Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00659/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On Monday 26 September 2016
On Thursday 29 September 2016

Before

UPPER TRIBUNAL JUDGE SMITH

Between

G T
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Mannan, Counsel instructed by Linga & Co solicitors
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues. It is appropriate to continue the order. 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.

DECISION AND REASONS

Background

1. The Appellant appeals against a decision of First-Tier Tribunal Judge Sweet promulgated on 22 July 2016 ("the Decision") dismissing the Appellant's appeal against the Secretary of State's decision dated 12 January 2016 refusing his protection and human rights claims.

2. The Appellant is a national of Sri Lanka. He came to the UK as a student in 2007 with leave which continued until August 2013. A further application on that basis was refused on 15 November 2013. Thereafter he remained unlawfully as an overstayer until he was encountered in July 2015. He claimed asylum on 17 August 2015

3. The basis of the Appellant's claim is that he was detained during a visit to Sri Lanka in 2011 on the basis that he was suspected of being a supporter of the LTTE. The Appellant says that he is not a member of the LTTE nor has he ever taken part in their activities. He claims that the authorities' interest in him arises as a result of his father's activities with that group. His father died in 2007, the Appellant believes at the hands of the Sri Lankan authorities. The Appellant claimed to have been detained because the authorities were interested in the Appellant's activities in the UK. He claims to have been tortured and subjected to sexual assault during his detention.

4. Judge Sweet did not believe the Appellant's claim and found that he would not fall within any of the categories in GJ and others. Permission to appeal was granted by First-tier Tribunal Judge M Robertson on 15 August 2016 on all grounds. The matter comes before me to decide whether the Decision contains a material error of law and, if so, to re-make the decision or remit the appeal for rehearing to the First-Tier Tribunal.

The grounds and submissions

5. Ground one focusses on the Judge's treatment of documents submitted by the Appellant. At [52] of the Decision, the Judge referred to a medical certificate of Dr Nazar dated 14 September 2011 confirming a number of injuries sustained by the Appellant. He also refers to a report from Dr AA Seneviratne dated 5 September 2016 relating to the Appellant's brother. That report records that the Appellant's brother had been questioned about the Appellant's involvement with the LTTE in the past and had been detained for four days in 2016. The Judge in that paragraph expresses doubts as to the authenticity of those documents. The Appellant complains that the Judge did not have any evidence to suggest that the documents were not authentic, that the burden of proof is on the Respondent and that she had not discharged that burden. Judge Robertson granted permission on this ground on the basis it was not clear whether the finding was that the documents were unreliable or that they were fraudulent. Accordingly, it was not clear what burden or standard of proof had been applied.

6. The second ground concerns a failure by the Judge to determine the issue whether the Appellant was released in 2011 on the payment of a bribe by the Appellant's uncle. The Appellant submits that, if that were accepted or given any weight then the finding that the Appellant does not fall into any of the categories in GJ and others is in error because it is accepted by the Respondent that if a person is detained in Sri Lanka, he remains at a real risk of ill treatment.

7. The third ground and the ground on which Mr Mannan focussed his submissions is the Judge's failure to make any finding in relation to the medical report of Dr Gupta, Consultant Psychiatrist, who deals with the Appellant's mental health and finds that the Appellant is suffering from symptoms consistent with PTSD. Mr Mannan points out that, at [53] of the Decision, the Judge sets out the content of that report but makes no finding whether the content of the report is accepted or rejected and if so why. Mr Mannan submits that the report is capable of corroborating the Appellant's account and therefore undermining the Judge's adverse credibility findings. Mr Mannan submits that if the factual basis of the Appellant's claim is made out then, applying GJ and others, he is likely to be found to be at real risk on return and his appeal is likely to succeed.

8. Mr Kotas did not accept that there is any merit in grounds one and two. The Judge considered the authenticity of the documents in the round as he was required to do. However, he accepted that there is an error in the Judge's failure to make a finding in relation to the medical report of Dr Gupta. He conceded that the error may impact on the credibility findings and that accordingly the Decision should be set aside and the appeal be remitted. He submitted however that certain findings could be preserved namely that the Appellant has no connection with the LTTE ([36]) and that he is not a member of the LTTE ([56] and [48]). Mr Mannan submits that it is not necessary that any findings be preserved. The Appellant has never claimed to be a member of or to have any connection to the LTTE. If he were now to change his case in that regard, that inconsistency would be likely to weigh against him.

Decision

9. The Decision contains an error of law on ground three. At [53] of the Decision, the Judge set out the content of Dr Gupta's report. However, he did not go on to make any finding in relation to Dr Gupta's evidence. Dr Gupta's opinion that the Appellant is suffering from symptoms consistent with PTSD and as to the likely cause of those symptoms is evidence which may be capable of corroborating the Appellant's account. As such, it was incumbent on the Judge to say what he made of that evidence, whether he accepted it and if he did not, why he did not. If that evidence is accepted, it needs to be taken into account in the assessment of the Appellant's credibility.

10. I agree with Mr Kotas' submission that grounds one and two are not made out. However, I do not agree that any findings should be preserved. The issue in relation to which I have found an error is one which may be capable of affecting the findings on credibility. It is not useful to constrain another Judge's assessment of credibility when the appeal is re-heard. I also accept Mr Mannan's submission that it is not necessary to preserve the findings which Mr Kotas suggests should be preserved. It has always been the Appellant's case that he has never been a member of the LTTE and that he has no connection (personally) with them. If he were to change that case at any further hearing, it is likely that the inconsistency would adversely impact on his credibility in any event. It is therefore not helpful to preserve findings and to do so would be artificial in circumstances where credibility needs to be reconsidered on the Appellant's case as a whole.

11. Both parties agreed that, since the evidence which needs to be considered as a result of the error may impact the Judge's adverse credibility findings, the appropriate course is to remit the appeal to the First-tier Tribunal. I have had regard to the relevant Practice Direction and I agree that this is the appropriate course. I therefore remit the appeal for re-hearing by a different Judge.

DECISION
I am satisfied that the Decision contains a material error of law. The decision of First-tier Tribunal Judge Sweet promulgated on 22 July 2016 is set aside. The appeal is remitted to the First-tier Tribunal for re-hearing before a different Judge.

Signed Dated: 29 September 2016

Upper Tribunal Judge Smith