Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05146/2014

THE IMMIGRATION ACTS

Heard at Stoke on Trent
Decision & Reasons Promulgated
On 5 October 2016
On 11 January 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

p m
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Paramjorthy, instructed by KQ Solicitors
For the Respondent: Mr Bates, a Senior Home Office Presenting Officer

DECISION AND REASONS
1. By an order dated 1 September 2016, the conduct of this appeal was transferred from Deputy Upper Tribunal Judge Davey who, by a decision dated 26 July 2016, had set aside the previous decision of the First-tier Tribunal. His reasons for doing so were as follows:
"The Appellant, a national of Sri Lanka, appealed against the Respondent's decisions, dated about the end of July 2014, to refuse to vary leave to remain and to make removal directions under Section 47 of the Immigration, Asylum and Nationality Act 2006.
2. The appeal came before First-tier Tribunal Judge Veloso (the judge) who, on 11 August 2015, dismissed the appeal based upon Refugee Convention, Humanitarian Protection and Articles 2 and 3 of the ECHR grounds.
3. In a nutshell, the Appellant claimed to have been detained by the Sri Lankan authorities, seriously ill-treated, signed a confession and released on payment of a bribe. She came to the United Kingdom. Her fears on return were that her history and past conduct would draw her to further adverse attention from the Sri Lankan authorities and lead to further ill-treatment. Her claim was rejected by the judge who, in the decision, raised three particular points which have been the subject of argument and show the judge made errors of law.
4. First, it was said that the judge wrongly had picked up upon differences in account that the Appellant had given as to whom she had disclosed her LTTE interests and those of her father which, it was said, was not credible; a view with which the judge agreed. Secondly, it was said that the opinions on scarring formed by Professor Lingham, in his report, dated 1 November 2012, did not confirm the nature of injuries being particular burns as opposed to other physical injuries of a non-scarring kind which the Appellant had been said to have sustained when detained in Colombo. The ill-treatment was said to have included being beaten with batons, slapped, kicked with booted feet and beaten with heated iron rods. Those injuries were said to have been inflicted towards the end of August or the beginning of September 2012.
5. The report of Professor Lingham identified (page 26) his view and opinion that the scarring, particularly with regards to scars 2 and 4, were inflicted between about three to eight weeks prior to the examination and in respect of scars 1 and 3, some eight weeks before his examination which he said was consistent with the history given by the Appellant. Professor Lingham in his opinion ruled out the possibility that the burns scarring was caused by self-inflicted means simply because in his judgment the scars are located in an area which were not reachable by her.
6. Professor Lingham also concluded that these scars had not been inflicted deliberately in order to mislead. Thirdly, there was no other medical condition likely to cause such scarring.
7. Finally, he considered if the accidents or wounds or childhood injuries could have otherwise caused scarring, although these were denied by the Appellant. At page 36 Professor Lingham said that he could not say for certain when the scarring occurred but found no reason from what he, presumably, examined and the history given to conclude that the scarring did not occur when it was claimed. He, as has been pointed out, described those scarrings as "typical" i.e. of a kind usually found for the type of trauma claimed albeit there were other possible causes; although as the report noted, self infliction was not in his view a likely cause.
8. The judge rejected the opinion although the reasoning given is pretty sparse and based upon the judge's assumption as to whether it was possible for those injuries to be self-inflicted.
9. The further ground of challenge was the extent to which the Appellant fell within GJ risk categories.
10. Having heard the submissions I am reminded that the appeal which has been undertaken on one previous occasion and led to it being remade. It is a matter of regret therefore that such time and uncertainties have arisen. The difficulty comes in the assessment of the differences in the Appellant's accounts and their materiality which did not necessarily detract from the claim to have been arrested and detained and ill-treated. The wider assessment of the credibility of the claim is coloured by the judge's conclusion that the Appellant was not detained at all. Equally, since the Appellant was claiming to have signed a confession, it is unfortunate that the judge has made no reference to that basis of fear on return. It is perhaps less than anxious scrutiny of the credibility of the claim to have been injured and detained or because of a difference in account concerning the relationship of the Appellant with a person called Malathy.
11. I am left ultimately with an unsatisfactory decision where it is possible to say that the decision is just sustainable. Given the nature of the risk that is relied upon and the claimed continuing adverse interest taken by the Sri Lankan authorities, it seemed to me that it would be a bold course to simply conclude that if remade the same decision would have been arrived at.
12. It is correct to say that the judge did look at the risk categories identified in the case of GJ [2013] UKUT 00319 (IAC) but it seemed to me that that contemplation of the significance of the GJ categories was essentially consequential upon what facts are actually found, adverse or otherwise, and reasoned by a judge.
13. In the circumstances although it may be that the same outcome is reached, that is for another day and I express no view whatsoever upon that decision. Accordingly I am satisfied the Original Tribunal's decision cannot stand. The matter will have to be remade in the Upper Tribunal.
Directions
(1) List before Deputy Upper Tribunal Judge Davey
(2) First available date
(3) Time estimate: 3 hours.
(4) No findings of fact to stand.
(5) The issues are all those that formed the substance of the claim previously.
(6) Any further documents relied upon in support of the appeal to be lodged not less than 10 days before the date of any further hearing and to be served on the IAC and the Home Office Presenting Unit Specialist Appeal teams.
(7) Relist in Nottingham if possible."
2. The resumed hearing took place at Stoke on Trent on 5 October 2016. The burden of proof in the appeal is on the appellant and the standard of proof is whether there is a real risk that the appellant will suffer ill-treatment or persecution upon her return to Sri Lanka.
3. I heard evidence from the appellant and also from the appellant's husband. Each witness adopted their written statements as their evidence-in-chief. The witnesses were cross-examined briefly Mr Bates.
4. The core of the appellant's claim was that she returned to India, where she had been living, to Sri Lanka in August 2012 and was then arrested by the Sri Lankan authorities and tortured. A bribe was paid by relatives for her release which occurred on 2 September 2012. The appellant then left to travel to the United Kingdom without difficulty. In cross-examination, the appellant told the Tribunal that she had informed 7-8 individuals in Sri Lanka about her previous LTTE involvement. She had been arrested by two police officers on 8 August 2012.
5. The appellant's oral evidence was consistent with the evidence she had given in her statement and, in his submissions to me, Mr Bates, for the respondent, did not seek to persuade me that she had failed to tell the truth. I also find that the evidence given by the appellant's husband was truthful.
6. In his submissions, Mr Bates stressed that the appellant had not suffered any problems in Sri Lanka prior to her arrest. The appellant had left Sri Lanka for travel to India in 1998 although she had been back to Sri Lanka in 2006 and again in 2011. In 2008, she claimed that her family and her sister had helped the LTTE by providing accommodation for LTTE activists. Mr Bates queried why the appellant would have been tortured during her arrest had her interrogators not sought the names of other LTTE members; it was the appellant's evidence that they had been solely concerned with activities. There was no reason to believe that her name would appear on a stop list or indeed that she was to be monitored upon return to her home area in Sri Lanka.
7. For the appellant, Mr Paramjorthy referred me to a medical report of Professor Lingam. Mr Paramjorthy submitted that there had been no challenge by Mr Bates in his submissions to the medical evidence of Professor Lingam and further that Professor Lingam had found that the scars on the appellant's body were diagnostic of the sort of torture (burns) to which she claimed to have been subjected. Professor Lingam was unable to date the scarring given that the scars were not particularly recent at the date when he examined them. Mr Paramjorthy submitted that the main submission of Mr Bates (that it was not credible that, if she had been tortured, the appellant would not have been asked for the names of other LTTE activists) fell away if the evidence and, in particular, the medical evidence was strong enough to discharge the burden of proving that torture had occurred. I agree that the findings of Professor Lingam appear categorical as to the fact that the application had been tortured although he, of course, can say no more than that the form of scarring is diagnostic of the sort of torture which the appellant claims to have been inflicted upon her; he was unable to confirm that the torture occurred on the dates claimed by the appellant or while she was under detention in Sri Lanka. However, I am particularly struck in this appeal by the strength of the medical evidence which, as I have acknowledged above, was not challenged at the hearing. Rather, Mr Bates' submission was, in essence, to the effect that the arrest and torture had not occurred because it was not credible that the appellant would not have been quizzed about other LTTE activists. With respect, that is to consider the items of evidence in the wrong order; if the Tribunal finds that the medical evidence shows that the torture is reasonably likely to have occurred in the circumstances described by the appellant, then the fact that she claimed not to have been asked about other LTTE activists is unlikely to dislodge the evidence which indicates that she had been arrested and tortured. I find that to be the case in this instance. It is important to consider all the evidence as a totality, that is, in this appeal, the evidence of the appellant in her written statement and under cross-examination and also the medical evidence. That evidence, for the reasons I have stated above, leads me to find that the appellant was arrested and tortured on the occasions upon which she claims that this occurred, whilst the fact that she was not questioned about other LTTE operatives is insufficient, in the light of the medical evidence, to render her claim incredible or implausible. It is possible that those individual who detained the appellant may have had other reasons for wishing to torture her than to discover the names of other LTTE members; to put it another way, there is no reason to suppose that such torture is only inflicted in order to force a detainee to disclose the names of others.
8. Having found as a fact that the appellant was arrested and tortured in 2012 as she claims I also find it reasonably likely that she was released by payment of a bribe in the circumstances she described. There is a great deal of background material relating to the payment of bribes in such circumstances. This brings me to Mr Paramjorthy's main submission, namely that the significance of the appellant's arrest and torture in 2012 is that this followed the conclusion of the conflict between the Sri Lankan Government and the LTTE. The fact that the appellant was stopped and arrested at all would indicate that her name appears on some stop or similar list and that, if she returned again to Sri Lanka, her name would again show up; thereafter, it would be reasonably likely that she would again be arrested and face the prospect of torture or other ill-treatment.
9. Examining Counsel's submission in the context of the country guidance (GJ (Post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) I am persuaded that there is much force in it. It is reasonable to suppose that the appellant was stopped in the first instance in 2012 because her previous activities were known to the authorities and her name appeared on a list. Such an assumption is wholly in line with the background material and GJ. It could be argued that, given that she had been released on the payment of a bribe, the appellant is no longer of any interest to the authorities who had not bothered to arrest and torture her again having found nothing of interest on the last occasion. I find that would be a dangerous assumption to make. To accept it, one would have to assume, that following her release, the appellant's name has been taken off the stop list or that the list has been marked in some way as to show that she is not to be detained again as she is not of interest. It is equally possible that the appellant's name remains on the list and that government officers other than those who detained her in 2012 would be likely to detain and interrogate her should she return to Sri Lanka now. She is known to have been a LTTE activist in the past, and, significantly, her interrogators are likely to know that she has been living abroad in the United Kingdom where Tamils activists remain active in promoting anti-government opinions amongst the diaspora. The fact the appellant has not been involved in such activities will not, in my opinion, prevent her from being identified from the stop list and again detained and probably ill-treated upon return to Sri Lanka.
10. In all the circumstances, I find that the appellant's asylum appeal should be allowed.

Notice of Decision
The appeal is allowed on asylum grounds.
This appeal is allowed on human rights grounds (Articles 2/3).
This appellant is not entitled to a grant of humanitarian protection.
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 10 November 2016

Upper Tribunal Judge Clive Lane

TO THE RESPONDENT
FEE AWARD
No fee is paid or payable and therefore there can be no fee award.

Signed Date 10 November 2016

Upper Tribunal Judge Clive Lane