Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11693/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 20th March 2017
On 11th April 2017

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

GS
(Anonymity Direction Made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms C Proudman , instructed by Jeya and Company.
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a Tamil and citizen of Sri Lanka born in 1991. She appealed a decision of the Respondent dated 14th August 2015 refusing her claim for international protection.
2. Her background is that she lived in Southern India prior to coming to the UK as a student in 2013. She claims that on a holiday visit to Sri Lanka in February 2014 she received threatening phone calls and went to the police station and made a complaint. She was then abducted and sexually abused by men in a white van and questioned about her connection with the LTTE. She was treated in hospital for 3 days. She asserted that whilst in India she attended anti government protests. She asserted that if returned to Sri Lanka she would be at risk of serious harm from the authorities. She produced a medical report in which a diagnosis of severe PTSK and depression was made.
3. Her appeal was heard and dismissed on all ground by First-tier Tribunal Judge G A Black. The appellant appealed and First-tier Tribunal Judge Shimmin granted permission on all grounds which I set out below.
Application for Permission to Appeal
4. The application for permission was made on the following grounds
(i) the judge failed to make adequate findings. Having accepted some of the appellant’s account was credible she found other aspects not. She found the assertion of rape credible but when assessing the evidence did not regard the appellant as a vulnerable witness. She failed to consider the Joint Presidential Guidance Note No 2 on Child Vulnerable Adult and Sensitive Appellant Guidance and para 322 of KV (scarring - medical evidence) Sri Lanka [2014] UKUT 00230 (IAC). Her reluctance to answer questions could be attributed to her vulnerability as a rape victim which the judge failed to consider. In essence the judge failed to explain why part of her sexual assault claim was credible whilst the claim of political motivation was not credible. The judge gave no reasons for not accepting the appellant’s account of police questioning in India. Her evidence was that she had been involved in anti Sri Lankan government activities in India.
(ii) The judge attached little weight to the documents provided of police reports finding that it would not be possible for the aunt to obtain such material from the police if the appellant was wanted. There were no adequate findings and GJ indicated that it was possible to obtain such reports through bribery. The judge failed to give reasons for not accepting the appellant was unable to return to India. The judge failed to adequately address Dr Goldwyn’s report of severe PTSD and severe depression. The judge failed to address 6.2.3. of the Country Information Guidance August 2016.
5. A ‘Rule 24’ response opposed the appellant’s appeal asserting that the grounds misunderstood the judge’s findings on credibility and amounted to reason why the judge should have come to a different decision. The judge clearly took into account Dr Goldwyn’s Report in the light of the findings at [9] and [10] of the decision.
The Hearing
6. At the hearing before me Ms Proudman relied on her written grounds but submitted that there was no consideration on the Goldwyn medical report, the judge had not engaged properly with the suicide risk and why Article 3 was not engaged and specifically with the medical treatment available in Sri Lanka. The appellant had displayed suicide ideation. The First-tier Tribunal Judge had failed to respond to various submissions made in Ms Allen’s skeleton argument placed before the judge in relation to GJ and the lack of medical mental health treatment and in relation to the risk to Tamil women in the North of Sri Lanka.
7. Mr Bramble accepted that the judge failed to refer to the Vulnerable Witness guidelines but contested that this was not material. The findings at [9] relied on documents and matters outside the evidence given by the appellant. The events in India were entirely separate from those related at [10] where the appellant’s evidence was disputed. The fact was that this appellant had no political profile and it was the doctor’s view that the appellant was not at risk of suicide. The judge relied on the doctor’s own opinion and there was nothing in the medical report to suggest that she was at risk of suicide.
8. Ms Proudman submitted that the judge had merely dismissed Article 3 claim outright; there was no psychiatric treatment in the public sector but the judge found medical treatment and counselling available which was at odds with paragraph 455 of GJ.
Conclusions
9. Despite Mr Bramble’s attempts I am not persuaded that the evidence can be dissected in the way suggested. At no point did the judge refer to the Vulnerable Witness guidelines despite the report of Dr Goldwyn assessing the appellant to have severe Post Traumatic Stress Disorder following a rape in 2014. I can accept that the judge made findings in respect of her being able to travel out of Sri Lanka on her own passport without use of bribery but that needs to be assessed in the context of all of the evidence having accepted that the appellant was credible on the subject of her serious assault. The judge made the following finding at the outset of [9], her first paragraph of findings.
‘I took the view that in general the appellant was reluctant to provide a more detailed account in response to questions put to her and preferred instead to rely on the fact that she had already provided her account in her witness statements. In short I find that her claim of being sexually assaulted is credible, but otherwise I find her account of political involvement/motivation to be lacking in credibility’.
10. At the commencement of her findings in [9] it would appear that the judge rejected the appellant’s account because she did not give a more detailed account. This did not take into account her vulnerability. It is important to consider the evidence in the round and it would appear that the judge placed only limited reliance on the appellant’s own evidence, as a whole, when considering whether she would be perceived to have had any political involvement with the LTTE or that there was political motivation as to the incidents in Sri Lankan.
11. Mr Bramble asserted the judge had relied at [9] on the various facts/reports rather than on her evidence and the failure to apply the guidelines was not material. The appellant’s oral evidence must be accorded due weight. The judge found ‘no evidence to show any connection with the LTTE and the appellant’ although it was the appellant’s case that she had been assaulted for political reasons and that she was questioned as to her relationship with the LTTE prior to and during her assault. The judge accepted the appellant’s rape account but rejected the appellant’s evidence regarding the phone calls and the appellant’s evidence that the attack had political motivation, as she was asked questions about the LTTE when abducted. It was that evidence that appears to be rejected by the judge at [9].
12. The judge variously describes the appellant’s evidence as ‘vague’ and inconsistent at [10] and that she could not identify the assailants and that in oral evidence ‘she did not know if the assailants were connected to the government’. The judge appears to accept some elements of the appellant’s account, her assault, and that she was not in problems with the Sri Lankan authorities in Sri Lanka (as opposed to India) but rejected her evidence regarding the questioning. That contradiction in relation to the credibility runs through the decision as a whole and runs to the heart of the decision.
13. As I have found an error in relation to the treatment of the credibility findings which may have an impact on the outcome as a whole I address the further grounds briefly. In relation to the police reports suffice to say that the findings run counter to paragraph 456 of GJ. In addition there would appear to be very limited findings in respect of the suicide risk, and the engagement of Article 3 bearing in mind the medical notes of 2016 and the findings in GJ in relation to care for mental health. Those are further errors of law
14. The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). Bearing in mind the nature and extent of the findings to be made the matter should be remitted to the First-tier Tribunal under section 12(2) (b) (i) of the TCE 2007 and further to 7.2 (b) of the Presidential Practice Statement.

Signed Helen Rimington Date 20th March 2017

Upper Tribunal Judge Rimington