Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12558/2015
AA/12559/2015, AA/12560/2015
AA/12561/2015, AA/12562/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision Promulgated
On: 1st March 2017
On: 29th March 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

SR
RM
NR
AR
SR
(Anonymity direction made)
Appellant
And

Secretary of State for the Home Department
Respondent

For the Appellant: Ms Marwaha, Counsel instructed by Vasuki Solicitors
For the Respondent: Mr Harrison, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellants are all national Sri Lanka. They are, respectively, a father, mother, and their minor children.

Anonymity Order

2. This case concerns a claim for international protection involving children. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I therefore consider it appropriate to make an order in the following terms:

“Unless and until a tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify the Appellants or any member of their family. This direction applies to, amongst others, both the Appellants and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings”

Background and Matters in Issue

3. The primary claimant in this case is the First Appellant SR. He arrived in the United Kingdom in 2010 with leave to enter as a student. He was accompanied by his wife and child. Since their arrival the couple have had two more children. SR claimed asylum on 3rd September 2014. His wife and three children are named as dependents to his claim.

4. The basis of the claim is as follows. In February 2009 SR became director of operations for an NGO in the Jaffna area. The area was under the control of the LTTE. He needed the cooperation of this organisation in order to complete a project. In return, the LTTE required him to assist them in the transportation of medication, batteries and other supplies from Colombo to Jaffna. He was able to do this work as he was allowed to pass through checkpoints unhindered. He also permitted members of the LTTE to stay at his home. His work with the LTTE ceased before he came to the United Kingdom in February 2010. In March 2013, the Appellant and his wife returned to Sri Lanka on holiday. Whilst SR was worshipping at a mosque near his home, he was arrested by members of the Sri Lankan army. He was taken to the CID office and questioned about his membership of the LTTE. He was interrogated over a period of four days and subjected to ill- treatment, including being burned with the heated iron rod. He was told that he would be killed if he did not tell the truth. SR told his interrogators that he had sought the help of the LTTE in order to complete a building project for the NGO. He explained that in return for this he had transported goods on their behalf. SR was released upon payment of a bribe. His father-in-law had paid a substantial sum of money to high ranking officers in order to secure his release. He was informed that he would be recorded as dead and that he should leave the country. SR, his wife and daughter left Sri Lanka on 28th April 2013 with the assistance of an agent. SR now expresses a fear that if returned to Sri Lanka these events will come to the authorities’ attention and he will be at risk as a result. He believes that the army may have been alerted to his presence in Sri Lanka by a friend or friends of his from university. SR further asserts that he has been active in the Tamil separatist movement since he came to the UK. He avers that he has been an active supporter of the Transitional Government of Tamil Eelam (TGTE). He asserts that family members in Sri Lanka have received threats.

5. The Respondent did not accept any of this account to be true and the claim was rejected.

6. SR appealed to the First-tier Tribunal. On the 16th May 2016 the matter came before Judge Brookfield, sitting in Manchester. The Respondent was not represented. Judge Brookfield heard oral evidence from SR and his wife. That evidence was not accepted as truthful. The Tribunal noted that the witnesses had given discrepant dates for the claimed arrest; SR himself had given varied accounts of how long he had helped the LTTE; it was not accepted that his friend would tell lies about him to the authorities; it was highly improbable that a police officer would release him upon payment of a bribe and record him as dead; SR had given discrepant accounts of the circumstances of his release; the description of the family’s departure from the country is at odds with the objective evidence; he did not claim asylum upon his return to the UK. Even if the claim was true, the fact that SR was released upon payment of a bribe indicated that he was no longer of any interest. They were able to leave the country without any difficulty, using their own passports. Applying the guidance in GJ & Others (post civil war returnees) Sri Lanka CG [2013] UKUT 00319 the Tribunal was not satisfied that there was any risk arising from SR’s claimed work for the Tigers in the past. As for his sur place activity the Tribunal found that no risk can arise from his attendance at a demonstration in London in 2012: presumably if the Sri Lankan authorities were aware that he was there he would have been asked about it in 2013. His more recent involvement with the TGTE is dismissed as cynical: he only approached the organisation in May 2014 when his existing leave was coming to an end. Even if the Sri Lankan authorities were aware that he had attended meetings or distributed leaflets he would not be considered a threat to the unitary integrity of the state.

7. The Tribunal had before it two medical reports by Professor Lingham. He had confirmed that SR does have scarring highly consistent with his account but had remarked that the rod used to inflict the burns cannot have been very hot because the damage to the skin was not deep. Professor Lingham did not think it possible that SR could have inflicted the wounds himself. He could not rule out that they were ‘self-inflicted by proxy’. Having regard to that evidence, Judge Brookfield was not satisfied as to the conclusion that the scars could not, because of their positioning, have been self-inflicted: there was no explanation, for instance, of why the scar on the right forearm could not have been self-inflicted. Furthermore, she considered it unlikely that an interrogator seeking to inflict serious harm would not have properly heated the rod used to burn his victim. Taking that into the round with the remaining evidence she was not satisfied that the scars were inflicted by torture or alternatively could not rule out the possibility that they were inflicted by proxy at the behest of the Appellant.

8. The Appellants now have permission to appeal on the following grounds:

i) The determination contains an error of fact, amounting to an error of law;

ii) There has been a failure to take relevant material into account;

iii) The Tribunal has failed to properly apply the country guidance;

iv) The Tribunal has erred in its approach to the medical evidence.

My Findings

9. This is a detailed and carefully reasoned determination. The Tribunal has given a number of reasons why the adult Appellants were not believed and the claimed risk not made out. The Appellants do not specifically challenge all of these reasons; rather they submit that the determination contains errors that infect the credibility assessment overall.

10. The first complaint relates to paragraph 11 (iv) of the determination. SR had claimed that whilst he was being interrogated the soldiers had told him that they had received information about him from friends of his from university. They had told the authorities that SR had been hiding guns for the LTTE. SR believed what he was told. SR had informed his university friends of his imminent arrival in Sri Lanka; he later learned that these friend/s were working for the government. Judge Brookfield did not consider this evidence to be credible. She could not understand why a friend would volunteer lies about the Appellant to the Sri Lankan authorities, particularly when this friend was not at risk of detention or ill-treatment himself. It is now said on the Appellant’s behalf that the Judge has misunderstood the evidence. It is submitted that the friend was questioned and only later began working for the authorities, and that the Tribunal failed to appreciate this. I fail to see how this evidence would have answered Judge Brookfield’s concerns. If the Judge did misunderstand the evidence, this error is in no way material. The reasoning is sound.

11. The second ground of appeal is that the Tribunal failed to take material evidence into account. In particular, it is said that the Tribunal failed to take into account the Appellant’s explanation for the delay in making his asylum claim. That explanation was that he had been advised by an agent not to claim asylum straight away, but rather to wait until he had obtained legal advice. It is true that this explanation is not expressly addressed at paragraph 11 (xvii). I am not satisfied that this omission amounts to a material error of law. The Appellant’s account is that when he arrived in the United Kingdom in April 2013 he had just escaped from detention and brutal torture. He did not claim asylum on arrival. In July of that year his student visa was due to expire and he had to contact the Home Office. He did not claim asylum then. Instead he applied to extend his leave as a Tier 4 (General) Student Migrant. He did not claim asylum until that further period of leave was due to come to an end, in September 2014. The Tribunal was entitled to infer from that behaviour a lack of subjective fear. There was no error in approach to s8 of the Asylum, Immigration (Treatment of Claimants etc) Act 2004. This matter is considered in the round with the rest of the evidence.

12. The third ground of appeal relates to the Appellant’s sur place activity. The written grounds characterise the Tribunal’s lack of concern about the consequences of involvement with the TGTE as “troubling”. In her skeleton argument and oral submissions Ms Marwaha submitted that the reasoning was not adequate.

13. The reasoning begins at paragraph 11 (xx) of the determination. The Tribunal notes at paragraph (xxi) that the TGTE is a proscribed organisation. It further notes the Appellant’s claim that he had hitherto had no willing involvement in politics in Sri Lanka, his previous activities arising out of necessity rather than any ideological commitment. The Appellant explained this apparent epiphany with reference to his detention and ill treatment, stating that this had mentally affected him so he wanted to take some action against the Sri Lankan government. The Tribunal considered, and rejected, this explanation. Noting the Appellant’s evidence that he was unable to complete his studies because of the trauma he had suffered, the Tribunal found it “incredible” that he would have the mental reserves to seek out and join a banned organisation instead. The Tribunal was further concerned about the dates given for his involvement. It would appear that SR had only approached the TGTE in May/June 2014 when his studies were coming to an end. These observations led the Tribunal to conclude, at §11(xxi): “I find it is highly probable this Appellant has attended TGTE meetings purely in order to bolster his asylum claim and prevent his removal from the UK”. I am satisfied that the Tribunal was entitled to conclude that the involvement was cynical for the reasons that it gives.

14. What were the consequences of that cynical involvement? At §11(xxii) the Tribunal properly directs itself: “regardless of the Appellant’s motives and intentions, I have to consider whether the Appellant’s sur place activities would place him at risk of harm in Sri Lanka, if the Sri Lankan authorities were to become aware of them”. It then gives express consideration to the guidance in GJ:

“I have therefore considered whether the Appellant’s attendance at TGTE meetings and handing out of TGTE literature in the UK would place him at risk of harm or return to Sri Lanka. The case of GJ and others at paragraph 336 states: ‘the former Tamil areas and the diaspora are heavily penetrated by the security forces. Photographs are taken of public demonstrations and the GOSL may be using face recognition technology: it is sponsoring a face recognition technology project at the University of Colombo. However, the question which concerns the GOSL is the identification of Tamil activists working for Tamil separatism and to destabilise the unitary Sri Lankan state. We do not consider that attendance at demonstrations in the diaspora alone is sufficient to create a real risk or a reasonable degree of likelihood that a person will attract adverse attention on return to Sri Lanka’. There was no evidence before me that this Appellant had done anything other than attend TGTE meetings, one demonstration in 2012, and hand out leaflets in July 2014. I do not find it is reasonably likely that the Sri Lankan authorities would regard this Appellant’s sur place activities as any threat to the Sri Lankan government or that his claimed UK sur place activities would place him at risk of any harm on return to Sri Lanka”.

15. The grounds submit that the First-tier Tribunal has demonstrably failed to assess whether the Appellant would be at risk in Sri Lanka as a result of his involvement in the UK. In light of the foregoing I cannot be satisfied that this is so. The Tribunal specifically directs itself to consider whether those activities would place the Appellant at risk; applying the guidance in GJ it found that they would not. I can find no justification to interfere with that reasoning. The point is further made that consideration should have been given to the ‘HJ (Iran)’ principle: if questioned about his activities in the United Kingdom the Appellant should not be expected to lie. Again, it is difficult to see where this takes the Appellant. The Tribunal had rejected his credibility as a witness and had expressly found his political commitment to the Tamil cause to be a sham, designed to bolster a false asylum claim. If questioned on arrival he would be expected to tell that truth, and on the facts as found in GJ this would not expose him to a real risk of harm.

16. Finally, the grounds submit that the Tribunal discounted the evidence of Dr Lingham and that this was an error of law. It is submitted that the Tribunal failed to weight the evidence in the Appellant’s side of the scales, ie treat it as supportive of his claim. I do not accept that this evidence was “discounted”. The Tribunal expressly addresses the scarring evidence in some detail at sub-paragraph 11 (xxii) to (vvv). It is accepted that the report confirms there to be scarring. It is just that for the reasons she gives, Judge Brookfield could not accept that those scars, weighed in the round with the remaining evidence, were the result of torture. That was a finding open to her.

Decisions

17. The determination of the First-tier Tribunal does not contain an error of law such that it should be set aside. The decision is upheld.

18. There is an order for anonymity.

Upper Tribunal Judge Bruce
28th March 2017