Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07247/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5th September 2016
On 16th September 2016

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

mr C S F
(aNONYMITY DIRECTION Made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Iengar, Counsel, instructed by Mansfield Chambers
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Sri Lanka born on 26th December 1982 and he formally applied for asylum on 12th March 2014 which was refused on 2nd April 2015. His appeal against that refusal came before First-tier Tribunal Judge Walker at Columbus House in Newport on 25th September 2015 and Judge Walker dismissed the appeal on all grounds.
2. The appellant challenged, with permission, the decision of the First-tier Tribunal Judge on the following grounds:
(1) The appellant's evidence was that he used the assistance of two agents, one in 2008 and later one in 2009, and that the judge had materially erred in law in this regard by finding that the appellant had provided inconsistent evidence in relation to whether he had used one or two agents.
(2) The judge had misunderstood the appellant's evidence. The appellant had stated it was a requirement that all fishermen such as the appellant must register with the local council and obtain a fisherman's ID card. Counsel for the appellant, however, made submissions that there was nothing in the background evidence to demonstrate that the local council had accessed the main CID database and the judge had demonstrably failed to engage with this evidence when considering whether the appellant would have been making his presence known to the authorities by his adverse profile.
(3) The judge had failed to engage with Counsel's submission that the appellant's release was on payment of bribes and subsequent adverse interest of the authorities was due to the appellant being on a watch list as per the rationale in GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) and thus the judge had materially erred in law.
(4) The appellant had provided detailed oral and written evidence as to the fact that it had taken the agent considerable time to arrange his departure from Sri Lanka and to ensure that the necessary contacts were in place at the airport. The judge had rejected the appellant's credibility in respect of the delay based upon the fact that the appellant had not explained why such a delay was necessary. It was simply perverse for the judge to find against the appellant in this way when it was the appellant's evidence that the delay was caused by the agent.
(5) That the judge was not legally entitled to reach the findings that she did and this consequently affected his assessment of the appellant's risk on return. There was no adequate consideration of GJ.
3. There were two further grounds which were not granted permission and those were in relation to paragraph 56 whereby the grounds had actually stated that the agent had been used by the appellant to obtain illegally a properly issued Sri Lankan passport not a forged passport. The judge had materially erred in law in finding that the appellant would not have required the assistance of an agent to obtain the passport. A further ground that the judge rejected the genuine and subsisting nature of the appellant's relationship was raised. Neither ground was permitted by Upper Tribunal Judge Gill when granting permission.
4. In relation to ground 1 and the use of two agents it is quite clear that at paragraph 57 the judge has mistaken the evidence and I note that the appellant had only used one agent. In the appellant's Asylum Interview Record the appellant does in fact refer to more than one agent and specifically at paragraph 133 the appellant states "we applied with a different man".
5. However, it is urged by Ms Iengar, Counsel for the appellant, that the evidence assessed by the judge must be taken in the round and thus I have considered the further errors asserted to have been made by the judge and the decision as a whole when considering either alone or cumulatively any errors made are material.
6. I am not persuaded with respect to the second ground that the judge had misunderstood the appellant's evidence. The judge was quite clear that the appellant's account of obtaining a fisherman's licence in 2008 had the effect of contradicting the story he had told about being detained. At paragraph 54 of the decision the judge had specifically recorded that in his written grounds of appeal the appellant said that he had been arrested on 25th October 2008 by five or six people from the CID and had been taken and questioned. The documentation showed that the fisherman's licence was issued by the Department of Fisheries and Aquatic Resources on 17th December 2008, which was over six weeks after his claimed release from detention by the Sri Lankan authorities for being a suspected supporter and helper for LTTE activities. As the judge rightly recorded at paragraph 58, this had the effect of contradicting his story. As the judge stated,
"when he made his application according to him he had been arrested and his release obtained by a bribe so that he had to go into hiding".
7. The judge also concluded that:
"It must in his mind therefore have been a huge risk that were he to apply for his fisherman's licence the authorities would recognise that he was still in Sri Lanka and pursue him. He had no grounds for suggesting that the authorities were likely to treat him kindly because otherwise why was it necessary for him to go into hiding."
8. It was open to the judge to make that finding and which, in turn, fundamentally undermines the appellant's narrative. The appellant's case, that he made the application prior to his detention was not accepted by the judge and for this finding the judge gave reasons at paragraph 57 that:
"The appellant's evidence at the hearing that he applied for the identity card before his arrest lacks credibility because this explanation was not given in his witness statement although it is apparent from the witness statement that the appellant knew that the existence of the fisheries document represents a threat to his credibility as was pointed out in the interview of him."
9. The grounds state that there was nothing in the background evidence to demonstrate that the local council had access to the main CID database but that is not the point. It is not that the local council had access to the CID database but whether the CID would have access to the local council's databases and it is clear that the fisherman's licence is a local government requirement and open to investigation by the CID. Further that the appellant had not given the explanation of applying for that card in his witness statement albeit that he knew that aspect of his account was challenged. In paragraph 59 the judge clearly considered that this was an important aspect which undermined the appellant's credibility. It is the issue of the passport (be it illegally obtained it was in his own name) and the fishing licence to someone who had only just been released, apparently on a bribe, and which would have alerted the authorities to the appellant's continued presence in Sri Lanka which undermined his claim. The judge specifically found that this was not consistent with the appellant having a high profile adverse identity in the eyes of the Sri Lankan authorities.
10. The third ground of challenge was on the basis that the judge had failed to engage with the submission that the subsequent adverse interest by the authorities following, his release after payment of a bribe, was owing to him being on a watch list. The judge had rejected the appellant's account inter alia for reasons that the appellant had applied for a passport and for a fisherman's licence and these actions are fundamentally contrary to the appellant being on a watch list. The first that the appellant mentioned of being placed on a watch list, was in the skeleton argument from Counsel. As Ms Iengar made clear, being placed on a watch list was separate from an arrest warrant. The judge rejected the appellant's account and not least because of his varying accounts and in the appellant's screening interview there was no indication that the appellant had indeed even been arrested and at paragraph 60 the judge stated:
"The varying versions of how the appellant came by his fishing credentials and his replacement passport and that the passport allowed him to travel without difficulty meant that I am not satisfied that the appellant has an adverse profile in Sri Lanka. In reaching that conclusion I also bear in mind that the version of events surrounding the appellant's arrest and interrogation that the appellant gave."
11. The fourth ground was that the judge had erred in criticising the appellant's oral and written evidence as to the fact that it had taken the agent a considerable space of time to arrange his departure from Sri Lanka. As Mr Bramble pointed out, the criticism by the judge was the lack of explanation given by the appellant as to why it was necessary for there to be such a delay in making the applications. The appellant gave an explanation in relation to the delay in removing him from Sri Lanka, not in relation to the applications and it was considered to be relevant that despite the fact that the appellant used an agent who was "viewed as having expertise in making applications" there was still a delay between the failed application on 10th February 2009 and the next application on 6th August 2009.
12. Overall the judge found that he was not satisfied with the credibility of the appellant or that he had an adverse profile in Sri Lanka. The reference to the inconsistency of the appellant's account regarding the use of two agents was just one in a series on findings against the appellant. In the light of the remaining considerations and findings by the judge which I refer to below, I am not persuaded that the judge's error in failing to consider that there was more than one agent demonstrates a material error in the decision. The challenge to paragraph 56 of the judge's decision was rejected and not granted permission. That paragraph makes the particular point that as the appellant was not of adverse interest, on his own evidence, when he made the first applications for student visas in Sri Lanka, howsoever he obtained the passport, there was no reason for him not to follow the correct procedure as he asserts he had to do in his grounds of appeal. This point was taken against him by the First-tier Tribunal Judge.
13. With regards the applications in the United Kingdom, I particularly note the findings at paragraph 63 where the judge notes that the appellant has extensive experience of making immigration applications and presented as an intelligent man and found that if the appellant had experienced the claimed ill-treatment in Sri Lanka he would have expected this to be a feature of every application that he made since he came to the UK and most certainly following the refusal of his application on 30th November 2011. This appellant had no further leave following the expiry of his leave in 2011 which had been granted following his departure from Sri Lanka where he claims to have experienced torture. As the judge states:
"Indeed having had his applications for leave to remain under the points-based system refused, he then applied for permission to remain based on his family and private life. At that point at the latest the appellant must have known that he was running out of options in seeking to remain in the UK and I would have expected him then to explain the real reason he was in the UK was not because he wanted to be a student or a post-study worker but he was in fear in Sri Lanka. I consider the fact that he did not mention his asylum claim earlier is not a symptom of bad lawyers but a symptom of the appellant's claim being invented."
14. The judge proceeded at paragraph 64 to find that the appellant had not particularised how he was tortured. He did not accept that being hit on the head and hands with a plastic two litre bottle which was a quarter full of water constituted torture and indeed those findings were not challenged.
15. The judge recorded that the appellant had made no less than nine previous applications for either entry clearance or leave to remain in the UK only two of which were successful and had made four in country applications following the expiry of his student visa and at no time in the making of these four applications did he seek asylum, [paragraph 67].
16. As such, as the judge found the appellant's claim to be without truth. The fifth ground was that the judge failed to engage sufficiently with GJ. The head note of GJ sets out as follows
(8) The Sri Lankan authorities' approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual's past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.
(9) The authorities maintain a computerised intelligence-led "watch" list. A person whose name appears on a "watch" list is not reasonably likely to be detained at the airport but will be monitored by the security services after his or her return. If that monitoring does not indicate that such a person is a Tamil activist working to destabilise the unitary Sri Lankan state or revive the internal armed conflict, the individual in question is not, in general, reasonably likely to be detained by the security forces. That will be a question of fact in each case, dependent on any diaspora activities carried out by such an individual.
17. The judge set out at [66] that the appellant did not fall into the categories of GJ. The judge took into account background information [64] when considering the appellant's account. In the light of all the reasoning above when referring to the judge's findings, I do not find that the judge failed to consider or apply GJ because, clearly, the judge found there was no suggestion that the appellant was of adverse interest to the authorities in Sri Lanka or that there was any Diaspora activity whilst in the United Kingdom such that would attract the attention of the Sri Lankan authorities on his return. I conclude that there is no material error of law in the context of the multiplicity of reasons for the credibility findings made by the First-tier Tribunal Judge.
Notice of Decision
I therefore find that the findings were open to the judge and there is no material error of law and the decision of the First-tier Tribunal Judge will stand.

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 his 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.

Signed Helen Rimington Date 15th September 2016

Upper Tribunal Judge Rimington