Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA076182015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 May 2016
On 10 June 2016

Before

UPPER TRIBUNAL JUDGE STOREY

Between

GEETH SAMAN KUMARA HAWANE WATTA GEDARA
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr L Loughlin, Counsel
For the Respondent: Mr G Harrison, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, a national of Sri Lanka, has permission to challenge the decision of First-tier Tribunal (FtT) Judge Robson sent on 19 August 2015 dismissing his appeal against a decision refusing to grant him asylum and to remove him from the United Kingdom.
2. It is unnecessary to set out in any detail my reasoning because Mr Harrison was in agreement with the view which I expressed at the end of Mr Loughlin's submissions, that the judge demonstrably erred in law. This was case in which the judge had accepted as credible that:
(1) The appellant had been detained and ill-treated by the Sri Lankan authorities in July 2010 - the judge found the medical report from Professor Lingam dated 25 May 2015 finding the appellant to have been "a victim of violence as he claimed" to be one on which he could place reliance (paragraph 65). The appellant claimed he had been arrested and ill-treated on suspicion of helping the LTTE.
(2) Subsequent to the appellant's departure from the UK on 18 December 2012 the appellant's parents had been visited at their home and threatened by two men with a gun.
3. In light of these findings it was irrational of the judge to have concluded that the appellant's claim to have been accused of helping the LTTE was "without foundation" (paragraph 90). In light of the positive findings noted above at (1) and (2), the judge's principal reasons for arriving at this conclusion were seriously flawed for a number of reasons. First, in disbelieving that the two men who threatened the appellant's parents in 2013 were CID officers, the judge appears to have applied too high a standard of proof ("I am not prepared to say they were necessarily CID officers" - paragraph 56).
4. Second, there is an evident difficulty with the judge's reasons for attaching adverse weight to the appellant's claim to have been involved in transportation of people (claimed to include LTTE members) between 2006-2008. The judge found that it was "not credible" that the authorities should wait until June 2010 to take any action against him. However the judge does not appear to have borne in mind that he had accepted the appellant's evidence that after the end of 2008 the appellant was in Korea for all but a few months, until 2010.
5. Third, having accepted Professor Lingam's finding that the appellant was a "victim of violence as he claimed and as diagnosed by the doctor", it was illogical for the judge to conclude that his scarring could not be attributed to the claimed detentions (para 80).
6. Fourth, even though the judge was correct to count against the report by Dr Robin Lawrence dated 17 June 2015 that it erroneously made reference to a sexual assault (which the appellant had never made reference to), that did not justify the judge in discounting the report entirely. Given the judge's acceptance that the appellant had suffered ill-treatment in detention in 2010, a report finding PTSD had a stronger evidential foundation than if it was based simply on an assumption of the truth of such ill-treatment. The judge himself stated that Professor Lingam's report (which he accepted) referred to "mind scars" (para 63).
7. Fifth, the other reasons given by the judge, for example the unlikelihood that the appellant would not have been stopped and searched on his various trips to army camps and Colombo (paras 76-78) is difficult to reconcile with the appellant's witness statement which clearly acknowledges that he was stopped and checked on visits to army camps (see paragraph 5 of this statement), thus leaving the only possible credibility point his transportation of three Tamil men to Colombo. Against the backdrop of the evidence as a whole, I consider this (or the reason relating to the failure to claim asylum on arrival or soon thereafter), as wholly insufficient to warrant a rejection of the appellant's claim and wholly irrational to justify a finding that the appellant's claim was "without foundation".
8. For the above reasons I conclude the judge materially erred in law. I set aside his decision.
9. Given the judge's flawed credibility findings I do not consider I can safely preserve some parts, but discount others. Additionally I have difficulties understanding why such a positive assessment should have been made of Professor Lingam's report which has evident shortcomings). The effect of these errors is to undermine the overall assessment. In such circumstances the upshot is that the appellant has not yet had a fair assessment of his claim. As such, his case falls squarely within the Senior President's Practice Statement governing remittals.
Notice of Decision
10. I remit the case to be heard by a judge other than Judge Robson.
11. No anonymity direction is made.

Signed Date: 9 June 2016

Dr H H Storey
Judge of the Upper Tribunal