Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04978/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28th October 2016
On 21st December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

Mr I A M L
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Scott, Solicitor
For the Respondent: Mr P Armstrong, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of Sri Lanka born on 16th March 1984. The Appellant has an extensive immigration history. He first applied for a student visa on 3rd April 2007, this application being refused. Following a renewed application the Appellant initially entered the UK using his student visa which had then been granted on 11th July 2008. The Appellant has entered and departed the UK multiple times since then, entering for the last time on 22nd November 2013. On 15th January 2014 the Appellant made an appointment for the purpose of claiming asylum and on 6th March 2015 a decision was made to refuse that grant.
2. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Broe sitting at Birmingham on 17th June 2015. In a decision and reasons promulgated on 1st July 2015 the Appellant's appeal was dismissed on asylum and human rights grounds and the Appellant was found not to be in need of humanitarian protection.
3. The Appellant lodged Grounds of Appeal to the Upper Tribunal. On 10th August 2015 First-tier Tribunal Judge Shimmin refused permission finding that the grounds amounted to no more than a disagreement with the judge's findings and that those were findings which were properly open to the Tribunal on the evidence.
4. On 25th August 2015 renewed Grounds of Appeal were lodged to the Upper Tribunal. On 18th September 2015 Upper Tribunal Judge Macleman granted permission to appeal. Judge Macleman concluded that apart from the treatment of the medical report it was doubtful whether the grounds presented amounted to any more than disagreement about fact-finding. However, Judge Macleman considered the judge had to deal with evidence in some order and that judges should not readily artificially separate medical evidence from the rest or reach adverse credibility findings in isolation from such evidence. He noted that the judge placed "careful consideration of the medical report" and "immediately after rejecting credibility". He considered that that raised an arguable issue.
5. On 8th October 2015 the Secretary of State responded to the Grounds of Appeal under Rule 24. The response notes that Judge Macleman considered that by the judge considering the medical evidence immediately after rejecting the credibility of the account that that raised an arguable error of law. The response submits that the consideration of the claim at its highest was that taking all of the Appellant's evidence into account and believing it all (which it did not), then the Appellant would still not be at risk from the authorities when the facts are considered against the country guidance of GJ. They went on to submit that the medical evidence was considered in the round when assessing whether the Appellant was entitled to refugee status/Article 3 protection within the UK and that it was clear from the layout that the judge had assessed the Appellant's account and the documents provided and had then considered the medical evidence before making findings on the Refugee Convention against the backdrop of the country guidance. By considering the appeal in that way, the submission was made that the judge could not have said to have made a material error.
6. Against that background the Upper Tribunal found that there was a material error of law and remitted the matter for rehearing before the First-tier Tribunal. That hearing came before Judge of the First-tier Tribunal Ford sitting at Birmingham on 7th July 2016. In a decision and reasons promulgated on 4th August 2016 the Appellant's appeal was again refused on asylum and human rights grounds and he was again found not to be entitled to humanitarian protection. Renewed Grounds of Appeal were lodged to the Upper Tribunal on 15th April 2016. Permission to appeal was refused by First-tier Tribunal Judge Bennett on 25th August 2016. Yet further Grounds of Appeal were lodged to the Upper Tribunal on 13th September 2016.
7. On 28th September 2016 Upper Tribunal Judge Kamara granted permission to appeal. Judge Kamara found that it was arguable that the judge's findings at paragraph 55 as to the source of the scarring caused to the Appellant's body were unsound. She also considered that it was further arguable that the judge's credibility findings at paragraphs 47 and 51 of the decision appeared to expect the Appellant to explain the actions of the Sri Lankan authorities and that at paragraph 48 the judge did not take into consideration the Appellant's difficulties with recalling the dates in question, and that at paragraph 49 there was no real inconsistency regarding the issue of the timing of the Appellant's marriage.
8. It is after that lengthy history, and following the grant of permission to appeal by Upper Tribunal Judge Kamara, that this appeal comes before me to determine whether or not there is a material error of law in the decision of Immigration Judge Ford. The Appellant appears by his instructed solicitor, Mr Scott. Mr Scott is familiar with this matter, having appeared before Judge Ford in the rehearing before the First-tier Tribunal. His practice is also the author of the Grounds of Appeal. The Secretary of State appears by her Home Office Presenting Officer, Mr Armstrong. In addition, there has been a further Rule 24 response from the Secretary of State, this being the most recent documentation and filed on 14th October 2016.
Submissions/Discussions
9. Mr Scott takes me to his Grounds of Appeal contending that the judge made a wrong assessment of the Appellant's credibility despite the scarring report of Dr Martin, and that the scarring report confirms that the scars upon the Appellant are consistent with those that could be received following torture. He acknowledges that the judge noted that it is not clear how the scarring has been caused, and that whilst the judge at paragraph 55 of his decision has indicated that he is not satisfied that the injuries were caused by the authorities in Sri Lanka during a detention in November 2013, the judge has not put forward any other explanation. In such circumstances he contends that the judge has made a wrong assessment of credibility, taking into account Dr Martin's report.
10. He also refers me to paragraphs 47 and 49 of the judge's decision contending that the findings therein are speculative as to the action of the authorities. He then takes me to paragraph 51 where the judge held that the Appellant had failed to give any credible explanation as to why the authorities should seek to issue summonses against him in 2014 given that he had left Sri Lanka in 2008 and states that it was not for the Appellant to know why the authorities had not taken action against him previously.
11. In response Mr Armstrong points out that the Rule 24 sets out the position very clearly and that the judge's findings were ones that were open to him based on the evidence that he had heard. He takes me to paragraphs 55 and 56 of the decision, pointing out that references made to Dr Martin's report and that the judge was not bound by it, and that paragraph 57 highlights holes in the evidence of the Appellant and the judge sets out therein his concerns about the plausibility of the Appellant's case. He submits that there was nothing wrong with the findings made by the judge therein and that the findings were ones that were open to the judge to make. He further comments it was perfectly open to the judge at paragraph 51 to make comment on the time it has taken for the authorities to take their appropriate steps. He submits there are no material errors of law and asked me to dismiss the appeal.
12. In brief response Mr Scott asked me to look at the scarring report and the issues raised at paragraph 55. He indicates that he believes there are material errors of law and he asked me to set aside the decision of the First-tier Tribunal Judge and to remit it for rehearing.
The Law
13. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
14. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings
15. The proper approach to credibility requires an assessment of the evidence and of the general claim. In asylum claims, relevant factors are firstly the internal consistency of the claim; secondly, the inherent plausibility of the claim; and thirdly, the consistency of the claim with external factors of the sort typically found in country guidance. I acknowledge it is theoretically correct that a claimant need do no more than state his claim but that claim still needs to be examined for consistency and inherent plausibility. In nearly every case external information against which the claim could be checked will be available. This is what the judge has done in this instant case. Firstly, the judge has given consideration to the up-to-date country guidance to be found in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) where the Tribunal, in a very detailed decision and a well-respected head note, set out the risk categories on return. The Appellant does not fall within those risk categories.
16. Thereafter this appeal rises and falls on whether or not the judge's findings on credibility were ones that were open to him. This is a judge who has given very careful consideration to the evidence and set out detailed findings of fact and conclusions. He has at paragraph 55 noted that he has considered the medical reports, made a recognition that the Appellant has scarring, and recognised that Dr Martin has expressed the opinion that the scars are consistent with the manner of causation given by the Appellant. Despite that, the judge has found that his injuries were not caused by the authorities during a detention in November 2013. It is, however, not true to go on to say that the judge has failed to give reasons. He has looked at the issues in the round and made findings between paragraph 43 and 57 as to the Appellant's credibility. He has also borne in mind the low standard of proof in appeals of this nature.
17. When looked at in the round, this is a judge who has given careful consideration to the evidence that was produced before him and considered all of the evidence. He had made findings of fact that he was entitled to and given reasons. The overall submissions made in this matter effectively amount to little more than mere disagreement with the findings of the First-tier Tribunal Judge. In such circumstances, I find that there is no material error of law disclosed in the decision of the First-tier Tribunal and the Appellant's appeal is dismissed and the decision of the First-tier Tribunal Judge is maintained.
Notice of Decision

The decision of the First-tier Tribunal contains no material error of law and the Appellant's appeal is dismissed and the decision of the First-tier Tribunal is maintained.

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 his 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 21/12/2016

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris