Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05447/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 November 2016
On 2 December 2016

Before

Deputy Upper Tribunal Judge MANUELL

Between

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(ANONYMITY Direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Muquit, Counsel (instructed by A & P Solicitors)
For the Respondent: Ms S Brockelsby-Weller, Home Office Presenting Officer

DETERMINATION AND REASONS
Introduction
1. The Appellant appealed with permission granted by First-tier Tribunal Judge Ransley on 27 June 2016 against the decision of First-tier Tribunal Judge Ford made in a decision and reasons promulgated on 27 May 2016 dismissing the Appellant's asylum, humanitarian protection and human rights appeals.
2. The Appellant is a national of Sri Lanka, born on 7 July 1981. He had appealed the Respondent's decision dated 11 March 2015 to remove him from the United Kingdom. The Appellant had entered the United Kingdom as a Tier 4 (General) Student Migrant on 22 September 2008 and returned to Sri Lanka on 3 September 2010. He came back to the United Kingdom on 25 September 2010. On 19 February 2011 he was granted leave to remain as a Post Study Work Migrant. His wife joined him in the United Kingdom in November 2011 and they have since had a child. The Appellant claimed asylum on 8 March 2013. He stated that he feared to return to Sri Lanka because of his LTTE involvement and family connections.
3. When granting permission to appeal, First-tier Tribunal Judge Ransley considered that it was arguable that Judge Ford had (a) erred in her approach to the medical evidence, (b) failed to make findings on all of the evidence presented, (c) erred in the assessment of the consequences of the Appellant's TGTE involvement and (d) failed to consider whether GJ and Others (post civil war returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) was now out of date in the light of the Respondent's COIS dated May 2016.
4. The Respondent filed notice under rule 24 dated 19 July 2016 indicating that the appeal was opposed. Standard directions were made by the tribunal and the appeal was listed for adjudication of whether or not there was a material error of law.
Submissions
5. Mr Muquit for the Appellant relied on the grounds of onwards appeal and on the grant of permission to appeal. He applied to adduce further evidence from the Appellant's expert medical witness clarifying the report which had been placed before Judge Ford. The original appeal had been remitted to the First-tier Tribunal previously because the medical evidence had not been treated correctly and the same problem had recurred. The judge had relied on the medical report as part of her adverse credibility findings, but had misunderstood what the expert had said. The age of the scars was important.
6. The judge had further erred, it was submitted, by failing to make findings on the evidence of all of the witnesses, such as the Sri Lankan MP. It was not possible to know how that evidence had been included or treated in the judge's findings.
7. Nor had the judge taken proper account of the Appellant's diaspora activities. The TGTE was a proscribed organisation and any connection was likely to result in a risk on return. This issue was the subject of a forthcoming appeal hearing in the Court of Appeal in another case. Whether the Appellant had a malign motive in such involvement was immaterial, as Danian [1999] EWCA Civ 3000 showed. The judge had failed to deal with those issues. As a result the decision and reasons was unsafe. The decision should be set aside and the appeal reheard in the First-tier Tribunal.
8. Ms Brocklesby-Weller for the Respondent relied on the Respondent's rule 24 notice and submitted that the decision and reasons disclosed no error of law. There was no need for further evidence from the Appellant's expert at the error of law stage and the Appellant's application was opposed. The Appellant's complaints at most were just a disagreement with the judge. The judge had explained why he found that there was no real depth to the evidence and that the Appellant was not credible. GJ (as above) showed that the Sri Lankan authorities had sophisticated intelligence gathering and were able to distinguish those such as the Appellant who posed no risk. The judge had dealt with the medical evidence in reasonable way. The medical evidence had not been simply dismissed and had been the subject of a proper evaluation. The Appellant had not claimed to be a member of the TGTE. The decision and reasons should stand.
9. Mr Muquit in reply emphasised the judge had gone beyond the reasons for refusal letter when reaching adverse credibility findings. The section 8 point had, for example, not been taken by Respondent.
No material error of law
10. In the tribunal's view, the terms of the grant of permission to appeal were a generous response to what was mostly a speculative and over hopeful reasons challenge. The submissions made on the Appellant's behalf were not persuasive. The tribunal refused to grant permission to admit into evidence a letter from the Appellant's medical expert explaining his report: the decision and reasons had to be assessed on the evidence available to the judge and the expert could not be permitted to rewrite his report to answer the concerns identified by the judge.
11. The fact that the Upper Tribunal has had to provide country guidance on claims from Sri Lanka at various times is an indication of the large number of appeals from that source. Indeed, despite the defeat of the LTTE on 17 May 2009, now over 7 years ago, asylum claims continue to be made in what might be thought to be surprising numbers. Some claims are recognised as well founded by the Home Office and hence are never seen on appeal, so that judges see only the contested claims which as a group are likely to be much weaker. It is beyond dispute that Sri Lanka is an endemically corrupt country with low standards in public life. False official documents are readily available. For a striking example in the public domain of the depths of such corruption, see the www.Tamilnation.org report on the Katunayaka Airport bombing by the LTTE on 24 July 2001, which states that serving Sri Lankan military officers were bribed.
12. It is possibly too trite to say, but asylum claimants in the United Kingdom have little or nothing to lose from pursuing the process as far as they can. The worst that can happen is that they might be returned at no expense to themselves at the end of what is all too often a long drawn out appeals process, during which time they are supported by the state if unable to work. Establishing the truth of a claim (or rather, the level of risk on return to the standard of a reasonable likelihood) can often be a difficult process.
13. Experienced First-tier Tribunal judges such as Judge Ford would be expected to recognise certain over familiar elements to an appeal such as that advanced by the present Appellant, of which entry to the United Kingdom as a Tier 4 (General) Student Migrant, a long and wholly unsatisfactorily explained delay in claiming asylum (measured in this instance in years) are frequently encountered. Evidence was provided by a medical expert whose work is regularly seen by the First-tier Tribunal. The tribunal refused to admit into evidence a recent letter seeking to explain his report, because that was not evidence available to Judge Ford and so was not a proper basis on which to determine whether the judge had fallen into material error of law. That was the background to the appeal. It has to be said that it was on its face a weak and possibly contrived claim.
14. Despite those familiar and unpromising elements noted above, the judge examined the case put forward by the Appellant in the round, with evident anxious scrutiny, which included discussion of all parts of the evidence. It was submitted that no findings had been made about the evidence of the Appellant's witnesses such as his mother, but that assertion has no substance. At [25] the judge pointed out that the mother's evidence was plainly implausible, which must be right. Another witness, who failed to attend to have his evidence tested, contradicted the Appellant: see [26] of the decision and reasons. It is perfectly obvious that the judge found that none of the Appellant's witnesses was reliable and that was clearly explained.
15. Judge Ford's discussion and careful analysis of the medical evidence was extensive: see [20] of the decision and reasons onwards. At [37] the judge gave good and sufficient reasons for placing little weight on Dr Martin's report, amongst other reasons because of the expert witness's reference to the Appellant working as a policeman, a claim the Appellant had never made. It was open to the judge to find (in the context of the evidence as a whole) that the Appellant's account of the causation of his injuries was not supported by Dr Martin's report.
16. It is true that, at the time GJ was decided, the BTF and TGTE had not been placed on the list of proscribed organisations, but the judge found that of the Appellant's connection with those organisations was purely nominal, i.e., they meant nothing to him and the evidence had been produced solely to promote his claim. Judge Ford dealt adequately with the submission that GJ (as above) had been overtaken by recent developments: see [42] and [43]. The judge examined the Appellant's claimed diaspora activities and found as a fact in any event that the Appellant's activities and involvement in the TGTE had been minimal and of no likely interest to the Sri Lankan authorities even if they knew of it. The judge's observations at [56] about the Appellant's motivation were a general comment on his total lack of credibility and the lack of weight which could be given to his various assertions.
17. It was open to the judge to draw an adverse inference from the absence of relevant witnesses such as the Appellant's sister and wife when assessing the likely significance or impact of the Appellant's attendance at demonstrations in the United Kingdom. Similarly, the judge placed no weight on the photographs of the Appellant at demonstrations in the United Kingdom, obviously events attended by large numbers of people, as was not in dispute. At [335] and [336] of GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC), the Upper Tribunal found that attendance at demonstrations outside Sri Lanka was not in itself sufficient to create a real risk of adverse attention on return to Sri Lanka.
18. In the tribunal's judgment, the judge dealt adequately with the Appellant's limited diaspora activities. The Appellant who had travelled on his own passport was of no conceivable interest to the authorities and his whole claim was a sham. There was nothing reasonably likely to cause the Sri Lankan authorities to question the Appellant on return, whether at the airport or subsequently. He had left as a student on his own passport without hindrance and anything he had done while abroad was not capable of arousing the adverse attention of the authorities. The judge's decision was a comprehensive reflection on the various issues raised in the appeal. There was no material error of law. There is no basis for interfering with the judge's decision to dismiss the Appellant's appeal, which dismissal must stand.

DECISION
The tribunal finds that there is no material error of law in the original decision, which stands unchanged

Signed Dated 2nd December 2016

Deputy Upper Tribunal Judge Manuell