Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10610/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On March 16, 2017
On March 22, 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

MR VITHUSAN SATHASIVAMPILLAI
(no ANONYMITY DIRECTION made)
Appellant

and

the Secretary of State for the Home Department

Respondent

Representation:

For the Appellant: Mr Syed-Ali, Counsel, instructed by Amirthan & Suresh Solicitors
For the Respondent: Mr Bates (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. I do not make an anonymity direction under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
2. The appellant is Sri Lankan national. On March 26, 2015 the appellant entered the United Kingdom and claimed asylum. The respondent refused his application in a decision taken on July 15, 2015.
3. The appellant lodged grounds of appeal against that decision on July 30, 2015 under Section 82(1) of the Nationality, Immigration and Asylum Act 2002. His appeal came before Judge of the First-tier Tribunal Foudy (hereinafter referred to as the Judge) on April 14, 2016 and in a decision promulgated on May 9, 2016 the Judge refused his appeal on asylum and human rights grounds.
4. The appellant appealed this decision on May 24, 2016 and on June 6, 2016 Judge of the First-tier Tribunal Grimmett granted permission to appeal finding it was arguable that the Judge had erred in making findings of fact prior to considering the medical evidence and by failing to give full consideration to the evidence of the medical professionals involved.
5. The matter came before me on the above date and I heard submissions from both representatives. I reserved my decision.
SUBMISSIONS
6. Mr Syed-Ali adopted the grounds of appeal and submitted the Judge dealt with the medical evidence too briefly and failed to give any weight to the evidence of Nathan Murphy despite accepting the content of the statement in her decision. The Judge failed to give any consideration to his history of suicide attempts and his mental disorder and how that may have affected his account. There was evidence given by Dr Korzec that stated the correct medical treatment was not available in Sri Lanka but the Judge placed too much weight on the guidance in GJ and others (post-civil war: returnees) Sri Lanka [2013] UKUT 00310 (IAC) especially as the categories are not an exhaustive list. The Judge gave her own opinion and applied the wrong standard of proof. The Judge erred by not following the guidance in AK (Failure to assess witnesses’ evidence) Tukey [2004] UKIAT 00230 and BP (Sri Lanka) [2015] EWCA Civ 635.
7. My Syed-Ali further submitted that the Judge erred by placing too much weight on the appellant not being on the watch list because the Court in MM (Sri Lanka) [2013] EWCA Civ 391 made clear that people on the watch list are able to leave due corruption and bribery. Mr Syed-Ali submitted the decision was unsafe.
8. Mr Bates adopted the Rule 24 response dated June 24, 2016 and submitted that whilst the Judge accepted the appellant suffered from post-traumatic stress disorder she made the point that she had rejected his core account and therefore she was entitled to place no weight on Mr Murphy’s evidence. Whilst the categories in GJ were not exhaustive the appellant did not fall into a category that would bring him to the attention of the authorities. Whilst the Judge’s findings were brief the appellant had been fit enough to give evidence and it was too simple to blame inconsistencies on PTSD. He invited me to reject the appeal.
ASSESSMENT AND FINDINGS
9. When the appellant appeared in the First-tier Tribunal he was represented by Mr Syed-Ali. The arguments advanced today were arguments advanced before the Judge who heard the appellant’s appeal and those submissions were made after oral evidence was given by the appellant and Mr Murphy.
10. Mr Syed-Ali’s first ground of appeal was that the Judge made her decision without considering the evidence of Mr Murphy and he points to the fact the Judge discussed the appellant’s medical condition at paragraph [17] of her decision which was after she made adverse findings in paragraphs [12] to [14] of her decision.
11. However, in considering the Judge’s approach it is important to have regard to the whole decision and not simply to pick out specific paragraphs. The Judge had noted two significant discrepancies in the appellant’s account which she found undermined his claim:
(a) The appellant claimed he had been detained between 2013 and 2015 whereas the country evidence showed that the camps closed in 2013.
(b) The appellant claimed in his account that he had been starved for six years and when the anomaly was put to him he then stated he had only been starved in the first two years of his detention.
12. Mr Syed-Ali submitted today that his medical condition affected his ability to give evidence but this does not explain the two discrepancies which the Judge felt undermined his account. There was nothing in the two medical reports that would have led the Judge to conclude his condition would explain these discrepancies.
13. Dr Korzec is a “core psychiatry trainee”. He had no personal knowledge of mental health services in Sri Lanka and he was unable to predict the exact consequences if the appellant were returned to Sri Lanka and he was unable to state whether the appellant would receive the appropriate level of care in Sri Lanka. His conclusion was that he suffered PTSD following events in Sri Lanka. This was not something the Judge rejected but the Judge concluded, on the evidence, it was the general situation that existed that was the cause of his problems.
14. The Judge noted Mr Murphy’s report and accepted the appellant was depressed and concluded that living in a country wracked by a civil war may explain his condition. Mr Murphy could not say what exactly caused his problems save they began in Sri Lanka.
15. The fact the Judge considered the report after making findings of fact does not undermine those findings because neither Dr Korzec nor Mr Murphy addressed the inconsistencies in his evidence.
16. Whilst Mr Syed-Ali referred me to AK, the Supreme Court made clear in MA (Somalia) [2010] UKSC 49 that “Where a Tribunal has referred to considering all the evidence, a reviewing body should be very slow to conclude that that Tribunal overlooked some factor, simply because the factor is not explicitly referred to in the determination concerned.”
17. Mr Syed-Ali’s first ground of appeal that the Judge failed to consider the medical evidence does not amount to an error in law.
18. The second ground raised was the Judge’s approach to GJ and the argument advanced was that the Judge either misinterpreted the risk categories or the list was not exhaustive.
19. The Tribunal in GJ gave the following categories:
(a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.
(b) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.
(c) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.
(d) A person whose name appears on a computerised "stop" list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a "stop" list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.
20. The appellant clearly did not fall within the three categories and the issue was whether the appellant would have been on a stop list. Mr Syed-Ali submitted that the Judge overlooked bribery and corruption and pointed to the findings in MM. However, Mr Syed-Ali’s argument overlooks the rejection by the Judge of the appellant’s account. The appellant would not have had to be released on a bribe in such circumstances. The second issue raised by Mr Syed-Ali does not amount to an error in law.
21. The final point related to the Judge’s assessment of the appellant as a vulnerable witness. However, in BP the applicant’s core account was accepted whereas in this case the appellant’s core account was rejected. I find that the third point is merely a re-argument of the other issues and whilst the Judge’s decision was short she nevertheless considered his account, the evidence of witnesses and then applied GJ. Whilst GJ does not give an exhaustive list it does point the Judge in the right direction and there is nothing in the medical evidence that suggests that he would be untreatable or at risk in Sri Lanka. In fact, Dr Korzec specifically said he had limited knowledge of Sri Lankan circumstances and Mr Murphy merely adopted Dr Korzec’s report.
22. I therefore find no error of law.
NOTICE OF DECISION
23. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law. I uphold the Judge’s decision.

Signed Date 18.03.2017

Deputy Upper Tribunal Judge Alis