Tribunal decisions

The decision

IAC-AH-CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/00243/2016

THE IMMIGRATION ACTS

Heard at Field house
Decision & Reasons Promulgated
On 4th August 2016
On 2nd September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD

Between

N A I L
(ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the Appellant: Mr K Wyn, Legal Representative instructed by Liyon Legal Ltd
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Sri Lanka whose appeal on asylum and human rights grounds was dismissed by First-tier Tribunal Judge Turquet in a decision promulgated on 20th April 2016. For various reasons given the judge concluded that the Appellant had invented his asylum claim and fabricated events in order to bring himself within the Convention (paragraph 58).
2. Grounds of Appeal to the Upper Tribunal were lodged. In Ground 1 much is made of the manner in which the judge had dealt with the fact that the original summons x three had gone missing. It is said that these summonses were central to the appeal and had they been accepted as authentic then the Appellant would have fallen within one of the risk categories in line with GJ and Others (post-civil war: returnees) Sri Lanka [2013] UKUT 00319. The second ground was that the judge erred in providing opinion on medical matters which she had failed to disclose any expertise on. It is said that she made findings as a medical expert and concluded that the injuries were not inflicted on the Appellant by the authorities in 2009. The judge had unfairly refused the Appellant's application for an adjournment in order to obtain a scarring report.
3. The third ground is that the judge erred in law in making findings on her own assumptions. The judge had made adverse credibility findings on the basis that the Appellant had described a house that was originally owned by his mother and eventually gifted to him as his mum's house. Other examples are given. Rejecting an account because it did not concur with a reasonable expectation did not amount to applying the low standard of proof. The judge had misunderstood the Appellant's employment history. She had erred in law in paragraph 53 in making findings because he had used his own passport. She was wrong to find that he was not of adverse interest to the authorities.
4. Permission to appeal was initially refused by First-tier Tribunal Judge Shimmin but granted on appeal to the Upper Tribunal by Upper Tribunal Judge Eshun.
5. A Rule 24 Notice dated 5th July 2016 was lodged by the Respondent. It was said that copies of the summons were produced during the hearing and the judge went on to assess the documents and give adequate reasons for not accepting that they supported the Appellant's account. In terms of the medical evidence the judge merely made observation of the scars and made no findings of fact based on those observations. The judge had given adequate reasons for dismissing the claim.
6. Thus the matter came before me on the above date.
7. Mr Wyn for the Appellant relied on the Grounds of Appeal and emphasised the judge had made a wrongful finding that the summonses had never been sent by the agents and received by the Respondent - see paragraph 52. It was said that such a finding was clearly wrong and undermined the case generally. The other points taken in the grounds had been made out. As such the decision should be set aside and sent back to the First-tier Tribunal.
8. For the Home Office Mr Tarlow indicated he did not have a file of papers but he relied on the Rule 24 Notice. He particularly objected to a suggestion in the grounds of application that the Respondent had acted in any way that was not consistent in acting with integrity.
9. I reserved my decision.
Conclusions
10. It is the Appellant's case that on 14th December 2015 his legal representative sent by Recorded Delivery a number of documents to the Respondent including three original summonses. The judge asked the Appellant's Counsel at the hearing to confirm how the summons was sent and after a telephone call to those instructing him it was confirmed that they were indeed sent under cover of the letter dated 14th December 2015. On this issue the judge made a finding (paragraph 52) "I do not find that the Summonses were received by the Respondent or sent". The Appellant's representatives are concerned that the only implication of the judge's decision is that they have lied to the Tribunal and they maintain this is a distinct error in law.
11. Given the clear evidence before the judge that the Summonses were at least sent it has to be said that it was a surprising finding by the judge to conclude the opposite namely that they were not sent in the first place. It can certainly be said that the judge's reasoning for finding that the summonses were not sent by the Appellant's representatives is not set out. Whether this is important or not in the context of whether this is an error of law is a moot point but it certainly is an unhappy beginning to an appeal where it is said that there are numerous errors of law by the judge. However it is clear enough that this appeal cannot succeed under Ground 1 on its own. Copies of the summonses were said to be available on the file and given the missing originals the judge was quite entitled to proceed to hear the case notwithstanding the submissions that the best course of action would have been to adjourn it. By implication the judge quite rightly took the view that there was no point in adjourning the case - neither party said to her that the original documents were about to be produced. No issue of fairness arose where the original documents were never going to be available.
12. The second ground is that it is said that the judge provided opinion on matters in which she had failed to disclose any expertise on namely the marks on the Appellant's body. It is said that the judge's approach to this evidence is "unfair, whimsical and in stark contrast to the anxious scrutiny an asylum seeker deserves." In addition it is said that the judge unfairly refused the Appellant's application for an adjournment in order to obtain a scarring report. In my view there is no merit in this ground. The judge made it clear that she was "not a medical expert" (paragraph 42) and in my view the judge was simply giving anxious scrutiny to this element of the claim and she went on in paragraph 43 to refer to RT (medical reports - causation of scarring) Sri Lanka {2008] UKAIT 0009 pointing out that even on the lower standard of proof the Appellant had not satisfied her that the injuries were inflicted whilst detained in 2009. In terms of the adjournment request the judge referred to Nwaige (adjournment; fairness) 2014 UKUT 00418 (IAC) and she plainly applied the correct test.
13. However what is troubling in this case is the matters raised in the third Ground of Appeal briefly referred to above. As the grounds point out I do not see an inconsistency in the employment history set out by the Appellant - see paragraph 38 of the decision. Contrary to the judge it seems to me quite reasonable to conclude that the Appellant might refer to his house as "my mum's house" given that he maintains his mother gave it to him. The judge has found against the Appellant on this point which may well be unfair. The judge accepts that a deed of gift has been provided but notes there were was no supporting evidence of how it was received and therefore places little weight on it that the Appellant was the owner of the property. Bearing in mind the low standard of proof in this jurisdiction it is unclear why the judge considered that further evidence was appropriate. When the judge says that she did not find it credible that he did not know that Prakash was involved with the LTTE until after his arrest it might be said that the judge's reasoning on this point (paragraph 40) could be clearer. Moving onto paragraph 50 the judge says that she finds it reasonable to expect the authorities to have issued an arrest warrant and to have made a formal visit to the Appellant's house. It seems to me that the judge's observation on this may well be unsound; in coming to this conclusion the judge makes no reference to any background material of how the authorities might operate.
14. What is equally concerning are the judge's findings in paragraph 53 when she noted that the Appellant had made no mention of travelling with an agent or being introduced to an Immigration Officer at the airport. The judge found it "reasonable to expect him to have mentioned this at interview." However she does not say that the Appellant was ever asked about this at interview (I cannot see that he was asked about this) and thus again this finding may be unfair on the Appellant.
15. Importantly - and what is decisive in the outcome of this appeal - the judge also finds the fact that he travelled on his own passport indicates that he was of no adverse interest to the authorities and did not perceive himself to be at risk of apprehension. As the grounds of appeal point out that these findings are against the objective evidence and country guidance contained in GJ.
16. In all these circumstances it seems to me that there are errors of fact in the judge's decision which taken together amount to a material error of law. The judgment is not safe and unfortunately there will have to be a fresh hearing.
17. The decision of the First-tier Tribunal is therefore set aside in its entirety. No findings of the First-tier Tribunal are to stand. Under Section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 the nature and extent of the judicial fact-finding necessary for the decision to be remade is such that it is appropriate to remit the case to the First-tier Tribunal.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision.
I remit the appeal to the First-tier Tribunal.
I shall maintain the anonymity direction.

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 their 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 Dated

Deputy Upper Tribunal Judge J G Macdonald