Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13384/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 September 2016
On 27 September 2016

Before

UPPER TRIBUNAL JUDGE PITT
DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

GS
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S. Jegarajah of Counsel
For the Respondent: Mr. D. Clarke, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge L. K. Gibbs, promulgated on 26 May 2016, in which she dismissed the Appellant's appeal against the Respondent's refusal to grant asylum.

2. We make an anonymity direction, continuing that made in the First-tier Tribunal.

3. Permission to appeal was granted as follows:

"The appellant's history of ill-treatment was accepted by the respondent. It is arguable that the FTTJ erred in failing to take account of the appellant's credibility in that regard and proceeded on a mistake of fact concerning the detention and reporting of the appellant's father."

4. The Appellant attended the hearing. We heard submissions from both representatives.

Submissions

5. Ms Jegarajah stated that she was confining her submissions to the ground of appeal relating to the error of fact regarding the requirement of the Appellant's father to report to the authorities. She made no submissions in relation to the ground set out in paragraph [6], and stated that she did not want to pursue the ground regarding failure to engage with the psychiatric report (paragraph [7]).

6. She submitted that the judge had made a clear error of fact regarding the requirement of the Appellant's father to report. In paragraph [19] the judge had made a straightforward assertion of fact when she had stated that the Appellant had not attributed his father's requirement to report to the authorities' interest in the Appellant until his oral evidence at the hearing. This was wrong. We were referred to paragraph [5] of the reasons for refusal letter. It was clear that this had always been the basis of the Appellant's claim, even when the Respondent had summarised his case. We were referred to paragraph [31] of the Appellant's witness statement where the Appellant had addressed this point. Regarding the significance of the Appellant not mentioning this to the clinicians, the Appellant did not need to show that he had told them, as he had clearly stated prior to this that his father had to report because of him.

7. In relation to the materiality of this error, a large chunk of the Appellant's claim had been accepted by the Respondent. The risk assessment had been carried out on the basis that the Appellant had been released after showing the authorities where the weapons were, and therefore, as far as the authorities were concerned, his job was done. She submitted that it was open to another judge to find that the authorities wanted to undertake a further investigation. Given that the Appellant had said that he had known where weapons were hidden, there was every reason for the authorities to want to go back to him.

8. The reason why his father was reporting was a relevant factor in deciding risk on return. It was a straightforward error of fact which went to a fundamental issue.

9. Mr. Clarke relied on the Rule 24 response. He referred to Q334 of the asylum interview, and submitted that this was sufficiently vague for the judge to find that the oral evidence given at the hearing was an evolution of this vague evidence. There was no more than an inference in the answer to Q334 that the reason that the Appellant's father had to sign on was because of the Appellant. He submitted that it was clear that the evidence had evolved between the asylum interview and the oral evidence given at the hearing. It was significant that the Appellant had not mentioned this to Dr. Persaud.

10. In relation to materiality, he submitted that the judge had correctly found that an ongoing interest in the Appellant was inconsistent with the country guidance [18]. LTTE links alone were insufficient to show a risk on return. It was open to the judge to make the findings that she had and it was critical that the Appellant had not told mentioned his father's reporting to Dr Persaud.
11. In response Ms Jegarajah submitted that there was a clear error of fact. It had always formed part of the Appellant's initial claim that his father had to report because of him. He had provided the most detailed evidence that he could in his statement. The error of fact was significant and undermined the risk assessment.
12. We reserved our decision which we set out below with reasons.
Decision and Reasons
13. Paragraph [19] of the decision states:
"Although I place weight on the fact that the respondent has found the core of the appellant's claim to be true, with regards to his claim regarding his father I find that he has not provided detailed evidence, and it was only in his oral evidence that he attributed his father's reporting requirement to the Sri Lankan authorities trying to find him (the appellant). I also consider that it is significant that the appellant did not mention this development to either Dr Martin or Dr Persaud, and consider that this is particularly relevant regarding Dr Persaud's report given that the appellant discussed with him why he is afraid of returning to Sri Lanka. In my view it is reasonable to expect that, if true, the appellant would have raised this issue in his mental health examination and his failure to do so undermines the credibility of this aspect of his claim."
14. At Q334 of his asylum interview the Appellant was asked to explain why the authorities would still be interested in him seeing as two years had passed since his detention in 2012. He replied:
"Because I came out because a bribe was paid. My father is signing on in Kirochi. He told me over the phone. They have asked him to sign on until I surrender."
15. We find that at his asylum interview the Appellant clearly linked his father's requirement to report with the Sri Lankan authorities' interest in the Appellant himself. Further, we find that the Respondent accepted that this was the basis of his claim. In paragraph [5] of the reasons for refusal letter, summarising the Appellant's claim and future fear, it states:
"While you have been in the UK, your father has been ordered by the Sri Lankan army to report to the Kilinochchi military base once a month until you return to Sri Lanka and report to the army."
16. Further, in paragraph [45] of the reasons for refusal letter, when dealing with the Appellant's detention by the Sri Lankan army, it states:
"It is noted that you claimed that your father has been ordered to report to the Sri Lankan army base at Kilinochchi every month while you have been in the UK, as a means of forcing you to return to Sri Lanka to report to the military."
17. In his witness statement, the Appellant states:
"The Sri Lankan army admits they have stop list of LTTE members and supporters. Regularly these people are stopped upon return to Sri Lanka. Many do not have the chance to have a trial and the reason that my father was ordered to report was because I consider that they must have had some new information about me and that is why my father was targeted (paras 45-46 rfrl), and the Home Office have unreasonably rejected my account of being of adverse interest to the authorities and of my father being ordered to report (paras 47-49 rfrl)." [31]
18. We find that it is clear from this evidence, including evidence from the Respondent, that the Appellant's claim was that his father had been ordered to report until the Appellant himself returned to Sri Lanka. We find that he did not raise it for the first time in oral evidence. We therefore find that, when the judge states that it was only in the Appellant's oral evidence that he attributed his father's reporting requirement to the Sri Lankan authorities trying to find the Appellant himself, the judge has made an error of fact [19]. She has failed to take into account the asylum interview and the witness statement. She has also failed to acknowledge that the Respondent accepted that this was the basis of the Appellant's claim. We find that it was always the Appellant's claim that his father had been asked to report because of him.
19. Given that he had raised this at his asylum interview, and given that it been accepted by the Respondent, we find that whether or not he mentioned this to Dr. Persaud is not relevant to the issue of whether the judge has made an error of law when she stated that he raised it for the first time in oral evidence.
20. We find that this error of fact led the judge to make an adverse credibility finding [19]. Paragraph [20] states:
"Therefore, although the core of the Appellant's claim is accepted, I find that his claim that his father has been targeted by the Sri Lankan authorities because of him, and that this is evidence of the ongoing interest, is not reliable evidence."
21. Given that the Appellant had always linked his father's requirement to report with the Sri Lankan authorities having an interest in him, we find that the Appellant had been consistent about this part of his claim, and had not embellished his claim at the hearing. This goes to the question of credibility. The Respondent had accepted the core of the Appellant's claim, which is acknowledged by the judge [19]. She finds that his claim that the Sri Lankan authorities are still interested in him is not credible due to her adverse credibility finding made as a result of an error of fact.
22. Whether or not the authorities have an ongoing interest in the Appellant is material to the issue of risk on return. Given that the Respondent had accepted the core of the Appellant's claim, and given that the judge made an error of fact in relation to the evidence about the Sri Lankan authorities' ongoing interest in him, we find that the error is material.
23. We have taken account of the Practice Statement dated 10 February 2010, paragraph 7.2. This contemplates that an appeal may be remitted to the First-tier Tribunal where the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for the party's case to be put to and considered by the First-tier Tribunal. Given the nature and extent of the fact-finding necessary to enable this appeal to be remade, and having regard to the overriding objective, we find that it is appropriate to remit this case to the First-tier Tribunal.

Notice of Decision

24. The decision involves the making of a material error of law and we set it aside.

25. The appeal is remitted to the First-tier Tribunal for rehearing.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 27 September 2016
Deputy Upper Tribunal Judge Chamberlain