Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01421/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18th October 2016
On 9th November 2016

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

H M R
(aNONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Walker, Counsel instructed by Krisinth Solicitors
For the Respondent: M S Kotas, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Sri Lanka born on 24th February 1967. She applies, with permission to appeal the decision of the First-tier Tribunal Judge Reid, dismissing her appeal against the Secretary of State's refusal to grant her asylum, humanitarian protection or protection under the European Convention on Human Rights. That decision was dated 29th January 2016.
2. The grounds for permission were various and at the outset noted that the First-tier Tribunal Judge had made a number of positive credibility findings accepting the appellant's account of coming to the adverse attention of the authorities in 2008 after she the appellant had accommodated someone who had been linked to the LTTE. The First-tier Tribunal Judge accepted her mistreatment in 2008 and her subsequent release on reporting conditions. The judge further accepted that the appellant had been stopped on return to Sri Lanka in 2013. He did not accept that she had been detained for five days.
3. I address each ground of challenge in turn. Ms Walker relied on and expanded on each of the written grounds. Mr Kotas identified that a reading of the decision as a whole, effectively answered the grounds.
4. First, the grounds assert that the First-tier Tribunal Judge's findings at paragraph 34 were confused and unreasonable. It was unclear why the absence of any further medical evidence relating to the appellant's overnight hospital admission and lack of further treatment affected the credibility of her claim to have been detained for a period of five days. The judge was not a qualified medical professional and the First-tier Tribunal Judge's reasoning at paragraph 34 was flawed.
5. Mr Kotas' response was that it was open to the judge to make the findings he did. The judge was surprised there was no follow-up after a five day detention. That in part explained his approach. The findings of the judge had to be viewed in the light of the whole determination. Reading paragraph 34 as a whole, it is clear that the judge found there was no evidence of the appellant being kept in hospital "as claimed for two days", only of some medical tests.
6. I find that there is no error of law in respect of the judge's approach at paragraph 34. It is clear from the findings that the judge found a discrepancy between the claimed doctor's advice and her accessing care once back in the United Kingdom which "she did not do so on her return". The judge also noted that there were "no details of any tests or treatment in the period after her return in October 2013 being noted in the GP printout page". It was open to the judge to find the credibility as to the circumstances and length of the claimed detention as distinct from the questioning on entry. The judge clearly had issue with the length of detention as claimed by the appellant, that being five days, as a significant period and the minimal medical evidence despite the fact that she was ostensibly released from detention because of her medical condition. Evidently the judge did not accept the circumstances of her detention and this is clear from paragraph 36 where the judge specifically found that she may have been questioned but that she was not detained for the length of time that she claimed and such that she was in fact of no interest to the authorities.
7. The judge at [36] noted that the appellant remained in Sri Lanka between 13th October 2013 when she claims she was released and stayed on until 21st October 2013, despite being told "in no uncertain terms" that she should return to the police station after being discharged by the hospital and was said to have agreed to do so. She did not and the judge quoted directly from the appellant's interview statement handed in during her asylum interview. This clearly affects the appellant's credibility.
8. As the judge noted, the cousin was not contacted during the days or weeks after she was released and he was never contacted at all. The judge clearly found it not credible that the police did not monitor or check up on her after releasing her and did not retain her passport or put in place any arrangements to stop her if she tried to leave. It was open to the judge to find that the appellant was therefore not of significant interest to the authorities and not detained for five days as she claimed.
9. The judge also noted that the appellant's cousin could have given evidence about the claimed five day detention but had not done so, and noted at paragraph 37 that the appellant was able to continue with her visit to see her stepmother in hospital before returning to the UK on the originally planned date, not having cut short the visit after having been questioned and "not in turn being excessively worried about being able to leave as planned to return to her daughter and husband in the UK". The judge also noted that the increase in mental health symptoms did not come on after this visit but later in the summer in 2015.
10. The fact is that the appellant's account of her detention and the fact it was her detention that had caused chest pains, was not consistent with the tests in Sri Lanka which as the judge stated 'raised no concerns', and her actions of not consulting any doctor after her return to the UK. Indeed the medical evidence following a claimed five day detention and an overnight in hospital is simply two pages of photocopied pictures with the appellnt's name, the date and a doctor's rather than a hospital stamp. Effectively the judge did not accept, although she may have had tests for chest pains, that she had been necessarily detained.
11. When reading the decision in this respect overall, the judge does not assume the role of a medical practitioner but makes relevant and pertinent observations about the tests themselves, the appellant's own accepted conduct and her own interview statement [at 36] after her claimed detention which she asserted caused her medical problems.
12. The next ground of appeal was on the basis that the judge had erred in finding it implausible that the appellant would have been detained and interrogated about the involvement in diaspora activities as she had not been involved in any such activities. The judge, it was asserted, had failed to consider the plausibility of the appellant's claim to have been perceived to be involved in diaspora activities in the UK in view of her past profile. It was apparent from the appellant's evidence that the authorities who detained and questioned her in 2013 were fully aware of her previous detention and she was also asked further questions in relation to this as well. The judge should have considered the relevance of her past profile and whether this was capable of having an impact on how she might be perceived.
13. That challenge is not sustainable. The judge's findings must be seen in the light of the conclusions later in the decision. At paragraph 33 it is clear that the judge does accept that the appellant was questioned about possible LTTE sympathies and that it was plausible that "she was questioned because previously detained in 2008". The judge noted that in her witness statement the appellant related that the focus of the questioning appeared to have been in the activities in the UK in support of the LTTE which indeed she had never been involved in. The judge accepted that the past was relevant as to why she might be accused of LTTE activities in the UK.
14. It was open to the judge to find that as the appellant had not been involved in any activity in the UK that she would be not of interest to the appellant on that ground, but specifically the findings at paragraph 36 and 37, and to which I have referred to above, confirm that the judge concluded that the appellant did not leave Sri Lanka immediately after her release and proceeded about her business seeing her stepmother in hospital and departed on the date that she had originally planned. This pointed to the actual perceived risk or otherwise from past involvement. The judge did not accept on the evidence as a whole from the appellant but did take into account how the authorities might perceive the appellant from any past and current activity.
15. Ground 3 was that the judge erred in the finding at paragraph 38 with regard to the approach to the appellant's failure to claim asylum after her return to the UK in October 2013. The grounds refer to the judge's acceptance at paragraph 24 that "given the appellant had not told her husband specifically about the sexual abuse at the time", it was plausible for the appellant after her 2008 detention "to find another route out of Sri Lanka by applying for a student visa rather than just leaving and applying for asylum at that time". The judge was criticised on the basis that the judge had accepted that to be a plausible explanation for the appellant's actions following her escape from detention previously but did not accept her explanation for a later behaviour following 2013, and it was unreasonable for the judge then to proceed to find that the appellant's subsequent delay in making her claim for asylum damaged her credibility. The judge did not engage with the appellant's explanation for delaying. The Human Rights Watch Report, as Ms Walker submitted in the hearing before me, indicated the difficulties appellants had with sexual abuse and being able to relay those concerns to others.
16. I find this has no traction at all. At paragraph 24 the judge states that although the appellant had not told her husband about the sexual abuse, but she had told him about being arrested, and that conclusion further was couched in the observation that the appellant was seeking to find another route out of Sri Lanka. It did not refer to the appellant's removal from the UK. In this instance, and at paragraph 38, the judge found that the appellant claimed she was after the claimed 2013 detention "now faced (on her account) with the stark reality that she was still of interest particularly now that she had been in the UK and was now also accused of diaspora activities" and that "she knew her previous two periods of leave in the UK had been time limited and would have known that any entrepreneur application would also initially be time limited or in fact might not succeed". The situation was very different.
17. Moreover, the fact is that the appellant had related to her husband that she had been arrested previously. There was no indication that there was sexual abuse in the claimed five day detention and no reason given that, why the appellant, as the judge found, did not apply as an asylum seeker in June 2014 when her post-study visa expired but instead applied as an entrepreneur and not for asylum, albeit that she knew the consequences. This was not the appellant "trying to continue as normally as she could in her then situation" as the judge found at paragraph 25, and, whilst the appellant was in Sri Lanka, but, in a totally different context of the appellant being in the UK, and further, having already advised her husband that she had indeed been arrested.
18. In ground 4 the judge is criticised at paragraph 39 of the decision for attaching adverse weight to the fact that the appellant did not previously disclose at the time of her asylum interview that the authorities had been looking for her after her departure from Sri Lanka. It was submitted that the appellant did not specify when it was that she was told that the authorities were looking for her and thus should not be criticised for not mentioning it earlier.
19. I find there is no merit in this ground as the appellant states herself "since I have been back in the UK I have spoken with my cousin on the phone and she has told me that the authorities have been back to the house where I used to live". Not only does this refer to a timescale of "since" being back in the UK, which would indicate that the cousin has told her over a period of time, but it is for the appellant to prove her case and it was open to the judge to find that the appellant had not mentioned this in her interview statement or even in her asylum interview and only mentioning it at the time of seeing Dr Lawrence. The judge does not have to give reasons for reasons. Not only did the judge criticise the appellant for failing to produce this evidence earlier, but also criticised her for failing to produce evidence from anyone else that these visits were indeed made and certainly the cousin had not been contacted. The judge therefore rejected the claim of the visits on more than one ground.
20. I turn to the next ground criticising the judge's finding that because there were only 'several' visits made between 2013 and 2016 that indicated that the appellant was not really being of any "real interest" and the judge made an artificial distinction between the authorities wanting to make further enquiries and of being of real interest. It was contended that if there had been any visits by the authorities to the appellant's previous address, this was of itself enough to suggest the appellant was of sufficient adverse interest. The difficulty with this submission is that the judge had clearly found that he disbelieved the appellant on this ground at paragraph 39 and even therefore if there were a distinction to be made, it was not material.
21. The last ground was that the judge erred in findings on the credibility of the appellant's account of detention on her return in 2013 by failing to give any consideration to the contents of the expert psychiatric report as relevant to these aspects of the claim. Dr Lawrence's report was given weight in relation to the 2008 detention and the judge accepts the diagnosis of Dr Lawrence that she was clearly very afraid to return Sri Lanka.
22. The assessment of the psychiatric report is open to the Immigration Judge and the credibility findings are a matter for the judge. It is clear that the judge has given weight to the report of Dr Lawrence and the judge generously noted that whilst the appellant did not have a diagnosis of depression until October 2015, it was not always the case that people reacted immediately to traumatic events, [paragraph 22]. That said, the judge had given copious and ample reasoning for rejecting the account of the appellant that she was detained at length in 2013 and of interest to the Sri Lankan authorities for the reasons given by the judge at paragraphs 37 and 38.
23. The judge gave a series of findings, not least that the appellant returned three times to Sri Lanka since 2008, had effectively exaggerated any claimed detention in 2013 and indeed had failed to make a claim for asylum prior to the expiry of her post-study visa, albeit that she claimed at that time that she was fully aware that she was of interest to the Sri Lankan authorities following her claimed detention in October 2013 and that she had failed to make any mention of the visits since being back in the UK in October 2013. As pointed out by Mr Justice Ouseley (as he then was) in HE (Crediblity and Psychiatric Reports - DRC) 2004 UKIAT 00321, the part which a psychiatric report can play in assisting the assessment of crediblity is usually very limited? in any event and importantly the report is unlikely to have considered other causes for what has been observed or the possible diagnosis, if any, if the history is untrue'.
24. On an overall reading of this determination, and what is a critical finding by the judge, is that the appellant remained in Sri Lanka after her said detention for nearly two weeks while at the same time failing to report which is what was said to have been demanded of her. That behaviour is entirely inconsistent with being at risk. It was therefore open to the judge to place the weight on the report of Dr Lawrence that he did.
25. I find that there was no speculation by the judge in relation to this decision and it was a carefully and comprehensively reasoned decision accepting certain aspects of the appellant's claim but rejecting others and that the judge is open to do.
26. There is no material error of law in First-tier Tribunal Judge Rowlands decision and the decision shall stand.

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 her or any member of her 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 Signed 8th November 2016

Upper Tribunal Judge Rimington