Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09029/2012

THE IMMIGRATION ACTS

Heard at Bradford
Date Sent
On 3rd June 2013
On 12th June 2013

…………………………………

Before

UPPER TRIBUNAL JUDGE D E TAYLOR

Between

FATHIMA NAWAL ABDUL CAREEM
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss S Khan instructed by Howells Solicitors
For the Respondent: Mr M Diwnycz, Home Office Presenting Officer

DETERMINATION AND REASONS

1. This is the Appellant's appeal against the decision of Judge Bagral made following a hearing at Bradford on 5th November 2012.
Background
2. The Appellant is a citizen of Sri Lanka born on 21st March 1978. Her son is a named dependant on the appeal. They arrived in the UK as visitors on 16th July 2012 and the Appellant claimed asylum on 20th July 2012.
3. She said that she comes from a conservative family and was raised and educated by her parents in Saudi Arabia where her father worked as an engineer. She had an arranged marriage with her mother’s cousin Naleem Abdul Latif and the marriage took place on 16th July 1999. Her son was born on 3rd November 2000. From 1999 until 2003 she suffered serious physical violence at the hands of her husband, who married a woman from a refugee camp in 2005 but the couple reconciled. They divorced in 2006.
4. The Appellant says that she visited Sri Lanka to see her sick grandmother in July 2010 and met her ex-husband. He said that if she returned to Sri Lanka he would throw acid in her face and take her son away.
5. In March 2012 the Appellant's father entered into negotiations with a view to her marrying an older Saudi man as his third wife. He arranged for her to come to the UK for a holiday, following which she was to return and marry. She arrived in the UK on 16th July 2012 but lost her bag containing her and her son’s passports. She then applied for asylum. She said that she could not return to Sri Lanka because of threats from her ex-husband and could not go to Saudi Arabia as she would be forced into an arranged marriage against her will.
6. In a thorough and detailed determination the judge concluded that the Appellant's motive in claiming asylum was because she did not wish to return to Sri Lanka with her parents, who planned to retire there to live near her husband whom she clearly disliked. However she did not accept that the animosity which she harboured for him was as a consequence of years of abuse. She considered that the Appellant may not have had a happy marriage but did not believe that it broke down as a result of domestic violence. She dismissed the appeal on all grounds.
The Grounds of Application
7. The Appellant sought permission to appeal to the Upper Tribunal on the following grounds.
8. She argued that the judge failed to give weight to material matters in making her findings on domestic violence. In particular she had erred in her assessment of the messages sent to the Appellant from her ex-partner and had failed to engage with the context of the claim. The messages had been produced as evidence of persistent unwanted contact which constituted harassment.
9. It was accepted that her account was consistent with background evidence of marital abuse in Sri Lanka and it had been internally and externally consistent. The judge had erred in failing to give adequate weight to the acceptance of consistency.
10. Thirdly, the judge had made perverse findings on a matter material to the outcome of the appeal. She had not accepted the Appellant's account of her parents as being controlling and had used the example of the Appellant's mother assisting her to find a lawyer. However it was a social worker who put her in touch with a lawyer and not her parents. Moreover the judge had held it against the Appellant that she had allowed her son to go to Sri Lanka to see his father but her evidence was that he was taken against her will and she had no say in the matter.
11. Finally the judge had made a factual mistake in respect of her previous visits to the UK and had not given proper reasons for not accepting the Appellant's account of the loss of her passports.
12. Permission to appeal was granted by Judge Mailer on 16th January 2013 for the reasons stated in the grounds.
Submissions
13. Miss Khan relied on her grounds, in essence submitting that the judge had not properly placed the Appellant's account in the context of the evidence as a whole, in particular the evidence of abuse within marriage in Sri Lanka. The judge had an over simplistic view of what constitutes domestic violence. She had relied upon the messages sent by the Appellant's husband which appeared to show that he was a nice person at face value, but these were classic symptoms of an abuser in appearing to be charming whilst maintaining unwanted contact. In the context of violence during the marriage any contact would be threatening.
14. With respect to ground two, she submitted that the judge had made a factual mistake in referring to her mother assisting her to obtain a divorce lawyer; the judge had simply misunderstood the evidence. She had also made factual errors in respect of a family visit to the UK in 2011 and had not taken into account the fact that, prior to the 2012 visit, the Appellant had always been accompanied by a male guardian. She was not a seasoned traveller as the judge asserted, and the loss of her passport should have been seen in that context. There was a police report confirming the theft, which involved not only the passports but also money and jewellery and it was perverse for the judge to conclude that the Appellant was trying to hide her travel history.
15. Mr Diwnycz submitted that the judge was perfectly within her rights to reach the conclusions which she did.
Findings and Conclusions
16. The grounds and submissions amount to a disagreement with the decision but do not disclose any error of law.
17. With respect to ground one, the judge set out at some length the background evidence drawn to her attention by the parties, in particular the expert’s report from Professor Good which she analysed in great detail. She acknowledged that the Appellant's account was consistent with the background evidence and that it had been internally consistent but was entitled to observe that a consistent account is not necessarily a truthful one. She was entitled to rely on the Appellant's own evidence in the form of emails and Facebook messages and to conclude that there is nothing in those messages which give any hint of her husband showing the least ill-will to her or particularly to her son, and that the emails suggested that he wanted to maintain contact with him and had an interest in his welfare. The judge could have concluded that the messages were further evidence of an abusive personality but I have to say that that it would be very surprising if she had. The fact that abusers can be nice does not mean that all nice people are closet abusers.
18. Plainly the judge’s conclusions were open to her on the evidence.
19. With respect to the factual errors, they are not material. I have read the judge’s Record of Proceedings and it is clear that the Appellant’s evidence was that her mother was supportive. She said that, after her son was born, her mother saw how she was being treated. The fact that the social worker rather than her mother introduced her to the divorce lawyer is immaterial.
20. With respect to her son’s visit to Sri Lanka, the judge was plainly aware that it is the Appellant's case that she was not allowed to exercise proper autonomy as a woman born of conservative parents. However she rejected the argument that she had been as restricted as claimed since she had been able to pursue her education and work and had been allowed to travel. She noted that in 2006 the Appellant was permitted to work and to pursue further education in Saudi Arabia and that her father subsequently permitted her to travel to the UK where he would not have been able to restrict her movements as she clamed he wished to do. In that context the judge was entitled to reject the Appellant's claim that her son had been threatened with violence by her ex-husband and by her ex-husband's cousin and not to find it credible that, if any of the claims were true, she would permit her son to travel to Sri Lanka to see his father.
21. Any inaccuracy in respect of the purpose of the visits in 2011 and 2012 is immaterial since it is accepted that the Appellant travelled to the UK in those years.
22. With respect to the loss of the passport, again it was open to the judge to conclude that her actions suggested that she intended to secure her entry before she claimed asylum because she wanted to conceal documentary evidence such as her and her son’s passport which did not support her account. The Appellant did not take advantage of a reasonable opportunity to make an asylum claim on arrival and the judge properly applied Section 8 to her behaviour as potentially damaging to her credibility.
23. This is an exceptionally detailed, thorough and well reasoned determination. Any minor factual inaccuracies are wholly immaterial. The grounds and submissions amount to a disagreement with the decision but disclose no error of law.

Decision
24. The original judge did not err and the original decision stands. The Appellant’s appeal is dismissed.

Signed Date

Upper Tribunal Judge Taylor