Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00380/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 March 2017
On 26 April 2017
Prepared 22 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

RS
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr J Butterworth, Counsel instructed by Loshana & Co
For the Respondent: Mr L Tarlow, Senior Presenting Officer

DECISION AND REASONS

1. The Appellant, a national of Sri Lanka, of Tamil ethnicity, date of birth 15 September 1980, appeals against the decision of First-tier Tribunal Judge Coll (the judge) who, in the decision promulgated on 25 November 2016, dismissed the Appellant’s appeal against the Respondent’s decision dated 7 January 2016 to refuse an asylum and a Humanitarian Protection claim.

2. Permission to appeal the judge’s decision was given by Upper Tribunal Judge Warr on 7 February 2017.

3. Although the grounds are as a fact overly long, very helpfully Mr Butterworth has concentrated on the two principal errors it is asserted the judge made which, he says, are material to the decision. At the centre of the claim the Appellant says he was ill-treated in the post-war period partly arising from his historical connections with the LTTE and suspicions of his continuing associations with the LTTE through his employment with an NGO in Sri Lanka. In the decision at paragraph 63 the judge said:

“Thirdly, the Appellant was inconsistent about the period during which he had helped the LTTE. He said he had supported the LTTE with money, weapons, ammunition and petrol since 2004. He had said he helped until 2008. Under cross-examination, however, he said that he had given more help in 2010. There was no explanation for why he had omitted to mention this originally”.

4. However, the Appellant at the time of his asylum interview, on 17 December 2015, said that he had helped the LTTE through to 2010. Indeed arguably, by reference to the AIR Q/A 72, 73, it was suggested that that he had helped at least through to the end of 2010.

5. I am satisfied that that is an important error because credibility became, as the judge’s findings identified, an important issue.

6. Further, the judge at paragraph 63 identified:

“63. Thirdly, the Appellant was inconsistent about the period during which he had helped the LTTE. He said he had supported the LTTE with money, weapons, ammunition and petrol since 2004. He had said that he helped until 2008. Under cross examination, however, he said that he had given more help in 2010. There was no explanation for why he had omitted to mention this originally.

64. Fourthly, the Appellant said that he was not asked what he had done for the LTTE. His explanation is that the authorities believed that he was a LTTE member. This still does not explain why the authorities would omit such questioning.

65. Fifthly, several aspects of the Appellant’s account do not accord with objective country evidence, namely that he signed a confession at an early stage of his detention but was not released for a considerable period thereafter or that he was detained for a length period (10 months) but not charged or sent to rehabilitation.

66. Sixthly, the Appellant’s detention for a long period (10 months) was not supported by the fact of his wife (or family) reporting this to the authorities. Yet he had sought to trace his missing brother in law by reporting this to the police and the Human Rights Commission of Sri Lanka. I find this surprising. The Appellant explained this by saying that engaging an agent rather than reporting the matter to the relevant authorities was a more effective method of locating him”.

7. I have been taken to the material background evidence provided partly in the case of GJ. Professor Good who identified in GJ, which seems to chime with the background evidence of which I am aware, that detention without charge is commonplace and in any event authorised by the Prevention of Terrorism Act; for a person may be detained without charge for a period of up to eighteen months. It will be recalled in this case the Appellant claimed he was detained without charge for some ten months

8. The judge further identified that the Appellant’s account did not accord with background evidence, namely that he had signed a confession at the early stage of his detention but was not released for a considerable period thereafter or that he was detained for a lengthy period (ten months but not charged or sent to rehabilitation). The position is that in fact the Appellant’s evidence had been, if I may put it this way, relatively consistent overall and it is hard to work out why the judge ultimately concluded at paragraph 77:

“Taking all of these matters into account, I do not find the Appellant entirely credible and I find as a result that the Appellant was not arrested, detained or ill-treated and injured by the Sri Lankan authorities as a result of assisting the LTTE”.

The judge continued at paragraph 78:

“I further find that he is not of interest to the Sri Lankan authorities”;

and at paragraph 79:

“I refer therefore to the case of GJ as to the risk profiles referred to thereof and find that the Appellant does not fit in within any category set out in GJ such that he would be exposed to treatment which may give rise to a need for international refugee protection”.

9. Putting aside the somewhat infelicitous way of expressing himself, the judge continued:

“I accordingly find as previously stated that the Appellant’s account is not credible on the lower standard of proof and I find that the Appellant has not discharged the burden of proof such that he is entitled to the grant of asylum”.

He continued to consider Humanitarian Protection and Articles 2 and 3 ECHR.

10. It is clear therefore that in two significant respects the judge had taken against the Appellant’s credibility i.e. the period of detention under the PTA and the period the Appellant had helped the LTTE.. Mr Tarlow drew my attention to the fact that at paragraph 61 of the decision some issue had been taken over the period of employment that the Appellant claimed to have and the documents relating to it, but it does not seem to me that the point goes against credibility so much as the adequacy of the evidence or the Appellant’s recollection generally. It certainly does not touch on the centrepiece of the claim.

11. Mr Tarlow also identified at paragraph 62 of the decision where the judge had regarded the Appellant as inconsistent concerning the fate of his brother-in-law by reference to the answers that he had given in his asylum interview. It is clear that if there is inconsistency it needs to be weighed in respect of all the evidence in the centrepiece of the claim. It seemed to me that of itself that does not appear to be a material matter that goes to the extent of the Appellant’s recollection of how he was treated and what he said happened to him. Further, at paragraph 64 of the decision the judge said this:

“The Appellant said that he was not asked what he had done for the LTTE. His explanation is that the authorities believed that he was an LTTE member. This does not explain why the authorities would omit such questioning”.

12. I have considered the witness statement made by the Appellant which, as I understand it from the papers, was adopted by him. It is clear that repeatedly he identified that he was questioned about his connections with the LTTE, people he knew within the LTTE and to what extent he had done things for the LTTE. He also identified, in his Asylum Interview Record, a level of involvement or suspected involvement with the LTTE. I do not understand how the judge could have come to the conclusion that he did and hold it against the Appellant’s credibility when it was so much related to the centrepiece of the claim.

13. Finally, Mr Tarlow addressed me on the basis that the Appellant’s credibility was also criticised in paragraph 66 because his claim of detention for ten months was “not supported by the fact of his wife (or family) reporting this to the authorities. Yet he had sought to trace his missing brother-in-law by reporting this to the police and to the Human Rights Commission of Sri Lanka. I find this surprising”.

14. It seems to me that the issue of what his wife or his family did does not go to the heart of the Appellant’s credibility and he gives an explanation for good or ill why he chose to follow the course he did which the judge noted at paragraph 66. It is not a preposterous or an implausible explanation, whether it was correct or rightly expressed and recorded is difficult to tell.

NOTICE OF DECISION

15. The Original Tribunal’s decision cannot stand and the matter will have to be re-made.

16. No anonymity direction is made.

DIRECTIONS

17. The matter to be returned to Taylor House, listed for either a CMR or PTR in the First-tier Tribunal, not to be listed before FtT Judge Coll. Issues – Refugee Convention, Humanitarian Protection and Articles 2 and 3 ECHR.
Estimated duration two hours.
Tamil interpreter required.

Signed Date 30 March 2017

Deputy Upper Tribunal Judge Davey