Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09846/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 1st November 2016
On 30th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mohmmed [R]
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr M Diwnycz, Home Office Presenting Officer
For the Respondent: Mr J Holt, Counsel, instructed by Ison Harrison Solicitors

DECISION AND REASONS
1. This is the Secretary of State's appeal against the decision of Judge Cox made following a hearing at Bradford on 26th August 2016.
Background
2. The claimant is a citizen of Sri Lankan born on 12th October 1977. He arrived in the UK with his wife and child on 7th January 2015 on a valid multi visit business visa and claimed asylum some six weeks later. He was refused on 22nd June 2015.
3. The appellant claimed that he went to work in Saudi Arabia as the head of corporate sales and marketing for Khushim Industrial Equipment in September 2008. He became involved with the Sri Lankan expatriate community there, and was appointed as the labour welfare society member. As a consequence he became friendly with Sri Lanka's foreign minister Mr Bogollagama who suggested that he help raise funds for the Sri Lanka Freedom Party within the expatriate community. Thereafter he became actively involved with the SLFP.
4. The claimant began to receive threatening phone calls from members of the UNP in 2010, and in 2012 he was threatened as he got out of his vehicle. He decided to stop working for them. However in October 2013, whilst in the UK attending some training, he was asked by the SLFP to resume his work for them. There were further clashes in 2013 and 2014 with members of the UNP culminating in October 2014 when he was threatened with a knife at his Saudi home, in November 2014 when unknown men went to his father's house asking about his whereabouts. There were further threats in January 2015, and later that same month, the claimant's home was broken into.
5. The judge found that the claimant had given a credible account of his experiences in Saudi Arabia and Sri Lanka. He gave detailed reasons for his findings which are unchallenged.
6. At paragraph 50 he wrote:
"On the totality of the evidence and applying the lower standard of proof I am satisfied that:
- the appellant worked in Saudi Arabia as the Head of Corporate Sales for an industrial company;
- the appellant as a successful Tamil businessman became involved with the expatriate community and I am satisfied that as a result he would have had a high profile in Saudi Arabia within the Sri Lankan community;
- the appellant was asked to join the SLFP and he started working for the party;
- the appellant was threatened in Saudi Arabia by members of the UNP and his car was damaged in 2012. He started working for the SLFP but after the birth of his third child, the SLFP approached him again and he decided to continue helping them;
- the appellant was attacked with a knife in Saudi Arabia. He decided to leave the country;
- unknown men came to the appellant's family home looking for him; and
- the appellant's house in Sri Lanka was broken into after he left Sri Lanka."
7. The judge then considered whether there would be a real risk of the claimant suffering serious harm if he were to return to Sri Lanka. He addressed the guidance provided in the country guidance case of GJ and Others (Post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 and K (application of GJ) Sri Lanka CG [2013] UKUT 00512. He considered whether the claimant might fall within subcategory (b) of GJ as a person at risk, namely "certain opposition politicians and political activists" but concluded that he did not.
8. The judge then considered, in line with paragraphs 12.2 - 12.4 of Practice Directions and the Tribunal's observations in DSG and Others (Afghan Sikhs: departure from CG) Afghanistan) [2013] UKUT 1848, whether the claimant's case could properly be distinguished from GJ. He noted that the evidence in his case was not dependent upon the same or similar evidence as the evidence considered by the Tribunal in that case, which itself acknowledged that the risk on return to Sri Lanka was very fact specific. He also noted that the political landscape in Sri Lanka had changed significantly since the decision in GJ. He set out the background material and considered the Presenting Officer's argument that, as the UNP were now in power, they would no longer have any interest in the claimant especially as he had stopped his political activities.
9. He then wrote as follows:
"In my view there is some merit to this argument. However, applying the lower standard of proof I am satisfied that there is a real risk that the appellant will be of continued adverse interest to the UNP as, in the light of his work for the SLFP in Saudi Arabia, they may think that the appellant will be able to assist them in pursuing charges against members of the former government. I believe this probably explains why they tried to find the appellant after the arrest of Basil Rajakapkse.
Further, although there has been some improvement in the situation in Sri Lanka, the police 'continued to routinely torture and ill-treat individuals taken into custody to extract confessions' but also for personal vendettas or to extort 'bribes' (the HRW Rights Watch at page 95 of the appellant's bundle). As such, it is my view, even if the men looking for the appellant were not acting in an official capacity, there is a real risk that they could bribe/persuade rogue police officers to help them. In these circumstances I am satisfied that there is a real risk that the appellant will suffer serious harm whilst they seek his 'assistance'."
10. On that basis he allowed the appeal.
The Grounds of Application
11. The Secretary of State sought permission to appeal on the grounds that the Tribunal had effectively added to the list of risk categories identified in GJ to include opposition members. Extending the list of those at risk without giving adequate reasons is a material error of law.
12. Alternatively, the judge had engaged in speculation and there was no evidential basis for finding that, at paragraph 63, "if the men looking for the appellant were not acting in an official capacity there is a real risk that they could bribe/persuade rogue police officers to help them".
13. Permission to appeal was granted by Judge Lever for the reasons stated in the grounds on 5th October 2016.
Submissions
14. Mr Diwnycz accepted that this was not a run of the mill case, as he put it, and relied on his grounds.
15. Mr Holt submitted that the decision should stand and the grounds amounted to a disagreement with the decision.
Findings and Conclusions
16. There is no error of law in this decision.
17. First, with respect to GJ, the judge's approach was absolutely correct. His starting point was the country guidance case. He considered Counsel's argument that the claimant might fit within one of the risk categories outlined by the Tribunal and concluded that he could not. He then looked at whether there were any grounds for departing from the country guidance case, applied the correct test, which he set out at paragraph 55, and then considered both the changes which had taken place since GJ was decided, some three years ago, and the claimant's particular situation.
18. The judge had already concluded that the claimant had given a wholly credible account of the events leading to his asylum claim. He had accepted that specific threats had been made against him. He had also rejected the Presenting Officer's submission that the claimant's profile within the SLFP was at a low level. He concluded that the claimant was effectively acting as the party's link to the expatriate community in Saudi Arabia.
19. That conclusion is unchallenged in the grounds.
20. Having found that the claimant was operating at a reasonable high level, and that threats had been made against him both before and after he had left Sri Lanka, he was entitled to reach the decision which he did, on the basis of the changes which had taken place since the decision in GJ.
21. The submission in the grounds that the Tribunal had added to the list of risk categories in that case is unwarranted. The judge did not add to that list, he decided to distinguish GJ and gave wholly sustainable reasons for doing so.
22. Neither is there any merit in the alternative submission that there was no evidential basis for deciding that the claimant would continue to be at risk from persons who might think that he would be able to assist them in pursuing charges against members of the former government. The judge referred to the attempt which was made to find the claimant after the arrest of the former economic and development minister, Basil Rajakapkse, who was arrested on his return to Sri Lanka in April 2016. He also referred to the background evidence in the Human Rights Watch Report of police practice, including personal vendetta.
23. The grounds disclose no error of law.

Decision
24. The decision of the original judge will stand.
No anonymity direction is made.

Signed Date 30 November 2016

Deputy Upper Tribunal Judge Taylor