Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07011/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 September 2016
On 05 October 2016

Before

UPPER TRIBUNAL JUDGE MCGEACHY

Between

TR
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss C Proudman, Counsel, instructed by Messrs A P Solicitors
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DECISION AND DIRECTIONS
1. The appellant, a citizen of Sri Lanka born on 12 January 1989, appeals with permission against a decision of Judge of the First-tier Tribunal Graham dated 13 July 2016 in which she dismissed the appellant's appeal against a decision of the respondent made on 22 March 2015 to refuse to grant asylum and to issue directions for his removal.
2. The appellant entered Britain in October in 2011 with entry clearance as a Tier 4 (General) Student. He travelled to Sri Lanka on 3 August 2013 returning to Britain on 8 August 2012 when he claimed asylum at the airport. He was interviewed on that date and again in February 2015. A witness statement dated 3 August 2015 was also produced.
3. The appellant did not claim to be a supporter of the LTTE although he said that his brother had helped them in 2002/2003. He stated that in February 2005 he had collected aid in his school in Colombo for victims of the tsunami which he had taken to an LTTE controlled area. He had stayed at a camp for two days due to problems distributing the aid and there got to know a man called Thirakumaran who borrowed his ID card so that he could pass through checkpoints to visit his sick mother in Vavuniya.
4. In 2008 the appellant stated that he had worked for an online radio station, Thalem, where he had played request songs and wrote news part time in the news department. The following year between January and April he had worked for Sudaroli, a newspaper and had also worked for a Sinhalese televisions station, Derana, part-time while he was working for a newspaper, Sudaroli, until August 2011. He had analysed daily newspapers. There was some confusion in the appellant's various interviews and in his statement regarding the exact dates when he had worked at the newspaper and for the televisions station.
5. He stated that some time between August and November 2010 or at the beginning of 2011 he had been queuing at a prison to visit his cousin. The appellant was unclear about the name of his cousin. He had translated for a lady standing in front of him in the queue, an officer had asked him why he was doing that and took his details and stated that the appellant had helped her. He found out that that woman was the wife of an LTTE suspect. Two weeks later he said the CID had come searching for him at his home and had questioned him as to why he had helped the woman. They had taken his mobile phone and noted numbers on it. Because he was working as a journalist he had all ministers' numbers. One number was listed under the name which the minister had used when he was in the LTTE. The appellant was asked why he had had that man's name listed in his phone in his "movement name".
6. In May 2011 he had posted some news on the internet about a Douglas Devananda saying incorrect things about a Member of Parliament called Savanabavan. Mr Devanda had objected to this false information and that part of the news was erased. Someone had on Mr Davananda's behalf rung the radio station and informed the head of the station that their post was wrong. The appellant's home number had been phoned and his mother had been told that he was doing unnecessary work and she must ask him to be careful. The appellant presumed that the telphone call had been from a member of the EPDF.
7. On 4 August 2012 after the appellant had returned to Sri Lanka he was passing through a checkpoint at Omanthai when he saw the person to whom he had lent his identity document. He was then detained, questioned about his involvement in helping the LTTE and held for two days and asked about lending his identity card in 2005. He was also asked about smuggling weapons and how long he had been a journalist.
8. His mother contacted an agent who bribed someone and the appellant was released. The agent was given his passport and booked his ticket back to Britain. He travelled through the airport on his return and was not stopped.
9. The judge considered the evidence before her which included a DVD which showed the appellant reading the news at Derana TV on 29 July 2010. She also noted his evidence that in Octobers 2013 he had recorded a voice over in Britain which had been used to make announcements at the Heroes Day celebrations.
10. She set out her findings of credibility in fact in paragraphs 35 onwards. She wrote:-
"My Findings of Credibility and Fact
35. At the start of the hearing the appellant's representatives produced a DVD which he said showed the appellant reading the news at Derana TV on 29 July 2010 and interviewing a person, a screen shot of the same appears at page 6 of the appellant's supplementary bundle. I stood the hearing down to enable the Home Office Presenting Officer to view the DVD. When the hearing resumed the PO indicated that she decided not take issue with either video clip.
36. The appellant adopted his witness statements dated 3 August 2015 and 13 June 2016.
37. I am satisfied that the appellant's credibility is central to this appeal. I have considered the appellants credibility by looking at the matter in the round. In doing so I have found the following factors to be relevant.
38. The appellant claims he lent his ID card to an LTTE supporter in 2005, this incident relates to the appellant being appointed a school steward. In cross-examination he accepted he had finished his studies in 2004, although he said he was still at school awaiting his exam results at the time he was appointed school steward but was forced to accept that this incident must have occurred in 2004 rather than 2005 as previously stated.
39. In his witness statement (paragraph 42) the appellant says ID cards are issued when a person reaches 16 years old. It was put to the appellant that he would have been 15 years old therefore would not be in possession of an ID card when he went to distribute aid to the LTTE area. The appellant then said that his ID card would have been issued to him at 15 because he would be 16 on his next birthday. I have not found the appellant to be credible in respect of this part of his claim; he has changed the date the incident occurred to fit with the date he finished his schooling but this date change means that he was too young to have been issued with his ID card which is central to this incident
40. In any event, I have not found the appellant's claim to be plausible or at all likely for the following reason, the appellan says the checkpoint in question is always manned and everyone is checked. If so, then I consider it is highly unlikely that Thirkumaran would be able to pass through the checkpoint using the appellant's ID which contained his personal details and photograph. In addition, I have found the appellant's claim that Thirkumaran happened to be working with the army at the checkpoint seven years later to be fanciful.
41. The appellant says he has come to the adverse attention of the authorities because he assisted the wife of an LTTE member whilst queuing to make a prison visit. I have not found this incident to be plausible or likely for the following reasons. Firstly, the incident, if it occurred, was witnessed by prison guards and it would have been obvious that the appellant was not connected to the woman in the queue but was merely assisting her with translation. In addition, despite the appellant's explanation I have not found credible that the appellant would choose to visit his cousin in prison without first finding out his full name and details. It must have been obvious to the appellant that he would be asked to identify the prison he was intending to visit. I find the fact that he did not know his cousin's full name, for whatever reason, undermines his claim to be visiting him in prison.
42. Even if I had accepted this incident and accepted that it led to the authorities checking the telephone number on his mobile phone, I note that the appellant was not the subject of further scrutiny or investigation. He says he was advised that a summons would be issued yet it appears that no further action has been taken against the appellant.
43. In relation to the appellant's claim to have posted false information relating to a prominent political figure, Mr Devananda in 2011 whilst employed by Deranda TV, I found it relevant that the TV station did not broadcast the information once it became clear it was untrue and apologised to Mr Devananda. The TV company took no action against the appellant who remained in his job, suggesting that the appellant was not held responsible for the error. The appellant remained in Sri Lanka for a further five months after this incident and apart from a single telephone call to his home by unknown persons, the appellant does not appear to have been contacted further in relation to this incident. I am satisfied that the fact that the appellant returned to Sri Lanka in 2012 suggests that the appellant does not fear any further repercussions from Mr Devananda.
44. It is accepted that the appellant is involved with media in Sri Lanka and worked as a news presenter with Derana TV, a Singhalese TV station. However, I am satisfied that the appellant was of no adverse interest to the authorities in Sri Lanka at the time he left the country in October 2011. The appellant obtained a student visa to the UK and was able to exit Sri Lanka through an international airport using his own documents without incident, which undermines his claim to have come to the adverse attention of the authorities in Sri Lanka. Similarly, I do not accept that the appellant would have retuned to Sri Lanka in 2016 if he felt at risk.
45. I have dismissed the appellant's claim to have lent his ID to Thirkumaran in 2005 for the reasons stated. It follows that I have not accepted his account that he was arrested at the Omanthai checkpoint in 2012 or that he needed the services of an agent to bribe officials to secure his release from prison and to assist him to leave the country. In any event, I have found the appellant's account that he was able to exit Sri Lanka through Colombo international airport using his own documents by using a particular channel as improbable. The appellant states that the authorities have visited his house looking for him. Given my findings above I have not accepted this and have found it relevant that there is no evidence of an arrest warrant for the appellant or summonses suggesting Court proceedings
46. I have considered whether, bearing in mind my findings above, the appellant faces a risk upon return to Sri Lanka by reason of his sur place activities in the UK. The country guidance case of GJ and Others (Post-civil war; returnees) [2013] UKUT 00319 (IAC) sets out the current categories of persons at risk of persecution or serious harm upon return to Sri Lanka; these categories included (7)(b): Journalists (whether in print or other media) or human rights activists who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.
47. Whilst it is accepted that the appellant has worked as a journalist I am not satisfied that he has been critical of the government and note he is associated with a Sinhalese TV station. In the UK the appellant said that he had worked unpaid for ILC Tamil since 13 March 2015. Although the appellant refers to photographs (at 28 of the appellant's bundle) taken with Mr Tarcissius, and Mr Esvaravhasan described as a senior journalist with ILC, he says Mr Tarcissius had previously worked for Tiger's Voice, a radio station run by the LTTE. The appellant said that ILC Radio was viewed by the authorities in Sri Lanka as supporting the LTTE because it reported news against the government and Mr Tarcissiuis broadcast Tamil Tigers' songs. In addition every Hero's day the station focused on a hero who lost his life, listeners contact the station and praise and remember the person.
48. The appellant's involvement with ILC was presenting a programme every Saturday between 6 am - 8 am; presenting a programme between 6 am - 7 am called 'Tamil-this is your stage' when he plays part of a song and listeners try and identify the songs. A second programme between 7 am - 8 am which was a comic take on current affairs, political or social issues. The appellant said he used a comical name, not is own name, and pretended to be an elderly man. As a result, I am satisfied that his only involvement is as a presenter with ILC Radio is with a music show or a debating show where he uses a false name and pretended to be an old man, therefore he is not identifiable.
49. As regards the appellant's field activities, I am satisfied that there is no evidence which would place the appellant at risk on return. He states he is associated with the Chamber of Commerce which is a non-political organisation. His role with ILC is on a voluntary basis, he holds a junior role appearing once a week and is involved in a music show or otherwise uses a false identity. In these circumstances I am satisfied that his sur place activities in the UK have not placed him in any of the risk categories listed in GJ. The appeal is therefore dismissed."
11. The appellant appealed. The grounds of appeal stated that it was not the case that the appellant had changed the date of the incident regarding the identity card in 2005 and arguing that the judge had not explained why she considered that the appellant had been too young to be issued with an ID card and why she had not accepted his explanation for having been issued with an identity card poor to taking his 'O' levels.
12. It was argued that she had no right to consider that his claim that Thirukumaran happened to be working for the army checkpoint seven years later be fanciful and that she was wrong to place weight on the fact that the appellant had not claimed asylum when he first entered Britain.
13. The judge, it was argued, had been wrong to find that his departure, using a particular channel, was "improbable" referring to the expert who had said that leaving through the airport either on an appellant's own passport or with a false identity did not necessarily indicate a lack of interest on the part of the authorities. It was argued that it was wrong for the judge to have placed weight on the fact that there was no evidence of an arrest warrant in relation to the appellant as the appellant was not seeking to suggest an arrest warrant had been issued or that any court proceedings had been instigated. It was stated that he was a perceived critic of the government of Sri Lanka because he was "someone associated with publications which were critical the Sri Lankan government or was someone who was perceived to be a threat to the integrity of Sri Lanka as a single state.
14. It was argued that the judge had been wrong to state that appellant had not been critical of the government and it was stated that Sudaroli was a sister paper of Uthayan which were leading Tamil newspapers and there was evidence before her that employees of both media agencies had been threatened, attacked and detained. It was stated that the judge had erred in her assessment of the appellant's employment with Sudaroli which would mean that the appellant would have had the profile of somebody associated with the Sinhalese TV station. It was argued that the judge had failed to engage with that evidence.
15. Moreover the appellant had been involved with ILC Tamil as a presenter of a radio station and that even if he was not directly criticising the Sri Lankan government it was unreasonable and irrational to consider that he would not be at risk on return. It was stated that the judge had been wrong to state that the appellant was not identifiable from his role as a presenter for the ILC Tamil and he had represented that group at a number of public events and that the Sri Lankan intelligence would be aware of that involvement. There was evidence showing him working as a reporter at the Mullivaikal remembrance day in Britain and that as he had interviewed people about that event he would have been identified. The judge had not placed weight on that clip. It was stated that the judge had been wrong to state that he would not be identifiable by the Sri Lankan government. It was argued that the Sri Lankan government would be aware of the appellant's involvement with ILC Tamil on return.
16. Judge of the First-tier Tribunal Easterman granted permission. In paragraph 3 he stated
"In light of the grounds I have read the entire decision with care. Whilst on the face of it, it appears that the judge had made perfectly rational findings with clear reasons, it is arguable that there is little or no reference to the background evidence, which has been referred to heavily in the applicant's skeleton argument. This is particularly important in relation to risk on return, where it is suggested that the appellant's associations as a journalist are not simply with the Sinhalese television station, but are with various Tamil associated organisations, which as the background evidence is said to suggest the Sri Lankan authorities regard as threatening. To that extent it is arguable that the judge has made an error of law."
17. In her submissions before me Miss Proudman dealt first with the evidence regarding the identity card and stated that it was incorrect that the judge had stated that the appellant had changed the dates of when he had lent the card and was also wrong to state that he had been too young for the identity card and that there was no objective evidence to suggest that the card would not be issued before the age of 16. It was also wrong to state that it was implausible that having lent the identity card to someone in 2005 that that man would appear at a checkpoint seven years later.
18. She argued moreover that the judge was wrong to place adverse weight on the fact that the appellant had left on his own passport through the airport. She noted that that was not in accordance with country guidance. Moreover she argued that the judge had been wrong to place little weight on the work done by the appellant for ILC Tamil - as a presenter with ILC Tamil he would have been considered to be critical of the Sri Lankan government. The judge had watched a video clip which would show his role as a presenter.
19. She argued that the judge had given insufficient reasons for finding that the evidence of the appellant regarding journalistic activities was not such as to bring to the attention of the Sri Lankan authorities.
20. Moreover she stated that the judge was wrong to place such weight on the issue of credibility in this case when there was material which had not been relied on by the appellant such as an arrest warrant but other material in the bundle showing his activities as a journalist. She referred to the country guidance case of GJ and to the appellant's witness statement. She argued that in general the judge had not given reasons for her decision.
21. She emphasised that when considering the danger to the appellant on return the judge had not remarked on his work for Sudaroli and that he had worked for a Tamil newspaper. Moreover she had not properly engaged with his work for ILC.
22. In reply Mr Melvin referred to a Rule 24 statement in which he had submitted that the judge had properly considered the evidence before her and that she had given detailed reasons for her conclusions. With regard to the appellant's work with ICL the judge had set down the evidence at paragraphs 47 to 49 in which it was recorded that the appellant had worked for ICL voluntarily and that he had presented a programme early on Saturday mornings where listeners tried to identify part of a song and as a comic take on current affairs where the appellant had used a name that was not his own and stated that it was simply implausible that the Sri Lankan would have any interest in this appellant. He pointed out that there was no evidence of the appellant attending demonstrations belonging to organisations that were active in the promotion of a resurgent LTTE and that he had not aligned himself with any proscribed organisation.
23. In his oral submissions he again stated that the judge had reached conclusions which were fully open to her on the evidence and stated that her conclusions that the appellant would not be at risk were again open to her.
Discussion
24. The judge did very carefully deal with the issue of the appellant's identity card and his claim that he lent it to a Tamil man to enable him to visit Vavuniya and she gave very detailed reasons for rejecting that claim. She was right to find that it was implausible that that card could have been used by a Tamil man to go through checkpoints as it would have the appellant's details thereon. She was also entitled to indicate that he had been muddled about the dates at which the card would have been issued and when it could have been used.
25. In any event, the fact that the appellant lent his card to someone whom the appellant later claimed was working with the army at a checkpoint in 2012 would hardly be a matter that would be of any importance to the Sri Lankan authorities now.
26. Similarly his assertion that he had been detained because he had assisted with translation for a woman standing with him in a queue when he went to visit a cousin in prison is also implausible as it would be obvious to the prison officers that that was all he was doing and that he was not with the woman.
27. She was also entitled to place weight on the fact that the appellant had returned to Sri Lanka in 2012 and that clearly showed that he had no fears of returning then.
28. While it is the case that many people who are sought by the authorities are able to leave through the airport the fact that the appellant did so and used his own passport again is an indication that he was not of interest to the authorities.
29. The judge's comment that there was no arrest warrant against the appellant was an observation which was again open to her. She was entitled to consider that the fact that there was no arrest warrant indicated that the appellant would not be at risk. The appellant's mother's statement does not carry weight but was clearly taken into account by the judge who confirmed that she had read the documents in the appellant's bundles in paragraph 8 of the determination.
30. Turning to the appellant's journalistic activities, the judge did properly comment on those. While it is correct that she did not specifically refer to his work with Sudaroli, that work did not lead to the appellant being detained or questioned before he left Sri Lanka and of course it is worth recording that that work was really on a voluntary basis.
31. The fact that the appellant worked for a Sinhalese newspaper again does not indicate that he would be in difficulties - it is of note that no articles written by the appellant which are critical of the Sri Lankan regime have been produced. With regard to his work for the ILC the judge did correctly point out that the appellant did not use his own name, that the item he was responsible for was humorous and that he was pretending to be an old man. Again, there is nothing to suggest that would lead to him being in any difficulties on return.
32. It was said that he gave the voice over at certain Tamil celebrations but the reality is that he would not be able to be traced by his voice. While it is asserted that he had interviewed people at the remembrance day event that would not, of itself, lead to his being of interest to the Sri Lankan authorities particularly given his more regular roe at the radio station.
33. On return to Sri Lanka the appellant would be able to refer to the evidence of his studies here and the qualification received. He would be entitled to correctly state that he had come to Britain to study, had done so and was returning with the appropriate qualification.
34. The appellant has not produced evidence that he is a serious journalist who has been taking a position critical of the Sri Lankan government and there is no evidence to indicate that that would be considered to be the case. While he states that he had made incorrect statements about Mr Devarandan there is no indication that Mr Devarandan had taken the matter further. I consider that what the judge wrote in paragraph 49 of her determination is correct.
35. In all I consider that the judge was entitled to find that this was an appellant who would be able to return to Sri Lanka without fear of persecution and I note, of course, that the country guidance does not indicate that merely by being a journalist an individual would face persecution on return.
36. Taking all these factors into consideration I consider that the judge was entitled to dismiss this appeal, that she properly considered the evidence before her and that there is no material error of law in her determination.
Notice of Decision
37. I therefore dismiss this appeal.

Signed Date 05 October 2016

Upper Tribunal Judge McGeachy

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.