Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06949/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29 September 2016
On 05 October 2016
Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

M S J A
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Jafar, Counsel
For the Respondent: Mr D Clarke, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Sri Lanka who appealed against the decision to refuse his asylum claim. His appeal against that refusal was dismissed by Judge of the First-tier Tribunal Eban ("the FTTJ") in a decision promulgated on 18 July 2016.
2. I maintain the anonymity direction which was made in the First-tier Tribunal.
3. Permission to appeal was granted by Upper Tribunal Judge Parkes on 30 August 2015 as follows:
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3. The grounds argue that the Judge did not look at the Appellant's [sic] as a whole and had not made findings about the medical evidence relating to the Appellant's injuries. The Appellant had stated that he had left Sri Lanka having paid a bribe and the Judge had erred in assuming how other administrations behave. The documents relied on had not been properly analysed. It was also suggested that the Judge had made assumptions on the ability to trade during the war but be of interest afterwards. It was argued that the Judge had not applied anxious scrutiny.
4. The bulk of the grounds have no merit as they are simply a disagreement with the findings properly made and open to the Judge on the information available. The various findings that have been made are set out and those have to be read as a whole. It cannot be said that the decision was superficial and, for example, with regard to the documents these were set out and considered and contrasted with a DVR.
5. If there is a concern it would be that the Judge might not have considered the medical evidence as fully as required. Ultimately this might make no difference but is arguable that when faced with reports that supported his injuries and the mechanism for the causation a more detailed examination might have been required. There may be arguments about the extent to which the reports can be relied on the Istanbul Protocol [sic].
6. Albeit that the grounds overall are a disagreement with findings made on the evidence the issue of the medical evidence and the need to consider that as part of the overall case lead me to find that the grounds are arguable and permission to appeal is granted."
4. Thus the appeal came before me.
5. Mr Jafar, for the appellant, applied for permission to adduce evidence in support of the appellant's appeal pursuant to Rule 15(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008. He referred to the appellant having submitted to the FTTJ three letters from Sri Lanka. Issues had been raised with regard to those letters and "the first opportunity the appellant had of addressing them was after the determination". He submitted that the fresh evidence was relevant to the issue of whether or not there was an error of law in the FTTJ's decision. Mr Clarke, for the respondent, objected to the evidence being admitted on the ground that the application failed the due diligence test: this evidence could have been placed before the FTTJ at the hearing. It was not appropriate that evidence be adduced at this stage to rebut the findings of the FTTJ. I refused the application: the new evidence could, with reasonable diligence, have been obtained for use at the FTT hearing (Ladd v Marshall [1954] 3 All ER 745 and R v SSHD [2005] EWCA Civ 982.)
6. Mr Jafar noted the findings on credibility at [32] and positive findings in favour of the appellant at [33]. Some of the findings at sub-paragraphs 1-17 of [32] were wrong, eg that "it seems extremely unlikely that if there were an arrest warrant out for the appellant, that he would have been able to leave Sri Lanka on his own passport, notwithstanding what the appellant says about a bribe having been paid to an immigration officer". He relied on GJ and Ors (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC). The FTTJ should have stated this was possible and feasible: there were no individual circumstances which warranted different treatment to that in GJ. The appellant had left Sri Lanka using a bribe. He submitted that an error of law in relation to any of the issues in the sub-paragraphs at [32] rendered the decision on credibilty unreliable.
7. Mr Jafar referred to sub-paragraph 11 of [32] and the reasons cited for preferring the DVR to the attorney's correspondence yet the DVR "had problems": there was no written response to the respondent's request for verification; the addressee was based in Colombo not Polonnaruwa. This was second-hand evidence and the FTTJ had made assumptions about its content. There was insufficient evidence for reliance on the DVR as opposed to the attorney's correspondence which was largely consistent.
8. He submitted the FTTJ had not engaged sufficiently with the medical evidence. Both reports described scarring which was consistent with the appellant's account of torture. The FTTJ had failed to take this into account.
9. As regards the letter from the Human Rights Commission, there was no challenge by the respondent, no DVR. It had been wrong of the FTTJ to require corroboration of that document, given its age.
10. Mr Jafar submitted that the findings at [32] were largely assumptions; he could not go so far as to say the findings were perverse but they were not determinative of credibility whereas the court documents, the medical evidence and other evidence was highly determinative and had significant momentum requiring engagement. Mr Jafar submitted that an error of law in relation to one of the findings in the sub-paragraphs of [32] would be sufficient to render the decision unreliable.
11. For the respondent, Mr Clarke submitted FTTJ had considered the evidence meticulously and as a whole. Her sub-paragraphs at [32] were not findings but concerns, apart from sub-paragraph 16 which was a finding on the appellant's sur place activities and consistent with GJ. It should be seen with [33] and [34] where she had made specific findings in the light of the background material. At [33] the FTTJ had taken into account the medical evidence cited at [13] - [17]. That evidence was accepted. The medical evidence was not determinative of the appellant's account. It was taken appropriately in the round. This was a text book approach to the evidence.
12. As regards sub-paragraph 13 of [32] and the ability of the appellant to leave Sri Lanka on his own passport with a bribe, the FTTJ had given a perfect summary of the evidence and the guidance in GJ; in the latter case the respondent had conceded [170] that leaving on one's own passport was not probative, given the levels of corruption in Sri Lanka. It was not inappropriate for the FTTJ to find that, with the existence of an arrest warrant and the absence of a bribe, it was unlikely the appellant would get through the airport.
13. He also submitted the FTTJ's reliance on the DVR was appropriate. There was no requirement on the addressee to give a written reply. As regards the correspondence from the Human Rights Commission (HRC) of Sri Lanka, even if it were construed that the FTTJ required corroboration, the FTTJ was entitled to draw an inference from the lack of further correspondence as regards the appellant's missing uncle notwithstanding it would have been an error of law to require the appellant to provide corroboration (ST (Corroboration - Kasolo) Ethiopia [2004] UKIAT 00119). The FTTJ had made findings which were open to her on the evidence.
Analysis
14. The FTTJ makes it clear that the issues she has identified at sub-paragraphs 1-17 of [32] are her reasons for her concerns about the reliability of the appellant's account.
15. It is unarguable that the FTTJ "erred in law by failing to consider the appellant's claim as a whole". It is not submitted that the FTTJ failed to consider any relevant evidence and her decision is detailed and comprehensive. She makes it plain at [32] that she has considered the evidence "as a whole". She has summarised the medical evidence, both of Mr Mason and Dr Frazer and the appellant's GP. Whilst she does not make specific findings on the issue at this stage, she notes the relevant opinions of the medical experts, none of which refer to the appellant's scarring as being more than consistent with his account. The medical evidence is not challenged by the respondent and the FTTJ does not query it. She notes the diagnosis of post traumatic stress disorder (PTSD). The FTTJ has not misrepresented the opinions of the two medical experts or the nature of the appellant's injuries and their causation. She has rightly taken into account the medical evidence when considering the evidence in the round [33]. The report of Mr Mason notes only that the lesions are consistent with the appellant's account; this is at the lower end of the spectrum under the Istanbul Protocol. Similarly, Dr Frazer says the appearance of the appellant's finger is highly consistent with a fracture which has healed in unsatisfactory alignment; this is not an opinion on the consistency of the scarring or physical features with the appellant's account; it does not therefore assist the appellant. I am satisfied therefore that the FTTJ considered the medical evidence appropriately and in the round in her assessment of the reliability of the appellant's evidence.
16. I am unable to find that the FTTJ's decision to rely on the document verification report (DVR) as opposed to the attorneys' letters is inadequately reasoned, taking into account [18-24], sub-paragraph 11 of [32], and [33] as a whole. The FTTJ describes the evidence carefully, both individually and in the context of the appellant's account. She has taken into account the issues identified by Mr Jafar before me in her assessment of the reliability of the appellant's documents. There is no challenge by the appellant to the FTTJ's description of the evidence before her. I see no merit in the suggestion that the failure of the respondent to obtain a written response to her request for verification undermines the value of the DVR. The appellant's challenge is no more than a disagreement with the FTTJ's decision; her reasons are sustainable.
17. It is submitted the FTTJ has erred in law in expecting the appellant to have produced corroborative evidence of his uncle's disappearance [32.10]. The FTTJ noted there was no follow-up letter from the HRC. She also noted the appellant's evidence in interview on the issue and took this into account. I am unable to accept the proposition that the FTTJ has based her findings on her own assumptions. She has considered the evidence in the round and has given it anxious scrutiny; she has identified various matters of concern in the appellant's account such as the existence of coincidence, tenuous links, the lack of implication of the appellant in any terrorist activity, the lack of consistent background material, the unreliability of the attorneys' letters, the appellant's delayed asylum claim as well as the implausibility of various aspects of his claim. In ST (Corroboration - Kasolo) Ethiopia [2004] UKIAT 00119 the Tribunal said that it was a misdirection to imply that corroboration was necessary for a positive credibility finding. However, the fact that corroboration was not required did not mean that an Adjudicator was required to leave out of account the absence of documentary evidence, which could reasonably be expected. An appeal must be determined on the basis of the evidence produced but the weight to be attached to oral evidence may be affected by a failure to produce other evidence in support. In the present case the appellant had provided various letters from attorneys on other matters and the FTTJ was entitled to note he had not done so in relation to this issue. The FTTJ was entitled to find that the absence of such evidence undermined "any inference that this is in some way related to the fact that [the appellant] is wanted". It was a matter of the weight to be given to the documentary evidence provided on this issue and its relevance to the appellant's claim that he was at risk on return. The FTTJ was entitled to take into account that the HRC letter was dated 2009 and that there were no further documents on the issue. She was entitled to take into account, in considering the weight to be given to that letter, what other documents might have been adduced, particularly as the appellant was on notice from the respondent, in the reasons for refusal letter, that this document was said not to support his claim.
18. The appellant challenges the "finding" of the FTTJ at [32.13] that:
"it seems extremely unlikely that if there were an arrest warrant out for the appellant, that he would have been able to leave Sri Lanka on his own passport, notwithstanding what the appellant says about a bribe having been paid to an immigration officer."
Whilst the FTTJ makes it clear that the matters she addresses at [32] are reasons for concern, I agree with Mr Jafar that, on the face of it, this statement could be considered to be at odds with the guidance in GJ. However, [170] in GJ is as follows:
"He [for the Secretary of State] accepted that there were no detention facilities at the airport and that, given the prevalence of bribery and corruption in Sri Lanka, having left Sri Lanka without difficulty was not probative of a lack of adverse interest in an individual".
Thus, even if the FTTJ has erred in law (and she makes it clear at [32] that this is a matter of concern rather than a specific finding), the appellant's claimed departure on his own passport having paid a bribe is not "probative of a lack of adverse interest" in him. There are significant other reasons for the FTTJ's concerns about the appellant's evidence and she makes it clear that she reaches her adverse credibility finding on the basis of the evidence as a whole, including the medical evidence. Thus her failure to take into account the guidance in GJ and her consequent error as to the appellant's ability to leave Sri Lanka on his own passport using a bribe is not a material error of law, there being sufficient other reasons for her adverse finding on the reliability of the appellant's evidence. The FTTJ's conclusion on this discrete issue has no impact on the other concerns the FTTJ has identified or the outcome of the appeal generally.
19. For these reasons I am satisfied that the decision is sustainable on the evidence and that the failure to take into account the guidance in GJ in assessing the ability of the appellant to leave Sri Lanka on his own passport by using a bribe does not undermine the validity of the decision.
Decision
20. The making of the decision of the First-tier Tribunal did not involve the making of a material error on a point of law.
21. The decision of the First-tier Tribunal is upheld.

A M Black

Signed Date 4 October 2016
Deputy Upper Tribunal Judge A M Black