Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10266/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10th November 2016
On 7 December 2016
Before

DEPUTY UPPER TRIBUNAL JUDGE I A M MURRAY

Between

mr Ilango Sinniah
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms Halse, Counsel for Patricks Solicitors, Essex
For the Respondent: Mr P Armstrong, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Sri Lanka born on 31st March 1990. He appealed against the decision of the Respondent dated 1st July 2015 refusing him asylum, human rights protection and leave to remain in the UK on human rights grounds. His appeal was heard by Judge of the First-tier Tribunal Swinnerton on 25th August 2016 and dismissed on all grounds in a decision promulgated on 7th September 2016.
2. An application for permission to appeal was made. Permission to appeal was granted by First-tier Tribunal Judge Ford on 4th October 2016. The permission states that the Tribunal may have erred in not finding that the Appellant falls within the risk categories mentioned in headnote 7 of the case of GJ and Others Sri Lanka [2013] UKUT 00319 (IAC). This refers to journalists/activists in the post-conflict diaspora/human rights activists. In this case, Mr Sinniah, the Appellant, relies on his sur place activities which he claims were critical of the government in Sri Lanka. Although the Respondent did not accept that the Appellant played a significant role in the diaspora activities the judge, apart from recording this at paragraph 13 of the decision, makes no further mention of it in her findings of fact or in her assessment of the risk to the Appellant on return.
3. There is a Rule 24 response which states that the First-tier Judge has noted the Appellant's claimed activities in the UK at paragraph 13. When paragraph 20 is read, in which the judge records Counsel's submissions, Counsel did not specifically refer to the Appellant's claimed diaspora activities so it was understandable that the First-tier Judge did not undertake a forensic analysis of this element of the claim. The response goes on to state that even if there was such an error it was immaterial to the outcome of the appeal as the judge has comprehensively rejected the Appellant's claimed abduction and detention. The response refers to another issue which is that the Appellant only started his limited diaspora activities in 2014 long after he arrived in the United Kingdom in 2011. The response refers to the said case of GJ which makes it clear that risk category 7(a) only applies where the authorities perceive an individual to have a "significant role" in post-conflict Tamil separatism and at paragraph 351 of GJ it is stated "attendance at one, or even several demonstrations in the diaspora is not of itself evidence that a person is a committed Tamil activist seeking to promote Tamil separatism within Sri Lanka. That will be a question of fact in each case, dependent on any diaspora activities carried out by such an individual". The response states that the Appellant's claim at its highest with the accepted and unchallenged credibility findings, do not suggest that the appellant would be perceived to have a significant role in relation to Tamil separatism.
The Hearing
4. Counsel for the Appellant submitted that the judge did not consider risk or potential risk to this Appellant because of his sur place activities and this must be a material error. She submitted that the judge ignored the guidance from the case of GJ. She took me through the headnotes in GJ. This is the case which replaces all existing country guidance on Sri Lanka and she pointed out that at number 3 it is stated that the government's present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism to destabilise the unitary Sri Lankan State enshrined in Amendment 6(1) to the Sri Lankan Constitution of 1983 which prohibits the "violation of the territorial integrity" of Sri Lanka. She submitted that a new government was put in place in Sri Lanka in January 2016 and it is trying to stop any activity which criticises the Sri Lankan government and draws attention to the human rights failings of the government. The intention is to placate international opinion and it was pointed out that the General who was in charge of the Sri Lankan Army when the war ended in 2009 is now a member of the government. Headnote 4 states that if a person is detained by the Sri Lankan security services there is a real risk of ill-treatment or harm requiring international protection. Counsel also submitted that internal relocation is not an option for a person at real risk from the Sri Lankan authorities and when Tamils return they require to return to a named address after passing through the airport. She submitted that this is so that Tamils can be monitored.
5. I was referred again to the said case of GJ which confirms that very few people are detained at the airport and that there is a small "stop list". She submitted that the Appellant is unlikely to be on the "stop list" but there is also a watch list and because the Appellant was detained and released on a bribe he may well be on that watch list and if he is he will be monitored on return. She submitted that by the Appellant's sur place activities, he brought to international attention the criticisms levelled at the Sri Lankan government. She submitted that the government considers the LTTE to be a spent force but they are afraid of any threat to the division of Sri Lanka coming from the diaspora and she submitted this Appellant could be perceived to be actively involved. She accepted that the Appellant was not a journalist but at number 8 of the headnotes it is stated that the Sri Lankan authorities' approach is based on sophisticated intelligence internally and in the diaspora. Counsel asked me to consider the Appellant's detention of sixteen days and what he suffered during that period although he had had no major involvement with the LTTE. This happened a year after his minor activities.
6. Counsel submitted that this Appellant's family members are involved with the LTTE and that must put the Appellant in danger. She submitted that the Appellant will be returning from the United Kingdom and this is another reason he may be on the "watch list" which means he will be monitored by the security forces on return.
7. I was referred to the case of MP and NT and asked to give this weight in particular Lord Underhill's judgment. Tamils are considered a threat by the authorities in Sri Lanka.
8. Counsel submitted that on return this Appellant could be considered to be involved in activities against the government particularly because of his family's connection to the LTTE and although he only played a minor role he could still be in danger. She submitted that it is not clear what his situation will be as he was detained and only released on a bribe. He may be considered to have escaped.
9. She also submitted that the judge found that it was unlikely that this Appellant would be unable to return safely, five or six years after he left. She submitted that the judge did not believe that the Appellant was detained but she submitted that nowhere in the decision did the judge mention whether the Appellant's activities in the diaspora are such as to bring him to the attention of the authorities. She submitted that foreseeably this Appellant will be at risk on return.
10. The judge has also referred to credibility issues under Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Counsel submitted that the Appellant's evidence is that he had a visa and did not realise he should claim asylum when he had this visa. She submitted that this is a credible explanation.
11. She submitted that the Appellant is involved in two organisations being the TCCE (UK) which has been ongoing for many years and the Transnational Government of Tamil Eelam (TGTE). She submitted that although he is only a foot soldier in these groups he went to meetings, delivered leaflets and has been attending since 2014.
12. Counsel submitted that the judge did not believe that the Appellant had been detained in 2010 for something he did in 2006. Because she did not believe this she did not grant asylum to the Appellant but she submitted the judge fell into error in failing to consider the activities of the diaspora in England and the Appellant's involvement with them and the serious new take on diaspora activities by the Sri Lankan government. She submitted that the government has developed technology and intelligence to a high degree and this Appellant will be in danger on return and his appeal should be allowed.
13. The Presenting Officer submitted that he is relying on his Rule 24 response. There is nothing in the decision to suggest that the judge did not consider all the evidence before her. He submitted that based on this, this Appellant will not be at risk on return because of his sur place activities in the United Kingdom.
14. The Presenting Officer referred me to paragraph 13 of the decision. The judge does not accept that the Appellant has played a significant role within the diaspora in the UK. The activities of the Appellant within the Tamil diaspora in the UK are at best, limited. He submitted that the Appellant therefore has not come into a risk category in terms of the said case of GJ. He submitted that the appellant is a man who had no high profile in the diaspora. He was not a journalist and he will not be at risk on return. The judge made it clear that she did not believe the Appellant's evidence and noted that the Appellant had left Sri Lanka on his own passport. The judge also noted that this Appellant only claimed asylum when he was encountered and there are credibility issues under said Section 8. The Appellant was in the United Kingdom for four years before he claimed.
15. I was referred to paragraph 19 of the decision which refers to the Appellant not being involved with pro Tamil activities in the UK until 2014 despite having lived with Tamil people since he came to the United Kingdom. At paragraph 21 the judge states that there is a lack of credible evidence to support the Appellant's claim and at paragraph 26 the judge states that she did not find the Appellant's evidence to be credible about his abduction and detention. At paragraph 27 the judge does not find the Appellant's explanation of failing to claim asylum until 2014 to be plausible. The Presenting Officer submitted that there is no real risk of persecution to this Appellant on return to Sri Lanka and I was again referred to headnote 7 in the case of GJ. The Presenting Officer submitted that the Appellant would have had to play a significant role in his activities against the authorities in Sri Lanka to come under this risk category and his sur place activities are clearly not enough, based on paragraph 351 of the said case of GJ.
16. With regard to the Appellant returning and being perceived to be involved in Tamil separatism, again the judge does not accept this and the Presenting Officer submitted that the judge has considered everything that was before her and come to the correct conclusion based on the country guidance case. I was asked to find that there is no material error of law in the judge's decision.
17. Counsel submitted that the Appellant's explanation of why he did not claim asylum earlier is perfectly plausible and the decision does not make it clear that the judge has considered all the headnotes in the said case of GJ. She submitted that if the appellant is returned and falls into the hands of the security forces he will be tortured, based on the objective evidence.
18. Counsel submitted that the judge found the Appellant's account not to be credible and finds that the fact that a bribe was paid and he was released from detention means he will not be at risk but she submitted that that is not the case as he could be thought of as having escaped. She submitted also that if the Appellant is found to be from a family who have money this could put the Appellant in danger as his guards may well be seeking bribes for themselves.
19. Counsel submitted that what has to be considered are the different backgrounds and cultures and what may seen rational in the United Kingdom is not necessarily rational in a country like Sri Lanka. She submitted that the Appellant is not claiming that he was very prominent but he has been involved in sur place activities against the authorities in Sri Lanka since 2014 and I was asked to find that he would be at risk on return. I was asked to allow this appeal.
Decision and Reasons
20. The First-tier Judge's decision in this case is based on a lack of credibility. The judge has properly considered the said case of GJ and Others and she has noted many credibility factors in the Appellant's evidence.
21. The Appellant came to the United Kingdom in 2011 but he did not claim asylum until 2014 when he was encountered. This was in spite of having lived with Tamil people since he came to the United Kingdom. It was only in 2014 that he started his sur place activities against the authorities in Sri Lanka. These activities are low level at best.
22. After the Appellant was released from detention he continued to live in Sri Lanka for more than a year and he left Sri Lanka using his own passport. He only applied for asylum after his leave was curtailed. The judge clearly finds that he does not fit into any of the risk categories referred to in the said case of GJ and the judge finds it to lack credibility that if he only carried out minor activities in 2006 he would be detained and abducted and beaten in 2010.
23. At paragraph 24 the judge refers to the lack of documentation provided, particularly relating to the appellant's injuries and any medical treatment received. She finds that the medical report from Dr Vig does not support the Appellant's account of his detention and beatings.
24. The Appellant states that his family have been frequently visited by the authorities in Sri Lanka but as the judge found the Appellant to lack credibility this was not believed.
25. The judge has clearly considered all of the evidence before her. Shee has considered the country guidance case of GJ and Others and for reasons given in the decision has found that this Appellant is not in a risk category and will not be at real risk if he is returned to Sri Lanka today. He came to the UK to study and has been here for five years. His family is living in Sri Lanka and the judge finds, again based on what was before her, that there are no exceptional circumstances in this claim and for proper reasons has dismissed the appeal.
Notice of Decision
26. There is no material error of law in the First-tier Judge's decision, promulgated in September 2016, and this decision must stand.
27. Anonymity has not been directed.

Signed Date

Deputy Upper Tribunal Judge I A M Murray 7 December 2016