Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01775/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated

On 6 July 2016

On 8August 2016

Before

UPPER TRIBUNAL JUDGE C J HANSON
DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

[A]
(ANONYMITY DIRECTION made)

Appellant
and

Secretary of State FOR THE Home Department

Respondent

Representation

For the Appellant: Ms K Tobin, Counsel instructed by A & P Solicitors
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

Anonymity

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) we make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

DECISION AND REASONS

1. The appellant is a citizen of Sri Lanka born on [ ] 1952 whose application for asylum or humanitarian protection was rejected by the respondent. His ensuing appeal to the First-tier Tribunal ("FtT") was dismissed by FtT Judge Robinson. The appellant now appeals against the decision of the FtT, which was promulgated on 9 May 2016.

Background

2. The basis of the appellant's asylum claim is that he is an astrologer and former journalist who has supported and campaigned for relatives of missing people in Sri Lanka.

3. His claimed career as a journalist comprised of working for the Sri Lankan Broadcasting Corporation between 1994 and 2011 and as a freelance correspondent for a newspaper from 2011 until 2013 when the newspaper was closed down by the Sri Lankan government. He claims that, as a journalist, he reported on cultural and spiritual matters as well as news about accidents and theft.

4. The appellant claims that he has been accused by the Sri Lankan authorities of collecting information, making false allegations and spreading false information about the Sri Lankan government and that, as a consequence, he received a court summons and arrest warrant in late 2014/early 2015. He further claims that since moving to the UK he has attended many pro Tamil separatist events, meetings and demonstrations.

5. As a result of these circumstances, the appellant claims there is a real risk that on return to Sri Lanka he would face serious harm due to his imputed political opinion as a perceived opponent of the Sri Lankan state.

6. In order to assess the appellant's claim, it is important to understand the chronology of events since his difficulties in Sri Lanka are said to have began. The relevant events, as claimed by the appellant in the account he has given, are as follows:

a. [In] 2014 the Sri Lankan government filed a case against him, although he was not aware of this at the time.

b. [In] 2014 the appellant applied for leave to enter the UK as a visitor and was granted a visa with leave to remain until 1 June 2015.

c. [In] 2014 the appellant travelled to the UK on his own passport.

d. [In] December 2014 a summons was issued against him ordering him to attend court [in] January 2015. It was received by his wife [in] December 2014.

e. [In] February 2015 he booked a ticket to return to Sri Lanka [in] March 2015. He claims that his reason for returning was to challenge the case being brought against him.

f. [In] February 2015 a further summons was received by the appellant's wife requiring his attendance at court on [In] 2015. As he did not attend a warrant was issued on that date for his arrest.

g. [In] March 2015 he returned to Sri Lanka using his own passport. After arriving in Sri Lanka he saw his lawyer who found out about the arrest warrant and advised that he should stay away from his home, which he did.

h. He returned to the UK [in] May 2015 with his wife. He used his own passport. He was assisted by an agent.

i. He claimed asylum shortly thereafter (his asylum interview was [in] May 2015).

7. The respondent refused the asylum claim. She did not accept the appellant's account of being wanted by the Sri Lankan authorities or that he would be at risk on return. The appellant submitted, in support of his application, several documents to corroborate his account, including a court summons and arrest warrant. The respondent attached little weight to them due to the widespread availability of fraudulent documents and inconsistencies in the appellant's account.

Decision of the First-tier Tribunal

8. The appellant appealed and his appeal was heard by FtT Judge Robinson. In a decision promulgated on 9 May 2016 Judge Robinson dismissed the appeal.

9. The judge did not find the appellant credible. Inter alia, he did not accept the appellant's claim to have been a journalist. One of the reasons given for this finding was that in the appellant's online application for a visa to enter the UK as a visitor, made prior to the asylum claim, no mention was made of working in the media even though there was a direct question on whether he had worked in certain fields, including media and government. The judge considered it significant that the appellant mentioned a job in municipal government that ended in 1985 but not the positions in the media he subsequently claimed to have had when applying for asylum. The judge also gave weight to the appellant's failure to submit evidence of articles he had written. The judge did not accept that he would have been unable, during his two months in Sri Lanka after returning in March 2015, to gather evidence of his work as a journalist and noted that he had managed to gather evidence to support other aspects of his claim.

10. The judge also did not accept there was an outstanding arrest warrant for the appellant. He did not find it credible that the appellant, having found out that two summonses had been issued accusing him of politically motivated crimes he did not commit, would voluntarily return to Sri Lanka. He also found it unlikely the appellant, who apparently had a lawyer in Sri Lanka, would return without first taking advice as to the risk he faced.

11. The judge considered the documentation adduced by the appellant to corroborate that he had been subject to an arrest warrant and summons but, after analysing the documents and taking into account evidence lodged by the respondent to establish the prevalence of fraudulent documents from Sri Lanka, placed little weight on them.

12. The judge considered whether the appellant fell into one of the risk categories identified in GJ and others (post civil war: returnees) Sri Lanka CG [2013] UKUT 319 and concluded that he did not. At paragraph [71] the judge stated:

Given that I did not accept that the appellant had been a journalist; I did not accept that there was a warrant out for his arrest; I did not accept that the appellant's profile was such that he had previously come to the attention of the authorities in Sri Lanka. I therefore did not accept that the appellant's background was such that his role would be perceived as being "significant" making him a target by the authorities.

Grounds of appeal and submissions of Ms Tobin

13. The appellant's application for permission to appeal lists 10 different grounds of appeal. Some are more arguable then others but permission was granted with respect to all of them.

14. The first two grounds concern the judge not accepting that the appellant was a journalist. The grounds contend that the judge failed to engage with the appellant's explanation as to his role as a journalist and his witness evidence as to his professional background. It is also submitted that the judge erred by attaching significance to the absence of documents to support the claim. A further contention made is that the judge improperly weighed against the appellant that one of his journalist ID documents was unclear and typed over when the original was held by the respondent.

15. Ms Tobin argued that the judge's errors in respect of the appellant being a journalist were critical as this goes to the heart of the claim. Ms Tobin considered it a factual inaccuracy for the judge to find insufficient evidence was submitted when three identification documents showing he was a journalist were provided. She was critical that the judge had questioned the veracity of these documents without acknowledging that the respondent held the originals.

16. Ms Tobin also argued that there was nothing in the respondent's refusal letter to alert the appellant that his claim to have been a journalist was being questioned and that he would need to adduce further evidence. She also stated that the judge erred by finding that no articles written by the appellant had been adduced when in fact one had. A copy of the article that had been submitted was shown to us along with a translation. The article concerns the murder of a child. No author is named and there is no mention of the appellant.

17. The third ground of appeal is that the judge erred by finding there was an inconsistency in the appellant saying he could not gather further information because he left Sri Lanka suddenly and his having remained in Sri Lanka for two months. The grounds claim that the judge's comment that, during this two month period, the appellant could have gathered evidence to support his claim, was a misapplication of the burden of proof. Ms Tobin, when elaborating on this ground, highlighted that the appellant's case was that he was in hiding for much of the time he was in Sri Lanka which would explain the difficulty in obtaining any further evidence.

18. The fourth ground of appeal concerns the judge making an adverse credibility finding because the appellant's wife failed to mention that the authorities visited their home on 15 December 2014. The grounds contend that the respondent had not raised this in the refusal letter or cross examination and it was "procedurally wrong" for the FtT to not put this point to the appellant. Ms Tobin submitted there had been a procedural irregularity because the appellant was not given an opportunity to respond to, and comment upon, a matter in respect of which the FtT attached significance.

19. The fifth ground of appeal is that the judge misapplied GJ by stating, incorrectly, that the case confirms that the appellant would be required to advise the authorities of his address in Sri Lanka. Ms Tobin also argued that the judge failed to take into account the finding in GJ that with it was possible to leave Sri Lanka with an agent (and by paying bribes) notwithstanding an outstanding arrest warrant.

20. The sixth ground of appeal is that the judge made a factual mistake in finding that asylum was claimed on 21 May 2016 (the date of the asylum interview) whereas it was claimed at an earlier date (although not at the airport). Ms Tobin did not pursue this ground.

21. The seventh and eighth grounds concern the weight given to the documents adduced by the appellant to substantiate that he was subject to an arrest warrant, including correspondence from a lawyer in Sri Lanka. It is argued that the judge's approach was irrational as he based his finding on minor typographical differences in documents. The grounds also argue that the judge failed to consider the evidence of the caseworker from the appellant's solicitors (who gave oral evidence) as to the provenance of the letter from the Sri Lankan lawyer. The grounds further contend that the respondent has not discharged the burden of proof which is on her when an allegation of forgery is made. Ms Tobin highlighted that small typographical differences are not uncommon in Sri Lanka and drew our attention to a document in the bundle illustrating this.

22. The ninth and tenth grounds concern the application of GJ and contend that the judge has misunderstood how the circumstances of the appellant meant he fell within the risk categories identified in that case. Specifically, it is argued that the appellant could still be at risk even in the absence of pro LTTE sur place activity and would be at risk because of providing information to bodies associated with bringing the authorities in Sri Lanka to justice.

Submissions of Mr Jarvis

23. Mr Jarvis argued that the issue in this case was not just whether the appellant was a journalist but what type of journalist. On the appellant's own account he was a journalist who dealt with local news stories as well as spiritual and cultural issues, not political issues where he criticised the government.

24. Mr Jarvis submitted that the judge was entitled to attach weight to the absence of documents supporting the appellant's claim to be a journalist. The single document that was put into evidence by the appellant (an article on a local matter) did not have any political content and in any event there was no indication in the article that the appellant was the author.

25. Mr Jarvis did not accept there had been a procedural irregularity arising from the judge not putting to the appellant that he attached significance to his wife not mentioning the visit by the authorities on 15 December 2014. The appellant was represented and it was for him to make his case. That this visit occurred was part of the appellant's case as it was in the evidence he submitted. Mr Jarvis argued that just because this issue had not been raised by the respondent at the hearing, or included in the refusal letter, it did not mean it was conceded. The role of the judge was to consider all of the live issues in dispute. One of the issues was the veracity of the appellant's claim to have been issued with a summons and the alleged visit on 15 December 2014 was relevant to this. Mr Jarvis argued that it was proper - indeed, the judge was obliged - to make findings on this even if he did not have the assistance of the parties in making submissions in respect of the matter in question.

26. Mr Jarvis argued that the appellant's submissions about the weight placed on the documentary evidence by the judge were misguided. There had been no assertion of forgery. The judge followed the well established principles as set out in Tanveer Ahmed [2002] UKAIT 004339 and had regard to PJ (Sri Lanka) [2014] EWCA Civ 1011. Mr Jarvis argued that no error of law could be said to arise from the approach taken by the judge, which was to consider the documents, including any inconsistencies, and, having regard to all of the circumstances, determine the weight to be attached to them.

Consideration

27. Having considered afresh the evidence that was before the FtT together with the submissions made by Ms Tobin and Mr Jarvis, we are satisfied that it was open the judge, for the reasons he gave, to find the appellant not credible and to reject his account of being a former journalist who was subject to an arrest warrant. Our reasons are as follows:

28. Firstly, not long before making his asylum claim, when applying to enter the UK as a visitor, the appellant failed to mention he had been a journalist. In his visa application the appellant was asked whether he had worked in particular areas including media and government. The appellant's answer mentioned a job in government held between 1973 and 1985 but did not refer to working as a journalist, despite the claimed period of work as a journalist (1994-2013) being far more recent and covering a longer period of time than his career as a government worker. This is a significant discrepancy and, notwithstanding the appellant's effort to explain it (he claims he thought he was being asked about current income sources and he has a pension from the government job) the judge was entitled to take it into consideration when weighing the evidence before him about the appellant's claimed career as a journalist.

29. Secondly, the appellant failed to provide any articles or examples of work (other than a single article about a child's murder that did not make any reference to him as being the author) to support his claim to be a journalist. According to his account, he had been working as a reporter/journalist for 19 years, up until the year before he travelled to the UK. It is apparent from his (and his wife's) evidence that they were advised to obtain documents to support the asylum claim before they left Sri Lanka. It was also part of the appellant's case that he had a lawyer in Colombo who had managed to obtain documents from the court file in respect of the arrest warrant and summons against him. In these circumstances, where the appellant had been a journalist until very recently and had available to him the assistance of a lawyer and his wife to access materials to support his claim, it was reasonable for the judge to expect to have seen documentary evidence in the form of articles written or contributed to by the appellant. The appellant did produce some documents - including an identity card -saying he was a journalist. The grounds argue the judge erred by discounting the identity card because it appeared typed over. However, reading the decision as a whole it is clear the judge has not disregarded the identity card because of its appearance; rather, he has explained why he would have expected to see other documents to support the claim to be a journalist. There was no error of law in taking into account, and attaching weight to, the absence of documents the judge reasonably expected to see. See ST (Corroboration - Kasolo) Ethiopia [2004] UKIAT 00119.

30. Thirdly, the appellant did not adequately explain how his claimed activities as a journalist (writing about spiritual and cultural issues as well as local crime and accidents) are connected to the authority's interest in him. The appellant's case is that as an astrologer he became involved with relatives of disappeared people. He did not claim that he campaigned for them as a journalist. Nor did he claim to have used his platform as a journalist to criticise the government in any other way. However, the documents he adduced in support of his claim make a clear link between his alleged activities and his role as a journalist. The translation of the summons issued on 15 December 2014 states: "You have act [sic] as a Journalist and as an Officer of Non Government Organisation and you have collected false information against the Government of Sri Lanka". The translation of the document headed "Informations [sic] to the Magistrate" describes the appellant as "appearing as a Journalist and a member of Non Government Organisation, engaged in conspiracy against the Government". Given the non-political nature of the appellant's journalism, it is difficult to reconcile the interest of the authorities with GJ, which makes clear that the focus of the authorities in Sri Lanka, who are said to have sophisticated intelligence apparatus, is on people who it fears will destabilise the country with the primary concern being the resurgence of the LTTE or any similar Tamil separatist organisation and the revival of the civil war. Nothing in the appellant's profile indicates he is, or why the authorities would perceive him to be, such a person.

31. Fourthly, the judge's approach to the documentary evidence was consistent with Tanveer Ahmed and PJ (Sri Lanka). The appellant relied on a number of documents to support his claim including, most significantly, court documents that were obtained through his lawyer in Sri Lanka. These state that he is wanted, inter alia, for conspiring against the government. His Sri Lankan lawyer was contacted by a caseworker at the appellant's solicitors, who asked for confirmation as to how the documents were obtained as well as a copy of his bar association membership card or practicing certificate. The Sri Lankan lawyer sent a letter explaining that the judge permitted the documents to be copied. He refused to send a copy of his bar membership and the appellant's solicitors were unable to obtain confirmation of his status from the Sri Lankan Bar Association as they did not have (and were not provided, despite requesting) the lawyer's full name.

32. The grounds argue that the judge erred by not recording or considering the evidence of the case worker who contacted the attorney in Sri Lanka. However, this is not the case and there is no merit to this challenge to the decision as at paragraph [28] the judge set out in detail the evidence of the caseworker. Moreover, it is apparent that the judge did not dispute the case worker's account of his contact with the Sri Lankan lawyer.

33. Following Tanveer Ahmed, the task for the judge, in considering the court documents adduced, was to ask himself whether they were documents upon which reliance should properly be placed, having regard to the evidence as a whole (and without viewing them in isolation). The judge gave several reasons for not placing reliance on the court documents. These included that there were some minor discrepancies and typographical mistakes in the letter from the lawyer; the lawyer was not prepared to send proof of credentials (or even information that would enable the credentials to be verified independently), and the evidence before the FtT, in the form of a letter dated 3 July 2015 from the British High Commission in Colombo, was that there is a significant problem of false documents being 'verified' by lawyers and of lawyers giving false credentials. We are satisfied that the approach taken by the judge, who has considered the documents in the context of the evidence as a whole, was consistent with Tanveer Ahmed.

34. Nor was there any inconsistency in the approach adopted by the judge with PJ (Sri Lanka). In that case the Court of Appeal found that in exceptional circumstances the Secretary of State should undertake an investigation of the veracity of documents. The judge considered whether this was such a case and found that because the key issue was not the documents but whether the appellant was a journalist it was not.

35. Fifthly, the decision was not rendered unsafe by any procedural error. The grounds argue that there was a procedural error because the judge made an adverse credibility finding (concerning the appellant's wife's failure to mention a visit by the authorities on 15 December 2014) that was not raised in the refusal letter or in cross examination without first putting it to the appellant.

36. The role of the judge in the FtT is not to elicit evidence from or "put evidence to" the appellant. Rather it is to consider the written and oral evidence, along with the submissions, put forward by both parties. All of the evidence, whether or not it is raised during the oral hearing, is part of the case and falls to be considered by the judge. In this case, although it was not raised at the hearing, the claimed visit by the Sri Lankan authorities on 15 December 2014 was evidence that was before the FtT as it is referred to in one of the court documents submitted by the appellant. As such, the judge was entitled to take this visit into consideration and there was no procedural requirement that he raise the matter with the appellant before doing so.

37. For the foregoing reasons, we are satisfied that it was open to the judge, on the evidence before him, and applying the lower standard of proof applicable in asylum claims, to not accept the appellant's claim to be a former journalist who is wanted by (and subject to an arrest warrant from) the Sri Lankan authorities for spreading allegedly false information and making false allegations. Having rejected the core of the appellant's account, the judge was entitled to dismiss his appeal. The judge has not made a material error of law and the decision of the FtT shall stand.

Decision

A. The appeal is dismissed.
B. The decision of the First-tier Tribunal does not contain a material error of law and shall stand.
C. An anonymity direction is made.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 5 August 2016