Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA103052014

THE IMMIGRATION ACTS

Heard at : Field House
Decision & Reasons Promulgated
On : 14 June 2016
On : 16 June 2016

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

suthakaran rajaratnam

Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr J Wells of Maliks & Khan Solicitors
For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a Sri Lankan national of Tamil ethnicity born on 28 July 1979. He has been given permission to appeal against the decision of First-tier Tribunal Judge Watson dismissing his appeal against the respondent's decision to remove him from the United Kingdom following the refusal of his asylum claim.

2. The appellant arrived in the United Kingdom on 2 September 2009 with a student visa valid until 31 December 2010. Following the refusal of an application for an extension of his visa, he was subsequently granted leave to remain as a Tier 4 student until 25 August 2014. However his leave was curtailed to expire on 12 August 2013 when his sponsor's licence was revoked, and his subsequent application for further leave as a student was refused on 13 September 2013. His appeal against that decision was dismissed on 28 February 2014 and he became appeal rights exhausted on 31 March 2014. He then claimed asylum on 8 May 2014. His claim was refused on 10 November 2014 and on 11 November 2014 a decision was made to remove him from the UK. The appellant appealed against that decision. His appeal was dismissed in the First-tier Tribunal. Permission has been granted to appeal to the Upper Tribunal.

The Appellant's Case

3. The appellant worked as a teacher in Sri Lanka from 2005 to 2009. He claims to have been involved with the LTTE since 2001. He claims to have acted as a courier for the LTTE in Jaffna from 2001 until 2005 and then elsewhere until 2009. He gathered intelligence information for the LTTE. He was never a member of the LTTE. His photograph was taken during training with the LTTE and kept on their records, but the records were later seized by the government forces. His brother Sureshkaran was forced to become a member of the LTTE in 2006 and he did not see him from that time, but later found out that he had been detained in 2009 and then left Sri Lanka and went to Italy in 2012. His brother returned to Sri Lanka in October 2013 and was arrested and tortured and detained. During his detention his brother was shown his photograph. His brother was released from detention through payment of a bribe and left Sri Lanka and returned to Italy in December 2013. The appellant came to the UK in September 2009 because he was scared of being arrested on suspicion of involvement with the LTTE. He managed to obtain a student visa for the UK with the assistance of an agent. He did not claim asylum on arrival to the UK as he had not suffered direct problems in Sri Lanka at that stage, but when his brother was detained in October 2013 he realised that the situation was more serious than he had imagined and he started to suffer from depression. The CID started visiting his home and harassing his mother, asking questions about him and his brother, and she then moved to a different area. He had another brother, Subaskaran, who came to the UK in 2000 and was granted asylum. The appellant joined the British Tamil Forum (BTF) in the UK and also took part in demonstrations. As a result, he was at risk on return to Sri Lanka.

4. The respondent, in refusing the appellant's claim, accepted that he had attended demonstrations in the UK and that he had been a member of the BTF since May 2014 (but not since 2010 as he had claimed). The respondent did not accept the appellant's claim to have been of interest to the Sri Lankan authorities since October 2013 and did not accept that he had been involved with the LTTE as claimed. The respondent considered that the appellant was at no risk on return to Sri Lanka.

5. The appellant's appeal against that decision was heard by Judge Watson in the First-tier Tribunal on 30 March 2016 and was dismissed in a decision promulgated on 19 April 2016. The grounds of appeal before the judge were amended, with permission, to include Appendix FM on the basis of the appellant's marriage to a person with refugee status on 28 September 2015. The judge heard from the appellant and his wife, as well as from the appellant's friend Rajeevan Balibaskaran, who had been granted asylum in the UK and who claimed to have worked with the appellant as a courier for the LTTE in Sri Lanka and claimed, at the hearing only, to have given the appellant's name to the authorities when he was detained and tortured. The judge had a psychiatric report before her from Dr Lawrence referring to the appellant's depression and PTSD, as well as other medical evidence relating to the appellant and his wife and other documentary evidence. The judge did not accept that the appellant's brother Sureshkaran had been detained and tortured in Sri Lanka, she accepted that he had been a member of the BTF since May 2014 and had attended some meetings and demonstrations but she did not accept that the appellant had been involved with the LTTE in Sri Lanka prior to 2009. The judge found that the appellant would be at no risk on return to Sri Lanka and that his removal would not breach his Article 3 and 8 human rights on medical or other grounds.

6. Permission was sought on behalf of the appellant to appeal to the Upper Tribunal, on several grounds: that the judge had failed to consider the appellant's wife's statement, recording that there was no statement when in fact there was one; that the judge had failed to consider the appellant's relationship under Appendix FM of the immigration rules and the relevance of the fact that his wife was a refugee; that the judge had erred in law in her approach to the medical evidence; and that the judge had failed to give adequate reasons for rejecting the evidence of the witness Rajeevan Balbaskaran.

7. Permission to appeal to the Upper Tribunal was granted on 13 May 2016 on all grounds, but primarily on the ground relating to the appellant's wife's statement.

8. Mr Wells, in his submissions, relied and expanded upon the grounds of appeal He submitted that the judge's failure to consider the appellant's wife's statement was a material error, particularly as it supported his claim as to insurmountable obstacles to family life continuing in Sri Lanka since his wife was a refugee and could not return to that country, and also since it referred to her mental health and her reliance upon the appellant. Mr Wells submitted that the judge made a Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367 error, by disregarding the medical report from Dr Lawrence on the basis that he had already found the appellant not credible. Finally there was an error in the judge's approach to the evidence of the witness Rajeevan Balbaskaran.

9. Mr Wilding accepted that the judge had been wrong to say that there was no statement from the appellant's wife, but he submitted that that was immaterial as she had heard oral evidence from her and her statement added nothing to that evidence. The judge had not committed a Mibanga type error but had considered the evidence in the round. The judge was entitled to place no weight on the witness' evidence.

Consideration and findings.

10. It is accepted that the judge was wrong to state at [49] that the appellant's wife had not prepared a statement, when it is clear that there was a written statement at pages 8 to 11 of the appellant's third supplementary appeal bundle, which formed part of the evidence before her, and that the witness adopted that statement as part of her evidence. However I find myself entirely in agreement with Mr Wilding that any failing on the part of the judge in that respect is immaterial, given that the judge heard directly from the appellant's wife and had the benefit of oral evidence which she was able to consider. Mr Wells submitted that the oral evidence was not sufficient for the judge to make the adverse findings that she did without having regard to the witness statement, given the lack of cross-examination, which he later clarified as a lack of in-depth cross-examination. However, it is clear from the judge's record of proceedings that there was a lengthy cross-examination. That evidence is briefly summarised by the judge at [49]. The judge gave various reasons for concluding that the appellant's marriage was not a genuine and subsisting one, including a lack of documentary evidence of a joint life, the significant matter of the absence of any reference to the relationship in the appeal grounds and in particular in Dr Lawrence's report (which confirmed, to the contrary, the absence of any relationship), and the vague nature of the appellant's wife's evidence and her inability to give any details of joint activities. I agree with Mr Wilding that the appellant's wife's statement, which is little more than an account of her claimed feelings for the appellant, adds nothing of material value to the oral evidence and does nothing to undermine the adverse inferences properly drawn from the oral evidence.

11. Accordingly I find no merit in the first ground of appeal. Any omission by the judge in regard to the appellant's wife's written statement was clearly immaterial and she was fully entitled to make the adverse credibility findings that she did from the oral evidence. That also disposes of the second and third grounds of appeal, since the question of insurmountable obstacles to family life continuing in Sri Lanka and the relevance of the appellant's wife's refugee status was immaterial if there was no genuine and subsisting marriage in the first place.

12. With regard to the fourth ground, I am again in agreement with Mr Wilding, that the judge's findings on the medical report and the evidence as a whole was entirely consistent with the principles in Mibanga. At [27] to [35] the judge considered the documentary evidence at length, and at [30] he considered Dr Lawrence's report. He gave careful consideration to the report, noting the doctor's conclusion that the appellant was not simulating his symptoms but also commenting that the doctor was unaware of inconsistencies in the appellant's evidence provided to him in regard to his relationship and that the doctor's opinion was based on the appellant's own account of events. At [36] to [39] and [41] the judge made adverse credibility findings on matter which could not have been assisted by the doctor's conclusions on the appellant's mental health. It is clear that the judge considered all the evidence in the round, and not on a piecemeal basis as the grounds suggest, and provided full and proper reasons at [44] for according the limited weight that he did to the psychiatric report. I therefore find no merit in the fourth ground of appeal.

13. Likewise there is no merit at all in the fifth ground. The judge was perfectly entitled to reject the evidence of the witness Rajeevan Balibaskaran for the reasons that she did at [41], namely on the basis that he had changed his evidence significantly at the hearing from that initially given in his written statement. Contrary to Mr Wells' submission before me, the judge gave consideration to the witness' explanation for the change in his evidence and provided a reason for rejecting that explanation.

14. For all of these reasons I find that the appellant's grounds of appeal do not disclose any errors of law in the judge's decision. The judge undertook a full and careful assessment of all the evidence and gave clear and cogent reasons for making the adverse findings that she did. The weight to be attached to the evidence was a matter for the judge and she was perfectly entitled to reach the conclusions that she did.

DECISION

15. The making of the decision of the First-tier Tribunal did not involve an error on a point of law. I do not set aside the decision. The decision to dismiss the appeal stands.

Signed Date
16th June 2016
Upper Tribunal Judge Kebede