Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06892/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2nd August 2016
On 15th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE R C CAMPBELL

Between

mr Jerome Delan RUBENDRAN
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr V P Lingajothy (Legal Representative)
For the Respondent: Ms Z Ahmad (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. The appellant is a citizen of Sri Lanka. His appeal against a decision to refuse his protection claim was dismissed by First-tier Tribunal Judge Quinn ("the judge") in a decision promulgated on 4th November 2015.
2. The judge heard evidence from the appellant and also from his mother. He refused an application to adjourn the case, pending the outcome of the appellant's father's asylum claim, noting that two earlier applications to adjourn had been refused. The judge found neither witness to be credible and noted that neither the appellant's sister nor his aunt had provided witness statements or attended to give evidence on his behalf. He took into account and weighed medical evidence which showed that the appellant was experiencing some psychotic symptoms. Overall, the judge found that the appellant was lucid and coherent at the hearing and understood the questions put to him. The evidence did not show that his mental ill-health was, at present, particularly serious. He concluded that the appellant was not a refugee, was not entitled to humanitarian protection and that his removal to Sri Lanka would not breach any of his human rights (or the human rights of anyone else).

3. In grounds in support of an application for permission to appeal, it was contended that the judge erred in failing to adjourn the hearing. The author of the grounds stated that the appeal hearing "could not go ahead in the absence of a duly prepared medical report" and the judge relied on hearsay evidence suggesting that the misuse of drugs may have caused the appellant's psychotic symptoms. Contrary to the judge's express finding, the appellant was a credible witness who would be at risk of persecution or ill-treatment on return, not least because of his father's involvement with the LTTE. In the grounds, parts of the appellant's case are rehearsed, including claims that he was detained and ill-treated by the authorities in Sri Lanka. The cause of his PTSD could only be established by independent medical evidence which the judge "effectively stopped the appellant from having". His family members all lived in the United Kingdom and the appellant also relied on Article 8 of the Human Rights Convention.

4. Permission to appeal was refused by a First-tier Tribunal Judge but, following renewal of the application, granted by an Upper Tribunal Judge. She found that in essence the grounds asserted procedural unfairness in two respects. First, in refusing to adjourn for a medical report and, secondly, for failing to await a decision in the appellant's father's case. The Upper Tribunal Judge noted the apparent failure to produce a medical report in accordance with directions given by the Tribunal when the appeal was adjourned on an earlier occasion in June 2015, but found that it was arguable that the causation of the appellant's current psychiatric state was left uncertain in the absence of an adjournment.

5. In a Rule 24 response from the Secretary of State made on 20th January 2016, the appeal was opposed. The decision showed that the judge had clearly addressed the entirety of the appellant's case and directed himself appropriately.

Submissions on Error of Law

6. Mr Lingajothy began by making a further application to adjourn, to enable the appellant's father's protection claim to be completed and resolved. The appellant himself had never been a member of the LTTE whereas his father had a prominent role and the Home Office might very well be making checks before deciding to grant refugee status. The appellant's sister had made an independent claim for protection, albeit on the basis of her father's circumstances. If the Tribunal were to adopt a business like approach, costs might well be saved and the son and daughter would benefit from their father's case. As it was, the First-tier Tribunal Judge decided to hear the appellant's case and picked up on aspects of the medical evidence regarding alleged cannabis use, but none of this had any bearing on the appellant's father's circumstances. In the interests of fairness, a decision on the appellant's father's case was needed.

7. Ms Ahmad opposed the application. The substance of the father's case was not relevant to the issue before the Tribunal, which concerned whether or not the decision of the First-tier Tribunal contained a material error of law. Mr Lingajothy made a brief response, saying that the appellant had suffered a breakdown as a result of torture in Sri Lanka, his case being essentially linked to his father's case.

8. I decided to proceed and declined to adjourn the error of law hearing. I noted from the case management file that the appellant's solicitors made applied on 19th July 2016 to adjourn the hearing listed for 2nd August, to allow time for a decision to be made in relation to the appellant's father. The application was refused the following day. Upper Tribunal Judge Perkins found that the status of the appellant's father might be something to consider if an error of law were shown in the First-tier Tribunal's decision, but there was no reason why uncertainty over the father's status prevented a fair hearing on 2nd August 2016. I respectfully agree and find that this assessment remains entirely sound. There is no certain timetable regarding a decision on the appellant's father's case and, in any event, his particular protection claim, or the state of it, does not assist in the task of deciding whether the First-tier Tribunal's decision contains material errors of law.

9. Mr Lingajothy proceeded. He drew attention to the appellant's circumstances, including the ill-treatment claimed to have occurred in Sri Lanka. The appellant had a breakdown in the United Kingdom and was admitted to hospital but there was, at least at that time, no clear diagnosis regarding the cause of his ill-health. He was hospitalised for a number of days and then discharged. His family said that the breakdown in his health was a consequence of the brutal treatment he received in captivity in Sri Lanka. If that were established, the appellant's case could be seen properly in context and his credibility would be enhanced.

10. The judge heard from the appellant and his mother and there were no inconsistencies in their accounts. The appellant's grandmother, said to have been responsible for mention of cannabis use, was not called to give evidence. Nor was the appellant's sister. Both of these witnesses were present on 2nd August, outside the hearing room. The judge heard only hearsay evidence regarding what someone, perhaps a family member, had said.

11. Mr Lingajothy said that the refusal to adjourn resulted in unfairness. All the written grounds were relied upon.

12. I asked Mr Lingajothy about the applications to adjourn the First-tier Tribunal appeal, made between June and October 2015. Adjournment on 8th June that year was expressly on the basis that a medical report might be obtained, but subsequent applications to adjourn instead drew attention to the appellant's father's circumstances. Mr Lingajothy replied that the family expected that the father's case would be dealt with soon after the appellant's appeal was adjourned, but this had not happened. The family relied on NASS support and were based in Birmingham. They had travelled to London to attend the Upper Tribunal.

13. Ms Ahmad responded on behalf of the Secretary of State. She handed up copies of the Upper Tribunal decision in Nwaigwe [2014] UKUT 00418 and the Court of Appeal judgment in TK (Burundi) [2009] EWCA Civ 40. The judge's reasons for refusing to adjourn the appeal were clear and he took into account all relevant matters in that context. As was clear from Nwaigwe, the critical issue was one of fairness. Here, the appellant's representatives had made earlier applications to adjourn which all failed. The appeal was initially adjourned in June 2015 so that a medical report could be obtained, but it appeared that none had.

14. The appellant made a protection claim based on his own circumstances and it was clear that the judge did not fail in any respect to allow the appellant to put his case. The judge's reasoning was clear and his conclusions were open to him.

15. Even if the judge did err in declining to adjourn, the error was not remotely material. He rejected the appellant's explanation for the delay in claiming asylum, for the purposes of Section 8 of the 2004 Act and went on to find that the appellant had used deception in his immigration history and was not a credible witness. The judge made further adverse findings regarding the absence of documentary evidence from Sri Lanka. So far as the appellant's mental ill-health was concerned, the judge properly considered this aspect. Even if a medical report had been before the judge, the overall assessment might well have been the same.

16. In a brief response, Mr Lingajothy said that the ultimate objective was the fair disposal of the appeal. This required an adjournment of the appellant's case. An application under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 had been made shortly before the hearing at Field House, to enable further evidence to be adduced. Mr Lingajothy mentioned witness statements made by the appellant's sister and grandmother but I noted (and drew to his attention) that the Upper Tribunal's file contained only a statement from the appellant's sister. There was no sight of anything from his grandmother.

17. Mr Lingajothy said that the judge's error had the effect that the appellant had no chance to challenge or rebut some of the evidence and was unable to rely on his sister's evidence.

Conclusion on Error of Law

18. Ms Ahmad is quite right to draw the Tribunal's attention to the guidance given in Nwaigwe. The test to be applied in relation to the adjournment applications is that of fairness and in refusing to adjourn, the critical question is this: was there any deprivation of the affected party's right to a fair hearing?

19. In the present appeal, an important part of the background is the litigation history. The appeal was listed for hearing on 8th June 2015 but adjourned on the appellant's application (opposed by the Secretary of State's representative). The First-tier Tribunal Judge noted on that occasion that the appellant's father's asylum claim awaited a decision and that a medical report was sought. Directions were made requiring any report to be filed and served at least four weeks before the next hearing date. On 5th August 2015, the Tribunal gave the parties notice that the appeal would be heard on 23rd October that year.

20. On 14th October, there was another application to adjourn, the focus largely being on the appellant's father's asylum claim. Attached to the application was a copy of the discharge summary prepared by Lewisham & Greenwich NHS Trust, showing that the appellant was admitted to hospital between 27th June and 6th July 2015 as a result of "acute schizophrenia-like psychotic disorder". The application for an adjournment was refused on 16th October 2015, the judge noting the previous adjournment and indicating that an explanation was required for the absence of a medical report.

21. There was then a further application for an adjournment on 21st October 2015, on the basis that time should be allowed for a decision to be made in the appellant's father's case and to "allow our client sufficient opportunity to obtain a medical/psychiatric report". That application was also refused, on the same day.

22. As is apparent from the decision of the First-tier Tribunal, the application for an adjournment was repeated at the hearing on 23rd October 2015. In paragraphs 20 to 22, the judge recorded the submissions made by Mr Lingajothy and the Presenting Officer and gave his reasons for not adjourning. He noted that the appellant's father's protection claim was still outstanding and had been under consideration for some time and that two earlier applications to adjourn had been refused. He noted the Presenting Officer's submission that the two claims were entirely separate and that there was no indication of when the appellant's father would receive a decision. There was also a lack of medical evidence, notwithstanding the adjournment to enable a report to be obtained.

23. Against that background, I have no hesitation in concluding that the judge did not err or act in a procedurally unfair way in refusing to adjourn the case. The appellant was not deprived of a fair hearing. The judge's decision is thorough and has been carefully prepared and it is clear that he gave the appellant every opportunity to explain his case. The judge carefully recorded that the appellant confirmed that he understood the questions put to him. He found the appellant to be lucid and coherent. Having taken into account the medical evidence before the Tribunal, such as it was, the judge found that his mental ill-health was not particularly serious. So far as the cause of that ill-health is concerned, although the judge mentioned cannabis use as a factor, in paragraphs 56 and 70 of the decision, it is clear that he did not expressly find that misuse of drugs was responsible. He was careful to go no further than to mention it as a possible cause. There is nothing in either of those paragraphs or elsewhere in the decision to undermine the judge's overall assessment of the medical evidence, or indeed any of the evidence.

24. I conclude that the grounds of appeal to the Upper Tribunal have not been made out. There was no unfairness in refusing to adjourn the appeal and the judge did not err in his assessment of the medical evidence. His adverse credibility findings were open to him and he did not overlook or misunderstand any of the salient features of the appellant's case. The judge did not "effectively stop" the appellant from obtaining medical evidence. Far from it. The appellant and his advisors were given ample opportunity to obtain such evidence.

25. Similarly, the assessments of risk on return to Sri Lanka and the appellant's private and family life ties are cogently reasoned and sustainable.

26. I conclude that the decision of the First-tier Tribunal contains no material errors of law and shall stand.

NOTICE OF DECISION

The decision of the First-tier Tribunal shall stand.

Signed Date 15/08/2016

Deputy Upper Tribunal Judge R C Campbell

ANONYMITY

The First-tier Tribunal Judge made no anonymity direction and there has been no application before me. I make no direction on this occasion.

Signed Date

Deputy Upper Tribunal Judge R C Campbell