Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00411/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 January 2017
On 27 April 2017

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

Mr S u
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Wilcox, Counsel, instructed by Nag Solicitors
For the Respondent: Mr K Norton, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal against the decision of Judge Rowlands, who after a hearing on 5 October 2016 dismissed the appeal of the appellant, Mr U, following the refusal of asylum and humanitarian protection by the respondent on 6 January 2016.
2. The challenge to the judge’s decision is essentially based on flaws that, it is said, are to be found within his credibility assessment which are such as to render his decision materially in error of law and the essential account given by the appellant was that he became involved with the LTTE. He used to visit a friend who was not involved at all and whose father was in the Sri Lankan Navy and would observe and identify vehicles going to the nearby naval base and pass information on. He himself was never in difficulties on account of that behaviour but rather when he attended a meeting concerning another friend of his who was involved with the LTTE and was detained and ill-treated, he said, as a consequence of that and hence, he having already applied to come to the United Kingdom for the purpose of study, he came here and subsequently sought asylum.
3. The first point with which issue is taken in the credibility findings is at paragraph 31 of the judge’s decision where he said he found it difficult to imagine how a young Tamil boy would befriend a boy whose father served in the very forces that were fighting Tamils. I think it is right to say, as Mr Wilcox says and it is said in the grounds, that this is a speculative and rather ruminatory remark by the judge rather than a specific finding. There is a specific finding in that paragraph, that where the judge refers to the evidence of Mr U that he became actively involved in distributing CDs in support of the LTTE’s work and his friend R, whom he visited, was aware of this. In fact his evidence at interview was that R was not aware of this, and I think it is common ground that the judge made a mistake in that regard.
4. Turning then to paragraph 32, which I think is the next point of criticism. This relates to the circumstances in which the appellant said that he was able to observe movements to the naval base from R’s home. He was given a mobile phone and a SIM card and asked to get information about movements from the naval base and said he continued his friendship with R so he could make notes and get information. “He says”, the judge said,
“that somehow he was able to get this information from 200 to 300 yards away. Frankly this lacks all kinds of credibility. It would require him to be standing on lawns or in houses perhaps using binoculars in order to get this information and he says that he was able to do all this without attracting any kind of attention or suspicion. It just simply lacks credibility completely”,
and the point is made, again on the appellant’s behalf going back to the interview, that when he was asked about this he referred to the fact that the navy base was 200 or 300 yards from R’s address. When asked how he could see the number plates he said all the vehicles had to pass the house, which is a different matter of course from identifying numbers some 200 or 300 yards away.
5. So, again, there is a valid criticism there, I think, of the judge’s reasoning and it is instructive perhaps to compare this with points that are made in the refusal letter. There it is said, for example:
“It is considered not credible that you could visit his house every day for the past four years without any suspicion as to your activities. It is further noted that you stated you had obtained details of the vehicles entering and exiting the army base by looking from R’s house.”
6. There were no inconsistencies identified as to where he stood but those are matters in the decision letter of course and one has to consider purely the judge’s decision, that is the point in question here but he does not appear to have picked up on some of the points made in the decision letter which were of relevance to credibility such as that point, the further point about the fact that, as was noted at paragraph 45 of the decision letter, it was not considered credible that he would endanger his life with full awareness that he was being recorded by those he feared. It was not considered credible that R would not have detected his interest in the LTTE when they attended the same school and there was distribution of CDs although of course he said R was not aware of that but, as I say, it is a matter of concentrating purely on the judge’s decision and the decision on what he had to say in that regard about getting information from 200 or 300 yards was based on a misunderstanding of the appellant’s evidence.
7. There is also the point that although the judge seems to have thought that they spent six hours a day playing cricket while the appellant looked at vehicles of course his evidence was also that sometimes they had combined studies in the room so he was not playing cricket all the time. That is a further point relevant to credibility.
8. On the other hand there is the point about the telephone and the fact that he got the model wrong and identified it as being of a model which had not in fact then come into existence, and the point is made in the grounds that he was recalling a phone he had had more than ten years ago, does not mean a decisive error. I think that is right, that it is not decisive but it is nevertheless a matter relevant to credibility.
9. As regards the issue of the ill-treatment he said he had obtained, that he had received internal injuries, there was no medical evidence, the judge said, to support his claim and then he changed his mind to say he was only bruised. I think, in fact a proper reading of the evidence in that regard is that it is clarification rather than an inconsistency on his part. He was asked whether he had experienced any injuries while he was detained and said “I had internal injuries, mostly internal”. When it was put to him if he had been beaten with a pipe full of sand regularly “how would you only have internal injuries?” he said he had only bruises, which, as I say, is a manifestation of an internal injury, and it is an internal injury itself is the point made in the grounds but I think the point to come back to is with regard to credibility issues as a whole.
10. As the judge appears to have come to conclusions on credibility at paragraph 38, paragraph 40 also, that he was lacking in credibility the judge then went on to consider the psychological report. He had criticisms of that report. I will not go into any great detail although the point is fairly made that there had been a diagnosis of PTSD and he had received counselling and had prescriptions for antidepressants. Although, as Mr Norton says, of course the doctor’s findings must have been very much concerned with what was said to him by the appellant nevertheless he made a diagnosis, he made a clinical judgment based on what was said to him and, as Mr Wilcox argued, those are matters which are not irrelevant in an evaluation of the credibility in this case. If he was at least at that stage suffering with psychological problems then the judge needed to factor that into the credibility assessment.
11. So, taking all these matters as a whole, although I mentioned in passing points in the refusal letter which might have been picked up by the judge and were not, nevertheless concentrating purely on the judge’s decision it seems to me that there are errors of a nature and extent as to go to the heart of the findings of the judge in this case and to show that his decision is materially flawed as a matter of law and consequently the matter will have to be reheard again by a different judge other than Judge Rowlands at Hatton Cross.

Notice of Decision
The appeal is allowed to the extent that it is remitted for a full rehearing before a First-tier judge at Hatton Cross

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 Dated: 30 January 2017

Upper Tribunal Judge Allen