. Cogent reasons for this conclusion are given from [46] onwards. At [59] the judge correctly noted that following GJ the past is not the key issue in determining whether there is an ongoing risk for an individual, but whether they are or will be perceived as a threat to the unity of the state. The judge took into account the evidence and submissions but reached the view that in light of the low level of her past involvement, including an assessment of her sur place activities, there was no reason why the Sri Lankan authorities would perceive the appellant as a threat to unity or stability.
15. The only significant part of the appellant's case which the judge did not accept was the claim that her brother had been questioned by the authorities about her activities in the UK. The judge did not simply disregard this evidence or dismiss it because it was self-serving. The judge was not persuaded that such questioning took place and gave reasons for not giving this claim any significant weight, particularly given the length of time she had been absent from Sri Lanka and her failure to mention this in her asylum interview.
16. I do not accept the submission that the judge 'compartmentalised' the findings and did not consider the evidence as a whole. In reading the decision as a whole it is clear that an overall assessment was made, taking in account all of the evidence and submissions. The judge has to deal with the evidence carefully and the fact that the diaspora activities were addressed at some parts of the decision and the background claim at other parts does not mean that an overall assessment was not made; the judge has to start somewhere and has to draft a decision that makes it clear whether careful attention has been given to all relevant evidence. I do not accept the assertion that the judge looked at risk of each aspect in isolation. Just because the diaspora activities are not mentioned, for example at [57], does not mean that the judge has ignored them. Neither is it correct to suggest that because the judge there dealt with the appellant having been released from detention and the issue as to whether the authorities would still have an interest in her, that he was addressing the issue of risk on return in isolation.
17. In essence, Mr Muquit submitted that because the appellant had been detained, she must have a profile rendering her of present adverse interest to the Sri Lankan authorities and thereby at risk on return and that the judge was wrong to reach any different conclusion. For the reasons stated above, I reject that submission. Reading the decision as a whole, I am satisfied that the First-tier Tribunal assessed every relevant aspect of the appellant's case, correctly identified the legal principles, and applied the guidance of GJ and the risk categories to the findings of fact. The decision may be one with which the appellant disagrees, and perhaps another judge could have reached a different conclusion, but I find that it is legally sound and does not contain any material error of law.
18. In relation to ground [6] I am satisfied that when reading the decision as a whole and in particular noting that at [60] the judge took into account and did not underestimate the appellant's lever of subjective fear about being returned, as part of the overall findings. The judge gave cogent reasons within [60] for reaching that conclusion. In the circumstances, I find no merit in this ground of appeal.
Conclusions:
19. For the reasons set out above, I find that the making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law such that the decision should be set aside.
I do not set aside the decision.
The decision of the First-tier Tribunal stands and the appeal remains dismissed on all grounds.

Signed

Deputy Upper Tribunal Judge Pickup

Dated 12 July 2021

Deputy Upper Tribunal Judge Pickup
Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order pursuant to rule 13(1) of the Tribunal Procedure Rules 2014.
Given the circumstances, I make no anonymity order.
Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award pursuant to section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007.
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: No fee is payable and thus there can be no fee award.

Signed

Deputy Upper Tribunal Judge Pickup

Dated 12 July 2021