Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/04711/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13th September 2016
On 29th September 2016

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

M S
(aNONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Coleman, instructed by S Satha & Co
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS

The Appellant
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Bennett dated 25th February 2015 to dismiss his claim for protection and human rights claim. The appellant is a citizen of Sri Lanka and a Tamil born on 31st July 1986. He arrived in the UK on 8th September 2014 and claimed political asylum on 17th September 2014. That claim was refused by the Secretary of State on 25th February 2015 and the matter came before First-tier Tribunal Judge N J Bennett who dismissed the appeal.
2. Application for permission to appeal set out the following grounds. The first and primary ground was that the judge erred in his failure to make a finding of whether the appellant was a vulnerable witness as required in the light of the medical evidence and whether there was in fact an explanation for the inconsistencies in his account. The judge had before him a psychiatric report of Dr Persaud who concluded that the appellant was not fit to give evidence. The report made reference to the appellant's tendency to become confused and his memory problems. The appellant was not called to give evidence. The judge did not make a finding as to whether the appellant was indeed a vulnerable witness. The judge accepted the expertise of the psychiatrist albeit he raised concerns regarding certain aspects of the report but still did not treat his evidence overall in the light of him being a vulnerable witness. The judge considered that his mental health may explain the confusion between whether the detentions were in 2013 or 2014 not the dates but no reasons were given for reaching the conclusion as to why the discrepancy in the year may be viewed as explicable but not with regards to the month.
3. At the hearing before me Mr Coleman submitted that the respondent accepted the appellant had been detained by the Sri Lankan authorities between 2006 and 2011 and against this background it was plausible that he would have the mental health difficulties that were identified. The judge had not addressed the mental health difficulties in relation to the appellant's evidence. At the appellant's screening interview he was clear that he had memory problems and declared that he had been arrested and as Mr Coleman indicated this was consistent with the fact that he had indeed been in detention for some considerable period.
4. Despite Mr Bramble's valiant attempts to defend the decision and reference to paragraphs 19 and 20 I find that there is an error of law in the determination. I note Mr Bramble's submission that the judge was not looking at the appellant's health in isolation and was considering the evidence in the round and that the judge referred to factors set out at [12] and [15] which were said to fundamentally undermine the appellant's case. Training with the LTTE, which is addressed at [12], however, is not the only factor which might make him of interest to the authorities. I will address [15] below.
5. The judge notes and accepts that the appellant was arrested and detained between August 2006 until July 2011 and accepts that the appellant may well have been tortured during his detention. The judge, however, proceeds at paragraph 15 stating
"But I do not accept the appellant's account of how he came to be released from detention. He says he was found guilty, that his parents bribed anyone in the CID by paying them Rs3,000,000 to drop the case and that the judge released him from court".
6. The judge found that he had produced an incomplete copy of a judgment from the High Court in Jaffna which showed that the appellant was in fact acquitted. For this reason the judge stated "I do not therefore accept that it is reasonably likely that the appellant was found guilty or that anyone in the CID was paid Rs3,000,000 to drop the case".
7. The judge then goes on and states with reference to the later arrests
"17. ... his evidence about this was confused and contradictory. At his screening interview, he said that he was arrested again on 26th November 2013 and that he got out in December 2013, after a bribe had been paid. At his substantive interview, he initially said that he was arrested only once on 8th August 2006 (question +A118) but then said that he was arrested again on 7th January 2013 that he was released on 7th February 2014 (sic) (question A119 - A120), that he was rearrested on 1st June 2014 and that he released on 6th June 2014 (question +A121). Later on he said that he was held for a month when he was arrested in January 2013 (question A224 and 229) but he was rearrested on, he thought, 1st June 2013 (sic) and that he was released on 5th June 2013 sic (232 - 233). He then said that he had only been arrested twice (Q+A241). After the dates he had given earlier had been read back to him he denied saying that he was arrested on 1st June 2014 (question +A242) and then said that he was arrested on 8th August 2006, that he was detained until 20th July 2011, that he was rearrested on 1st July 2013 and that he was released after a few days (question A243-244).
18. He went on to say that he was repeatedly harassed, questioned beaten and punched by the CID and by the army (Q+A245-249) every two or three days until he left Sri Lanka and that he was arrested once and abducted once in this process (Q+A245-255). His claim to have moved from place to place in his village in this period to avoid the harassment (Q+A245 & 262) does not fit happily with his claim to have been harassed every two or three days. Although he claims that this harassment led to him leaving Sri Lanka (Q+A248), he did not mention any of this harassment at his screening interview, when he was asked why he left Sri Lanka and why he could not return there (Q+A4.2).
19. Dr Persaud says that the Appellant had a variety of symptoms which led him to be distracted and confused, that the Appellant was withdrawn and that the Appellant lacked concentration and focus, which was part of the Appellant's PTSD. While this might explain some of he contradictions in the evidence if they stood in isolation, such as whether the Appellant was arrested on 1st June 2013 or on 1st June 2014 and whether the Appellant was released in February 2013 or in February 2014, the difficulties with the evidence go well beyond this an are also consistent with this part of the account not being founded in truth.
20. Dr Persaud said that he considered that the Appellant was unfit to give evidence but went on to say that his would depend "quite a bit" on the Appellant's state on the day in question and whether the hearing was conducted in a way that took account of the Appellant's disorder. This might explain why the Appellant did not give evidence and might therefore make it unfair to draw any adverse inferences from his failure to give evidence, but it does not alter the incidence of the burden of proof or the standard of proof. I am left with substantial difficulties with the evidence that are not adequately explained or resolved."
8. Credibility findings were central to the decision The judge does address the fact that the appellant had a variety of mental health symptoms which led him to be distracted and confused and the judge appears at [19] to address the issue of discrepancy and the confusion of the appellant by stating that the discrepancies were not in isolation and 'the difficulties of the evidence go well beyond this' but this finding does not factor in the appellant's vulnerability in relation to his account as it contrasted with the court documents which the judge found important. Those particular findings at [15], which were said Mr Bramble to undermine the appellant's case, were important but prefaced by the judge with the words 'I do not accept the Appellant's account of how he came to be released from detention'.
9. Further, it is not clear that because the judge rejected the account of his actual release in relation to his five year detention that his account in relation to the further alleged detentions should be also dismissed on the basis of confusion particularly in the light of the accepted medical evidence. I find that separate from any findings in relation to suicide.
10. The judge dismissed the fact that the appellant would remain of any interest to the Sri Lankan authorities because no evidence was drawn to his attention. There is, however, background information to suggest that the Sri Lankan authorities may act in a persecutory manner even where there are no formal charges pending. The appellant had been in detention for five years.
11. The judge bases his adverse credibility findings on the appellant's contradictory and confused evidence in relation to his account of his detention and of his arrests after 2013, in addition to his conclusions that the authorities would have no interest in those who are acquitted. The judge finally at [20] took into account the fact that the appellant may be unfit to give evidence at the hearing but stated "I am left with substantial difficulties with the evidence that are not adequately explained or resolved".
12. Although it is not incumbent upon the judge to actually mention the vulnerable witness guidelines they should be applied consistently which they were not and I therefore find there is an error of law which goes to the heart of this decision.
13. The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). Bearing in mind the nature and extent of the findings to be made the matter should be remitted to the First-tier Tribunal under section 12(2) (b) (i) of the TCE 2007 and further to 7.2 (b) of the Presidential Practice Statement.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 27th September 2016

Upper Tribunal Judge Rimington