Tribunal decisions

The decision

IAC-PE-SW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00949/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7th October 2016
On 22nd November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE LEVER

Between

[M Y]
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Akindale
For the Respondent: Mr Walker

DECISION AND REASONS
Introduction
1. The Appellant born on 28th November 1987 is a citizen of Sri Lanka. The Appellant had come to the UK on a Tier 4 (General) Student visa on 10th January 2010 and finally claimed asylum on 12th August 2015. The Respondent had refused the Appellant's application for asylum and thereafter the Appellant had appealed that decision. His appeal was heard by First-tier Tribunal Judge Gribble sitting at Birmingham on 13th July 2016. The judge had dismissed the Appellant's appeal on all grounds.
2. Application for permission to appeal to the Upper Tribunal was made and that application was refused by First-tier Tribunal Judge Pedro on 16th August 2016.
3. The application was renewed and permission to appeal was granted by Upper Tribunal Judge Kopieczek on 12th September 2016. Whilst stating there were limitations within the Grounds of Appeal it was said that it was arguable that the judge had erred in law in consideration of the question of whether the Appellant would be someone whose imputed political opinion may put him at risk. However it was said that that issue depended on upon whether the credibility findings were sustainable.
4. The matter comes before me in accordance with directions made that the Upper Tribunal should firstly consider whether or not an error of law was made in this case.
Submissions on behalf of the Appellant
5. Mr Akindale essentially submitted that the judge had failed to note that the Appellant may be perceived by the authorities in Sri Lanka as an LTTE activist although the Appellant himself had accepted that he had never been a member of the LTTE. It was said that it was the potential perception the authorities would have of the Appellant that placed him at risk. It was further said that the credibility assessment was therefore wrong.
Submissions on behalf of the Respondent
6. Mr Walker indicated that the judge had given a clear and reasoned set of findings in respect of credibility and the Appellant could not fit within any of the risk categories outlined in the country guidance case of GJ. It was further said the judge in any event had looked at up-to-date information and had addressed the issue of perception.
7. At the conclusion of the submissions I reserved my decision to consider the evidence and submissions raised. I now provide that decision with my reasons.
Decision and Reasons
8. First-tier Tribunal Judge Pedro had properly identified that the application for permission to appeal amounted in reality to simply a disagreement with the findings of the judge and had correctly refused permission to appeal.
9. Upper Tribunal Judge Kopieczek had granted permission on the basis that it was arguable the judge had erred in consideration of imputed political opinion but found that issue depended upon whether credibility findings were sustainable. However nowhere within that permission was it found that the credibility findings were not sustainable, neither had Judge Pedro before her made any such findings. The permission appears somewhat misconceived.
10. The judge in this case had set out the evidence and submissions fully and further had considered the documentary evidence including recent country material. He had proceeded to make findings of fact in relation to the evidence. He had set out those findings in clear terms at paragraphs 32 to 38. He had concluded the Appellant's account to be vague, lacking in credibility and inconsistent. At paragraph 33 he provided examples to back up that conclusion. Those examples alone may well have been enough to allow the judge to conclude a lack of credibility. However, whilst in submissions Mr Akindale focussed on those features, in reality the judge had provided further reasons in support of his findings at paragraphs 34 to 38. He had found no medical evidence or supporting evidence from the Appellant's father and correctly dealt with the issue of supportive or corroborative evidence. He found photographs taken on a demonstration in 2014 in an attempt to bolster a claim, a finding that in the circumstances was entirely open to him. He further found the Appellant delayed making any claim for asylum for five years. He properly found that whilst not determinative that damaged his credibility. It also had the practical result that whatever the Appellant's position when he left Sri Lanka that was now some five years ago and the Appellant had not adversely come to the attention of the Sri Lankan authorities in that intervening period.
11. Further the judge had noted that the Appellant conceded he had never been a member of the LTTE and furthermore when he left Sri Lanka he was able to do so without difficulty on his own passport and with a student visa.
12. The totality of the judge's findings on fact therefore provided a clear and proper basis for his adverse credibility findings and there has never been any basis for claiming he either erred in law in that regard or the findings were unsustainable.
13. Having made those findings the judge considered the country guidance case of GJ setting out the risk categories fully at paragraph 38. He had further at paragraph 39 considered updated material from May 2016 that postdated GJ. In respect of the central submission raised by Mr Akindale, that the judge had not considered the Sri Lankan authorities would "perceive" the Appellant to be a threat, and Upper Tribunal Judge Kopieczek's finding that the Appellant's imputed political opinion may arguably have not been considered, a proper reading of paragraph 39 reveals the judge stating:
"I need to consider whether the Appellant, as someone who on his own evidence is not and has never been involved with the LTTE in Sri Lanka and on his own evidence has attended one demonstration two years ago, would be perceived to be involved and having a significant role in post-conflict Tamil separatism."
14. The judge had therefore considered whether the Appellant would be perceived to be involved contrary to assertions made by Mr Akindale.
15. Further at paragraph 43 having considered with care the risk categories in GJ and making clear findings on fact and credibility, the judge stated: "accordingly I find there is no risk that he would be detained and would suffer persecution for his imputed political opinion". Again, contrary to assertions made in the grant of permission, the judge had specifically addressed this matter.
16. In summary the judge had found the Appellant on his own admission had never been a member of the LTTE. He had found the Appellant inconsistent and lacking in credibility in all key parts of his case. There was clearly therefore no basis for any perception the Appellant would be a threat to the Sri Lankan authorities and therefore not at risk on return. It is difficult to see how the judge could have made matters clearer.
Notice of Decision
17. There was no material error of law made by the judge in this case and I uphold the decision of the First-tier Tribunal.
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 Date

Deputy Upper Tribunal Judge Lever

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Lever