Tribunal decisions

The decision

IAC-AH-cj-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00710/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18 January 2017
On 8 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

mr Muhammad Shifan Mohamed Sumaid
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms D Qureshi, counsel instructed by Linga & Co
For the Respondent: Mr P Armstrong, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of Sri Lanka born on 24 March 1989. He left Sri Lanka on 18 February 2010 and arrived in the United Kingdom with a valid student visa which he subsequently extended until 29 April 2014. However on 28 June 2012, his student leave was curtailed because his college had its licence revoked. On 18 March 2014, the Appellant was encountered working at a fast food restaurant and was informed of his curtailed leave. He made an asylum application on 24 April 2014 when he gave a different name viz Fahad Abdul Hameed and a different date of birth.
2. He stated that the basis of his claim was that his father ran a travel business and assisted Tamil people to leave the country. He stated he was Tamil and of Muslim religion. He did not suggest that any members of his family or himself had any involvement in the LTTE but he stated that his father had assisted a woman called Jeyamalar, who had been staying in their house, to leave Sri Lanka and in December 2007 soldiers had come to the house and broken in. The Appellant had been badly treated and interrogated whilst detained but had been released. The business had been destroyed and he had then relocated to Colombo in May 2008 where he remained until February 2010.
3. His application for asylum was refused on 11 September 2015 and he appealed against this decision. His appeal came before Judge of the First-tier Tribunal Cassel for hearing on 13 October 2016. In a decision and reasons promulgated on 9 November 2016, the judge dismissed the appeal. He did not find the Appellant to be credible. In particular at [38], whilst he accepted that the Appellant was a Tamil, at [39] he said that he was uncertain as to his true identity given that the Appellant admitted to using three different names. The Appellant had produced documents purportedly in support of the claim but the judge did not accept that any reliance could be placed on these documents given that there were significant differences and discrepancies, for example the identity card showing the name he claims to have been given Fahad had been misspelt Pahad, [D22 of the Respondent's bundle]. He did not find there was any credible evidence linking the Appellant's father to the travel agency business. In relation to any activities in the United Kingdom, in his Asylum Interview Record the Appellant describes attending one peaceful demonstration in total since he has been in the United Kingdom. In his statement at [26] he referred to attending "a few protests outside the Houses of Parliament". At [44] the judge held "I do not accept that he will have come to the attention of the Sri Lankan authorities in London and find that this evidence is self-serving and an attempt to bolster his claim for asylum". At [50] the judge held as follows:
"His claims are based on his assertion that if returned to Sri Lanka he would face mistreatment due to his imputed political opinion and religion. I have found that he is not credible in these assertions. He does not fall into any of the categories at risk described in GJ and Others (Post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) either by reason of his imputed political opinion or religion, and for the same reasons as above these claims also fail and are dismissed."
4. An application for permission to appeal was made in time on 15 November 2016. The grounds in support of the application asserted:
(1) that time should have been allowed for the preparation of a medical report to support the Appellant's claim he had suffered physical injuries;
(2) the judge had erred in his consideration of the Appellant's Tamil ethnicity in that he failed to consider the implications this would have on the outcome of the determination;
(3) whilst the judge was correct that the central issue in the appeal was the Appellant's credibility, the judge placed considerable emphasis on the issue of the Appellant's identity rather than focus on the risk of persecution on account of being Tamil or Muslim;
(4) the Appellant's rights under Articles 2 and 3 of the European Convention on Human Rights will be violated if returned.
5. Permission to appeal was granted by First-tier Tribunal Judge Shimmin on 19 December 2016 on the following grounds:
"3. With regard to ground (1) the judge gave sound reasons for refusing to adjourn the hearing for preparation of a medical report. In particular the Appellant had had ample time prior to the hearing to commission such a report. No error of law is identified.
4. It is arguable the judge has erred in law in failing to analyse, in the light of GJ, the risk to the Appellant returning to Sri Lanka as a Tamil.
5. It is also arguable that the judge has erred in law in the assessment of the Appellant's credibility.
6. I grant permission on grounds (2) and (3)."
6. A Rule 24 response was submitted on behalf of the Secretary of State dated 29 December 2016 which asserts:
"5. The Appellant does not fall within any of the risk categories identified in GJ and Others. It is clear that the country guidance cannot assist the Appellant and therefore the outcome of the judge's decision could not have been different.
6. Since the judge accepted the Appellant's claim to be a Tamil, the matter of consideration of the Appellant's name and the damage to the Appellant's credibility due to the use of aliases and forged documents is immaterial and does not assist the Appellant.
7. The Respondent will submit that the determination exposes no material error of law."
Hearing
7. At the hearing before me the Appellant was represented by Ms Qureshi who made submissions in line with the grounds of appeal and grant of permission. When asked to clarify which category of GJ the Appellant's case was based on, she responded that it was paragraph (7)(a). This provides as follows:
"(7) The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are:
(a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka."
8. In his response, Mr Armstrong submitted that the main issue was whether the Appellant does fall under any of the risk categories. His evidence was that he was never a member or supporter of the LTTE and it is now eight years since the LTTE were defeated. Therefore it was difficult to see why the Appellant would be of interest to the authorities post-conflict. It was his submission that the Appellant does not fall within (7)(a) because it is difficult to see how he would be seen as a threat to the integrity of Sri Lanka as a single state or perceived to have a significant role in relation to post-conflict separatism. The Appellant came to the United Kingdom as a student and only claimed asylum four years later after his college had closed. He submitted the decision of the First-tier Tribunal Judge was well reasoned and the judge came to findings open to him having heard all the evidence. The judge made express reference to GJ in his decision at [31] and [50] and invited me to uphold the decision, noting also that the Appellant was able to leave Sri Lanka without any issues and without being stopped so he did not fall within category (7)(d) of GJ which provides:
"A person whose name appears on a computerised 'stop' list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a 'stop' list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant."
9. In her response, Ms Qureshi submitted that identity is not just a consideration of name but also background and family and the fact that his father ran a travel agency assisting Tamils was significant. He would therefore be perceived to be more than a simple supporter of the LTTE and the judge had erred in failing to assess the claim properly in light of the country guidance decision.

Decision
10. I find no material error of law in the judge's decision. As the Rule 24 response correctly points out, whilst the judge made findings against the Appellant in relation to his identity, he was at [38] prepared to accept that he was a Tamil. I agree with the rule 24 response that in these circumstances the damage to the Appellant's credibility as a result of the use of aliases is immaterial. The overriding issue in this case is whether on the basis of the Appellant's account as put forward, even put as its highest, would he be at risk of persecution on return to Sri Lanka bearing in mind the guidance set out in the case of GJ and Others (Post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC). It is clear that even at its highest the Appellant's claim was not capable of reaching the threshold set out in GJ in relation to the current categories of persons at real risk of persecution on return to Sri Lanka, these categories being set out at paragraph (7) of the headnote, which sets out the country guidance.
11. On that basis there was no error of law, material or otherwise, in the judge's decision, which I uphold.

Signed: Rebecca Chapman Date: 6 February 2017

Deputy Upper Tribunal Judge Chapman