Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11135/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 31 March 2017
On 20 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ESHUN

Between

MRS ASOKA PADMINI PUGODA KANKANAMAGE
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Jafar, Counsel
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION ON ERROR OF LAW

1. The appellant is a citizen of Sri Lanka born on 1 March 1967. She has been granted permission to appeal the decision of First-tier Tribunal Judge G A Black dismissing her appeal against the decision of the respondent made on 29 July 2015 to refuse her application for asylum.

2. Permission was granted by First-tier Tribunal Judge Andrew who said she was satisfied that there were arguable errors of law in the decision, in that firstly, the judge required the appellant to provide corroboration of her claims. Secondly, she was satisfied that the judge failed to consider the documents that were produced with anxious scrutiny, particularly bearing in mind that the appeal had been adjourned on two occasions to allow the respondent to authenticate the documents which the respondent had failed to do. Further, it seemed the judge may have been mistaken as to whom the documents referred.

3. Following submissions by both parties, I was persuaded by Mr Jafar’s submissions that the judge had made material errors of law.

4. The judge’s findings are to be found at [14] and [15]. At [14] the judge said that the evidence the appellant gave in her record of interview, witness statement and orally was consistent and that there were no major discrepancies. However, there were matters that led her to conclude that the appellant’s claim was not credible. The judge said there was no evidence to support the appellant’s claim that Mr T was a member of the LTTE or that he was involved in terrorist activities that would lead to adverse interest in him by the authorities in 2008 or in 2012 in accordance with GJ. Mr Jafar submitted that the judge had a witness statement from the appellant’s brother (page 33 of the appellant’s bundle) to that effect. The judge also had before her court documents which supported the appellant’s brother’s evidence. Therefore, it was incorrect of the judge to say that there was no evidence before her to support the appellant’s claim that Mr T was a member of the LTTE or that he was involved in terrorist activities that would lead to adverse interest in him by the authorities in 2008 or 2012.

5. Mr Jafar said that at [15] the judge placed no weight on the documentary evidence because they were copies. He said the appellant always had the originals with her and her Counsel was aware of this. However, the judge made no attempt to have sight of the original documents.

6. The judge went on to say that there was no evidence of an arrest warrant issued in May 2012 and there was no evidence of the appellant’s name on any wanted list. In her witness statement the appellant claims that she had instructed a lawyer to obtain the arrest warrant, yet no arrest warrant had been produced. Mr Jafar said that in a contradictory statement the judge said at the bottom of [15] that in the light of the claimed adverse interest in the appellant she found it implausible that she would be able to obtain such documents from the authorities. He submitted that the two findings were mutually exclusive propositions.

7. Mr Jafar referred me to page 9 of a smaller bundle, the top of which said “Case submitted by the Terrorist Investigation Division, Colombo”. In the third substantive paragraph, it said “according to the section 42 of Code of Criminal Procedure Act No 15 of 1979, the court issuing hereby an arrest warrant to the Terrorist Investigations Division, Colombo to arrest the suspect immediately”. Mr Jafar submitted that this was as good as an arrest warrant.

8. He also referred to the judge’s finding at [15] that there was no evidence from the appellant’s brother to show continued visits to the family home in Sri Lanka or of any approaches made to the appellant’s sister. Mr Jafar submitted that that finding was contradicted by the statement of the appellant’s brother which is at page 16 of the appellant’s bundle. In it, the brother said,

“Further time to time officers of Criminal Investigation Department and also unknown persons come to our home and asked when my sister is coming back. Sometimes they even called me to the police station and questioned me about my sister. In that situation it is confirmed that they are looking for my sister’s return to arrest her”.

9. Mr Jafar further challenged the judge’s finding at [15] that there was no evidence provided of the husband’s statement to the police. He submitted that in the light of the accepted facts at paragraph 11, it was irrational in the circumstances to expect the husband to provide evidence.

10. Mr Jafar submitted that the respondent on two occasions requested an adjournment in order to verify the documents from the Magistrates’ Court of Colombo and have not done so. Relying on PJ (Sri Lanka) [2014] EWCA Civ 1011, Mr Jafar submitted that in light of the respondent’s failure to verify those documents, the judge was wrong to say that she could not attach weight to those documents.

11. As already stated above, I found Mr Jafar’s submissions persuasive enough to agree that the judge made material errors such that her decision could not stand.

12. Mr Tufan submitted that the respondent had indeed verified the documents and that the Document Verification Report (DVR) was on the file. Documents had been verified on 19 August 2016, four months before the hearing on 20 December 2016. Somehow the DVR was not linked to the appellant’s file. Mr Tufan gave me a copy for the court file and gave Mr Jafar a copy to be given to the appellant’s solicitors.

13. For the above reasons the appellant’s appeal is remitted to Taylor House for rehearing by a First-tier Tribunal Judge other than FtTJ Black.

No anonymity direction is made.

Signed Date: 19 April 2017

Deputy Upper Tribunal Judge Eshun