Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11112/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 March 2017
On 23 March 2017

Before

UPPER TRIBUNAL JUDGE KING TD

Between

Mohamed [M]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr N Paramjorthy, of Counsel instructed by Direct Access
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Sri Lanka seeking to appeal against a decision made by the respondent on 16 September 2014, refusing his claim for asylum. Leave to remain on any other basis was also refused.

2. The appeal came before First-tier Tribunal Judge Miller for hearing on 30 November 2016. The appeal was dismissed in all respects.

3. The appellant seeks to challenge that decision on the basis of procedural unfairness; a flawed credibility assessment and a flawed assessment of the psychiatric evidence.

4. Mr Paramjorthy represented the appellant at that hearing and appears on his behalf before me. It was not intended that he would be the representative at this hearing because, in addition to settling the grounds of appeal, he had also made a statement on his own behalf seeking to show that there was a degree of unfairness in the proceedings both as to the attitude of the Judge but more particularly to the way in which key evidence had been dealt with. That key evidence related to an important statement from the applicant’s mother and an envelope that had been produced said to have been the envelope in which the statement came. It would seem to be the case, however, that the incorrect envelope had been presented, which led the Judge to the conclusion that, as the envelope was smaller than the statement and had not been folded, it had not been sent in the manner that was claimed but rather had been manufactured in the United Kingdom. Although Counsel had sought to correct the mistake the Judge did not permit any change in that evidence.

5. Mr Paramjorthy indicates that he is somewhat in difficulties in presenting the case, given that he also potentially is a witness in it. In the event it was not necessary to embark in any detail upon the evidential basis for the challenge as Mr Bramble most fairly accepted, there was significant merit in grounds 2 and 3 of the grounds of appeal such as to call in question the safety of the decision.

6. It is perhaps unnecessary to dwell in detail with the challenges since for the most part they are accepted on behalf of the respondent by Mr Bramble.

7. For example in paragraph 32 of the determination the Judge sets out some nine points which are taken against the credibility of the appellant. As to the first four of those points Mr Bramble concedes that they are not accurate or that relevant evidence relating to them had not properly been considered. For example it was taken against the appellant that his lawyer in Sri Lanka, Ranjit Fernando, made no statement setting out in the circumstances of his arrest and detention. Abdul Marsook had been instructed to try and locate Mr Fernando and had indeed written a letter as to why he had been unable to contact him. Little acknowledgement is made to that letter.

8. Significantly the envelope and the letter from the mother, to which reference has already been made, features significantly in paragraph 36 as a factor undermining credibility. Mr Bramble accepts that in the light of what Counsel had to say in his statement there are concerns as to the fairness of proceedings in those circumstances.
9. There indeed had been an absence of mention of an important aspect of evidence from Dr Zarook as to injuries received at or about the same time as the assault by the authorities is alleged. That statement was handed up at the hearing by Counsel but was not referred to.

10. It was also said that the Judge was somewhat unduly dismissive of the psychiatric evidence as emanating from what the appellant had to say rather than upon observation. In that connection I note that there are extensive hospital notes detailing the moods and condition of the appellant to which no acknowledgement seems to have been made.

11. Mr Bramble fairly concedes on behalf of the respondent that the decision is so flawed that it should be made again.

12. Clearly, therefore, there will be a need for significant evidence and argument and in those circumstances, having regard to the Senior President’s Practice Direction, the matter is sent back to the First-tier Tribunal to be remade by means of a de novo hearing. Any directions pursuant to this matter can be made by the First-tier Tribunal.

No anonymity direction is made.

Signed Date 23 March 2017

Upper Tribunal Judge King TD

TO THE RESPONDENT
FEE AWARD

As the appeal process is continuing I make no final fee award.