Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01841/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 February 2017
On 14 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ESHUN

Between

mr Tharsan Kandeeparajah
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss D Qureshi, Counsel
For the Respondent: Mr S Walker, HOPO

DECISION AND REASONS
1. The appellant is a citizen of Sri Lanka born on 17 August 1992. He has been granted permission to appeal the decision of First-tier Tribunal Judge Carroll dismissing his appeal against the decision of the respondent made on 16 January 2015 to refuse to grant him asylum or humanitarian protection and refusing his claim on human rights grounds.
2. In June 2011 the appellant was granted a student visa valid until July 2012. He arrived in the UK in July 2011, having travelled on his own passport and visa. In September 2012 he was given further leave to remain in the UK until July 2013.
3. The appellant left the UK on 5 December 2012 to visit Sri Lanka. He returned on 19 December 2012, using his own passport and claimed asylum on 27 December 2012.
4. The core of the appellant’s case is that from approximately December 2006 he started helping the LTTE, after having been introduced to individuals by an uncle. He was not a member of the LTTE but only a helper, helping his uncle to collect money from shops. He also helped to hide weapons and that he purchased petrol, wire and batteries, items which were restricted for the LTTE area. Later, between December 2009 and April 2011, he started to help people in the LTTE camps. In April 2011 his father found some money in a pocket of the appellant’s trousers. He discovered that the appellant was helping the LTTE. Although the LTTE was no longer in existence, the appellant’s father feared that the appellant would be in trouble so arranged for him to leave Sri Lanka in order to study in the United Kingdom. On his return to Sri Lanka to visit his sick mother in December 2012, the appellant was met by a number of friends, including a Steven, who used also to work with the appellant for the LTTE. Steven told the appellant that he had seen him on the internet prior to participating in Martyrs Day in London. In the evening of the same day, the appellant was arrested and detained. He believes that Steven had become an informer and had told the Sri Lankan Army of his return to Sri Lanka.
5. He was taken to a police station, fingerprinted and detained. He was accused of LTTE membership, tortured and forced to sign a confession. After eleven days the appellant escaped from detention after his father paid a bribe to an agent. He left Sri Lanka with the assistance of an agent.
6. He said he is a volunteer for the TGTE, which has been proscribed as a terrorist organisation by the Government of Sri Lanka.
7. The appellant submitted a number of documents including a letter dated 7 January 2013 from a Dr R Kanapathy in which he said that the appellant had been the victim of torture and “... has extensive wounds to his back where he has been assaulted, probably whipped ...”. He submitted a psychological report by Dr G Costa of Asylum Medical Care which recorded the appellant as saying that whilst in detention he was “... hung upside down, repeatedly beaten, burnt with cigarettes, struck over the head with a baton, kicked and burnt with a heated cable. He was also deprived of food and water ...”. Dr Costa said she completely agreed with Dr Kanapathy that the appellant is suffering from PTSD and a depressive illness. She noted that the appellant has been referred for psychological treatment and concluded that she strongly opposed a decision to remove the appellant from the United Kingdom at this stage as this would have devastating effects on his mental health and his risk of suicide would greatly increase. He needed urgent psychological help.
8. The appellant submitted a report by Professor Lingam dated 21 March 2013. Professor Lingam said his findings as explained correlate very well with a history of burn with a hot metal (cable) which he considered correct looking at the widths of the scars and the wide appearance and the location and distribution of the scars. He went on to consider whether the scars were self-inflicted, but ruled out the possibility of self-infliction on the basis of the location of the scars. He went on to say that he considered whether the wounds were caused deliberately to mislead, but said that there was no way that the appellant can scientifically differentiate between such wounds from wounds inflicted from any trauma.
9. The appellant also relied on two reports from Dr S Dhumad, a Consultant Psychiatrist, dated 17 May 2015 and 18 February 2016. He concluded in his first report that the appellant’s presentation was consistent with the diagnosis of moderate depressive episode, with somatic symptoms and was consistent with a diagnosis of PTSD. Dr Dhumad said the appellant is mentally ill. He was not receiving the appropriate treatment, namely a combination of both anti-depressants and psychological treatment, and that he was very likely to suffer a serious deterioration in his mental health if he were to be returned to Sri Lanka.
10. In his second report Dr Dhumad noted that at the time of the assessment the appellant was not on anti-depressant medication but had received five months of psychological therapy. The appellant had been to see his GP and was given anti-depressant medication (Mirtazipine) and he responded well to counselling and the medication. Dr Dhumad concluded that there was a slight improvement in the appellant’s mental health since starting the anti-depressant medication. Any threat of removal would trigger a significant deterioration in the appellant’s mental suffering and subsequently increase the risk of suicide.
11. The appellant submitted a letter dated 18 February 2014 from South London and Maudsley NHS Foundation Trust. The letter records that he was diagnosed with PTSD after being assessed in July 2013. They observed that the PTSD was a direct result of what the appellant went through in prison and was now suffering typical PTSD symptoms, such as having flashbacks, nightmares as well as feeling disassociated, having difficulties to sleep and poor concentration.
12. The judge did not find the appellant credible as to the circumstances in which he claims he left Sri Lanka or as to his claimed arrest, detention and torture on return to Sri Lanka in 2012. The judge’s findings are set out at paragraph 22(a) to (g).
13. In granting permission, Upper Tribunal Judge Bruce said that the appellant’s entire was rejected for the reasons set out at paragraph 22(a)-(g). Of these reasons, only (a)/(b) and (c) could logically diminish the weight to be attached to the appellant’s evidence. It is arguable that in respect of (a)/(b), the Tribunal has failed to have regard to the evidence presented in GJ. In respect of (c) it is arguable that the Tribunal has placed undue weight on a delay of eight days.
14. It is appropriate therefore to record the judge’s findings at paragraph 22(a), (b) and (c). The judge said as follows:
“(a) The appellant left Sri Lanka for the United Kingdom by air in 2011. He encountered no difficulties leaving the country and, equally, he encountered no difficulties when he arrived at Colombo Airport on his return to Sri Lanka on 5 December 2012.
(b) The appellant was asked about his departure from the airport for the United Kingdom in December 2012 at questions 145 – 155. He said that at the entrance to the airport he was told to produce an ID card and that this was the only checkpoint he encountered. He claims to have used an ID card given to him by an agent who helped to arrange his departure from the country and that he used his own passport for the journey. He said also that the agent accompanied him up to a certain point where he met a porter who was told to take the appellant to a particular counter at the airport. In the course of cross-examination, the appellant said that he showed his passport at a check in desk having arrived inside the airport. He said also that he had shown the passport at the immigration check- in counter. I asked the appellant to clarify whether this was separate from an airline check-in counter. He said that he did not know but that he had had to show his passport on only one occasion at the airport. I note also from paragraph 22 of the appellant’s first witness statement that he says he showed his own passport at the entrance to the airport, not inside the airport. Had the authorities any real interest in preventing the appellant from leaving the country, the fact of his having shown his passport even only once would have been sufficient to alert them to his planned departure.
(c) Having arrived in the United Kingdom on 19 December 2012 the appellant did not claim asylum until 27 December 2012. Had the appellant genuinely been in need of international protection it was open to him to claim asylum upon arrival or very shortly there afterwards.”
15. With regard to the first ground, Miss Qureshi said that the issue of leaving the airport in Sri Lanka without detection is covered by paragraph 394 of GJ Sri Lanka. It pertains to the pervasive bribery and corruption that exists at Katunayake Airport. Miss Qureshi submitted that at paragraph 24, page F7 of the appellant’s statement, he gave a detailed account of what happened at the airport in Sri Lanka on his return journey to the UK. She said the judge’s failure to engage with GJ amounted to a clear error of law. That was the argument in respect of the judge’s findings at paragraph 22(a)/(b). In the grounds it was argued that the fact that the appellant showed his passport on one occasion did not mean that the appellant was of insufficient interest to the authorities, as the appellant had enlisted the assistance of an agent.
16. As to the challenge in relation to paragraph 22(c), it was argued in the grounds that the judge has not provided any reasoning as to why the appellant’s explanation as to his delay in claiming asylum late was not acceptable or reasonable and this is a clear material error of law. Miss Qureshi added that the delay was of short duration, not eight days as found by the judge and he should not be penalised for it.
17. Miss Qureshi submitted that the judge did not look at the appellant’s account of detention and torture in Sri Lanka. She submitted that the judge dismissed the appeal because of the lack of attendance by the witnesses. Because the judge had decided that the appellant’s evidence was not probably credible, the judge discounted the medical evidence.
18. Mr Walker submitted that at paragraph 12 of the decision the judge outlined GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) and how it would impact the appellant’s case. The judge at 22(c) questioned why the appellant did not claim asylum on arrival. Mr Walker said that the appellant had leave to remain in the United Kingdom until 30 July 2013 as a student. The Secretary of State’s argument is that the ease with which the appellant entered and exited Sri Lanka was because the authorities have no interest in him.
19. Mr Walker also submitted that the judge also considered at 22(d) that the appellant’s uncle, Mr K Iynharran, who had submitted a witness statement claiming that the authorities have been to the appellant’s house in July and November 2015 and January 2016, did not attend the hearing to give evidence in support of the appeal. Consequently, the judge attached no weight to the witness statement. Mr Walker submitted that the judge noted that the appellant said he has two paternal uncles in the United Kingdom, but neither of them attended the hearing to give evidence in support of the appeal. Mr Walker submitted that there was a lack of evidence supporting the appellant’s appeal.
20. Miss Qureshi drew my attention to 23(c) where the judge recorded that the appellant relied upon a letter dated 22 January 2015 from Miss A Seevaratnam of the International Centre for Prevention and Prosecution of Genocide (“ICPPG”). In that letter it is said that the appellant has provided written evidence under oath – “to be submitted to the UN and other commissions and prosecution. He may be one of the potential witnesses who may be asked in person to give evidence ...”. The letter concluded by saying that if the appellant is returned to Sri Lanka he is sure to be tortured to death as a Tamil who has worked against the terrorist Government. She submitted that the judge failed to give weight to this letter because Miss Seevaratnam did not attend the hearing to give evidence in support. Following questions from me, Miss Qureshi said that she had no further information about this letter.
21. Miss Qureshi said that the judge recorded at paragraph 23(b) that the appellant relied on a letter dated 26 April 2015 from Mr S Yogalingham of the TGTE. The judge said the letter was wholly generalised. Miss Qureshi informed me that she had no further information about this letter. She confirmed that Mr Yogalingham did not attend the hearing to give evidence in support of the appellant’s appeal.
Findings
22. I consider the issue of the appellant leaving Sri Lanka Airport without detection. Miss Qureshi relied on paragraph 24 of the appellant’s witness statement at F7 of the respondent’s bundle. I note the fact that the judge recorded the whole of paragraph at paragraph 22(b) of his decision. I find that the judge properly considered the appellant’s evidence. Whilst the judge may not have engaged with paragraph 394 of GJ Sri Lanka, I find that the judge’s decision was open to him on the evidence that was before him.
23. In respect of the challenge to paragraph 22(c), I considered Miss Qureshi’s submission that the judge did not assess the reasons given by the appellant at paragraph 26 (F8) of his witness statement. The appellant said therein that he did not claim asylum at the airport because the agent told him not to claim asylum at the airport because he could be sent back to Sri Lanka as he had travelled on a student visa. He was frightened that they might send him back. When he arrived it was the Christmas holiday period and he went to see his representatives on the morning of 24 December and claimed asylum.
24. I accept that the judge did not engage with the appellant’s reasons for not claiming asylum on arrival at the airport in the UK on 19 December 2012. I don’t hold it against him for relying on the advice of the agent. Nevertheless, However, I fail to see an error in the judge’s finding that if the appellant had genuinely been in need of international protection it was open to him to claim asylum very shortly there afterwards. In his witness statement the appellant said when he arrived it was the Christmas holiday period and he went to see his representatives on the morning of 24 December. I find that his evidence does not satisfactorily explain why he waited for four days before going to see his representatives on Christmas Eve and not in the intervening days before. The delay may be of short duration but it is significant as he was now within the safety of the UK, and with the approaching Christmas holidays, he would have needed to act with more haste.
25. I do not accept the argument by Miss Qureshi that the judge failed to look at the appellant’s account of detention and torture in Sri Lanka. I find that the judge properly considered the various medical reports at paragraph 22(e) – (g). The medical reports contained evidence of his claimed detention and torture. I find no support for Miss Qureshi’s argument that the judge discounted the medical evidence because he had already found that the appellant’s evidence was not credible because of the ease of his departure from Sri Lanka and his delay in claiming asylum. There was a further issue noted by Mr Walker. The appellant had relied on a witness statement from his uncle, Mr Iynharran, who claimed that the authorities had been to the appellant’s house in July and November 2015 and January 2016. It is noteworthy that Mr Iynharran who lives in the United Kingdom failed to attend the hearing to support his statement. In the circumstances, I find that the judge was entitled to attach no weight to his statement.
26. The appellant relied on two letters from Mr S Yogalingham. The judge found that these to letters were wholly generalised. They referred to the appellant having attended meetings, events and public demonstrations, but gave no dates or location. The judge noted that none of the correspondence from Mr Yogalingham referred to any of the particulars of the appellant’s account of detention and torture in Sri Lanka. In the circumstances I find that the judge was entitled to attach no weight to these letters
27. The appellant relied on a letter from Miss A Seevaratnam of the ICPPG. Miss Qureshi could not provide further information about the contents of this letter. Miss Seevaratnam did not attend the hearing to give evidence in support.

Notice of Decision
28. In all the circumstances, I find that the judge’s decision discloses no material error of law. The judge considered all the evidence that was before him and reached findings that were properly sustainable and open to him.
29. The judge’s decision dismissing the appellant’s appeal shall stand.
30. No anonymity direction is made.

Signed Date: 27 February 2017

Deputy Upper Tribunal Judge Eshun