Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06257/2011

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 16th July 2013 & 25th November 2013
On 19th December 2013

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

mr nimal jayalal nuwara paksha pedige
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Claimant: Mrs C Bayati (instructed by Warnapala & Company)
For the Respondent: Mr P Nath (Home Office Presenting Officer)

DETERMINATION AND REASONS
1. This is a resumed hearing before the Upper Tribunal following a decision by Upper Tribunal Judge Chalkley on 4th January 2012 on the Appellant’s application, that the First-tier Tribunal had made an error of law and setting aside its determination. The Principal Resident Judge has signed a Transfer Order giving me jurisdiction to hear this appeal.
2. When setting aside the decision of the First-tier Tribunal, Judge Chalkley indicated that none of the findings would be preserved. There was then a Direction in March 2012 by Deputy Upper Tribunal Judge Kelly that unless notice was served to the contrary the Upper Tribunal would proceed on the basis that the evidence had been accurately recorded in the determination of the First-tier Tribunal. The Appellant’s representatives did serve such a notice challenging the record of evidence which is a very limited challenge and does not affect my findings.
3. Thus the matter came before me in July. I had been provided with four bundles of evidence by the Appellant’s representative and I also had the Respondent’s bundle.
4. The Appellant’s claim is that he is a refugee on the grounds of his perceived political opinion in Sri Lanka and that he would be persecuted by the authorities on return. The basis of his claim is as follows:-
5. The Appellant owned and ran a prawn farm and grocery store in Sri Lanka. In August 2005 he married an Austrian National and spent time in Austria. The marriage did not last and in December 2007 after separating from his wife the Appellant returned to Sri Lanka and resumed his business activities.
6. In January 2009 the driver of his vehicle was stopped at a police checkpoint and bomb-making material was found in the van. The driver escaped but the Appellant, being the owner of the vehicle, was arrested and charged with possession of explosives. He was detained for a period of two years during which time he was tortured, eventually being released on bail after his brother bribed an official so that the police objection to bail was withdrawn.
7. The Home Office Presenting Officer relied on the Letter of Refusal dated 11th May 2011 and the challenges to the Appellant’s claim contained therein.
8. At paragraph 18 of the Letter of Refusal the Secretary of State gave consideration to the claim that the Appellant had various businesses, a prawn farm, a grocery store and a wholesale shop and noted that in his screening interview he had claimed that he had run the businesses since 1995 but in his substantive asylum interview indicated he had owned a prawn farm since 1996 and that he started the business in 2008 after returning from Austria and that he set up the grocery shop in 2000. The Secretary of State notes that conversely the Appellant indicated that he started the prawn farm business in 2006 and in 2008 established it as a larger farm. He later claimed to have owned paddy fields which he had not previously mentioned. Furthermore in his application for a visa to visit the UK in 2006 he said that he owned land and ran a shop in a hotel. As a result of those inconsistencies the Secretary of State rejected his claim to run a prawn farm and a grocery store.
9. The Secretary of State then at paragraph 19 of the Letter of Refusal, noted that the Appellant claimed to employ four people at the prawn farm and two people at the grocery store but did not know the full names of any of his employees. The Secretary of State took the view that if he employed six people it was implausible that he would not remember their full names. The Appellant also apparently referred to his employees as friends which the secretary state viewed even more implausible that he would not know their names. That was another factor leading the Secretary of State to reject his claim to own a prawn farm and grocery shop.
10. At paragraph 20 of the Letter of Refusal the Secretary of State noted the Appellant’s claim that on 14th January 2009 one of his drivers was stopped by the police and bomb-making materials were found in the back of the van. However, the Secretary of State noted that the Appellant then claimed that the driver was not one of his own drivers but actually worked for his neighbour and that in fact he and his neighbour jointly owned the prawn farm. That was inconsistent with his earlier claim to have owned and run the prawn farm himself. The Appellant then said that his neighbour was not his business partner but ran an adjacent prawn farm. The Appellant said that because his own driver was not working on the day in question he had used his neighbour's driver as he had done previously when necessary. However, the Appellant had also claimed that his driver worked every day. The Secretary of State said that the Appellant’s answers were duplicitous and contradictory and again found this a reason to reject his claim to own a grocery store and prawn farm.
11. With regard to the Appellant’s clam to have been arrested and detained, at paragraph 21 of the Letter of Refusal the Secretary of State notes that on the one hand he claimed that one of his drivers was stopped and bomb making items were found but on the other hand claimed that the driver abandoned the vehicle and it was then that the bomb-making equipment was found. These the Secretary of State pointed out were inconsistencies as to how the van was discovered and its contents found.
12. At paragraph 22 the Secretary of State noted that the Appellant claimed that the police are still looking for the driver of the van. However, it is said by the Secretary of State that, if the police detained the Appellant for two years and charged him with possession of explosives and supporting the LTTE it was not plausible that they would continue to pursue the driver. When this matter was put to the Appellant at interview he had said that he was charged because he admitted his guilt under duress. However, the Secretary of State argues that if that were the case there would be no reason for the authorities to continue searching for the driver.
13. At paragraph 23 the Secretary of State considers the Appellant’s claim to have been charged with supporting terrorism. He claimed in his asylum interview to have been taken to court only once, for the hearing in February 2011 but in his screening interview he said he was taken to court several times but the court case was postponed until 15th February 2011. These statements were contradictory and amounted to a significant inconsistency.
14. At paragraph 24 the Secretary of State deals with the Appellant’s claim to have been charged with supporting the LTTE and possession of bomb items and noted that the Appellant did not know the detail of the charges.
15. At paragraph 25 the Secretary of State deals with the Appellant’s claim to have attended court for a hearing on 15th February 2011 when he entered a plea of not guilty. However he also claimed that he was found not guilty on that date but then, thirdly, that the outcome of that hearing was only that he was released on bail. These amounted to significant discrepancies and inconsistencies.
16. At paragraph 26 the Secretary of State deals with the Appellant’s claim that his brother bribed a Minister in order to secure his release. He notes that there were two different claims; namely that he was released on payment of a bribe and secondly that he was released on bail. The two statements are contradictory. The Secretary of State also noted that the Appellant had not clearly explained how his release had been secured and that the Appellant’s claim was continually duplicitous and at times incoherent.
17. At paragraph 27 the Secretary of State makes the point that the Appellant did not know who his brother had bribed in order to secure his release. Given that the Appellant is in contact with his brother and his brother knows that he has claimed asylum he ought to have asked and thus know. The Appellant spoke to his brother several times in order to request corroborative information and so he could be expected to discover the details of by whom and how his release was secured.
18. At paragraph 28 the Secretary of State notes that the Appellant’s brother had employed solicitors to represent the Appellant at court but the Appellant did not know the name of the solicitors or how much his brother had paid and that these are the sort of basic details which the Appellant ought to have known.
19. At paragraph 29 the Secretary of State notes that the Appellant has produced what he claims is a court document from Sri Lanka. The Secretary of State notes that the document does not give the name of the police inspector and it does not give the address of the police station. The Appellant said that the document was sent to a number of people including himself but the addressee on the document indicates it was sent to the Department of Immigration and Emigration. The Secretary of State notes the grammar in the letter is poor and that there are no official markings or stamps on the document to indicate that it is official. The Secretary of State suggests that little weight should be attached to that document.
20. At paragraph 30 the Secretary of State notes the Appellant’s claim to fear a Minister in Sri Lanka because his brother had bribed him in his bid to secure his release. However, the Appellant was unable to name the Minister in question which led the Secretary of State to conclude that this event had not occurred at all. Additionally the Secretary of State makes the point that if the Appellant was released on the instruction of a Government Minister he cannot be of interest to that Government.
21. The Secretary of State does not consider that if the Appellant had in truth been carrying explosives for the LTTE that he would have been released at all; even on payment of a bribe.
22. The Secretary of State notes inconsistencies as to whether or not the Appellant’s passport and ID card have been surrendered to the Police.
23. The Appellant made a statement in July 2011 detailing his claim and responding to the points made by the Secretary of State in the Letter of Refusal.
24. He clarifies that he started building a prawn farm in 1995 on land belonging to his father and by the end of 1996 the buildings and tanks were completed and he started farming. His father had owned a shop which was leased to a third party. When the lease expired his father reclaimed the premises but did not run a business from them. In 2000 the Appellant started a retail grocery store in those premises and after three years expanded it to a wholesale business. Until 2004 the Appellant carried on the businesses part-time as he was in employment. In 2004 he gave up that employment to run his businesses is full-time. To operate his businesses he had a tractor and two lorries and he employed a driver. He would hire other people locally to drive the tractor or a lorry if he needed an extra driver. He would use the tractor himself to plough his paddy fields.
25. In 2002 he met his wife and they married in Sri Lanka in August 2005. They planned to live in Sri Lanka and had planned to buy and manage a hotel. However, they went to Austria as his mother-in-law was ill in January 2006. They also visited the UK that year. The marriage broke down because the Appellant wanted to live in Sri Lanka and his wife in Australia. He returned to Sri Lanka in 2007.
26. During his absence from Sri Lanka his brother had been looking after the prawn farm and wholesale shop but the businesses had declined as he was also looking after his own businesses. On the Appellant’s return his brother lent him some money which he invested in redeveloping and expanding the businesses. He had no problems until 14th January 2009 when he was arrested. The reason for his arrest was one of his lorries had been found to contain explosives. He was initially taken to an army camp where he was kept for three days but not questioned. However, he was then accused of helping the LTTE. He told those questioning him that he was not the driver and was not helping the LTTE and that although it had been his lorry, it was not his usual driver but one who worked for a neighbouring farmer. His explanation was not believed and he was beaten up. He remained in detention for two years. He was not tortured every day but five or six times a month when the officers got drunk. Sometimes he would be hung upside down and beaten either with hands or rifles and he was kicked. Once he was left hanging by one leg for a day and a half and since then has had back problems. Other times he was hung upside down and chillies were burned close to his nose. Another time a pen was put into his left ear and hit with a diary causing his ear to bleed and resulting in deafness. On four or five occasions barbed wire in a steel pipe was inserted into his rectum and he was forced to clean the toilet with his tongue. He was also sexually abused many times by the Army officers when drunk.
27. The incidents of torture decreased when the war came to an end. The Appellant’s brother was able to visit him about three times by paying a bribe and his brother told him the war was over.
28. The Appellant was not taken before a court for the first time until April 2010. Bail was opposed by the police and so he was kept in detention. The third time he was taken to court was on 15th February 2011 when he was granted bail. On this occasion the police did not oppose bail as a result of his brother having paid the Minister who told the police not to object to bail.
29. After being granted bail the Appellant remained in hiding for three weeks coming out of hiding only on one occasion to obtain treatment for his injuries. His brother arranged an agent to organise his departure from Sri Lanka. On 13th March 2011 he met the agent and later that evening the agent took him to the airport and he left using a false passport in a Muslim name. He travelled to France and then from France to the UK concealed in a lorry. Once in the UK he contacted his brother to tell him he had arrived safely. His brother put him in touch with Sri Lankans in the UK who assisted him to claim asylum.
30. The Appellant dealt with the various discrepancies pointed out by the Secretary of State.
31. He denied ever having said that he started the prawn farm in 2006. The recorded answer to question 60 of the asylum interview is that “Initially I start 2006 but initially it starts as a simple farm so from 2008 I established it as a large farm.” I am prepared to accept that his explanation that either his response was not recorded accurately or he simply made a mistake is capable of credibility. Elsewhere he has said that the started the business in 1996 and in 2006 he was in Austria.
32. With regards to the Visa application made in 2006 the Appellant accepted the contradiction in that in his VAF it was said that he ran a shop in a hotel. His explanation for that is that the form was completed by his cousin who owns a hotel. That cousin was in Austria at the time the application was completed and he completed it rather than the Appellant. He refers to the handwriting on the Visa application form as being clearly not his own. I do not accept that as a credible explanation. If the Appellant had established business in Sri Lanka and had had for 10 years there was no reason whatsoever for an incorrect occupation to be put on the form. It was his application form and so the Appellant must take responsibility for it.
33. With regard to not knowing his employees full names the Appellant says it is not correct that he did not know any of them. He gave the full names of his employees at the prawn farm and he gave the names of his two employees at the shop when asked for the names but he was not asked for their surnames. He is correct that he was not asked for the shop workers’ surnames. However it is incorrect to say he knew the farm workers surnames. It is unclear from the record whether he gave them in full but certainly he did not know one of them.
34. With regard to the document issued to the Department of Immigration and Emigration the Appellant has produced what is described as a better translation of that document which does not contain the grammatical errors and although neither the police officer’s name or address of the police station is given it does refer to the Officer –in Charge and it may well be that there is only one Police Station at the place in question rendering any fuller form of address unnecessary. However there are other problems with that document. The document purports to be a notification to the recipient, in this case the Department of Immigration and Emigration that the Appellant has been released on bail subject to certain conditions, one of which is that he must not leave the country. It is said that copies of the documents have also been sent to an Employment Bureau, the International Airport and to the Appellant. It indicates that the Appellant was required to hand over copies of his passport and national identity card to the court. That is a direct contradiction to his evidence to me in July when he said quite clearly that his original passport was retained by the court but only a copy taken of his identity card and the original given back to him because it was needed to travel within Sri Lanka. That explanation given in July made sense. It would make sense when foreign travel is prohibited to keep a person's passport. The new and, I am told better, translation however indicates that the original passport was not retained by the court. I had been given no credible explanation for this discrepancy.
35. The Appellant says there was no contradiction with regards to the identity of the employer of the driver in January 2009. He never claimed that he and his employer were business partners he always said that he was an adjacent farmer and they helped each other out. I accept that it is possible to read what the Appellant said in interview to mean that and thus there is no inconsistency.
36. The Secretary of State referred to the Appellant giving various explanations as to what had happened at court in February 2011. At question 4.1 in his screening interview the Appellant clearly said that he was found not guilty. In answer to questions 119-121 in his asylum interview he said when asked whether he had had a hearing and what whether he had given evidence at the hearing he said:-"yes I did say that I am not guilty". He later said that all that happened at court was that he was released on bail. Those are three different versions of what took place at the hearing. That was a hearing in a court in his own country, in his own language when the Appellant would have had no misunderstanding as to what had happened whether he had pleaded not guilty, been acquitted or simply granted bail. That is a very significant matter which adversely affects the credibility of his claim. It is also seriously damaging to his credibility that he knew so little about his lawyer or the detail of the charges against him.
37. With regard to the Appellant’s claim about the Minister and the fact that he did not know the Minister’s name albeit he claims to be at risk from him. This is another serious matter which adversely affects his credibility. It is such an important matter and given that the Appellant is in touch with his brother in Sri Lanka there is no credible explanation as to why he does not have that information. It is of course the case that if the Appellant were able to name this person then his identity as a government minister could be checked.
38. The Appellant also relies upon medical and psychiatric reports and other documents including a letter from his lawyer in Sri Lanka, a letter from his brother, an invoice for fish food for the prawn farm and a newspaper article from Sri Lanka referring to him as a traitor who worked the LTTE.
39. The medical report was prepared by Professor Lingam who examined the Appellant in June 2011 and reported in June 2011. The medical report confirms the Appellant has no scars as a result of the beatings. The Appellant told the Dr that he suffers from Tinnitus as a result of the pen being pushed into his ear canal and a hearing test indicated significant hearing loss to his left ear. The Dr described the left eardrum as "dull indicating previous damage" and he concludes that clinically, traumatic injury caused noticeable hearing loss. To his credit the Dr also said that there are other possible medical causes for significant hearing loss which are age-related. However, he says that, given the age of the patient in this case, he can confidently conclude causation is as described by the Appellant. With regard to his eyesight the Dr is unable to say whether his poor eyesight is as a result of trauma "(the proximity of burning chillies) as he is not a specialist in that field. Similarly not being a specialist he says he is unable to offer an opinion with regard to the anal abuse.
40. The Dr’s report does not assist the Appellant. It refers to the Appellant saying that he suffers from back pain and that he has done so since being suspended by one leg upside down for a day and a half. However, there is no evidence of his receiving any treatment for problems with his back. With regard to the hearing problems the Appellant has not produced evidence from an expert audiologist, with regard to his eyesight he has not produced evidence from an expert optician and indeed with reference to his claim of anal abuse, no expert evidence has been adduced. I note that Dr Lingam says he is not an expert in those fields. However he is a Dr. and the sort of mistreatment the Appellant claims to have endured would have left physical evidence which Professor Lingam would have seen. While the Dr says that he cannot give expert evidence on some matters because he is not an expert he did not find himself similarly restrained with regard to the Appellant’s problem with his ear. I find it extraordinary that if, as claimed, a pen was inserted into the Appellant ear and then hit with a diary it did not cause catastrophic damage to the ear if not worse. It is not credible that the result would simply be a "dull eardrum".
41. Professor Lingam has also made a clear error in his report where, in paragraph 1 of his opinion, he refers to scarring. It is quite clear that the Appellant does not have and has never claimed to have any scars. Indeed there is a letter from Professor Lingam confirming that that was his error. It is however an indication of a lack of care taken by the expert in the preparation of this report which affects the weight to be attached to it.
42. There is also a psychiatric report prepared by Dr Krishna Balasubramaniam also prepared in June 2011. He refers to carrying out a mental state examination of the Appellant and at paragraph 10 of his report says that the Appellant’s speech was slow and monotonous and in his mood he appeared depressed with negative thoughts about his future and that he was preoccupied with the tortures that he had suffered. He also indicated that an assessment of the Appellant's cognitive function confirmed his concentration to be poor. In paragraph 11 the psychiatrist diagnosed the Appellant as suffering from a depressive disorder of a moderate degree evidenced by low mood, loss of interest, poor concentration, disturbed sleep, negative thoughts about his future, feelings of worthlessness and hopelessness. He referred to the Appellant having ideas of self harm at times. The psychiatrist also said that the Appellant suffers from post-traumatic stress disorder evidenced by flashback experiences of the trauma, dreams of the trauma and nightmares of trauma, disturbed sleep or concentration and avoidance of returning to Sri Lanka. He says that the Appellant needs treatment in the form of antidepressants and cognitive behaviour behavioural therapy that he can access through his GP and that he would require treatment for some 18 months in order to recover. He also expressed the opinion that his condition would be likely to become worse if he were returned to Sri Lanka and that he may also attempt self harm or suicide. In terms of prognosis the psychiatrist indicated this was good if the recommended treatment is received which he said is not available in Sri Lanka.
43. What is significant about that opinion is that the report is extremely brief. In terms of the matters relied upon for post traumatic stress disorder, namely flashbacks disturbed sleep and dreams these are all self reported. The urgently needed treatment referred to by the psychiatrist was not in fact accessed by the Appellant and he has never received any cognitive behavioural therapy. He did receive antidepressants from his GP but he does so no longer. There has been no evidence of self harm or suicidal thoughts or behaviour. The Appellant’s case now is that he does not suffer from any psychiatric condition. He relies on it as corroboration for his claims rather than of evidence of current problems. His recovery without the recommended treatment would indicate that either he never PTSD at all or that he has recovered spontaneously without the treatment said to be necessary by the expert who provided the report. That would suggest that he suffered from a depressive disorder from which he has recovered with the aid of antidepressants and nothing more serious than that. No consideration has been given by the psychiatrist to other possible causes of the depressive episode such as living in another country and culture and being separated from his family.
44. The Secretary of State disputes his claim to own a prawn farm and grocery store. With regard to the prawn farm the Appellant has produced an invoice from one of his suppliers and he has produced a vehicle registration document in relation to a motor-vehicle. I am prepared to accept that the Appellant, or at least his family run a prawn farm in Sri Lanka.
45. The Appellant also produced an original newspaper article and a translation of that article and a letter from the deputy general manager of the newspaper confirming the newspaper article to be genuine. Those documents have not been challenged by the Secretary of State save in the most general terms. The Appellant has produced a letter from his brother and a translation confirming his claim and his involvement in securing his release
46. When the matter came before me in July the Home Office Presenting Officer indicated that he relied on the Letter of Refusal and wished to cross examine the Appellant only in relation to the documents. At the conclusion of the evidence there was some discussion about the fact that there was no corroborative evidence or any reference by the police, the brother or more importantly, the newspaper article to the driver and thus little evidence that the driver ever existed. If there was no driver and the events had taken place and the Appellant was arrested and detained then that raised the possibility that he may be excluded from the protection of the Refugee Convention. I acceded to the Home Office Presenting Officer's request for the matter to be adjourned so that he could make enquiries as to whether the exclusion provisions were to be relied upon.
47. When the matter came back before me in November Mr Nath indicated that the Secretary of State was not relying on the exclusion provisions because the Appellant’s claim was disbelieved in its entirety.
48. The Appellant case is rather unusual in that he is Sinhalese not a Tamil. He clearly comes from a comparatively wealthy family in Sri Lanka owning more than one business and having travelled previously to Europe. It is certainly to be expected that if a vehicle is found to contain explosives that the authorities would detain the person responsible. It is also to be expected that the authorities would consider the possession of those explosives indicative of involvement with LTTE.
49. I have not been assisted by the Secretary of State in this case. Documents have come in on a "piecemeal" basis. However, the originals of a number of documents have been available since July, in particular the original newspaper article and yet the Secretary of State has done nothing to check the veracity of any of the documents and indeed on her behalf Mr Nath has challenged documents only in the most general terms. It is difficult therefore for me to make a finding that the documents are unreliable. However, the Appellant's claim of mistreatment is so severe that it is simply not credible that there would be no physical evidence. It is simply not credible that if a government minister was a major factor in his release that he would not now his name and it is not credible that the Appellant, would not know with certainty, given the grave nature of the charges whether he had pleaded not guilty, been acquitted or simply been released on bail. It is also not credible that a person detained on terrorism charges and who had been named in a newspaper would have been released at all, even with a bribe as he would be too high profile – particularly as a Sinhalese aiding the LTTE.
50. Although I have been given no reason by the Secretary of State to doubt the documents I do so because they cannot be reliable if the claim is incredible as I have found it to be for the reasons I have given.
51. An Upper Tribunal Judge having found that the First-tier Tribunal made an error of law in its determination and having set that determination aside I now remake the decision and dismiss the Appellant’s appeal on Asylum, Humanitarian Protection and on Human Rights grounds.

Signed Date 27th November 2013
Upper Tribunal Judge Martin