Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04631/2015

THE IMMIGRATION ACTS

Heard at Liverpool
Decision & Reasons Promulgated
On 28th November 2016
On 15th December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

MOHAMED SAFRAN MOHAMED IRUFAN
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss G Patel, Counsel, instructed by Broudie Jackson & Canter
For the Respondent: Mr G Harrison, Home Office Presenting Officer

DECISION AND REASONS

1. This is the appellant's appeal against the decision of Judge Coates made following a hearing a Stoke-on-Trent on 21st January 2016.
Background
2. The appellant is a citizen of Sri Lanka born on 16th August 1990. He arrived in the UK on 25th October 2009 with a student visa issued on 6th October 2009, valid until 5th February 2013.
3. On 26th January 2013 the appellant was hospitalised after a suicide attempt and was discharged two days later. He claimed asylum, following, he says, advice from medical staff, on 2nd February 2013.
The Appellant's Claim
4. The appellant said that he was friends with a young man named Kumar who was arrested for storing weapons for the LTTE at the appellant's brother-in-law's pharmacy on 11th February 2009. He was accused of assisting Kumar and was detained and tortured for a six month period, and then released upon his father paying a substantial bribe to the authorities. The appellant procured a student visa and came to the UK. When here, he embarked upon a course of study but gave up after six months. In his oral evidence, he said that the authorities had visited his home twice, once, two or three months after he arrived in the UK and the second time before the arrest warrant was submitted in 2015.
5. The judge considered all of the evidence, including the oral evidence and the documentary evidence submitted on the appellant's behalf.
6. In particular, there was a report from The Medical Foundation which supports the appellant's case that he has been tortured and burned with cigarettes. Dr Bonnet identified a number of burns on the appellant's body and considered whether they could have been self-inflected or applied bye a third party with the appellant's consent. She concluded that they had not been.
7. The judge wrote:
"I am prepared to accept that Dr Bonnet's report is capable of providing some independent support of the appellant's claim of torture. However, it does not necessarily demonstrate that he was ill-treated in the circumstances claimed or to the extent which he claims."
8. The judge considered the appellant's oral evidence and concluded that there were a number of inconsistencies in relation to his obtaining of the student visa, and implausibilities in relation to what occurred after his arrival in the UK. He also took into account the fact that the appellant did not claim asylum until he had been in the UK for four years.
9. The judge then referred to the other documents which the appellant produced, including an arrest warrant, a letter from an attorney in Sri Lanka and a police report. He relied on a letter from the British High Commission in Sri Lanka referring to RALON, an organisation involved in assisting the UK Visas and Immigration there with verification of documents submitted in asylum applications since approximately June 2014. RALON has carried out approximately 130 verifications in Sri Lankan asylum cases and has found that, in 98.5% of cases, the documents have been found not to be genuine. To date there were only two cases where they did appear to be genuine. On that basis the judge declined to find that the warrant of arrest and other documents were probative of the appellant's case.
10. He considered the appellant's case against the country guidance case of GJ & Others (Post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 and considered that the appellant did not fall within any of the risk categories identified by the Tribunal.
11. On that basis he dismissed the appeal.
The Grounds of Application
12. The appellant sought permission to appeal on the grounds that the judge had not given adequate reasons for not accepting the powerful and compelling medical evidence from The Medical Foundation as probative of the appellant's claim to have been tortured.
13. It was also submitted that the judge had come to a different conclusion to that of the respondent in respect of whether the original student visa was genuine, and he had taken into consideration immaterial matters relating to issue of the appellant's sexuality and discovery of his adoption.
14. He had also erred in his consideration of the arrest warrant and other documents, and in concluding that the appellant did not fall within a risk category outlined in GJ.
15. Finally, the judge had failed to consider the appellant's mental state, and in concluding that treatment was available to him in Sri Lanka, had reached a conclusion contrary to the findings of the Upper Tribunal in GJ which was satisfied that the resources in Sri Lanka were insufficient to provide appropriate care for mentally ill people.
16. Permission to appeal was granted by Judge Shaerf for the reasons stated in the grounds.
Submissions
17. Miss Patel relied on her grounds and submitted that the judge had failed to properly engage with the very strong findings in the doctor's report, which had found that many of the scars were attributable to burns with cigarettes - seven lesions have the characteristic appearance of cigarette burns. The doctor said that she could think of no accident causing marks of the appearance or distribution on the appellant's body, and the pattern of distributing was out of keeping that usually seen in deliberate self harm. She could find no basis on which to assess it likely that the lesions had been inflicted for secondary gain.
18. She also considered the appellant's mental state, in particular in relation to his relatively recent discovery that he was adopted and his anxiety about whether he was homosexual. She diagnosed moderate depression and post traumatic stress disorder. With respect to suicide risk, she recorded that the appellant had taken an overdose of medication in January 2013 and should be considered vulnerable to taking such steps in the future if his circumstances changed, and he once again felt hopeless. He had many risk factors for suicide although his religious belief and desire to be reunited with his birth family were protective factors. He currently had no plans or thoughts of harming himself.
19. Miss Patel submitted that the judge had not given adequate reasons for rejecting the doctor's conclusions and had applied the wrong standard of proof in his assessment of the evidence.
20. She repeated her point made in the grounds that the judge had approached the issue of the student visa differently to the respondent, and submitted that he had given inadequate reasons for rejecting the other documentation. In her submission the appellant fell within risk category 7A of GJ i.e. he was an individual who was perceived to be a threat to the integrity of Sri Lanka because he was perceived to have a significant role in relation to post-conflict Tamil separatism. She also submitted that he would be at risk under subheading 4, namely a person detained by the Sri Lanka security services.
21. Finally, she argued that the judge had not properly dealt with the mental health aspects of this case and had impermissibly stated that there was adequate care available for the appellant in Sri Lanka when the Tribunal in GJ had found that there were not.
22. Mr Harrison defended the determination which he said was through and well reasoned. The grounds amounted to a disagreement with the decision.
Findings and Conclusions
The Medical Evidence
23. Dr Bonnet's report is indeed very supportive of the appellant's case. She identifies a number of scars as having been caused by cigarette burns and she concludes that it is unlikely that they were caused by accident or by self-harm.
24. The judge recognises the strength of the report. He said that there was no reason to doubt Dr Bonnet's expertise or qualifications and he had no reason to suppose that she had expressed views not genuinely held. He was prepared to accept that it was capable of providing some independent support for the claim of torture. He then, properly, considered it in the round with all of the other evidence before him.
25. He cannot properly be criticised for stating that the report did not necessarily demonstrate that he was ill-treated in the circumstances claimed or to the extent which he claims. That is merely a statement of the obvious and certainly not an indication that this very experienced Immigration Judge misapplied the standard of proof to be applied.
26. Clearly, to be weighed against Dr Bonnet's report, is the fact that the appellant failed to claim asylum until he had been in the UK for four years despite saying that he came to the UK in order to save his life. The judge quite properly regarded the very extensive delay as a significant hurdle which the appellant had to overcome, and he was right to put the medical report in that context.
27. The remaining points in the grounds have little merit. The Immigration Judge was perfectly entitled to take a different view to that of the respondent in relation to the appellant's state of mind when he came to the UK. That was entirely a matter for him. He was not bound to follow the respondent's initial view that the appellant had employed deception in saying that he came to the UK to study. The judge was quite entitled to conclude that in fact the appellant may have originally wished to study and only later decided to claim asylum before the end of his visa.
28. The remaining grounds and submissions amount to a mere disagreement with the decision. It cannot properly be argued that it was not open to the judge to rely on the letter from the British High Commission in Sri Lanka dated 2nd November 2015 recording that the vast majority of cases where documents have been tested, by RALON, they have been found not to be genuine. Grounds 17-21 merely reargue the appellant's case.
29. Moreover, even if appellant had been ill-treated in 2009, as he claimed, that would not in itself mean that he was entitled to the protection of the Refugee Convention in 2016. Miss Patel's reference to risk category 4 in GJ and Others is misconceived. The Tribunal stated that, at 4, "If a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection." That is a reference to the risks of ill-treatment if detained on a return to Sri Lanka and not a risk per se to anybody who has been detained in the past.
30. Miss Patel submitted that the appellant fell within the category of persons perceived to be a threat to the integrity of Sri Lanka. However, that submission is predicated, as she accepted, upon a finding that the arrest warrant was genuine. The appellant does not claim any sur place activities in the UK which would give rise to such a risk.
31. Finally, there remains the issue of the appellant's mental health. The evidence is that he made a suicide attempt in 2013. There is also evidence that the appellant has been conflicted in relation to information about his adoption and his anxiety in relation to sexual orientation. He is apparently receiving counselling and is on medication. Without wishing to diminish the undoubted distress which the appellant may be suffering, his mental state is not, fortunately, as fragile as that in the third appellant in GJ. That appellant had firm plans to commit suicide rather than return and suffered from grave mental health problems with severe forms of both post traumatic stress disorder and depression. That is not a diagnosis shared by this appellant. The judge was therefore entitled to conclude that, for him, suitable treatment would be available in Sri Lanka.
32. In summary, the appellant produced strong medical evidence in support of his appeal but it was not determinative. It was properly analysed by the judge and considered in the round together with all of the other evidence. However, even if the judge was wrong, and the appellant had been tortured in 2009, there can be no error in the judge concluding that the appellant did not fall within any of the risk categories set out in GJ. The grounds amount to a lengthy and sustained disagreement with the decision but disclose no error of law.
Notice of Decision

The appeal is dismissed. The original judge's decision will stand.

No anonymity direction is made.

Signed Date 15 December 2016

Deputy Upper Tribunal Judge Taylor