Tribunal decisions

The decision

IN THE UPPER TRIBUNAL

EXTEMPORE JUDGMENT GIVEN FOLLOWING HEARING

JR/7554/2016

Field House,
Breams Buildings
London
EC4A 1WR

27 March 2017

The QUEEN
(ON The application OF SUBENTHIRAN VELUNAYAGAM)
Applicant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Before

UPPER TRIBUNAL JUDGE smith

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Ms H Short, instructed by Gurney Harden Solicitors appeared on behalf of the Applicant.

Mr J Anderson, instructed by the Government Legal Department appeared on behalf of the Respondent.

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ON AN APPLICATION FOR JUDICIAL REVIEW

APPROVED JUDGMENT
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JUDGE smith: This is a challenge to the Secretary of State's decision dated 8 April 2016 refusing further submissions and rejecting them as a fresh claim.
2. The chronology of this matter is as follows. The Applicant is a national of Sri Lanka. He arrived in the UK in March 2011 and claimed asylum in June 2011 which claim was refused and his appeal was dismissed in November 2011. He became appeal rights exhausted in December 2011.
3. In June 2012, he made further submissions which were refused. Permission to challenge that decision by way of judicial review was refused by Upper Tribunal Judge Jordan. Further submissions were again made in 2014 but those too were rejected and permission was refused by Upper Tribunal Judge O'Connor.
4. In June 2014, further submissions were made on the basis that the Applicant's wife had been arrested in Sri Lanka and bailed and that there was an open warrant out for the Applicant's arrest. That is the essence of the Applicant's further submissions, the response to which is challenged in this judicial review.
5. Permission was granted in an earlier judicial review challenging the first response to those further submissions. The Respondent then agreed to reconsider the decision and that judicial review was settled on this basis. The reconsideration led to the decision dated 8 April 2016 which is under challenge in this application. That decision was maintained on 17 May 2016 in response to a pre-action protocol letter.
6. Permission was granted by Upper Tribunal Judge Jacobs in the following terms:
"The test I have to apply is whether there is an arguable ground for judicial review having a realistic prospect of success. I have given permission because I consider that the grounds advanced on behalf of the applicant have a realistic prospect of success by arguing that the Secretary of State's consideration is inadequate to justify her consideration that this was not a new claim for asylum."
7. I turn then to the basis of the Applicant's submissions that he is at risk on return to Sri Lanka. The Applicant is a Sri Lankan of Tamil ethnicity. So much is accepted. He claims that he ran a timber mill in Sri Lanka located in a former LTTE area. He claims that in 2007 he was detained by the Karuna group for one day and beaten. He says that the group detained him because he had assisted the LTTE by helping them cut wood.
8. On appeal, the Applicant's claim was found to be not credible by Judge Williams in November 2011 for reasons given in that decision. That decision would form the starting point for a Judge hearing any later appeal (Devaseelan v Secretary of State for the Home Department [2002] UKIAT 000702).
9. The Applicant in his further submissions relies on events which he says have occurred since 2011. He claims that on 14 May 2013 his wife, who has remained in Sri Lanka, was arrested and detained by the authorities and produced before the Magistrates' Court for offences under the Prevention of Terrorism Act, was accused of being a chief fundraiser for the LTTE and, as a result of her activities, it is said, the authorities have also issued a warrant for the Applicant's arrest dated 4 December 2013.
10. The Applicant relied initially on a letter from an Attorney dated 27 January 2013 but which must be assumed to be January 2014, apparently confirming the documents said to exist in the Magistrates' Court that the Applicant's wife had been detained and bailed and that there is an arrest warrant against the Applicant.
11. The evidence of that Attorney is supported by a letter from another Attorney and I will need to turn to that later. A certificate is provided attesting to qualifications in relation to the position of the first Attorney although not the second. Court documents have also been produced.
12. The Applicant also relies on evidence in relation to his mental health. Although Ms Short referred me to that evidence in respect of one short point the Respondent's decision in respect of that further evidence and the further submissions made in relation to the Applicant's sur place activities are not the subject of this judicial review challenge and I need say no more about them.
13. I turn then to consider the main evidence on which the Applicant relies in support of his further submissions. That consists of a letter from the Applicant's wife dated 10 May 2014 indicating that she has been arrested as false charges had been brought against her for previous LTTE involvement, court documents which appear on their face to refer to an investigation report dated 14 May 2013 against the Applicant's wife and the Applicant, a summons dated 14 May 2013 and an open warrant issued against the Applicant on 25 June 2013. Rather bizarrely, the two latter documents appear to be written in English but no point appears to be taken in that regard by the Respondent.
14. The documents purport to be stamped by the Magistrates' Court on 4 December 2013 which has led, it appears, to an error in the further submissions that this is the date of the arrest warrant. That is not the case. 4 December 2013 is the date when two lawyers are said to have attended the Magistrates' Court to inspect the documents and obtain copies. It is accepted by the Applicant that forged documents are prevalent in Sri Lanka. That is the point relied upon by the Respondent for rejecting that evidence as not giving rise to a realistic prospect of success on further appeal.
15. The Applicant says though that the same cannot be said of the Attorneys' letters. The Applicant says that, applying anxious scrutiny, the Respondent was not entitled to give no or very limited weight to those letters, particularly the letter from the second Attorney which was relied upon in the further submissions under consideration. I will deal with the substance of those documents and the Respondent's response to them later in this judgment.
16. As I have indicated, the proper starting point for the Respondent's consideration is the findings of the previous First-tier Tribunal Judge. Although the Applicant says that the events leading to the further material now produced postdate the appeal decision and therefore must be considered in their own right, Ms Short accepts that, in order to succeed, the Applicant must also cross the hurdle of showing that the material undermines the adverse credibility findings made previously as those findings would be the starting point in any further appeal.
17. Although it is true that the events now relied upon postdate the appeal decision, it is also the case that they are founded on the core of the Applicant's previous claim which was rejected as not credible. The Applicant says that the events have as their starting point his ownership of the timber mill, which was used by the LTTE and which led to interest from the Karuna group. That he says is at the heart of his previous problems. His wife says that lies at the heart of what has happened to her and by extension to the Applicant since then. It is therefore necessary to look at what the First-tier Tribunal Judge found in relation to that issue.
18. The first reason given for disbelieving the Applicant was that he delayed for several months in claiming asylum. He arrived here as a student and he says he in fact fled because of the risk to him but he did not claim asylum immediately when he arrived. I accept Ms Short's submission, however, that this could not be determinative of his credibility. It does, however, remain relevant.
19. The Applicant left Sri Lanka on his own passport. Ms Short developed her submissions on this point beyond what is argued in the grounds but Mr Anderson was able to deal with those submissions and I take no point about the failure to plead that point more fully. Ms Short relies upon evidence before the Tribunal in GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC)("GJ") which is referred to at [146] of that determination, which, she says, shows and was accepted as showing that a person can leave Sri Lanka on his own passport by paying a bribe.
20. I do not need to deal with the question whether the Tribunal's finding on that issue at [275] of GJ amounts to a complete acceptance of that evidence for two reasons. First, although I do not have the asylum interview before me there is nothing in the material to suggest that the Applicant said that he had paid a bribe to leave Sri Lanka. He left Sri Lanka on a student visa. He does not claim he was assisted in doing so by an agent who bribed an official to procure his exit.
21. Secondly and more importantly, the finding is not simply that the Applicant left on his own passport but that he procured that passport from the Sri Lankan authorities in his own identity at a time when he claims that those same authorities had an adverse interest in him.
22. Thirdly, in the previous appeal, the Judge found that the Applicant was in fact always a genuine student and never owned a mill at all. That was fatal to the Applicant's appeal but is also a significant obstacle to the Applicant's further submissions because the mill ownership was and remains central to his claim and essential to his further submissions.
23. The Judge dealt with this aspect of the case at [37] onwards of the appeal decision as follows:
"37. It is not reasonably likely that the appellant had worked in the timber industry and in 2007 the Koruna group detained him, as they were aware that he had been helping the LTTE since 2003. I reach that conclusion for the following reasons.
38. Firstly, in his screening interview, the appellant was asked (2.11, respondent's bundle page 9), 'have you applied for or been issued a visa for any other country before?' To which the appellant replied, 'Yes, Qatar, in 2006. I was working there for 3 years'.
39. The fact that the appellant, by his own admission, remained in Qatar until 2009 until he was arrested (2.12) and sent to prison for 4 months undermines his whole claim of being involved in the timber industry.
40. Secondly, the chronology of the appellant having obtained his O-levels in 2005 also sits well with then travelling to Qatar in 2006 before returning after 3 years of work and 4 months of prison.
41. Thirdly, the appellant has produced general licences and other documentation (listed at page 72 appellant's bundle). However, the weight that I can attach these documents is lessened after taking into account the fact that Sri Lanka is a corrupt country and where such official documents can easily be obtained by bribery."
There is reference then to the U.S. State Department Report 2010 and the Judge continues.
"42. Moreover, the general licences contain inconsistencies, which undermined the weight that I can attach to them. Specifically, licence 1278 (appellant's bundle 18) and 1279 (appellant's bundle page 20) and 1277 (appellant's bundle page 22) and 1276 (appellant's bundle page 24) all contain exactly the same information, are all for 2009, and yet the appellant claims involvement with only 2 mills (he owned one mill and had the licence for one other at different locations).
43. Fourthly, the appellant's account of his difficulties in Sri Lanka is riddled with inconsistencies confusion [sic], which undermines the weight that I could attach to it. Specifically. Firstly, in interview he initially stated that his problems with the Koruna group/the 4 people within the Koruna group started in 2010. However, this does not sit well with the fact that the appellant described how (in oral evidence) that he had been, 'hit on the head' and in interview stated that he was beaten and detained by the Koruna group/the 4 people within the Koruna group. The appellant's attempt to explain this inconsistency - that it was only in 2010 that there was a danger to his life with the Koruna group does not sit well with being beaten and incarcerated by the Koruna group in 2007. Secondly, in interview (AIR Q39) he stated that his first arrest was in July 2010 and yet in oral evidence he stated that he was first arrested in July/August 2007. Thirdly, in oral evidence the appellant could not recall the date of his supposed second arrest by the police in 2009, and then denied being arrested at all in 2010. Fourthly, the appellant's account as to the order in which either the Koruna group or the police visited him (a matter which he would be expected he would have been able to recall) was very confused. The appellant claims that the interviewing officer was aggressive and prevented him from answering questions in a clear and coherent manner. However, this is not reasonably likely to be true since the appellant made no complaint in relation to the conduct of the interview at the time and indeed confirmed that he understood all of the questions put to him."
24. In this regard, although Ms Short sought to rely in her submissions on what is said by the doctors who have treated the Applicant for psychosis about the Applicant's lack of concentration I do not accept that this can fundamentally undermine the findings made by the Judge unless there is cogent evidence to the contrary for the following reasons.
25. First, as Mr Anderson pointed out, the report only notes in passing that the Applicant lacks concentration and does not say that in consequence the Applicant is unable to give evidence or may give evidence which is inconsistent.
26. Second, as Mr Anderson also points out, Judge Jordan refused permission in relation to the challenge to the Respondent's decision rejecting further submissions made based on the medical evidence in 2013.
27. Third, whilst medical evidence might be capable of undermining findings made based on the inconsistencies in the Applicant's own account, those are limited to what is said at [40] of the appeal decision.
28. With that rather lengthy background I turn to deal with the substance of the further submissions made dated June 2014 so far as those relate to the challenge before me and the underlying documents. So far as relevant those read as follows:
"4. The significance of this new evidence is that the Applicant is of continuing adverse interest to the authorities in Sri Lanka. The Applicant's wife Mrs [JS] was arrested and detained by the authorities and was produced before the Batticoloa Magistrates' Court on 14 May 2013 for offences under the PTA, in that she has been accused of being involved as a Chief fund raiser for the LTTE and as a result the authorities have issued an arrest warrant for the Applicant. The Applicant has previously submitted a copy of the information submitted to a Magistrate, demonstrating why the Applicant's wife was produced in court and as to why an arrest warrant has been issued against the Applicant. We have now obtained verification of the Appellant's wife's detention in Sri Lanka.
5. The Applicant has attached a copy of that arrest warrant and it is dated 4th December 2013 and demonstrates that the Applicant is wanted under the PTA and the Applicant further attaches the court's Record of Proceedings concerning the issuance of that arrest warrant. Furthermore we attach a witness statement from the Appellant's wife clarifying the Appellant's account and her arrest.
6. The Applicant submits that this fresh new evidence arguably impugns the decision of the IJ and the previous refusal of asylum by the Respondent. The Applicant and his wife are considered to be a threat to the Sri Lankan authorities' concept of a unitary state and the Applicant will be arrested and detained on his return to Sri Lanka. The Applicant's Article 3 representations therefore also admit of a realistic prospect of success when examined by an Immigration Judge today."
29. Mr Anderson made a point about minor inconsistencies in the substance of the submissions in the bundle and those before the Respondent but accepts that the Respondent is bound to consider the totality of the evidence and therefore this makes little difference.
30. I have already referred to what the court documents show. The focus of the submissions though is to the Attorneys' letters. The letter relied upon in these submissions is dated 29 April 2014 and is written by a Mrs Arulvani Sutharsan, who was said to be an Attorney in Batticoloa.
31. Accompanying this is a certificate showing that a Mr T Sivanathan is an Attorney-at-law. No such certificate is produced in relation to Mrs Sutharsan. The significance of the certificate in relation to Mr Sivanathan is that he too wrote a letter dated 27 January 2013 which is said to be 27 January 2014 in support of earlier submissions to which I have already referred. As I have already said, permission was refused in relation to the decision on those further submissions.
32. I note though that the letters from Mr Sivanathan and Mrs Sutharsan are in identical terms as to content. Both say that they attended the Magistrates' Court on 4 December 2013 and inspected the register obtaining precisely the same documents. Neither mentions that the other was in attendance at the same time or that they had both been instructed to inspect the register together. The further submissions do not deal at all with the fact that two lawyers were instructed. Indeed, the further submissions under consideration in this decision only refer to Mrs Sutharsan's letter and no certificate is produced for her.
33. The fact of two letters in precisely the same terms is an unexplained oddity in the evidence. I accept that this is not a point on which the Respondent has determined the further submissions but it is, to say the least, odd and something which I take into consideration when giving my own anxious scrutiny to the Respondent's decision as to reliability of the documents relied upon.
34. Turning then to how the Respondent deals with these documents, having recounted the previous judge's adverse findings, she says this:
"Further to this you have provided a certified copy of your wife's court record obtained on your behalf by Mrs Arulvani Sutharsan, Attorney-at-Law, which states that case number B/972/2013 was filed against you and your wife by the OIC, CSU Division Batticaloa under the Prevention of Terrorism Act. The case record states that your wife, [JS], was arrested on 14 May 2013 and remanded for further investigation until 28 May 2013 when she was released on bail?"
Details are then given of bail and the condition that she report to Batticaloa police station once a month.
"?The case record also states that due to you having absconded and failing to surrender for police investigation that a warrant was issued against you on 28 May 2013. On 25 June an open warrant was issued against you and is still live.
Consideration has been given to the documents you have submitted and their contents, however, as they have not been independently corroborated they add no substantial weight to your claim. It is noted that you have failed to provide any corroborating information to validate the identity of the claimed authors, consequently the documents could have been produced by anyone other than the claimed sources.
It is further noted from the appeal determination promulgated on 29 November 2011 that the IJ concluded that you were a student as opposed to a mill owner (paragraph 35 refers) and that it was not reasonably likely that you had worked in the timber industry (paragraph 37 refers). In light of these findings your wife's purported account of her dispute with members of the Karuna group whom she alleges made false claims against her leading to her arrest, after she failed to transfer ownership of the family saw mill over to them, is not accepted. No weight is therefore attached to your wife's written statement or to the court record obtained on your behalf by Mrs Arulvani Sutharsan, Attorney-at-Law, and their translations."
35. Having then referred to the background information in relation to the ease of obtaining false documents the Respondent concludes as follows:
"Given the relative ease with which official legal and court documents can be produced on request as outlined in the objective country information, coupled with the fact the letters you have provided purporting to be from your wife, [JS], and from Mrs Arulvani Sutharsan, a Sri Lankan Attorney-at-Law, cannot be validated as genuine, their presence does not add any substantial weight to your claim, particularly when taken into account with the findings of the Immigration Judge as noted above."
36. The Applicant accepts that lawyers' letters do not create a rebuttable presumption having regard to what is said by the Court of Appeal in PJ (Sri Lanka) v Secretary of State for the Home Department [2014] EWCA Civ 1011. Ms Short's submissions were confined to an argument that it was not open to the Secretary of State to reject the letters as holding no weight because they are lawyer to lawyer correspondence. She directed my attention to what is said by the Court of Appeal at [41] of PJ (Sri Lanka) as follows:
"?Whilst it is undoubtedly the case that false documents are widely available in Sri Lanka, once it was established that the documents in question originated from a Sri Lankan court, a sufficient justification was required for the conclusion that the appellant does not have a well-founded fear of persecution?"
37. Mr Anderson in response points to what the court says at [29] that the documents should not be viewed in isolation and that evidence needs to be considered in its entirety. He also noted that the Court of Appeal's judgment is concerned with an initial statutory appeal and not a fresh claims case where the Respondent is entitled to and indeed obliged to take into account previous material.
38. The case law in relation to fresh claims is well-trodden and I do not need to rehearse it. Paragraph 353 of the Immigration Rules provides as follows:
"353. When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(a) had not already been considered; and
(b) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
This paragraph does not apply to claims made overseas."
39. The first issue for me is whether the Respondent has taken into account relevant material and ignored material which is not relevant. That is not the subject of any complaint by the Applicant. The other issue is whether the decision is unreasonable. As the case law makes clear, this is to be assessed on a Wednesbury basis having regard also to the fact that this is a protection claim and that the Respondent is bound to accord the further submissions anxious scrutiny.
40. As is observed in the case law, the question whether further submissions meet the test is a modest threshold. In this case the Respondent did not give the lawyer's letter and the court documents no weight. Her reasoning is that she could not give that evidence substantial weight when taken together with the previous Immigration Judge's findings.
41. As I observed at the outset, one of the main difficulties for this Applicant is that he has been found not credible in relation to the core of his claim and whilst events now relied upon postdate that claim they still rely on fundamentally the same core. The Respondent was entitled to rely on those initial findings. The further material does nothing to undermine those findings.
42. For those reasons, looking at the evidence as a whole, as the Respondent was entitled and indeed obliged to do, the Respondent was entitled to find that the submissions did not give rise to a realistic prospect of success. That is so notwithstanding the reliance on the lawyer's letter. As I have already observed, there are some difficulties with the content of the letters, particularly given that two lawyers who apparently practise at different addresses have given the precise same account and that this is not explained in the further submissions.
43. However, even without those concerns, it is consistent with PJ (Sri Lanka) for the Respondent to consider that evidence in the context of the totality of the evidence. She was required to look at the matter holistically. Having done so, she was entitled to reach the conclusion she did that the further submissions and material relied upon did not give rise to a realistic prospect of success.
44. For those reasons, I dismiss this application for judicial review.
Costs
Mr Anderson:
45. Madam, there is an application for costs on the part of the Secretary of State.
JUDGE SMITH:
46. Do I have a schedule?
Mr Anderson:
47. You don't have a schedule, no. A schedule has been produced and provided to me but -
JUDGE SMITH:
48. I daresay Ms Short hasn't had the opportunity to deal with that, has she?
Mr Anderson:
49. It hasn't yet been provided to Ms Short, no.
Ms Short:
50. No. I also note the order of Upper Tribunal Judge Jacobs at D3 where he reserved costs but said:
"For the benefit of the judge of hears" - I presume that's "who hears" - this application I would disallow in their entirety the costs claimed for the acknowledgement of service and the summary grounds of defence. The Secretary of State's so-called response at paragraph 19 onwards bears no resemblance to the case put on behalf of the applicant."

JUDGE SMITH:
51. I think the easiest thing to do in light of the fact that you have not had the time to deal with the schedule and because of that point is that I'm going to make an order that the Applicant pay the Respondent's costs on the standard basis to be assessed if not agreed, and you can have an argument there about whether it is reasonable for the Secretary of State to recover the costs of the AOS.
Ms Short:
52. Well.
JUDGE SMITH:
53. I am not bound by what Judge Jacobs says. You can argue the point based on what is said by Judge Jacobs, certainly, but the question of whether the recovery of the costs is reasonable can be dealt with in the course of assessment, it seems to me.
Ms Short:
54. Well, Madam, plainly it's your decision.
JUDGE SMITH:
55. Yes.
Ms Short:
56. But I also do note that the detailed grounds of defence were served two months late as well.
JUDGE SMITH:
57. I don't think this case has been a shining example of anybody doing anything particularly timeously. I only received the bundle on Friday. I am not going to disallow any entitlement to costs based on delay but those are matters that your solicitors can raise when dealing with the reasonableness of the costs which are claimed. I therefore make an order that the Applicant pay the Respondent's costs of this judicial review. The reasonableness of those costs is a matter which can be dealt with if necessary by way of a detailed assessment.
Application for Permission to appeal to the Court of Appeal
JUDGE SMITH:
58. Ms Short, do you make an application for permission to appeal?
Ms Short:
59. Um -
JUDGE SMITH:
60. I fear I have to deal with this.
Ms Short:
61. You do, Madam. I don't have instructions at this stage. May I seek instructions, Madam? Or -
JUDGE SMITH:
62. I think the easiest thing if you don't have instructions bearing in mind that I am obliged to deal with permission to appeal when giving my decision is that I will refuse permission to appeal and I will leave it to you to take it to the Court of Appeal.
Ms Short:
63. I'm grateful.~~~0~~~~