AA/09675/2013
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The decision
IAC-TH-WYL-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09675/2013
THE IMMIGRATION ACTS
Heard at Field House
Determination Promulgated
On 27th November 2014
On 30th December 2014
Before
DESIGNATED JUDGE MURRAY
Between
Pb
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Paramjorthy, Counsel for Marsh & Partners Solicitors
For the Respondent: Ms Holmes, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The Appellant, born on 26th August 1987, is a citizen of Sri Lanka of Tamil ethnicity. He appealed the Respondent's decision of 4th October 2013, refusing to grant him asylum. His appeal was heard by Judge of the First-tier Tribunal Widdup on 8th September 2014 and dismissed in a determination promulgated on 28th September 2014.
2. An application for permission to appeal was made and permission to appeal was granted by First-tier Tribunal Judge Reid on 22nd October 2014. The permission states that it is arguable that the judge did not give sufficient regard to the medical reports and the Respondent's concessions when carrying out his analysis of the case in respect of risk on return.
3. There is a Rule 24 response dated 14th November 2014. This states that the Judge of the First-tier Tribunal directed himself appropriately and at paragraphs 60 and 61 of the determination he found that the Appellant does not fall into the risk categories set out in GJ & Others [2013] UKUT 00319. It goes on to state that the judge gave adequate reasons for his findings, which were open to him on the facts.
The Hearing
4. Counsel for the Appellant submitted that he is adopting the grounds of application. He submitted that there is a deficiency in the First-tier Judge's reasoning. I was referred to paragraph 60 of the determination. In this paragraph the judge states that as a matter of law the risk factors defined by the said case of GJ do not include scarring and even when scarring was considered a risk factor it had to be accompanied by other significant factors and there are no such factors in this case. I was then referred to paragraphs 41 and 42 of the determination. Counsel submitted that the judge deals with scarring based on old cases, in particular the case of TK (Sri Lanka) which case was decided in 2009. Counsel submitted that the judge erred by doing this as that case was based on the background evidence at that time. He submitted that the relevant case is now the said case of GJ. At paragraph 42 of the determination the judge refers to minor scarring which could have been caused by minor accidents and states that the Appellant can conceal the cigarette burn scars if he wears a shirt with long sleeves. Counsel submitted that scarring is considered in the case of GJ and the case of GJ is the relevant case when risk on return is being assessed. Counsel submitted that scarring has to be addressed and the judge has to decide if the medical evidence provided is clinically corroborative of the Appellant being ill-treated.
5. I was referred to paragraph 37 of the determination in which the judge refers to Dr Lingam's report. At paragraph 38 the judge states that Dr Lingam confirmed that the linear scars on the appellant's forehead and knees are consistent with the history given by the Appellant. The judge goes on to state that Dr Lingam was unable to distinguish other scars from scars caused by torture and scars caused by a third party at the Appellant's behest. The judge at paragraph 39 refers to Dr Lingam's observations on the three cigarette burns which the doctor said were typical of torture but did not specifically eliminate SIBP. At paragraph 40 the judge states that no reference was made by the Appellant to cigarette burns and concluded that the scarring was not determinative of the Appellant's evidence.
6. Counsel submitted that based on the said case of TK, if an Appellant could wear long sleeves that was alright but that is not now the case and I was again referred to the case of GJ.
7. Counsel then referred to the second ground and how post-conflict arrest should be assessed. He submitted that the Appellant escaped in December 2009 and the Appellant's evidence is that he was an LTTE fighter. At paragraph 47 of the determination the judge accepts this. Counsel submitted that the Respondent accepted the Appellant's account of his arrest and detention. He again referred to the said case of GJ. He submitted that on return the authorities in Sri Lanka may find that the appellant was an LTTE fighter and GJ states that civilians who are thought to have been LTTE fighters may be in danger on return. At paragraph 40 of the determination the judge states that as the Appellant left on his own passport and has had no political involvement in the United Kingdom, he will not be at risk on return but we were referred to paragraph 394 of the said case of GJ. Counsel submitted that in our case bribery and corruption were used to enable the appellant to escape and although he managed to fly to India and back, in February 2010 when he came to the United Kingdom he used an agent. He submitted that because he went to India on his own passport without an agent does not mean that he will not be at risk on return to Sri Lanka now.
8. Counsel then submitted that the judge failed to properly consider paragraph 50 of the case of MP and NT (Sri Lanka) [2014] EWCA Civ 829. He submitted that at the First-tier hearing questions were asked to the Appellant as to why he did not remain in India. At paragraph 50 of MP and NT it is stated that that Appellant would still be at risk on return to Sri Lanka in the absence of post-war separatism and that his profile would still place him arguably at risk on return. Counsel submitted that the judge did not give proper consideration to this. Counsel submitted that at paragraph 52 of the determination the judge seems to have forgotten that the Respondent accepts that the Appellant's brother paid a bribe. The judge refers to the appellant's brother not attending the hearing and Counsel submitted that the judge has put too much weight on this.
9. Counsel submitted that the judge refers to the scarring issue again at paragraph 57. He finds that there is insufficient evidence that all the Appellant's scars relate to ill-treatment in detention and the judge did not accept that the linear scars were caused by ill-treatment. He goes on however to state that he accepts that the Appellant experienced some ill-treatment during his detention and that he was burnt three times by cigarettes. He then quotes paragraph 48 of the said case of GJ:
"The effect of that provision is that where the circumstances are the same then past persecution or serious harm is to be regarded as predictive of future persecution or serious harm absent a change of circumstances."
The judge goes on to state that the circumstances in Sri Lanka are now very different to what they were when the Appellant left. I was referred to the last page of the said case of MP and NT which states that the government in Sri Lanka might regard the appellant as posing a current threat to the integrity of Sri Lanka as a single state, even in the absence of evidence that he has been involved in diaspora activism.
10. Counsel submitted that insufficient regard was paid to the medical report and the Respondent's concessions and there would be a risk to this Appellant on return to Sri Lanka.
11. The Presenting Officer submitted that what Counsel is stating is that the judge erred by failing to engage with some medical evidence and engaged with the wrong case law. She submitted that she does not accept this and it is not material that the judge applied earlier case law. She submitted that the judge accepts that the Appellant was ill-treated in detention at paragraph 57 but then states that he does not accept that the linear scars were caused by this ill-treatment. She submitted that it is clear that the judge accepts some parts of the evidence but not others and that he was entitled to this finding. She submitted that at paragraph 42 of the determination the judge refers to the linear scars being minor and states that they are consistent with common injuries caused by minor accidents. He therefore finds that these scars are unlikely to alert the authorities. She submitted that the judge has factored torture into his findings and his determination, so considering the case promulgated in 2009 made no difference to the determination as a whole. She submitted that there is nothing irrational in what the judge states about the matter under consideration.
12. The Presenting Officer referred to the ground in which Counsel states that the judge mis-applied the Appellant's profile. She submitted that Counsel is stating that the judge did not properly engage with the Appellant's LTTE work and she submitted that there is no error here. The judge made numerous references to the appellant's LTTE training and his work for the LTTE. She submitted that there is no evidence to indicate that the Appellant wants a Tamil homeland. He has no political profile and he will not be on a stop-list on return. She submitted that Appendix C of the case of GJ is only a description of a procedure. Counsel is suggesting that the judge has mis-construed the Appellant's evidence and paragraph 51 of the determination could suggest this but even if it does, this is extremely minor and will not require the determination to be set aside.
13. At paragraph 52 the judge concedes that the Respondent has accepted that a bribe was paid but the judge was not happy with the lack of detail about this and the fact that the appellant's brother did not attend the hearing. The judge correctly states that his brother could have described the handing over of the bribe and the circumstances. She submitted that it was open to the judge to make the finding that he did.
14. With regard to Counsel's submission that the judge gave inadequate consideration to the case of MP and NT I was referred to paragraph 50 of that case. The Presenting Officer submitted that this paragraph does not support the Appellant's case. All it does is refer to the Upper Tribunal's guidance in which it is found that past LTTE activism does not necessarily mean risk on return. She submitted that the Upper Tribunal was entitled to come to that conclusion and this is something that should be considered when a decision about returning Tamils is being made but the judge found that when considering our case on its facts, this Appellant will not be at risk on return. The judge finds that in this case, having considered all the facts in the round, the Appellant is not somebody who will be at risk on return. I was referred to paragraph 50 of the case of MP and NT where it is stated that there may, "though untypically", be other cases where the evidence shows particular grounds for concluding that the government might regard the appellant as posing a current threat to the integrity of Sri Lanka as a single state, even in the absence of evidence that he has been involved in diaspora activism. I was asked to give weight to the words "though untypically". She submitted that there is no error of law by the judge.
15. The Presenting Officer then referred me to paragraph 53 of the determination which refers to the lack of credibility in the Appellant's evidence. She submitted that this has not been challenged and at paragraph 54 the fact that the Appellant waited three years before claiming asylum must go against his credibility. She submitted that there is nothing in the grounds which could undermine the determination.
16. She submitted that the Respondent has accepted that the Appellant was detained but he did travel to India and back without an agent and his evidence is that he came to the United Kingdom on his own passport. The judge finds that this is significant and at paragraph 56 states that the Appellant's involvement with the LTTE was at the lowest level for a very brief time. She submitted that on the lower standard of proof the judge finds that this Appellant is an economic migrant and based on the facts of the case and the evidence before him, the Appellant will not be on a stop-list on return. I was asked to uphold the decision of the First-tier Tribunal.
17. Counsel for the Appellant submitted that the judge gave too much weight to the fact that the Appellant's brother did not attend the hearing and did not give reasons for finding that the linear scarring did not indicate torture. He submitted that the judge also gave too much weight to the Appellant's departure from Sri Lanka on his own passport and on the absence of a political profile, finding that these matters show that there would be no risk to the Appellant on return. He submitted that the judge accepts that the cigarette burns were inflicted while he was detained and he was wrong to find the linear scars point to a credibility issue.
18. Counsel submitted that the Section 8 matter of the delay in the Appellant claiming asylum is not sufficient for the Appellant to have no problems on return. He submitted that this is not a logical finding and the judge has misconstrued the evidence.
19. I was asked to find that there is a material error of law in the determination and that the decision should be overturned.
Determination
20. The judge has properly considered the medical evidence and the Appellant's scarring. I find that the fact that he applied the guidance in TK (Sri Lanka) and LP (Sri Lanka) not to be a material error. He accepts that the Appellant was detained and may have suffered some ill-treatment while he was detained but he gives weight to Dr Lingam's evidence and at paragraph 38 notes the doctor's report, relating to linear scars. At paragraph 41 he refers to the said case of GJ and in that paragraph he makes it clear that he is aware that GJ is the relevant case but he still finds it necessary to consider the scarring as a risk factor, in line with the old guidance. The judge did not have to do that but in this case this must surely help the Appellant. He gives reasons for finding that the linear scars would not put the Appellant in danger and he accepts that the cigarette burns, three in number, may have been inflicted on the Appellant when he was detained. He goes on to refer to Dr Lawrence's report and states at paragraph 55 that he has attempted to make allowances for the Appellant's psychiatric condition but finds that although these can explain away the identified weaknesses in the appellant's evidence they do not address the central issue in this case, which is whether the Appellant is someone who would be perceived to be a risk to the stability of Sri Lanka. He finds at paragraph 56 that the Appellant's involvement with the LTTE was at the lowest level for a very brief time. Although he has accepted that the appellant was detained, he notes that in 2009 many Tamils were detained just for their ethnicity and finds that there is insufficient evidence that all the Appellant's scars relate to ill-treatment in detention. It is clear that the judge has properly considered the medical evidence and came to his conclusions accordingly. At paragraph 60 he states that the risk factors defined by GJ do not include scarring and he states that even when scarring was considered a risk factor it had to be accompanied by other significant factors and there are no such factors in this case. He also finds that the report of Dr Lawrence does not take the Appellant's case very much further.
21. The second ground, being the mis-application of the Appellant's profile, has also been properly considered by the judge. The grounds refer to Appendix C and the case of GJ. Again the judge has found that the appellant was detained and had fought with the LTTE. The grounds state that the judge should have found that this profile places him at risk on return to Sri Lanka but the judge has properly considered this and has found that the Appellant is a Tamil from the north of Sri Lanka who has never been involved in political activity on behalf of the LTTE although he was forcibly recruited into the LTTE and received some training. The judge finds that the Appellant was no more than an ordinary foot soldier and after a short while he escaped, was not captured, left the fighting, and fled with other civilians. The judge is concerned about credibility and notes that in the appellant's screening interview he stated that he had never been detained but he notes that the Respondent accepts that he was detained. He also notes that the Respondent also accepts that the Appellant was released on payment of a bribe. The judge notes that the appellant remained in Colombo for a year, apart from a brief visit to India and then left Sri Lanka on his own passport without difficulty and came to the United Kingdom. At paragraph 50 the judge states that there is no evidence that the authorities in Sri Lanka would have issued an arrest warrant for the Appellant. He points out that after the Appellant escaped he visited the British High Commission twice and travelled to India without difficulty on his own passport. He then travelled to the United Kingdom using his own passport and there is no documentary evidence about the death of any of his close relatives. He qualifies this at paragraph 51, accepting that a bribe was paid. This is where he states that it would have been helpful if the Appellant's brother had attended the hearing. That is really all he says about the Appellant's brother and it clearly would have been helpful if his brother had been at the hearing to clarify the paying of the bribe but as he was not, the judge had to make his findings on what was before him.
22. One of the main issues in this claim is the lack of credibility in the Appellant's evidence. This is mentioned a number of times in the determination under the heading, "Findings of Fact". There were contradictions in his evidence which are referred to at paragraph 53 and he delayed claiming asylum for three years. This was mentioned at paragraph 54. At paragraph 55 the judge refers to the flaws in the Appellant's case and the factors which damaged his credibility. All in all the judge is satisfied that the Appellant experienced some ill-treatment during his detention but does not find that this in itself would put him in danger on return. It is clear from the determination that all the facts of the case have been considered by the judge in the round.
23. The third ground is the inadequate consideration of the case of MP and NT (Sri Lanka). Paragraph 50 of that case is quoted in the grounds. It is clear that Lord Justice Underhill in that case found that the government in Sri Lanka's concern is only with current or future threats to the integrity of Sri Lanka as a unitary state. Counsel states that our appellant may be regarded as posing a current threat to the integrity of Sri Lanka as a single state even in the absence of evidence that he or she has been involved in diaspora activism. Paragraph 50 states that it is not typical for this to be the case and the judge clearly finds that the Appellant in this case would not be regarded as posing a current threat to the integrity of Sri Lanka as a single state. At paragraph 62 the judge states that on return, at the most, the authorities will know of him as someone who was involved briefly in the fighting at the end of the war. He surrendered and admitted his role and his detention ended informally. The judge finds that sophisticated intelligence will establish the lack of any other political activity in the past, either in Sri Lanka or in the UK and the judge finds that based on what was before him the Appellant will not be at risk on return to Sri Lanka.
24. The judge's findings are properly explained and there is no error of law in the determination.
Decision
25. There is no material error of law in the First-tier Tribunal's determination promulgated on 28th September 2014.
26. The First-tier Tribunal's determination, promulgated on that date, must stand.
27. Anonymity has been directed.
Signed Date 30th December 2014
Designated Judge Murray
Judge of the Upper Tribunal
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09675/2013
THE IMMIGRATION ACTS
Heard at Field House
Determination Promulgated
On 27th November 2014
On 30th December 2014
Before
DESIGNATED JUDGE MURRAY
Between
Pb
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Paramjorthy, Counsel for Marsh & Partners Solicitors
For the Respondent: Ms Holmes, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The Appellant, born on 26th August 1987, is a citizen of Sri Lanka of Tamil ethnicity. He appealed the Respondent's decision of 4th October 2013, refusing to grant him asylum. His appeal was heard by Judge of the First-tier Tribunal Widdup on 8th September 2014 and dismissed in a determination promulgated on 28th September 2014.
2. An application for permission to appeal was made and permission to appeal was granted by First-tier Tribunal Judge Reid on 22nd October 2014. The permission states that it is arguable that the judge did not give sufficient regard to the medical reports and the Respondent's concessions when carrying out his analysis of the case in respect of risk on return.
3. There is a Rule 24 response dated 14th November 2014. This states that the Judge of the First-tier Tribunal directed himself appropriately and at paragraphs 60 and 61 of the determination he found that the Appellant does not fall into the risk categories set out in GJ & Others [2013] UKUT 00319. It goes on to state that the judge gave adequate reasons for his findings, which were open to him on the facts.
The Hearing
4. Counsel for the Appellant submitted that he is adopting the grounds of application. He submitted that there is a deficiency in the First-tier Judge's reasoning. I was referred to paragraph 60 of the determination. In this paragraph the judge states that as a matter of law the risk factors defined by the said case of GJ do not include scarring and even when scarring was considered a risk factor it had to be accompanied by other significant factors and there are no such factors in this case. I was then referred to paragraphs 41 and 42 of the determination. Counsel submitted that the judge deals with scarring based on old cases, in particular the case of TK (Sri Lanka) which case was decided in 2009. Counsel submitted that the judge erred by doing this as that case was based on the background evidence at that time. He submitted that the relevant case is now the said case of GJ. At paragraph 42 of the determination the judge refers to minor scarring which could have been caused by minor accidents and states that the Appellant can conceal the cigarette burn scars if he wears a shirt with long sleeves. Counsel submitted that scarring is considered in the case of GJ and the case of GJ is the relevant case when risk on return is being assessed. Counsel submitted that scarring has to be addressed and the judge has to decide if the medical evidence provided is clinically corroborative of the Appellant being ill-treated.
5. I was referred to paragraph 37 of the determination in which the judge refers to Dr Lingam's report. At paragraph 38 the judge states that Dr Lingam confirmed that the linear scars on the appellant's forehead and knees are consistent with the history given by the Appellant. The judge goes on to state that Dr Lingam was unable to distinguish other scars from scars caused by torture and scars caused by a third party at the Appellant's behest. The judge at paragraph 39 refers to Dr Lingam's observations on the three cigarette burns which the doctor said were typical of torture but did not specifically eliminate SIBP. At paragraph 40 the judge states that no reference was made by the Appellant to cigarette burns and concluded that the scarring was not determinative of the Appellant's evidence.
6. Counsel submitted that based on the said case of TK, if an Appellant could wear long sleeves that was alright but that is not now the case and I was again referred to the case of GJ.
7. Counsel then referred to the second ground and how post-conflict arrest should be assessed. He submitted that the Appellant escaped in December 2009 and the Appellant's evidence is that he was an LTTE fighter. At paragraph 47 of the determination the judge accepts this. Counsel submitted that the Respondent accepted the Appellant's account of his arrest and detention. He again referred to the said case of GJ. He submitted that on return the authorities in Sri Lanka may find that the appellant was an LTTE fighter and GJ states that civilians who are thought to have been LTTE fighters may be in danger on return. At paragraph 40 of the determination the judge states that as the Appellant left on his own passport and has had no political involvement in the United Kingdom, he will not be at risk on return but we were referred to paragraph 394 of the said case of GJ. Counsel submitted that in our case bribery and corruption were used to enable the appellant to escape and although he managed to fly to India and back, in February 2010 when he came to the United Kingdom he used an agent. He submitted that because he went to India on his own passport without an agent does not mean that he will not be at risk on return to Sri Lanka now.
8. Counsel then submitted that the judge failed to properly consider paragraph 50 of the case of MP and NT (Sri Lanka) [2014] EWCA Civ 829. He submitted that at the First-tier hearing questions were asked to the Appellant as to why he did not remain in India. At paragraph 50 of MP and NT it is stated that that Appellant would still be at risk on return to Sri Lanka in the absence of post-war separatism and that his profile would still place him arguably at risk on return. Counsel submitted that the judge did not give proper consideration to this. Counsel submitted that at paragraph 52 of the determination the judge seems to have forgotten that the Respondent accepts that the Appellant's brother paid a bribe. The judge refers to the appellant's brother not attending the hearing and Counsel submitted that the judge has put too much weight on this.
9. Counsel submitted that the judge refers to the scarring issue again at paragraph 57. He finds that there is insufficient evidence that all the Appellant's scars relate to ill-treatment in detention and the judge did not accept that the linear scars were caused by ill-treatment. He goes on however to state that he accepts that the Appellant experienced some ill-treatment during his detention and that he was burnt three times by cigarettes. He then quotes paragraph 48 of the said case of GJ:
"The effect of that provision is that where the circumstances are the same then past persecution or serious harm is to be regarded as predictive of future persecution or serious harm absent a change of circumstances."
The judge goes on to state that the circumstances in Sri Lanka are now very different to what they were when the Appellant left. I was referred to the last page of the said case of MP and NT which states that the government in Sri Lanka might regard the appellant as posing a current threat to the integrity of Sri Lanka as a single state, even in the absence of evidence that he has been involved in diaspora activism.
10. Counsel submitted that insufficient regard was paid to the medical report and the Respondent's concessions and there would be a risk to this Appellant on return to Sri Lanka.
11. The Presenting Officer submitted that what Counsel is stating is that the judge erred by failing to engage with some medical evidence and engaged with the wrong case law. She submitted that she does not accept this and it is not material that the judge applied earlier case law. She submitted that the judge accepts that the Appellant was ill-treated in detention at paragraph 57 but then states that he does not accept that the linear scars were caused by this ill-treatment. She submitted that it is clear that the judge accepts some parts of the evidence but not others and that he was entitled to this finding. She submitted that at paragraph 42 of the determination the judge refers to the linear scars being minor and states that they are consistent with common injuries caused by minor accidents. He therefore finds that these scars are unlikely to alert the authorities. She submitted that the judge has factored torture into his findings and his determination, so considering the case promulgated in 2009 made no difference to the determination as a whole. She submitted that there is nothing irrational in what the judge states about the matter under consideration.
12. The Presenting Officer referred to the ground in which Counsel states that the judge mis-applied the Appellant's profile. She submitted that Counsel is stating that the judge did not properly engage with the Appellant's LTTE work and she submitted that there is no error here. The judge made numerous references to the appellant's LTTE training and his work for the LTTE. She submitted that there is no evidence to indicate that the Appellant wants a Tamil homeland. He has no political profile and he will not be on a stop-list on return. She submitted that Appendix C of the case of GJ is only a description of a procedure. Counsel is suggesting that the judge has mis-construed the Appellant's evidence and paragraph 51 of the determination could suggest this but even if it does, this is extremely minor and will not require the determination to be set aside.
13. At paragraph 52 the judge concedes that the Respondent has accepted that a bribe was paid but the judge was not happy with the lack of detail about this and the fact that the appellant's brother did not attend the hearing. The judge correctly states that his brother could have described the handing over of the bribe and the circumstances. She submitted that it was open to the judge to make the finding that he did.
14. With regard to Counsel's submission that the judge gave inadequate consideration to the case of MP and NT I was referred to paragraph 50 of that case. The Presenting Officer submitted that this paragraph does not support the Appellant's case. All it does is refer to the Upper Tribunal's guidance in which it is found that past LTTE activism does not necessarily mean risk on return. She submitted that the Upper Tribunal was entitled to come to that conclusion and this is something that should be considered when a decision about returning Tamils is being made but the judge found that when considering our case on its facts, this Appellant will not be at risk on return. The judge finds that in this case, having considered all the facts in the round, the Appellant is not somebody who will be at risk on return. I was referred to paragraph 50 of the case of MP and NT where it is stated that there may, "though untypically", be other cases where the evidence shows particular grounds for concluding that the government might regard the appellant as posing a current threat to the integrity of Sri Lanka as a single state, even in the absence of evidence that he has been involved in diaspora activism. I was asked to give weight to the words "though untypically". She submitted that there is no error of law by the judge.
15. The Presenting Officer then referred me to paragraph 53 of the determination which refers to the lack of credibility in the Appellant's evidence. She submitted that this has not been challenged and at paragraph 54 the fact that the Appellant waited three years before claiming asylum must go against his credibility. She submitted that there is nothing in the grounds which could undermine the determination.
16. She submitted that the Respondent has accepted that the Appellant was detained but he did travel to India and back without an agent and his evidence is that he came to the United Kingdom on his own passport. The judge finds that this is significant and at paragraph 56 states that the Appellant's involvement with the LTTE was at the lowest level for a very brief time. She submitted that on the lower standard of proof the judge finds that this Appellant is an economic migrant and based on the facts of the case and the evidence before him, the Appellant will not be on a stop-list on return. I was asked to uphold the decision of the First-tier Tribunal.
17. Counsel for the Appellant submitted that the judge gave too much weight to the fact that the Appellant's brother did not attend the hearing and did not give reasons for finding that the linear scarring did not indicate torture. He submitted that the judge also gave too much weight to the Appellant's departure from Sri Lanka on his own passport and on the absence of a political profile, finding that these matters show that there would be no risk to the Appellant on return. He submitted that the judge accepts that the cigarette burns were inflicted while he was detained and he was wrong to find the linear scars point to a credibility issue.
18. Counsel submitted that the Section 8 matter of the delay in the Appellant claiming asylum is not sufficient for the Appellant to have no problems on return. He submitted that this is not a logical finding and the judge has misconstrued the evidence.
19. I was asked to find that there is a material error of law in the determination and that the decision should be overturned.
Determination
20. The judge has properly considered the medical evidence and the Appellant's scarring. I find that the fact that he applied the guidance in TK (Sri Lanka) and LP (Sri Lanka) not to be a material error. He accepts that the Appellant was detained and may have suffered some ill-treatment while he was detained but he gives weight to Dr Lingam's evidence and at paragraph 38 notes the doctor's report, relating to linear scars. At paragraph 41 he refers to the said case of GJ and in that paragraph he makes it clear that he is aware that GJ is the relevant case but he still finds it necessary to consider the scarring as a risk factor, in line with the old guidance. The judge did not have to do that but in this case this must surely help the Appellant. He gives reasons for finding that the linear scars would not put the Appellant in danger and he accepts that the cigarette burns, three in number, may have been inflicted on the Appellant when he was detained. He goes on to refer to Dr Lawrence's report and states at paragraph 55 that he has attempted to make allowances for the Appellant's psychiatric condition but finds that although these can explain away the identified weaknesses in the appellant's evidence they do not address the central issue in this case, which is whether the Appellant is someone who would be perceived to be a risk to the stability of Sri Lanka. He finds at paragraph 56 that the Appellant's involvement with the LTTE was at the lowest level for a very brief time. Although he has accepted that the appellant was detained, he notes that in 2009 many Tamils were detained just for their ethnicity and finds that there is insufficient evidence that all the Appellant's scars relate to ill-treatment in detention. It is clear that the judge has properly considered the medical evidence and came to his conclusions accordingly. At paragraph 60 he states that the risk factors defined by GJ do not include scarring and he states that even when scarring was considered a risk factor it had to be accompanied by other significant factors and there are no such factors in this case. He also finds that the report of Dr Lawrence does not take the Appellant's case very much further.
21. The second ground, being the mis-application of the Appellant's profile, has also been properly considered by the judge. The grounds refer to Appendix C and the case of GJ. Again the judge has found that the appellant was detained and had fought with the LTTE. The grounds state that the judge should have found that this profile places him at risk on return to Sri Lanka but the judge has properly considered this and has found that the Appellant is a Tamil from the north of Sri Lanka who has never been involved in political activity on behalf of the LTTE although he was forcibly recruited into the LTTE and received some training. The judge finds that the Appellant was no more than an ordinary foot soldier and after a short while he escaped, was not captured, left the fighting, and fled with other civilians. The judge is concerned about credibility and notes that in the appellant's screening interview he stated that he had never been detained but he notes that the Respondent accepts that he was detained. He also notes that the Respondent also accepts that the Appellant was released on payment of a bribe. The judge notes that the appellant remained in Colombo for a year, apart from a brief visit to India and then left Sri Lanka on his own passport without difficulty and came to the United Kingdom. At paragraph 50 the judge states that there is no evidence that the authorities in Sri Lanka would have issued an arrest warrant for the Appellant. He points out that after the Appellant escaped he visited the British High Commission twice and travelled to India without difficulty on his own passport. He then travelled to the United Kingdom using his own passport and there is no documentary evidence about the death of any of his close relatives. He qualifies this at paragraph 51, accepting that a bribe was paid. This is where he states that it would have been helpful if the Appellant's brother had attended the hearing. That is really all he says about the Appellant's brother and it clearly would have been helpful if his brother had been at the hearing to clarify the paying of the bribe but as he was not, the judge had to make his findings on what was before him.
22. One of the main issues in this claim is the lack of credibility in the Appellant's evidence. This is mentioned a number of times in the determination under the heading, "Findings of Fact". There were contradictions in his evidence which are referred to at paragraph 53 and he delayed claiming asylum for three years. This was mentioned at paragraph 54. At paragraph 55 the judge refers to the flaws in the Appellant's case and the factors which damaged his credibility. All in all the judge is satisfied that the Appellant experienced some ill-treatment during his detention but does not find that this in itself would put him in danger on return. It is clear from the determination that all the facts of the case have been considered by the judge in the round.
23. The third ground is the inadequate consideration of the case of MP and NT (Sri Lanka). Paragraph 50 of that case is quoted in the grounds. It is clear that Lord Justice Underhill in that case found that the government in Sri Lanka's concern is only with current or future threats to the integrity of Sri Lanka as a unitary state. Counsel states that our appellant may be regarded as posing a current threat to the integrity of Sri Lanka as a single state even in the absence of evidence that he or she has been involved in diaspora activism. Paragraph 50 states that it is not typical for this to be the case and the judge clearly finds that the Appellant in this case would not be regarded as posing a current threat to the integrity of Sri Lanka as a single state. At paragraph 62 the judge states that on return, at the most, the authorities will know of him as someone who was involved briefly in the fighting at the end of the war. He surrendered and admitted his role and his detention ended informally. The judge finds that sophisticated intelligence will establish the lack of any other political activity in the past, either in Sri Lanka or in the UK and the judge finds that based on what was before him the Appellant will not be at risk on return to Sri Lanka.
24. The judge's findings are properly explained and there is no error of law in the determination.
Decision
25. There is no material error of law in the First-tier Tribunal's determination promulgated on 28th September 2014.
26. The First-tier Tribunal's determination, promulgated on that date, must stand.
27. Anonymity has been directed.
Signed Date 30th December 2014
Designated Judge Murray
Judge of the Upper Tribunal