Tribunal decisions

The decision

IAC-FH-CK-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05379/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 February 2017
On 3 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

Mr Premakhanthan Sithambaram
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Burrett, Counsel, instructed by Lawland Solicitors
For the Respondent: Ms A Fijiwala, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the appellant against a decision of the First-tier Tribunal (Judge Morgan), who dismissed his appeal against the respondent’s decision of 19 March 2015 refusing his application for asylum.

Background
2. The appellant is a citizen of Sri Lanka born on 14 March 1979. He arrived in the UK on 7 July 2011 with entry clearance as a student. His leave was subsequently extended to 21 April 2014. On 7 March 2014 he claimed asylum. His claim was refused by the respondent for the reasons annexed to the decision letter.
3. The claim was summarised by the judge at [11] – [17] of his decision. In short, the appellant said that he feared returning to Sri Lanka because he would be persecuted by the authorities because he had a court case pending against him and an arrest warrant had been issued because weapons were found at the business premises he owned. His brother, who had been looking after the business while the appellant was in the UK, took on an employee on the recommendation of a friend but on 25 October 2013 the appellant’s brother and the employee were arrested in Vavuniya. The employee was suspected of being a member of the LTTE and of possessing firearms. On 27 October 2013 the appellant’s home and business premises were raided and the authorities had found weapons in the room where the employee was staying. The appellant later learnt from his father that following his detention his brother had been dumped under a bridge and left to die, a death certificate being produced in evidence confirming that he died on 2 December 2013.
The Hearing before the First-tier Tribunal
4. The judge heard oral evidence from the appellant and took into account the documents identified at [10] of the decision. He noted at [19] that the appellant had provided a large quantity of evidence relating to his claim that there was a pending case against him and that he was wanted on an outstanding arrest warrant. He recorded at [20] that both representatives accepted that the critical consideration would be whether the appellant had a pending court case against him. The respondent relied on a Document Verification Report (DVR) and a letter from the British High Commission (BHC) dated 2 November 2015 in support of her case that the arrest warrant was not a genuine document. The DVR refers to the warrant of arrest with the appellant’s name and address redacted “as shown below in a PDF file”. A direction was made on 27 May 2016 that the respondent was to serve a copy of the PDF file referred to in the DVR on the appellant, if they sought to rely on it, but by the date of the hearing the PDF had not been provided.
5. The hearing before the judge proceeded on the basis that the PDF could not be relied on and it was argued at [23] by counsel appearing for the appellant that there was nothing from the police, no signed statement from the respondent’s agent and the contents of the DVR were merely an assertion. He submitted that on a balance of probabilities the respondent had not made out that the document was a forgery. He referred to the consequences to the appellant that, if the respondent’s DVR was wrong, he could face ill-treatment and possibly death. He also submitted that the authorities would want the appellant back and would have good reason to lie to the respondent about the existence of the pending court case.
6. However, the judge found on the balance of probabilities that the respondent had demonstrated that there was no court case pending against the appellant and there was no evidence before him that would enable or justify a finding that the police authorities would lie to the respondent [25]. The judge referred to the letter from the BHC confirming that the authorities had on one occasion at least confirmed the existence of a pending court case and he said that it was difficult to envisage why the Sri Lankan authorities would lie, particularly as the appellant’s case was that the authorities had been prepared to share information with the appellant’s lawyers, who had been able to obtain evidence of the pending court case.
7. The judge then said in [26] that he was satisfied that the respondent had demonstrated that there was no court case pending and he found further in the light of this evidence that the appellant had not demonstrated even to the lower standard that such a case was pending. Both representatives had accepted that this finding was critical to the determination of the appeal. The judge said that he had considered the remaining evidence in its entirety and he would not have been persuaded to reject the appellant’s evidence because of the concerns raised, particularly in respect of s.8 of the Asylum and Immigration (Treatment of Claimant’s, etc.) Act 2004. His evidence was that he had claimed asylum shortly after finding about his brother’s death and in consequence there was no delay. The judge commented that he had had the benefit of seeing and listening to the appellant as he gave evidence and there was nothing within that evidence that would have enabled or justified adverse credibility findings but for the DVR evidence.
8. The judge in [27] went on to consider the evidence about the death of the appellant’s brother. He accepted the respondent’s submission that, even on the appellant’s own evidence, there were a number of possible causes, including infection and surgery and that the evidence whilst potentially corroborative did not take the appellant’s case further in demonstrating that his brother was detained, ill-treated and tortured by the army and died in consequence. For these reasons the appeal was dismissed.
The Grounds and Submissions
9. In the grounds it is argued that the appeal hearing had been adjourned on two previous occasions and a specific direction had been given that the respondent provide a copy of the PDF attachment referred to in the DVR and that the judge erred in hearing the appeal given the failure of the respondent to comply with this direction. Further, it is argued that the judge gave undue weight to the DVR given the lack of evidence about the PDF appended to it. The second ground argues that the judge erred by failing to give any reason why the evidence of the appellant’s lawyer in Sri Lanka failed to take the case much further. The third ground argues that the findings at [25] are unsafe in that there was no evidence from the Sri Lankan police authorities and it was not open to the judge to find that the evidence of the appellant was forged in accordance with RP (proof of forgery) Nigeria [2006] UKAIT 00086 given that there was no evidence from the respondent but simply assertions made in the DVR. The respondent had provided no evidence from the police and no witness statement from anyone who had contacted the police.
10. It is argued in the fourth ground that at [25] the judge noted that the redaction of the appellant’s name failed to have the effect of concealing the appellant’s identity. This was especially troubling given the failure of the DVR to identify the name of the individual about whom enquiries were made. The fifth ground argues that the judge failed to make any findings in relation to the court summons even though specific submissions were made in relation to this document. The DVR only purported to verify the arrest warrant and no enquiries were made about the court summons produced by the appellant. It is also argued that the judge clearly found the appellant’s evidence to be credible but for the DVR, which failed to verify the court summons which therefore must continue to be regarded as reliable and showing an ongoing risk of arrest.
11. Permission to appeal was granted by the Upper Tribunal on the basis that it was arguable that the judge had not applied the correct standard of proof applicable to asylum claims. It was also arguable that the reasoning in support of the cogency of the DVR at [25] – [26] failed to take account of the missing PDF attachment and was confusing. The judge appeared to accept the appellant’s evidence in its entirety [26] – [27] and had arguably not factored this into the assessment of whether it was reasonably likely that the appellant was involved in the relevant court case.
12. Mr Burrett adopted his grounds in his submissions. He submitted that whilst the judge had been correct to assess an allegation of forgery on a balance of probabilities, he failed to factor in that this was an asylum appeal. He had considered the DVR in isolation from the rest of the evidence when the credibility of the appellant’s account was critical. He accepted that producing a forged document would go against the appellant but it would not be determinative. The evidence had to be looked at as a whole. He argued that the judge had failed to carry out a proper analysis of the appellant’s evidence or to assess his individual account including his past history and in consequence his findings were unsafe.
13. Ms Fijiwala submitted that the judge had properly directed himself on the burden and standard of proof in [7]. The reference to balance of probabilities in [25] was explained by the submission made in [23] that such a burden was on the respondent if she sought to establish that the document was a forgery. It had been agreed at the hearing that the central issue was whether the appellant had a pending court case against him. The judge had been entitled to focus on that issue. He had explained at [25] – [26] why in the light of the DVR and a letter from the BHC he did not accept even to the lower standard that such a case was pending. In the light of that finding of fact, the judge had been entitled to find that the appellant had not demonstrated that he was wanted in Sri Lanka or was of any adverse interest to the authorities.
Assessment of the Issues
14. I shall deal firstly with the question of whether the judge erred by failing to apply the correct standard of proof in asylum claims. He set out the standard in [7]. Although he simply said that it was sufficient to establish a well-founded fear of being persecuted for the purposes of refugee status, he made it clear that for the purposes of humanitarian protection it was sufficient to establish that substantial grounds had been shown for believing that the appellant would face a real risk of suffering serious harm on return. The judge referred to the lower standard in [26] and [28] and I am not satisfied that he was unaware of what the proper standard was. There is no need for a formulaic recital about the standard of proof. It is correct that in [25] he found on a balance of probabilities that the respondent had demonstrated that there was no court case pending against the appellant. That was the correct standard and reflected the submission made in [23] that the respondent had to show that the document was a forgery on that standard. The reference to the balance of probabilities in that context does not cast any doubt on whether the judge was aware of the standard of proof in asylum claims. This point is made clear by the fact that in [26] the judge said that he was satisfied that the respondent had demonstrated that there was no court case pending and that he further found in the light of this evidence that the appellant had not demonstrated even to the lower standard that such a court case was pending.
15. The grounds further argue that in the light of the respondent’s failure to produce the PDF attached to the DVR that no weight should be attached to the DVR. However, it was not argued at the hearing that the respondent should not be allowed to rely on the DVR, simply that no weight should be attached to it. The reasons to support this submission are set out in [23]: the PDF accompanying the DVR had not been provided, it was accepted by both representatives that this evidence was not and could not be relied on by the respondent, there was nothing from the police, there was no signed statement from the respondent’s agent and the contents of the DVR were merely assertion.
16. It was a question of fact for the judge to decide what weight to attach to the DVR. In any event, the DVR makes it clear that the PDF is the warrant of arrest with the appellant’s name and address redacted and there is no reason to believe that the PDF is anything other than the redacted version of the warrant produced by the appellant. The DVR records that after checking their records, officers at the Modara Police Station confirmed that there was no case filed under court reference PC/CO/AK/02167. This number appears not only on the arrest warrant but also on the summons relied on by the appellant. The summons makes it clear that the name and address of the complainant is the Officer in Charge, Police Station, Modara and this is repeated on the warrant. The DVR therefore does provide evidence that there was no case filed under the court reference number at the Modara Police Station.
17. The judge was also entitled to take into account the information in the letter from the British High Commission dated 2 November 2015 setting out the background about how the verification of documents is carried out, explaining that the records are checked physically by the officer in charge at the station. It is therefore not the case that the DVR can be categorised as simply a bare assertion. In summary, the weight to be attached to the DVR was an issue of fact for the judge to assess in the light of the evidence as a whole.
18. Ground 2 argues that the judge failed to explain why the evidence from the appellant’s lawyer did not take the appellant’s case much further [24]. This comment must be read in context and refers to the letters from the appellant’s lawyer of 23 May 2016 and 24 August 2016 postdating the DVR. The August letter explained that the lawyer has permanently moved his practice to Jaffna, is not undertaking any new cases in Colombo and that because he was unable to come to Colombo he sent an associate to the police station to obtain the document. It was for the judge to decide whether this took the matter any further and was entitled to find that it did not.
19. The third ground argues that the findings at [25] are unsafe and it was not open to the judge to find that the evidence of the appellant was forged in accordance with RP (proof of forgery). As I have already said, this was an issue of fact for the judge to assess. In any event, he also made it clear that the appellant had not demonstrated even to the lower standard that the court case was pending.
20. The fourth ground refers to the judge’s comment that the redaction of the appellant’s name failed to have the effect of concealing his identity. In [25] the appellant’s counsel criticised the redaction of the appellant’s name from the arrest warrant. The judge said that he was not persuaded by this submission (it was agreed at the hearing that “not” must have been omitted as a clerical error). The judge commented that if details on a pending court case were requested by the respondent the appellant would be readily identifiable and it was difficult to see how else the respondent could go about verifying the existence of such a court case. However, this ground does not disclose any error of law on the judge’s part and rehearses issues of fact.
21. The fifth ground argues that the judge’s finding only related to the DVR and that no enquiries were made about the court summons. However, the summons and the DVR are linked in that they have the same case number and the evidence from the DVR was to the effect that there was no case filed under that case reference. On this basis it was open to the judge to find that the appellant had failed to demonstrate that a court case was pending.
22. Finally, it is argued that the judge considered the DVR in isolation without considering the evidence as a whole. It is submitted that this argument is supported by the judge’s comment at [26] that, having heard the appellant give evidence which was subjected to lengthy and robust cross-examination, there was nothing within that evidence that would have enabled or justified adverse credibility findings but for the document verification evidence. This does not indicate that the judge considered the DVR by itself or otherwise than in the context of the all the evidence. The judge was simply saying that but for the DVR he would not have made adverse credibility findings. This is not the same as treating the DVR in isolation.
23. When considering the evidence about the death of the appellant’s brother in [27], he found that even on the appellant’s own evidence there were a number of possible causes of death and that the death, whilst potentially corroborative, did not take the appellant’s case any further in demonstrating that his brother was detained, ill-treated and tortured by the army and died in consequence. The judge said that whilst the evidence was potentially corroborative, considering the evidence in its entirety and particularly the DVR, he was unable to find that the appellant had made out his case even to the lower standard. I am satisfied that this indicates that firstly, the judge did consider the evidence in the round and that when the decision is read as a whole, it cannot be said that the judge was accepting the appellant’s evidence in [26]-[27]. Both representatives had agreed that the critical consideration would be whether the appellant had a pending court case against him and in these circumstances the judge was entitled to focus on that issue. However, as I have already said, I am not satisfied that the focus was such that the judge considered that matter in isolation from the evidence as a whole.
24. In summary, I am satisfied that the judge reached findings and conclusions properly open to him for the reasons he gave. The grounds do not satisfy me that he erred in law.

Decision
25. The First-tier Tribunal did not err in law and it follows that the decision to dismiss the appeal stands. No anonymity direction was made by the First-tier Tribunal.

Signed H J E Latter Date: 2 March 2017

Deputy Upper Tribunal Judge Latter