Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02043/2011

Heard at Field House
Determination Promulgated
on 14th May 2013
On 18th June 2013

THE IMMIGRATION ACTS

Before

UPPER TRIBUNAL JUDGE HANSON

Between

ATULVILU THIYAGARAJAH
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Plowright instructed by Bazeer & Co Solicitors.
For the Respondent: Mrs Tanner Senior Homer Office Presenting Officer.

DETERMINATION AND REASONS

1. On the 18th August 2011 the determination of the First-tier Tribunal in this matter was set aside on the basis of an agreed material error of law. Directions were given providing for a substantive hearing on the same date. The scope of that hearing is limited to considering the credibility of the appellants claim to have been arrested in September 2010 and released on bail and any risk to her on return if her claim is found to be credible in relation to this issue. All other adverse credibility findings bar those relating to the arrest and detention are preserved findings.

2. The case was listed for a substantive hearing on 7th December 2011 which had to be vacated as the representatives failed to advise the Tribunal that a Tamil interpreter was required and one was not available. Mr Avery, the Presenting Officer on that occasion also indicated that the respondent wished to undertake enquiries with BHC in Colombo regarding the alleged arrest and appearance at court in Sri Lanka.

3. On 10th May 2012 a ‘for mention’ hearing was arranged. The respondent had written to the Tribunal advising that to undertake the necessary checks a case number relating to the Sri Lankan proceedings was required. The appellant’s representatives, TTS Solicitors, advised that the details would be provided and so further case management directions were given.

4. On 18th July 2012, at the next ‘for mention’ hearing the Tribunal was advised the appellant had still not provided the case reference number. I was advised a lawyer had been instructed ten days prior to obtain the information and a reply was expected.

5. On 12th February 2013 the current representatives advised the Tribunal they were instructed and requested an adjournment which was refused. On 19th February 2013 a further case management hearing occurred at which the requested information was, again, not provided. Directions were given for the matter to be listed for a substantive hearing to prevent further delay. Directions were provided for the filing of all evidence the parties intended to rely upon with a provision for seeking a variation of the directions, if required. No application to vary was made. The hearing on 14th May 2013 proceeded by way of submissions.

Background

6. The appellant was born on the 21st December 1980 and is a citizen of Sri Lanka. She left Sri Lanka on 23rd January 2001 using her own passport endorsed with a student visa and claimed asylum on arrival the same day.

7. The preserved findings of Judge Andonian can be summarised as follows:

i. The failure of the appellant to mention a distinct disability led to a conclusion she had never met Colonel Kittu. [6]

ii The appellant claims she last saw Colonel Kittu, who it was claimed is the appellant’s mother’s cousin, was when she was ten years of age in Jaffna. This was in 1990. However the country information shows Colonel Kittu left Sri Lanka for London in October 1989 and never returned to that country. [7]

iii. There was nothing in the appellant’s evidence to persuade the Judge he could believe her claim her father was arrested as a member of the LTTE and taken away and that she never saw him again. [8]

iv. The appellant worked as a nurse. She claimed she was rounded up in 2009 by the army and taken to a camp where she was questioned and beaten. There was no medical evidence regarding the beatings. She claimed she was released with a temporary pass on 20th January 2010 to work in the chest clinic in Jaffna but if there was any adverse interest in her it was not accepted she would have been released to work in the clinic. [9]

v. The appellant claimed she was asked to attend a centre for those recently arrested on 4th April 2010. When she refused to identify people who were LTTE she claims she was questioned and beaten and released the following morning. If she was of adverse interest she would not have been released. It is also noted she left the country using her own passport without experiencing difficulties. [10] [12]

vi. Since leaving Sri Lanka the army have visited her home and ID cards of family members taken and they were told not to leave the country. If the family were of interest it is unrealistic they would merely be left alone. [13]

vii. The appellant gave various dates ranging from June 2009 to April 2010 for when her personal problems began. The fact she was unable to state a more accurate date led to a conclusion she had not had any problems with the authorities in Sri Lanka. [16]

viii. The claim she was released from detention and allowed to return home to Jaffna is inconsistent with the claim the authorities are interested in her. [18]

ix. Stamps in the appellant’s passport show she left Sri Lanka on 1st December 2009 and travelled to India, returning on 15th December 2009 and so she could not have been in detention at the time she claims to have been. [19]

x. On 3rd September 2009, after the alleged arrest of her husband, the appellant travelled to Colombo to look for him. If she had a fear she would not have travelled to Colombo. It is at this time she claims she had a fear of the authorities. [20]

xi. The appellant also visited Colombo on 27th April 2010 and 14th July 20102 to apply for a visa to visit Germany. Her claim to have been so frightened of the authorities in Jaffna that she would not even visit relatives is inconsistent with her actions of travelling to Colombo to apply for the visa alone on 3rd September 2010 without allegedly seeking the permission of the authorities. [21]

Discussion

8. The appellant did not claim in her evidence before the First-tier Tribunal that there are any outstanding arrest warrants for her [26]. She claims to have ‘jumped bail’ but not to have escaped from custody [27].

9. In his submissions Mr Plowright referred to the appellant’s witness statements in which she set out the nature of her claim and the reason she states she will be at risk on return. In her recent statement dated 25th March 2013 [page 150-151 A’ bundle] she repeats her claim to be at risk on return and the disappearance of her husband. It was submitted the appellant has produced a lot of original documents in the case which support her credibility. It is not disputed she is Tamil and there is a letter from a Sri Lankan lawyer regarding the court case although it is accepted there has been no reply to enquires made following the error of law hearing. It is accepted the Tanveer Ahmed principles are relevant but submitted that the appellant’s account is consistent with the country evidence.

10. It is correct that a lot of original documents have been produced. These include a copy of a Sri Lankan prison officer’s ID card and other documents relating to the prison service which is said to be that of her husband although whether this is him or his profession is not an element it is claimed puts the appellant at risk on return. I have also seen a copy of a letter of appointment as a nurse dated 24th June 2006 addressed to the appellant. There is no finding the appellant is not a nurse but this class of persons is not at risk per se in Sri Lanka. The Judge of the First-tier found her claim to have been released to undertake nursing duties incompatible with her claim to be at risk from the authorities. The documents were included in the bundle in copy form and considered by the First-tier Tribunal and so in themselves the originals add nothing materially new to the case.

11. The key documents in relation to the limited scope of this hearing are the letters relating to the alleged arrest and court appearance. The first of these is a letter dated 5th February 2011 from Hemantha V. Situge who describes himself as an Attorney-at-Law in Sri Lanka. The letter is addressed to TTS Solicitors and has been written in reply to a letter from TTS dated 4th February 2011. The author of the letter states he represented the appellant who was arrested on 3rd September 2010. She was taken to a police station and detained for three days. She was produced at a Magistrates Court on 6th September 2010 and remanded to a local prison. She re-appeared at the court on 6th December 2010 where the advocate represented her. She was released on a Rs300,000/- case bail and was required to report at the police station every Monday. The letter states the Attorney was aware that she had failed to comply with the bail conditions. Relatives had advised him she had left the country and they were being harassed by police officers.

12. The respondent wished to investigate the truth of this claim and verify the alleged charge and court appearance through the BHC in Colombo as a number of letters of this type have been seen in Sri Lankan cases recently. Despite having been given ample opportunity to provide a valid case number to allow such checks to be made none has been forthcoming from the appellant. I am entitled to attach little weight to the correspondence relating to this particular issue as (1) the failure to provide details which must be readily available from the court or through a lawyer, if they exist, raises the issue that no such details are recorded as no such proceedings actually occurred and (2) it is a preserved finding that stamps in the appellant’s passport show she left Sri Lanka on 1st December 2009 and travelled to India, returning on 15th December 2009 and so she could not have been in detention at the time she claims to have been.

13. I find the appellant is not credible and has clearly manufactured her claim. She is a failed asylum seeker who lacks credibility and no more. I find she has failed to substantiate her claim to be at risk on return to Sri Lanka. Having considered the relevant country guidance cases and country information I find she is not entitled to be recognised as a refugee or person entitled to any other form of international protection as there is no credible reason the authorities will have an adverse interest in her, either actual or imputed. No claim under the Immigration Rules or ECHR that would entitle her to remain in the UK has been substantiated either.

14. Decision

15. The Immigration Judge materially erred in law. I set aside the decision of the original Immigration Judge. I remake the decision as follows. This appeal is dismissed.

Anonymity.

16. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

Signed……………………………………………….
Judge of the Upper Tribunal
Dated the 17th June 2013