Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03573/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4th April 2016
On 22nd August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MANDALIA

Between

E SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

VK
Respondent

Representation:
For the Appellant: Mr. Whitwell, Home Office Presenting Officer
For the Respondent: Ms. A Walker, instructed by Jein Solicitors

DECISION AND REASONS
1. The First-tier Tribunal has made an anonymity order and for the avoidance of any doubt, that order continues. VK is granted anonymity throughout these proceedings. No report of these proceedings shall directly or indirectly identify her. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to proceedings being brought for contempt of court.
2. The appellant before me is the Secretary of State for the Home Department and the respondent to this appeal, is VK. However for ease of reference, in the course of this determination I shall adopt the parties' status as it was before the First-tier Tribunal. I shall in this determination, refer to VK as the appellant, and the Secretary of State as the respondent.
3. This is an appeal against a decision by First-tier Tribunal Judge George promulgated on 5th January 2016, in which she allowed the appeal against the decision of the Secretary of State for the Home Department of 6th February 2015, to refuse the appellant's claim for asylum, humanitarian protection and on Article 8 grounds.
Background
4. The appellant is a national of Sri Lanka. She arrived in the UK in December 2013 and made a claim for asylum. It was the respondent's decision of 6th February 2015 to refuse to grant asylum and her decision to remove the appellant from the UK by way of directions under paragraphs 8-10 of schedule 3 to the Immigration Act 1971, that gave rise to the appeal before the First-tier Tribunal.
The decision of the First-tier Tribunal
5. The appellant attended the hearing of her appeal before the First-tier Tribunal. She was represented. A summary of the appellant's claim and the evidence before the First-tier Tribunal is to be found at paragraphs [1] to [7] of the Judge's decision. At paragraphs [10] to [15] of the decision, the Judge sets out the respondent's decision and the respondent's position. At paragraphs [13] to [16] the Judge records:
"13. A letter had been provided by the appellant dated 13 July 2015 from ?., Justice of the Peace, in Sri Lanka. The Justice of the Peace said that the appellant had helped the LTTE since school days and confirmed the recruitment in February 2009; the surrender to the Sri Lankan army and the abduction and payment of a bribe [sic] for release. It also noted that the CID (in Sri Lanka) had seen the appellant in newspapers working against the Sri Lankan government in the UK. This letter was sent by email from an email address that did not contain the name of the Justice of the Peace.
?
15. At the hearing on 16 July 2015, the respondent withdrew the concessions that the appellant was Tamil from Sri Lanka; she had a low level involvement in the LTTE and that she had been forcibly conscripted. The hearing was adjourned and directions were made for the respondent to notify the appellant of the reasons for withdrawal of the concessions within 14 days and verification of the letter from the Justice of the Peace.
16. Prior to the appeal hearing today, the respondent provided a letter dated 10 November 2015 indicating that the document from the Justice of the Peace was not genuine and therefore, the appellant is not credible and this reinforces the respondent's position that the appellant was not taken by the Sri Lankan army and detained as she had claimed. The respondent provided case notes of a telephone conversation between ?.. (the Justice of the Peace) on 22 September 5 saying that he had not issued the letter to the appellant, he had been away from home undergoing cancer treatment and could not issue letters to anyone and in any event, he does not issue letters for people residing in Jaffna district."
6. At paragraph [22] of her decision, the Judge refers to the material before her in three bundles filed on behalf of the appellant. In the appellant's addendum bundle C, the Judge identifies the following documents adduced by the appellant;
"iii. Letter from the appellant's solicitors to the respondent dated 14 November 2015 expressing concern about the disclosure of the appellant's details to someone in Sri Lanka (namely the Justice of the Peace) by fax to an unknown fax number, without any redaction and also the fact that the respondent had spoken to someone whom they believe is the Justice of Peace on an unknown phone number and seeking clarification as to how the identity of this person was confirmed;
iv. An email dated 24 November 2015 to the Justice of the Peace from the appellant's solicitor (to an email address which did not show name) requesting further details;
7. The Judge's findings and conclusions are to be found at paragraphs [49] to [94] of her decision. The Judge considered the various facets of the claim and the evidence before her and at paragraph [74] states:
"74. I find that the appellant has given an internally consistent story. I am particularly persuaded by the account given to Dr Goldwyn within a short period of time of her arrival in the UK. Dr Goldwyn's expert opinion supports the appellant's claim that she has been tortured and is credible. Dr Zapata supports the claim that the appellant has been tortured and is credible. This is supported by the GPs, the EACH Counselling Service and also Mrs Paraharan. In looking at this evidence in the round, I am satisfied that the appellant has discharged the burden of proof to the lower standard and I find as a fact that:
i. The appellant is Sri Lankan of Tamil descent;
ii. She was a supporter of LTTE and that she was forcibly conscripted by this organisation in February 2009 and she underwent 30 days of training;
iii. The appellant and her family surrendered to the Sri Lankan army and they were detained in an army camp for almost two years;
iv. The appellant was married and that this was a marriage of convenience;
v. The appellant was abducted by armed men and held against her will for about seven to eight days;
vi. The appellant was sexually abused by two of the men holding her every day;
vii. She was punched in the chest and stomach and beaten by cable and wooden poles, bitten, burnt with cigarettes and beaten until she was unconscious;
viii. The appellant was branded with a metal rod and that the scars she bears are consistent with this;
ix. The appellant was restrained by her captors on her arm which caused scarring;
x. The appellant did not inflict these injuries on herself and they were not self-inflicted by proxy injuries;
xi. The injuries on the chest and thighs occurred at the same time and that they happened within the timescales asserted by the appellant;
xii. It is perfectly plausible that the appellant lost consciousness or blanked out when the injuries were inflicted at the same time on the chest and thighs - this is a case where the serious injuries were inflicted at the same time. The Appellant is able to remember being restrained by the arm and having a plate thrown in her face.
8. Having made those findings of fact the Judge went on to consider the risk upon return by reference to the country guidance set out in GJ (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319. For the reasons that are set out at paragraphs [76] to [93], the Judge was satisfied that the appellant has a justified fear of being persecuted or of other serious harm if returned to Sri Lanka. The Judge concluded that the appellant is entitled to recognition as a refugee and is entitled to humanitarian protection and her appeal succeeds on these grounds.
The grounds of appeal and the hearing of the appeal before me
9. The respondent advances two grounds of appeal. First, at paragraph [49] of her decision the Judge proceeds upon the premise that the appellant's three brothers in the UK will only have been given indefinite leave to remain in the UK because of their stated involvement with the LTTE. The Judge found that the fact that all three brothers are in the UK gives credence to the appellant's claim that she was recruited by the LTTE and furthermore, that there is a risk on return to Sri Lanka. The respondent submits that paragraph [49] of the Judge's decision contains a wholly irrational series of non sequiturs, which necessarily infects the whole of the Judge's fact-finding process.
10. Second, the Judge erred in relation to the evidence purporting to have come from a Justice of the Peace in Sri Lanka. The respondent had obtained a document verification report that established that a document relied upon by the appellant purporting to come from the same JP, had been shown to be false. On the day of the hearing, the appellant relied upon an email from the JP that was produced on behalf of the appellant effectively attesting to the genuineness of the initial document that she had relied upon. The respondent submits that the Presenting Officer offered the Judge the opportunity to adjourn the case for the purposes of verifying that further document, but the Judge ruled that this was not necessary. Notwithstanding that indication, the Judge went on to find the documents from the JP to be reliable. The respondent submits that it was procedurally unfair and irrational for the Judge to place reliance upon the material from the JP, having earlier indicated that it was unnecessary for the respondent to carry out any further checks on the document relied upon by the appellant.
11. Permission to appeal was granted by First-tier Tribunal Judge Chohan on 25th February 2016. The matter comes before me to determine whether the decision of the First-tier Tribunal discloses a material error of law.
12. Before me, Mr Whitwell adopts the grounds of appeal. He submits that the Judge simply assumed that the appellant's brothers have been granted status in the United Kingdom on account of LTTE activities, and the Judge erred by proceeding upon an assumption that has no evidential foundation. Mr Whitwell accepts that there was no application for an adjournment made by the Presenting Officer to enable further enquiries to be made in respect of the further material relied upon by the appellant, said to have come from the JP. He submits that the reasons given by the Judge at paragraphs [71] to [73] of her decision for finding that the documents from the JP are reliable, are inadequate. He submits that there would be no reason for the JP to say that he does not issue letters for people who live in other districts and that the JP did not say he would not answer the questions. The fax number used by the British High Commission to communicate with the JP was a fax number that had been provided by the JP himself. Mr Whitwell submits that the British High Commission followed the proper procedures in verifying the authenticity of the documents relied upon by the appellant, and the Judge presumes that the JP would lie to the British High Commission.
13. The appellant has filed a rule 24 response dated 24th March 2016. She maintains that there are no material errors in the decision of the First-tier Tribunal Judge and that the findings made by the Judge were open to her on the evidence. Ms Walker submits that at paragraph [49] of the decision, the Judge simply noted that the fact that the appellant's brothers appeared to have indefinite leave to remain in the UK, is more likely than not, because of their stated involvement with the LTTE and that that "gives credence" to the appellant's account. She submits that the reasons why the Judge accepted the appellant's account to be credible are wide-ranging and the Judge had considered each piece of evidence on its own merits before reaching her overall conclusion, having looked at the evidence in the round.
14. Ms Walker submits that the Judge gave adequate reasons at paragraphs [71] to [73] of her decision for finding that the documents from the JP are reliable. She submits that the respondent now seeks to re-argue the appeal because the respondent disagrees with the findings made by the Tribunal. She submits that there was no evidence from the respondent that any particular procedures were followed when enquiries were made by the British High Commission and it was open to the Judge to accept what had been said by the JP, as to why he did not confirm the contents of his initial letter over the telephone to the British High Commission.
Discussion
15. It is useful to begin by setting out what the Judge stated at paragraph [49] of her decision. The Judge states:
"49. The appellants' three brothers are all in the UK. One is a British citizen and the others have indefinite leave to remain. This is common cause. I do not know the reason for them being granted indefinite leave to remain but it seems more probable than not, applying the civil standard of proof, that this leave will only have been given because of their stated involvement with the LITE. I find the fact that all three brothers are in the UK gives credence to the appellant's claim that she was recruited by the LTTE and furthermore, that there is a risk on return to Sri Lanka.
16. The Judge acknowledges that she does not know the reason for the appellant's brothers being granted indefinite leave to remain. I have some sympathy with the submission made by the respondent that the Judge appears to proceed upon an assumption that the leave will only have been given because of their stated involvement with the LTTE. However, as Ms Walker submits, the Judge simply took the view that the fact that all three brothers are in the UK "gives credence to" the appellant's claim that she was recruited by the LTTE and there is a risk on return to Sri Lanka. Although that is the first matter referred to by the Judge in the section of the decision headed "Findings and Conclusions", it was in my judgement, not a material consideration in the Judge's overall assessment of the appellant's claim.
17. At paragraphs [50] to [73] of her decision, the Judge carefully considers all of the other evidence before her. The Judge found at paragraph [74] that the appellant has given an internally consistent story and the Judge noted that she was "particularly persuaded" by the account given to Dr Goldwyn within a short period of time of her arrival in the UK. The experts that the Tribunal heard from, supported the appellant's claim that she had been tortured and was credible. Before setting out her findings of fact, the Judge confirms that she has looked at the evidence in the round. Given the range of evidence before the Tribunal and considered by the Judge, in my judgement, the findings made by the Judge and set out at paragraph [74] of the decision would not have been any different even if the Judge had simply recorded that the appellant's brothers have indefinite leave to remain in the UK, but the Judge did not know why. A proper reading of the careful consideration of the evidence by the Judge makes it clear that the Judge reached her findings by reference to the other evidence before her that was consistent with, and corroborated the appellant's account of events. Any error that the Judge fell into in assuming that the appellant's three brothers in the UK will only have been given indefinite leave to remain because of their stated involvement in the LTTE, is in my judgement, immaterial. I therefore reject the first ground of appeal.
18. As to the second ground of appeal, the issue for me to decide is whether or not the Judge properly considered the competing evidence regarding the letter from the JP before accepting at paragraph [73] of her decision, the explanation as to why the JP did not confirm the contents of his initial letter over the telephone to the British High Commission. The Judge states at paragraph [73] that she considered the evidence as a whole and applied the principles in Tanveer Ahmed.
19. I follow the guidance of the Court of Appeal in R & ors (Iran) v SSHD [2005] EWCA Civ 982. The Court of Appeal held that a finding might only be set aside for error of law on the grounds of perversity if it was irrational or unreasonable in the Wednesbury sense, or one that was wholly unsupported by the evidence. A finding that is "perverse" embraces findings that are irrational or unreasonable in the Wednesbury sense, and findings of fact that are wholly unsupported by the evidence. On appeal, the Upper Tribunal should not overturn a judgment at first instance, unless it really could not understand the original judge's thought process when he was making material findings.
20. At paragraphs [70] to [73] of her decision, the Judge carefully considered the letter from the JP. In my judgement it was open to the Judge for all of the reasons set out at paragraphs [70] to [73] to find that the documents from the JP are reliable and entirely consistent with the appellant's claim Having carefully read the decision of the First-tier Tribunal Judge and her reasons, I reject the submission that the reasons given by the Judge are inadequate. I reject the second ground of appeal advanced by the respondent.
21. It follows that the appeal is dismissed.
Notice of Decision
22. The appeal by the Secretary of State for the Home Department is dismissed and the decision of the First-tier Tribunal stands.
23. An anonymity direction has been made by the First-tier Tribunal and shall continue.
Signed Date 22nd August 2016

Deputy Upper Tribunal Judge Mandalia

FEE AWARD

No fee has been paid and no award can be made.

Signed Date 22nd August 2016

Deputy Upper Tribunal Judge Mandalia