Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07869/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 November 2016
On 23 November 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

KB
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Lewis, Counsel, instructed by Kanaga Solicitors
For the Respondent: Mr Duffy, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, KB, was born in 1983 and is a male citizen of Sri Lanka. He appeals against a decision by the respondent to refuse the appellant asylum and to remove him from the United Kingdom. The appellant appealed to the First-tier Tribunal (Judge Carroll) which, in a decision promulgated on 8 September 2016 dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. The basis of the appellant's claim is summarised briefly by Judge Carroll at [12]:
"The core of the appellant's claim is that he was a low level activist on behalf of the LTTE (digging bunkers, for example, for a period of one year only between 2008 and 2009). He claims to have three sisters and that one of his sisters (L) was an LTTE member who was arrested in 2009 and detained for a period of four years. He said at the hearing that she arrived in the United Kingdom approximately one month ago. He claims also that his father was killed because he was in the LTTE. The appellant himself had no difficulties with the authorities until 2014 when he was arrested and detained after the authorities found his number on the mobile phone of one, Appan, from whom the appellant bought rice. Having found [the appellant's] number on Appan's mobile phone, the appellant was then arrested, detained and tortured."
3. The judge did not find the appellant's evidence to be credible at all. The judge gave his reasons at [13]. The appellant claimed that he was arrested by the army and sent to prison on 29 June 2014 until September of that year. A bribe was paid to facilitate the appellant's release from prison.
4. The appellant advances two grounds of appeal. The first deals primarily with the judge's treatment of the medical evidence. The grounds also challenge the judge's treatment of the evidence of a lawyer in Sri Lanka [13(f)] which, the appellant contends, the judge unreasonably rejected. Likewise, the appellant asserts that the judge should not have rejected as "self-serving" evidence from "family members". The judge attached weight to the fact that the appellant's sister (see the reference to her above) whilst in the United Kingdom did not attend court nor did she give any written evidence. The second ground of appeal challenges the judge's application of the relevant country guidance (GJ (Post civil war returnees) [2013] CG UKUT 319 (IAC)). The judge had failed to evaluate the level of risk to the appellant on the basis that he may be perceived to be a threat to the integrity of the Sri Lankan state.
5. Save when I indicate to the contrary, all references below are to the subparagraphs of [13], the paragraph in which the judge set out his findings of fact.
6. First, as regards the absence of written or oral evidence from the appellant's sister, Mr Lewis, for the appellant, told me that the sister had now been recognised as a refugee in the United Kingdom although I do not have evidence of that assertion. The judge at [(b)] had found it "frankly astonishing" that the sister had failed to attend in order to support her brother's appeal. It was clear from the language used by the judge that he has attached weight to the absence of the sister when assessing the credibility of the appellant. Mr Lewis submitted that this was an incorrect approach given that the appellant's claim focused upon his perceived relationship with the LTTE activist Appan (see above). I do not agree with that submission. It is true that the appellant's written statement deals primarily with Appan but, at his screening interview (quoted by Judge Carroll at [3]) the appellant had told the interviewer that "the army think that I am still an LTTE member because one of my sisters was a member". In that statement the appellant clearly establishes a link between the risk which he claims he faces in Sri Lanka and his sister's membership of the LTTE. The language used by the judge is perhaps extreme ("frankly astonishing") but, given the link between the appellant's claimed fear of persecution from the activities of his sister, I find it was open to the judge to attach weight to the fact that no evidence had been forthcoming from her.
7. The grounds criticise the failure of the judge at [(c)] properly to evaluate the evidence of the appellant's brother-in-law who did appear before the First-tier Tribunal. The challenge has little merit given that the judge correctly noted that "the appellant's brother-in-law's [evidence] amounted to no more than hearsay." Having read the written statement of the brother-in-law, I conclude that he can add little by way of direct evidence to support the appellant's claim. All that the brother-in-law appears to know of the appellant's claims is what the appellant himself told him.
8. The judge characterises the letter from the attorney in Sri Lanka as "a self-serving document" [(f)]. In the context of all the evidence before the judge that was a finding available to him (see Ahmed [2002] UKIAT 00439). The grounds fail to address the findings of the judge at [(d)] where the Tribunal deals with a letter purporting to have been written by a Member of Parliament for Vanni District concerning the appellant's claim to have done regular business with Appan and to have been in contact with him by telephone from 2010 - 2014. In his oral evidence, the appellant claimed to have spoken to Appan at least once a day and sometimes more often. The letter from the MP, however, refers to the appellant having to "communicate with Gopi and Appan without knowing them on his business purpose" (sic). As the judge observes, it is "not apparent why it is said that the appellant did not know Appan since he had been doing business with him for a period of at least four years". I find that the judge was entitled in the light of that evidence and for the reason he has given to consider that the appellant's credibility had been diminished accordingly.
9. At [(g)] the judge noted that at his asylum interview the appellant had found it "difficult to explain" details concerning his alleged torture in Sri Lanka. The judge observes that "the appellant is not recorded as having had any difficulty in explaining details of the claimed torture to the experts upon whose reports he relies." The grounds of appeal assert that, given the nature of the evidence, it is not surprising that the appellant had "difficulty explaining" about the torture, clearly a sensitive and painful matter for him. That may indeed be the case. Having said that, it was not clear, on the face of the evidence, why the appellant should have had difficulty explaining details of the torture to the Home Office interviewer when he had no such difficulty when asked by the medical expert. However, the interview had moved on and there were no further questions about the torture after the appellant had been given a brief break to compose himself. On the face of it, therefore, the judge's observations at [(g)] may be regarded as problematic although the judge does not (as elsewhere in his assessment of credibility) give any indication as to how compelling he found this part of the evidence to be in his overall decision to reject as unreliable the appellant's evidence.
10. The same is also true of the judge's observations at [(h)]. GP patient records put before the judge recorded that the appellant "claims torture in SL in June 2014". The judge observes that the appellant claimed to have been arrested (and tortured) on 29 June 2014. Mr Lewis submitted that there was no obvious discrepancy between these two items of evidence. That is indeed arguable but, equally, the judge does not state that he found the evidence to be inconsistent or that he found that the appellant's credibility had been diminished in consequence. It may be argued that the observation regarding the June 2014 torture and the problems the appellant experienced at the asylum interview must have formed part of the judge's reasons for rejecting the appellant's credibility since they appear in a paragraph of the decision where the judge sets out elements of the evidence to which he had "had regard". The question for the Upper Tribunal is whether the judge's comments on these two matters are sufficient to vitiate the credibility assessment as a whole. For the reasons I have given, the appellant's challenge to the other parts of the credibility assessment are not well-founded. After careful consideration, I find that the contents of [(g)] and [(h)] do not undermine the judge's overall assessment of credibility. As I have noted, the judge did not actually state that he found the evidence to be inconsistent, implausible or incredible; he has done no more than set out details of the evidence which the appellant has not challenged on the basis that the account is factually incorrect. In my assessment, the findings do not taint the overall assessment of credibility whilst the judge has given other sustainable reasons for rejecting that credibility.
11. As regards the medical evidence, Mr Lewis submitted that Judge Carroll had wholly failed to engage with this. It is the case that there are lengthy medical reports from Dr Dhumad and Dr Martin. Dr Martin, in particular, deals at considerable length with the scarring on the appellant's body. Dr Martin found that this scarring was "highly consistent with intentionally caused injuries with a hot round object such as a cigarette butt as described by the claimant". Dr Martin found that it was unlikely that the appellant had inflicted the injuries upon himself "in view of the position of some of the scars on the dominant upper limbs (self-harm injuries are more common on the non-dominant limb)". He concluded that the scarring was most likely caused by a third party. He did, however, observe that it was "scientifically impossible to differentiate self-infliction of injuries by proxy (SIBP) from injuries caused by torture".
12. The judge has not engaged in any great detail with the medical evidence. Mr Lewis submitted that the judge had violated the principle set out in Mibanga [2005] EWCA Civ 367; the judge had only turned to the medical evidence having already concluded that the appellant was not a credible witness. I reject that submission. Indeed, having set out the burden and standard of proof and recorded the appellant's case and the reasons for the refusal of his asylum claim, the first part of the evidence to which the judge then turned was the medical evidence [11] of which he provides a detailed summary in the following paragraphs. It is clear to me that the medical evidence was at the forefront of the judge's mind when he began his assessment of credibility. It is true that the judge's assessment of that medical evidence is brief:
"Both Dr Dhumad and Dr Martin are, of course, entirely reliant on the account of events given to them by the appellant. Mr Andres Martin does not rule out the possibility of self-infliction of injuries by proxy and confirms that it is impossible to differentiate such injuries from injuries caused by torture."
13. Albeit briefly, the judge has summarised the evidence of Mr Martin. There is no suggestion that the judge has rejected the evidence that the appellant has scarring on his body which was probably imposed by a third party and which is consistent with burns from a cigarette butt. Given that the judge does not challenge that evidence, a more detailed analysis of the medical evidence may have added little because the judge has concluded that the medical evidence does not unequivocally support the appellant's account as regards causation of the scarring. To put it another way, the judge's finding that the appellant had not been arrested and tortured as he claimed is entirely consistent with Mr Martin's evidence because Mr Martin has been unable to exclude the possibility that wounds were inflicted on the appellant's body by individuals acting with the appellant's consent; in other words, not those individuals who the appellant claims tortured him in Sri Lanka.
14. Finally, whilst the judge has not dealt in any detail with the country guidance, I consider that the second ground of appeal does not have merit. Given the judge's characterisation of this appellant (an individual who has not been arrested or detained or tortured by the Sri Lankan authorities who would have no reason at all to believe that the appellant has been involved with separatist politics either within Sri Lanka or abroad) there is no reason to suppose that the appellant would be "perceived to be" a threat to the integrity of Sri Lanka either at the point of his return or subsequently whilst living in his home area of the country. Nothing in the current country guidance would indicate that he is likely to be at real risk on return.
15. In the light of what I have said, I find that this appeal should be dismissed.
Notice of Decision

The appeal is dismissed.

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 Date 21 November 2016

Upper Tribunal Judge Clive Lane

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 21 November 2016

Upper Tribunal Judge Clive Lane