Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10279/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 August 2016
On 15 Septemeber 2016

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

W--- M--- N--- T--- S---
(ANONYMITY DIRECTION made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person (representative did not appear)
For the Respondent: Mr K Norton, Home Office Presenting Officer

DECISION AND REASONS
(1) Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 I make an order prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the respondent. Breach of this order can be punished as a contempt of court. I make this order because of the need for extreme caution in international protection cases. It is possible that publicising the identity of an asylum seeker could result in an application succeeding which would otherwise have been unmeritorious.
(2) This is an appeal by a citizen of Sri Lanka against the decision of the First-tier Tribunal dismissing his appeal against the decision of the Secretary of State that he is not entitled to international protection. He was supposed to be represented before me. It was convenient to hear the case at about 12.15 pm and his Counsel had not appeared by that time. He had left a message with the usher to say that he would not be here until about 12.50 pm. I do not say that that is the complete message. It would be surprising if the member of the Bar concerned was late for other than a very good reason but no good reason was given to me.
(3) Mr Norton had had an opportunity of preparing the case and indicated that it was a case where he could not resist sensibly a find that the First-tier Tribunal had erred in law and the appeal should be allowed to the extent that it be set aside and order to be heard again in the First-tier Tribunal. I agree.
(4) I also take the view that it would be irresponsible to do anything more than send back the appeal to the First-tier Tribunal. It is not a case that ought to be allowed now and it is not a case that ought to be heard in the Upper Tribunal when the essential complaint is the appellant has not had a fair hearing.
(5) The appellant before me explained that his English was imperfect. I certainly would not expect him to be able to have managed without an interpreter if he had had to make submissions or give evidence. However I am satisfied that he understood what I was proposing and understood that it was not a decision that was unfair to him although I do not suggest that he would be bound to take that view if he was advised to the contrary. That is a matter for him and his barrister to sort out. I decided therefore that on the particular facts of the case it was right to go ahead without Counsel and to dispose of the appeal as I have indicated.
(6) There are two points made in the grounds. The first relates to documents produced by the appellant indicating that he is wanted by the authorities in Sri Lanka. They are court documents and they are of a kind of document that are very often seen in Sri Lankan cases. They are not always found to be reliable and this is a case where the Secretary of State indicated she wanted to make enquiries and tried to make enquiries but there was no result. Mr Norton has explained to me, and I accept, that it was not a case where the Respondent was indifferent. He had evidence to show that the Respondent had tried but simply could not find anything to support or undermine the documents.
(7) The First-tier Tribunal does not seem to have appreciated this. Rather it seems to have dealt with the case without making a proper finding or having proper regard to the documentary evidence. This is potentially a rather troubling mistake because if the evidence is reliable then it is of considerable assistance to the appellant.
(8) The second point concerns the consideration of medical evidence. The appellant claims to have been beaten by the Sri Lankan authorities and refers to two marks on his body, one the result of a punch by a ring and the other the result of a blow to the leg.
(9) The First-tier Tribunal has not shown proper regard to this strand of evidence. The judge has not appreciated that the medical opinion was that the injuries were consistent or highly consistent with the claimed mechanism. This is generally regarded as very strong evidence that the given mechanism is correct. The Tribunal has not evaluated the evidence in the round with the rest but appears to have used it as a precursor to an adverse credibility finding. Whether or not that is what the judge did, it looks as though it was what the judge did and that is not good enough.
Notice of Decision
It follows therefore that the First-tier Tribunal's decision is unsatisfactory for these reasons and has to be set aside and in the circumstances I set it aside and direct the case be heard again in the First-tier Tribunal.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 14 September 2016