Tribunal decisions

The decision

JR/7516/2016

Upper Tribunal
Immigration and Asylum Chamber

Judicial Review Decision Notice

The Queen on the application of Thuraisingam Kirushanth
Applicant
v

Secretary of State for the Home Department
Respondent

Before Upper Tribunal Judge Hanson

Application for judicial review: substantive decision

Having considered all documents lodged and having heard the parties' respective representatives, Ms A Walker, of Counsel, instructed by Theva Solicitors, on behalf of the Applicant and Ms R Murray, of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 14 February 2017.

Decision: the application for judicial review is refused

Reasons:

1. On 7 July 2016, the applicant issued his challenge by way of judicial review to the respondent's decision to reject further submissions made on the 29 June 2016 as not amounting to a fresh claim. The date of the impugned decision is 6 April 2016.
2. The claim was out of time but was admitted by Upper Tribunal Judge Smith in her order sealed on the 29 September 2016 in which permission to bring judicial review was granted.
3. The grant of permission is in the following terms:

I grant permission on the basis that it is arguable that the respondent has failed to take into account when considering the further submissions that part of the applicant's brothers claim for asylum was based on the Sri Lankan authorities interest in the activities of the applicant. The respondent was unarguably entitled to point out that the acceptance of the credibility of the applicant's brother did not means that the applicant would be found credible. However, it was arguably incumbent on her to say what she made of the brothers claim that the authorities remained interested (in 2013) in the activities of the applicant. Although the brothers witness statement was not before the respondent at the date of decision, it is said that this was sent to the respondent with the pre-action protocol letter but it is not considered. In any event, the point about the interest in the applicant arises also on the face of the applicant's own witness statement coupled with the determination in the brother's appeal.

4. Judge Smith noted a second ground based on the medical report provided which, although expressing herself to be "less impressed" with this challenge, granted permission on both grounds.
5. The applicant is a citizen of Sri Lanka born on 14 July 1984 who entered the United Kingdom on 19 May 2008. A claim for asylum made on 20 May 2008 was refused on 2 October 2009. The applicant's appeal against the refusal was dismissed on 30 November 2009 by First-tier Tribunal Judge Hamilton and permission to appeal refused by then Senior Immigration Judge P Lane on 22 December 2009. The applicant became appeal rights exhausted on 22 June 2010.
6. Judge Hamilton summarised the applicants claim in the following terms:

3. ?The appellant states that as a schoolboy he was detained for two days in 2000 as a result of being friends with the brother-in-law of Mr Pathmanathan an LTTE member (interview page 2). The appellant was detained at Kotahena police station and released without conditions when his headmaster telephoned. The appellant stated that on 31.01.07 he was arrested for a second time because the police were searching for Pathmanathan and the appellant had remained at the same address (interview page 3). The appellant was detained for three days his identity card and photograph and fingerprints taken. The police suspected that the appellant had a connection to Mr Pathmanathan and put a red mark on the police report (page 5 interview). The appellant was released without charge or conditions but was asked to inform the police if he came to know anything about Mr Pathmanathan (page 5 interview). The appellant was arrested for a third time on 27.04.08. The appellant was stopped at a checkpoint and asked for his identity card and police report. The officer saw the red mark on the document and the appellant was taken to Peuyanthala police station. The appellant was tortured, beaten and burnt with cigarettes and hit with a batten (page 7 interview). The appellant was asked if he had a connection to a bomb blast in Pelliyanthawa and whether he had come to plant another bomb. The appellant's fingerprints were taken and when they were compared with the appellant's previous record he was again asked about Pathmanathan (page 7 interview). The appellant was beaten for three days and detained for nine days. The appellant's mother contacted an EPDP person and paid for the appellant to be taken out of detention disguised in a police uniform. The appellant was driven to Negombo and left at a house there. The appellant was advised by the police not to stay in the country. The appellant's mother's friend Prasana told the appellant that his mother had asked for the appellant to be taken abroad (page 8 interview). The appellant states that he was not taken to court regarding any arrests but might have been taken on the third arrest had he not escaped (page 9 interview). The appellant stayed in Negombo for 12 days at the agent's house. The appellant had no difficulties leaving Sri Lanka (page 11 interview) using a false passport that the agent provided. The appellant travelled to Doha where he remained for two days or four days before flying to the United Kingdom. Once in the United Kingdom the appellant was taken to his aunt's house (page 12 interview). The appellant telephoned his mother in Sri Lanka and was told by her that he must not telephone as the army and the police had visited the house asking after him (page 13 appellant bundle). The appellant's mother told the authorities that the appellant had travelled to the United Kingdom. They told the appellant's mother that they wanted proof that the appellant was in the United Kingdom and that should he return he should be brought to them (page 13 interview). The appellant's mother told him that the authorities have his photograph and are asking people about him. The appellant states that if he returns to Sri Lanka the army and the police will arrest and shoot him (Page 154 interview). Having received the refusal letter the appellant explained that the interpreter made a mistake when he wrote that the appellant had been in Colombo rather than Negombo and that he had been mistaken when he stated that he had been in Doha for only two days rather than four (page 3 appellant bundle).

7. Having recorded the nature of the evidence and having reminded himself of the issues Judge Hamilton sets out his findings at [9 - 20]. The Judge did not find the applicant to be credible. Relevant findings include:

"I do not believe that the appellant has been truthful regarding his history or his reasons for travelling to the United Kingdom. The appellant's evidence regarding events in Sri Lanka was inconsistent, implausible and lacking in credibility. I do not believe that the appellant was detained, tortured or that he is wanted or of any interest to the authorities in Sri Lanka" [9].
In relation to evidence given concerning the appellant's age: "even taking into account that the appellant was no doubt feeling nervous whilst giving evidence, the appellant's attempt to explain why he had stated that he was 10 or 12 did not cause me to believe that the appellant had simply made a mistake rather I was left with the strong impression that the appellant was not telling the truth?.. I do not believe that the appellant was arrested in 2000 and detained for two days or one day or at all" [10].
In relation to the claim by the appellant that two apparently conflicting aspects of his case, on two separate occasions, was explained by interpreter error: "that the appellant should be so unfortunate as to be misrepresented by two separate interpreters lacked credibility. That the appellant gave inconsistent dates for the second detention that he seeks to rely on caused me to conclude that the appellant was not telling the truth. I do not believe that the appellant was detained on 31.01.07 or in August 2006 or at all" [11].
In relation to the medical report dated 12.11.09 prepared by a Dr S E Josse, in which there is reference to the appellant having stated that he was 'kicked punched, beaten with wooden planks and suspended upside down and beaten. On two or three occasions, he was burnt with cigarettes over both arms (paragraph 4 report), and the appellant's own evidence when he was describing what happened to him and during which the appellant did not mention being suspended upside down in his interview as he claims he was not asked detailed questions about the torture, the Judge finds: "that the appellant relied on inconsistent evidence regarding the torture he states that he endured damages his credibility" [13].
In relation to the appellant's claim that he escaped wearing a police uniform after three days of torture and six days being kept in a cell alone, the Judge finds such account to be "implausible" and that for the reasons given in [14] the Judge finds "I do not believe that the appellant was arrested or detained or beaten or that he was lawfully released from detention by a corrupt police officer or guard."
At [15] the Judge makes a finding to which reference was made during the course of the oral hearing and which shall therefore be set out in full:

"The appellant provides photographs of the cigarette burns on his arms and a mark on his leg. Dr Josse confirmed that the appellant's burns are highly characteristic of cigarette burns but makes no comment as to age of the injuries or of how the burns could have been inflicted. The appellant directed the doctor to no other mark on his body attributable to the three days of torture he relies on. That the appellant sustained three days of beating without incurring any mark or scar other than cigarette burns was implausible. That the appellant had cigarette burns on his arms did not cause me to conclude that the burns were inflicted by the Sri Lankan authorities during a three-day period of torture as claimed by the appellant."

At [16] the Judge finds "that this appellant who has never engaged in unlawful activities or been charged with any offence would be of such interest to the authorities lacks credibility. Had the police been interested in the appellant to the extent that the appellant describes I would have expected the appellant to have been recognised travelling to the airport or at the airport as he left Sri Lanka. The appellant confirmed at interview: 'no I did not have any problems leaving even at the airport I didn't have any problems'."
At [17] the Judge sets out his overall conclusions in the following terms: "having considered all the evidence relied upon by this appellant I have concluded that his claim is entirely fabricated. I do not believe that the appellant was detained, questioned and beaten by the police or any authorities in Sri Lanka as he claims or at all or that he is wanted or sought after by the authorities in Sri Lanka. I do not believe that the appellant genuinely believes that he would be in any danger on his return to Sri Lanka."

8. This was the extent of the evidence available to the decision maker in relation to the proceedings arising from the applicants own asylum claim.
9. What was also available to the decision maker is a second judgment of the First-tier Tribunal written by First-tier Tribunal Griffith following a hearing at Taylor House on 18 December 2014. The appellant on that occasion was the applicant's brother.
10. Judge Griffith noted that that appellant before him based his claim upon an imputed political opinion as a supporter of the LTTE [5]. Judge Griffith was told that the appellant before him, who was studying in the United Kingdom, returned to Sri Lanka on 2 May 2013 as his father had fallen ill. He passed through the airport and into Sri Lanka without difficulty although when he went to report that a number of items had been lost in a bag that he left in a 'three-wheeler', that appellant claimed he was detained overnight and subjected to interrogation about whether he had ever taken part in demonstrations and protests in London against the government. It was claimed that appellant had been shown photographs of demonstrations and asked if he could identify anyone and if he was one of the people photographed. That appellant was interrogated by the CID about what he was doing in London, why he had returned to Sri Lanka and if he knew of anyone collecting funds for the LTTE in London or organising demonstrations. That appellant stated he was ill-treated whilst in detention. At paragraph 14 of his decision Judge Griffith writes:

"The pattern of interrogation continued and he was accused of being an LTTE member, collecting funds and organising demonstrations. He admitted that he trained briefly with the LTTE in 2006 but had never joined. He disclosed that he had a brother and sister in the UK and his interrogators accused his brother of having fled to the UK after being involved in planting bombs. After further questioning and ill-treatment the appellant signed a document written in Sinhalese and was told he would be transferred to another detention camp."

11. At [38] Judge Griffith finds "for the reasons set out below and based on the appellant's own evidence, medical evidence and expert country evidence, I am prepared to find that his account is credible.
12. This information was before the decision maker together with the applicant's witness statement dated 10 June 2015 and a medical report dated 15 June 2015.
13. The basis of the further submissions is a claim that the applicant in this case will be at risk of being subjected to persecution on his return to Sri Lanka due to his political opinion. The applicant claimed that when his brother returned to Sri Lanka in 2013 he was detained and questioned about the applicant's activities which it was submitted demonstrated that the applicant was of continued adverse interest to the Sri Lankan authorities and, as such, if returned to Sri Lanka he will be arrested, detained, and persecuted. It was also argued that the applicant is entitled to qualify for discretionary relief on the basis of his Article 8 family and private life and that removing him to Sri Lanka will breach Articles 3 and 8 on the grounds of his health issues, with particular regard to his claim to suffer mental health issues as outlined in the medical report.
14. The witness statement of the applicant's brother, used in his asylum claim, was not before the decision maker and was not made available to the respondent until receipt of the pre-action protocol letter. It is accepted that this is post decision evidence although it was suggested on the applicant's behalf that the core aspects of that statement are set out in the determination of Judge Griffiths which was before the decision maker, in any event.
15. It is not disputed that what needs to be considered in a challenge to a refusal to treat further submissions as a fresh claim are two elements the first of which is whether the applicant has demonstrated that arguably the Secretary of State did not undertake the obligations imposed upon her under the Rules, as encapsulated in the judgment of Buxton LJ in WM (DRC) v The Secretary of State for the Home Department [2006] EWCA Civ 1495, lawfully. The second element is whether there is a realistic prospect of a First-tier Judge, applying the rule of anxious scrutiny, thinking the applicant will be exposed to a real risk of harm or persecution on return or that there will be a breach of a protected right under ECHR or an unlawful decision contrary to the Immigration Rules.
16. In this case the respondent arguably did consider the information provided in support of the claim with the degree of anxious scrutiny required as evidenced by a reading of the decision letter, which refers to the earlier asylum claim and the material made available by the applicant.
17. The second element is the question whether there is a realistic prospect of a First-tier Judge, applying the rule of anxious scrutiny, thinking the applicant will be exposed to a real risk of harm or persecution on return or that there will be a breach of a protected right under ECHR or an unlawful decision contrary to the Immigration Rules.
18. Ms Walker submitted that the key to this question is the determination for the applicant's brother.
19. When considering the applicant's brother's appeal Judge Griffith was required to consider the criteria set down in paragraph 334 of the Immigration Rules which states:

"An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:

(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom;
(ii) he is a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;
(iii) there are no reasonable grounds for regarding him as a danger to the security of the United Kingdom;
(iv) he does not, having been convicted by a final judgment of a particularly serious crime, he does not constitute danger to the community of the United Kingdom; and
(v) refusing his application would result in him being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Geneva Convention, to a country in which his life or freedom would threatened on account of his race, religion, nationality, political opinion or membership of a particular social group".

20. The focus of the test is clearly upon the person claiming to be entitled to a grant of international protection based upon whether an objectively verifiable risk for a Convention reason arises on the facts a judge feels able to place appropriate weight upon. The fact the applicant's brother succeeded on appeal and has been recognised as a refugee, accordingly, is not determinative of the answer to the second question. What is required is an examination of the brother's decision to establish what facts were found credible by Judge Griffith and whether they give rise to an arguable realistic prospect of success before a First-tier Judge for this applicant.
21. Reference to this applicant appears at [14] of the determination of Judge Griffith in which he was setting out the evidence of the appellant before him. The wording of that paragraph is set out at [10] above. Judge Griffith sets out the findings and reasons for the same in a section headed "Decision" at [37 - 48] in relation to the asylum appeal. At [38] Judge Griffiths finds:

38. For the reasons set out below and based on the appellant's own evidence, medical evidence and country evidence, I am prepared to find that his account is credible.

22. There then follow several paragraphs in which separate aspects of the applicant's brothers claim are examined by Judge Griffith including a medical report prepared by Dr Martin, whose opinion is that he had no doubt that the injuries caused to that appellant arose as a result of his being intentionally injured and that the most likely explanation was that he was severely tortured. At [46] Judge Griffiths finds "?.. Additional factors to be taken into account are that he was, albeit briefly, involved with the LTTE himself aged 16 (Dr Smith's report confirms that the LTTE practised forced conscription even with children) and his brother's involvement which the appellant claimed he had no knowledge until after coming to the UK in 2012." Whilst this is not a specific finding that the claim by this applicant is true, as that was not an issue Judge Griffith was having to decide, it is submitted it is arguable, on the face of the decision of Judge Griffith, that it was accepted that the applicant's brother's claim to face a real risk of persecution on return sufficient to entitle him to a grant of international protection is based on acceptance of the separate elements of the claim considered by Judge Griffith which included a claimed risk arising from the activities of this applicant and the adverse interest taken in the same by the Sri Lankan authorities.
23. This was an element that was not before a decision maker when the applicant's previous asylum claim was considered and rejected and the appeal against that decision dismissed. Whilst it is noted that the determination of the brother's appeal was provided to the decision maker and considered, the decision-maker rejected any alleged risk arising from that decision on the basis of the findings of the Court of Appeal in AA (Somalia) v Secretary of State for the Home Department [2007] EWCA Civ 1040 and the referral therein to the case of Ocampo v Secretary of State for the Home Department [2006] EWCA Civ 1276 in which the appellant in that case sought to rely on the grant of refugee status of another individual in his appeal. The decision-maker in this case clearly placed considerable weight upon the conclusion of the Tribunal in AA (Somalia) that there was no basis to assume that one individual's case has any effect on another's. There is a reference to [66 and 68] of AA (Somalia) where it was found:

66. Returning to the reasons which might be given for citing a decision or determination made in an application or appeal by a related claimant, there is surely no reason, in principle or authority, to give the previous determination evidential value to the case now under consideration. The previous determination is not the result of the application of the rigorous requirements of the criminal law; and the fact that a previous court or other decision-maker has reached the view on facts which are in issue in the present appeal is not of itself any evidence as to those facts. On the other hand, in the general interests of good administration, it is probably true to say that decisions should not be unnecessarily diverging. It is that principle of good Administration which, so far as we can see, provides the sole basis in logic or an authority for saying that the result of the previous litigation may be relevant in the present appeal.

68. We can see no possible basis for the assertion that a determination in one appellant's case has any binding effect on any other individual?."

24. Thereafter the decision-maker in the impugned decision continued:

"whilst it is acknowledged that your brother has been granted international protection at appeal, it is not accepted that Mr Thuraisingam's grant of asylum resolves any credibility issues raised by the Immigration Judge (IJ) in relation to your account of events. Each asylum claim is considered on its own merits and the asylum claim of Mr Thuraisingam is an independent consideration. The risk factors associated with Mr Thuraisingam's circumstances, and that of your own individual circumstances are different and Mr Thuraisingam's grant of asylum there is no direct correlation between that and your own claim.

When considering Mr Thuraisingam's account of events on his return to Sri Lanka, the (IJ) takes into account a number of factors which differ to your own individual circumstances. In particular it is noted that the IJ accepted that Mr Thuraisingam had provided a credible account of the treatment he had experienced on his return to Sri Lanka in 2013, and accepted that he had been detained "? It is highly likely that the Appellant's detention in 2013 will be documented?" (Paragraph 47). In contrast, it is noted from your appeal documentation that the IJ concluded that you had not been detained or that you were of the adverse interest of Sri Lankan authorities "? I do not believe that the Appellant was detained, questioned and beaten by the police or sought after by any authorities in Sri Lanka?" (Paragraph 17).

It is also noted that the IJ had taken into account your brother's involvement in anti-government demonstrations, and the evidence submitted in support. It is noted that this is a contributing factor in the grant of International protection afforded to your brother "since the refusal of his claim by the respondent he has continued to participate in demonstrations and photographs of him appear in the bundle in which he is clearly identifiable. It is also documented that embassy officials take photographs of the protesters. It is very likely therefore that the Sri Lankan authorities will have a record of his attendance and will have identified him as a protester." (Paragraph 39). With regards to your circumstances it is noted that whilst you assert you have been involved in political activities in the UK, such as attendance at demonstrations and events, and handing out leaflets, you have provided no evidence to demonstrate this.

It is acknowledged that your brother was detained and interrogated after raising the authority's suspicions when it was discovered he had purchased goods in London. It was concluded that your brother, having been detained, and upon return to the UK had continued to attend demonstrations, would be at risk of being detained and subject to ill-treatment again on arrival in Sri Lanka. The circumstances of your brother are notably different to yours when considering the determination of the IJ at your appeal in which you were found to be an incredible witness, and your lack of evidence to demonstrate any political involvement in the UK. You have provided no new evidence within your further submissions to indicate that you have ever attended a demonstration, that you have involved yourself in any political events, rallies or meetings, that you are a member of any political organisations or that you are a high profile leader, speaker or organiser of events. Furthermore, following the determination of the IJ in which you were found not to have previously been detained, or indeed come to the attention of the authorities at all, you have provided no new evidence that you have in fact been detained by Sri Lankan authorities.

It is noted that you have provided a psychological report completed by Dr Zerak Al-Salihy dated 13 June 2015, in which you have been diagnosed with Post Traumatic Stress Disorder. However this in itself is not sufficient to support your credibility and undermined the findings of the IJ. It is considered that the PTSD could have been caused by incidence which are unrelated to the authorities as there is no evidence to confirm that it could only be caused in the ways that you described.

?????..

Although it is accepted from the report provided that you have developed PTSD, it is not accepted that this has been caused by torture from anyone in Sri Lanka and there are other ways that could have caused the PTSD.

Therefore the medical report in itself does not undermine the determination of the IJ and therefore the determination of the IJ as per Devaseelan UKIAT 000 72* [2002], remains valid as you have not undermined these findings with the Medical report.

You claim that your brother was questioned about you and your involvement in planting bombs in Sri Lanka during his detention, and that this demonstrates you are of continuing adverse interest to the authorities. However this is not sufficient to overturn the IJ's conclusion within your appeal that you have not previously been arrested and questioned about your involvement in the planting of a bomb. The IJ considering your brother's claim did not have access to first-hand information and evidence relating to this arrest, unlike the judge considering your account at your appeal. In relation to this arrest dated 28 April 2008, the IJ assessing your claim concluded as follows; "? I do not believe that the Appellant was arrested or detained or beaten or that he was unlawfully released from detention by a corrupt police officer or guard." (Paragraph 14). The IJ considering your brother's claim makes no specific reference to the credibility of this particular aspect of his account as it is not significant in assessing whether he is at risk on return to Sri Lanka. Whilst your brother, on the whole, has been found to have been credible, it is considered that he could have embellished certain aspects of his claim in order to assist you with your immigration matters, and there is no reason to assume that because he has been found to have provided, in general, a consistent account, that every aspect of his claim should be considered to be credible and true. It is not accepted that this is sufficient to demonstrate that you have in fact been arrested and detained, and that you are of continuing adverse interest to the authorities.

Therefore, in consideration of the evidence provided, it is not accepted that your brother's grant of asylum bears any relevance to your own claim and does not establish that you are at risk of return to Sri Lanka. Notwithstanding this, consideration has been given to your individual risk on return."

25. The decision maker thereafter considered the applicant's status by reference to the current country guidance case law and comments:

"It is also noted that the Immigration Judge within your appeal determination gave full consideration of your account of events and did not accept that you had been detained and tortured prior to your arrival in the UK, and it was concluded that you were not at risk of mistreatment on return. You have provided no new substantial evidence to demonstrate that you have previously been arrested, detained and ill-treated whilst in Sri Lanka to indicate that you would be of continuing interest to the authorities or that would highlight you to be at risk of being detained on your arrival.

??

In consideration of these tribunal conclusions it is regarded that only those individuals who are perceived to be a current risk to the government or state due to their past affiliations or activities will be at risk. It is considered that these individuals will have been those of a high level involvement with the LTTE by playing an active role as a member, and will be on a watch list.

In consideration of your individual circumstances in line with GJ it is noted:

you have failed to provide any evidence to indicate that you have had a significant role in any activities in the UK that would cause you to be at risk of being perceived to be involved in post conflict Tamil separatism (7) (a).
You have provided no evidence to suggest that you have had any involvement as a journalist (b).
You have provided no evidence to suggest that you have provided evidence to the Lesson Learned and Reconciliation Commission and you have failed to provide sufficient evidence to demonstrate that you have provided written evidence against perpetrators of genocide (c).
You have provided no evidence to suggest that your name appears in a computerised stop list (or would be likely to) or that you are the subject of an arrest warrant or detention order that would cause your name to appear on the list (d).

You have provided no new substantial evidence to demonstrate that you are the subject of an arrest warrant or detention order, and as you have not previously come to the Sri Lankan attention of the authorities for any reason, or involved yourself in sur place political activities that would bring you to their attention on return, it is therefore not accepted that you are at risk of being subject to treatment contrary to Article 2 and 3 of the ECHR upon your return to Sri Lanka."

26. On behalf of the applicant it was submitted that the decision of Judge Hamilton was based upon the information before him at that time and that he did not consider the applicant to be truthful as "his evidence regarding events in Sri Lanka was inconsistent, implausible, and lacking in credibility" [para 9] he specifically attached adverse weight to:

a. the fact that the applicant stated that he had been 10 or 12 years old at the time of his first arrest in 2000 when he had in fact been 16 [para 10];
b. the fact that the applicant gave discrepant evidence regarding the length of his detention in 2000, stating he had been detained for one night in 2000 or two days [paragraph 10];
c. the fact that the applicant gave the wrong date in respect of his second arrest, and discrepant evidence regarding the length of this second detention - three days or four days [para 11];
d. the fact that there were varying accounts of the specific mistreatment that the applicant had been subjected to at the hands of the Sri Lankan authorities (the applicant mentioned being beaten with wooden sticks as opposed to wooden planks and also omitted to mention being "suspended upside down" at his asylum interview [para 13].

27. It is not disputed that Judge Hamilton was fully entitled to draw the adverse credibility conclusions that he did based upon the evidence that was made available. Such findings as Judge Hamilton made were not found to be infected by arguable legal error at any later stage in the proceedings. Those matters set out above related specifically to the applicant's claim to have been detained and ill-treated in Sri Lanka and Judge Hamilton was entitled to find that the discrepancies went to the core of the claim.
28. Judge Griffith in the determination of the applicant's brother's appeal makes no mention of the earlier decision of Judge Hamilton when referring to the allegation before him that the applicant's brother had been questioned, not only about his own activities, but also those relating to this applicant. The starting point for Judge Griffith, if he was to consider the credibility of this aspect of the claim, should have been the early determination of Judge Hamilton as per the Devaseelan principles. Judge Griffith therefore failed to factor into the assessment the fact that this aspect of the claim, that of any risk arising as a result of the applicant's activities in Sri Lanka, had been found to lack credibility and not to be true by a judge specifically considering the risk to this applicant in his own asylum appeal.
29. There is, arguably, nothing in the decision of Judge Griffith to undermine the adverse credibility finding in relation to the applicant's own circumstances as put to Judge Hamilton. It is also, as stated above, the case that there is no clear finding by Judge Griffith that the applicant was involved in the LTTE or in planting a bomb. The applicant's claim is that Judge Griffith accepted there was a connection between the applicant's assertion in relation to his adverse profile in Sri Lanka and the ill treatment handed out to the applicant's brother for the reasons stated in that determination, which went far beyond the allegation concerning this applicant. As the decision-maker noted, the applicant's brothers profile was very specific to a risk on return identified in the country guidance caselaw as a person who had attended demonstrations, who would come to the adverse attention as a result of having purchase goods in the UK, and who it was accepted was probably known to the authorities, such that he was entitled to a grant of international protection.
30. The medical evidence is not determinative and although the author of the report did state, at paragraph 53 of the report that "symptoms are compatible with a history given and are typical of those suffered by persons who have PTSD and depression?" A medical report is not determinative of credibility as it was the history given by the applicant to Judge Hamilton that was found not to be credible.
31. This is an interesting case with several overlapping factors establishing an interrelationship between the applicant's case and that of his brother, according to Miss Walker. The second stage of the fresh claims test requires an evaluation of whether there is a realistic prospect of a First-tier Judge, applying the rule of anxious scrutiny, thinking the applicant will be exposed to a real risk of harm or persecution on return or that there will be a breach of a protected right under ECHR or an unlawful decision contrary to the Immigration Rules. Having considered the competing arguments and submissions it has not been made out that this is a question that would be answered in the applicant's favour based upon the evidence that was found to lack credibility by Judge Hamilton and the resultant findings made, the failure by Judge Griffith to consider the earlier determination when considering the element of the applicant's brothers claim that related specifically to this applicants profile, the lack of any clear comprehensive finding by Judge Griffith in relation to the brothers assertion in relation to those elements that placed him at "real risk", the fact that the 'corroborative ' evidence the applicant is seeking to rely upon consists largely of a witness statement by his brother lacking specificity, and the prevailing country guidance case law.
32. Accordingly, I do not find that the conclusion reached by the decision-maker that a First-tier Judge, applying the rule of anxious scrutiny, will not think the applicant will be exposed to a real risk of harm or prosecution on return or that there will be a breach of a protected right under ECHR or an unlawful decision contrary to the Immigration Rules, is arguably irrational or Wednesbury unreasonable or falls outside the range of decisions fully open to the decision-maker based on the information he or she was asked to consider.

Order

33. I order, therefore, that the judicial review application be dismissed.

Signed:

Upper Tribunal Judge Hanson.

Dated: 11th April 2017. Judgment handed down 28 April 2017.