Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12934/2015

THE IMMIGRATION ACTS

Heard at : Field House
Decision Promulgated
On : 11 August 2016
On : 16 August 2016

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

t M
(anonymity order made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Wells of Maliks & Khan Solicitors
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant, a national of Sri Lanka born on [ ] 1994, arrived in the United Kingdom on 10 December 2007, at the age of 13 years. He claimed asylum on 12 December 2007. His claim was refused on 7 February 2008 but he was granted Discretionary Leave until 11 February 2011 as an unaccompanied asylum seeking child. He made an application for further leave on 20 January 2011 and was again refused asylum on 18 March 2011 and granted Discretionary Leave until 8 April 2012 on the same basis as previously. He applied for further leave to remain on 27 December 2012, by which time he was no longer a minor.

2. The appellant's application was refused on 14 October 2015. He appealed against that decision and his appeal was heard in the First-tier Tribunal on 19 April 2016 and dismissed. Following an unsuccessful application for permission to appeal to the Upper Tribunal, permission was granted in the Upper Tribunal on 4 July 2016.

The Appellant's Case

3. The appellant is a Sri Lankan Tamil from Jaffna. He claimed that his father was a strong supporter of the LTTE and was arrested by the Sri Lankan army. His current whereabouts were unknown. The appellant claimed that in October 2007 he was abducted by an unknown armed group driving a white van and was taken to an army camp. He claimed to have been forced into sexual activity whilst detained in the camp and to have been released when his mother sought assistance and paid a bribe. When he told his mother what had happened in the camp she was very upset and arranged for his uncle to take him to Colombo. From there an agent assisted him in leaving the country.

4. The respondent, in refusing the appellant's claim on 7 February 2008, noted significant inconsistencies in his account of his claimed abduction which undermined his credibility. The respondent considered that, even taking the claim at its highest, the appellant was not of any interest to the Sri Lankan authorities and would be at no risk on return.

5. In the subsequent refusal of 18 March 2011, following the appellant's application for further leave to remain, the respondent maintained the reasons for refusal, noting that no further information had been submitted in regard to his asylum claim. It was considered that the situation in Sri Lanka had considerably improved in the meantime and that he would be at no risk on return. It was noted that the appellant was now claiming to be unaware of the whereabouts of his family in Sri Lanka but that no evidence had been adduced of efforts to contact his family.

6. In the most recent refusal of 14 October 2015, following the appellant's application for further leave, the respondent again maintained the decision, noting that the appellant was relying on the same claim as previously. His claim was considered in line with the most recent country guidance and it was concluded that he would not be at any risk on return. The respondent also considered that his removal would not breach his human right.

7. The appellant's appeal against that decision was heard by First-tier Tribunal Judge A W Khan. The judge heard from the appellant and his maternal uncle and also had before him a psychiatric report from Dr Robin Lawrence and correspondence from the British Red Cross regarding the appellant's tracing request. The judge noted the appellant's evidence of having attended demonstrations in the UK and of having attempted to take an overdose in October 2015. The judge also noted the appellant's uncle's evidence that his brother was a bodyguard to the LTTE leader, as a result of which he feared returning to Sri Lanka, and his evidence about attempts to trace the appellant's family in Sri Lanka. The case put for the appellant was that he was suicidal and suffering from PTSD as a result of being subjected to sexual assault in Sri Lanka, as supported by the psychiatric report, and that he was at risk on return due to his links to his father and to his maternal uncle who was a bodyguard for the LTTE leader and as a result of his attendance at demonstrations in London in which he had shown his support for Tamil separatism.

8. The judge noted various inconsistencies in the appellant's evidence. He did not accept that his father was involved in helping the LTTE and that he would be at risk on the basis of his father's activities for the LTTE. He did not accept the appellant's uncle's evidence about his brother being a bodyguard to the LTTE leader. He did not accept that the appellant would be at any risk as a result of his attendance at demonstrations in the UK. In addition he did not accept the appellant's account of being abducted and sexually abused. The judge found that the appellant did not come within any of the risk factors in GJ (post-civil war: returnees) Sri Lanka CG (Rev 1) [2013] UKUT 319 and concluded that he would be at no risk on return to Sri Lanka. He did not consider the appellant to be a suicide risk and considered that there were medical facilities available in Sri Lanka should he require them. He found that the appellant's removal would not breach his human rights, under Articles 2, 3 or 8 of the ECHR, and he dismissed the appeal on all grounds.

9. Permission was sought on behalf of the appellant to appeal to the Upper Tribunal on the grounds that the judge had erred in his approach to the psychiatric report; and that the judge had erred in his findings on the appellant's sur place activities.

10. Permission was initially refused, but was subsequently granted on a renewed application on 4 July 2016.

Appeal Hearing

11. It was Mr Wells' submission that Judge Khan had fallen into the same error as identified in the case of Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367, by considering the psychiatric report after having made his adverse credibility findings, rather than assessing the evidence in the round. He had also wrongly rejected the psychiatric report on the basis that it depended on the appellant's own testimony, whereas the psychiatrist had conducted psychometric testing to reach the conclusions that he did. He submitted that the judge had erred in rejecting the appellant's account of the ill-treatment during detention on the basis that he had failed to mention sexual assault in his interview, and had failed to take account of the fact that the appellant was only 13 years old at the time. He had ignored the relevant guidance for vulnerable minors in rejecting the appellant's evidence. Mr Wells submitted further that the judge had erred in law by finding that the appellant's attendance at demonstrations was self-serving, contrary to the guidance in Danian v Secretary of State for the Home Department [1999] EWCA Civ 3000, and had failed to consider whether that would put him at risk, in accordance with the findings in GJ.

12. In response, Mr Tufan relied on the case of HH (medical evidence; effect of Mibanga) Ethiopia [2005] UKAIT 00164, in relation to the appellant's grounds relying on Mibanga and submitted that the judge had given proper consideration to the medical evidence. He had had regard to the appellant's age throughout his decision. Mr Tufan relied on paragraphs 336 and 351 of GJ in submitting that the judge had properly found that the appellant's attendance at some demonstrations would not have put him at risk on return to Sri Lanka.

13. In response Mr Wells reiterated the points previously made.

Consideration and findings

14. I do not find there to be any merit in the appellant's grounds. Judge Khan's decision is a very careful and detailed one, including a thorough assessment of all the evidence, with regard plainly being given to all relevant matters including the appellant's age and vulnerability and the psychiatric evidence.

15. I would agree with Mr Tufan's reliance on HH in relation to the application of the principles in Mibanga to the psychiatric evidence, in particular the warning given by the Upper Tribunal at [21] of the decision, that there is a danger of Mibanga being misunderstood. It seems to me that the appellant's first ground is a misapplication of the principles in Mibanga and that Judge Khan undoubtedly did not fall foul of the approach set out by the Court of Appeal.

16. It is indeed the case that the judge considered the appellant's account and the evidence given by the appellant and his uncle, at [25] to [32], before turning to the psychiatric report. However, it is plainly not the case that the judge had made his mind up about the appellant's claim before turning to the psychiatric evidence. What is clear from his careful analysis of the evidence is that he identified various inconsistencies and discrepancies in the evidence in those paragraphs before then going on to consider them in the light of the appellant's psychological condition and the psychiatric report, and assessing the evidence as a whole.

17. At [25] the judge identified significant inconsistencies in the appellant's evidence about his father's claimed involvement with the LTTE and arrest. At [26] he considered, and gave reasons for rejecting, the appellant's uncle's evidence about his brother's role as a bodyguard for the LTTE leader. At [28] he considered the appellant's account of his attendance at demonstrations and whether or not the Sri Lankan authorities would have monitored his activities. At [29] the judge considered the appellant's account of his abduction and identified various inconsistencies in that evidence. At [30] to [31] the judge then went on to give consideration to the appellant's explanation for the inconsistencies and discrepancies in the evidence and, as discussed below, also considered whether his age and vulnerability could provide an adequate reason for those discrepancies. At [33] he then turned to the psychiatric evidence and at [33] to [36] considered the extent to which the psychiatrist's opinion and the appellant's psychiatric state could provide an explanation for the inconsistencies in his evidence. Taking all of those considerations together, he then went on at [37] to make an overall assessment of the evidence. That is made particularly clear by his comment, "Thus, looking at the whole of the evidence in the round", where he took all of the evidence together and made the findings that he did about the appellant's account of detention and sexual abuse.

18. Accordingly it seems to me that there was nothing wrong in the judge's approach to the medical evidence and that, having considered all the evidence in the round, he was perfectly entitled to place the weight that he did upon Dr Lawrence's report, not only in assessing the credibility of the appellant's evidence, but also in considering any risks to the appellant on return arising as a result of his mental health.

19. The grounds go on to assert that the judge ignored the guidance about evidence from minors concerning issues of sexual abuse and, in so doing, wrongly placed weight upon the appellant's failure to mention the abuse when being interviewed by the interviewing officer. However, on the contrary, the judge was plainly conscious and mindful of the appellant's age and vulnerability throughout his decision and took great care to assess the evidence in that context. At [30] he addressed the explanation given by the appellant for the discrepancies, inconsistencies and omissions in his evidence which he claimed were because of his age and confusion. He then went on, at [30] to [32] to explain why he could not accept that the appellant's age or vulnerability as a possible victim of sexual abuse could provide an adequate explanation for the discrepancies and omissions in his evidence. That was a matter that he addressed and considered in detail once again at [43] and [44], with clear and cogent reasons given as to why the appellant's age, lack of maturity and claimed vulnerability simply could not explain the problems in the evidence.

20. I find myself in agreement with Mr Tufan, in that there was little more that the judge could have done in respect to having regard to the appellant's age and vulnerability, other than to simply accept the appellant's account without more. However he was clearly not required to accept the account purely because it came from a 13 year old whose claim to sexual abuse was supported by a psychiatric report. In any event neither the medical evidence nor the appellant's age and claimed vulnerability could assist in explaining the significant inconsistencies in the evidence identified by the judge, in particular those relating to the evidence from the appellant's uncle. Accordingly, the judge, having had regard to all the evidence in the round, having given careful consideration to the psychiatric report, having considered the appellant's explanations for discrepancies and inconsistencies in the evidence, and having had regard to the witness's evidence, was entitled to conclude, for the reasons fully and cogently given, that the claim was not a genuine and credible one.

21. As for the appellant's claim to be at risk on the basis of his "sur place" activities, that was a matter considered by the judge at [27] and [28], and again at [47]. Whilst the judge considered that the appellant's activities were self-serving, it is clear that that was not the basis upon which he concluded that the appellant would not be at risk on return and that he did not, therefore, fall foul of the principles in Danian. On the contrary, having regard to the country guidance in GJ, he considered whether the appellant's activities would have brought him to the attention of the Sri Lankan authorities, and gave cogent reasons for concluding that they would not. That was a conclusion that he was entitled to reach and which was consistent with the guidance in GJ, in particular with regard to the paragraphs relied upon by Mr Tufan, namely [336] and [351].

22. As Mr Tufan properly submitted, GJ was determinative of the appellant's case, since he clearly did not fall within any of the risk categories identified in that case, and the judge was entitled to conclude that that was the case.

23. For all of these reasons I find that the appellant's grounds of appeal do not disclose any errors of law in the judge's decision. The decision reflects a very careful assessment of all the evidence and contains cogently reasoned findings based on the evidence, leading to conclusions which were fully and properly open to the judge.

DECISION

24. The making of the decision of the First-tier Tribunal did not involve an error on a point of law. I do not set aside the decision. The decision to dismiss the appeal stands.

Anonymity

The First-tier Tribunal made an anonymity order. I continue that order pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed Date 16/08/2016

Upper Tribunal Judge Kebede