Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02206/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
Oral determination given following hearing
On 15 September 2016
On 7 July 2016

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

Nishantha [J]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms C Bayati, Counsel, instructed by Polpitiya & Co Solicitors
For the Respondent: Mr T Melvin, Home Office Presenting Officer

DECISION ON ERROR OF LAW
1. The appellant is a national of Sri Lanka who was born on 19 April 1975 and, having entered this country as a visitor and then as a student, he applied for asylum on 19 May 2015. The basis of his application was that he would face persecution and/or treatment which would be in breach of his Article 3 rights if returned to Sri Lanka because of his homosexual orientation. It is not necessary for the purposes of this decision to do more than summarise this claim. The application was considered by the respondent but was refused on 20 October 2015.
2. The appellant appealed against this decision and his appeal was heard before First-tier Tribunal Judge Moxon sitting at Hatton Cross on 15 February 2016. In a Decision and Reasons promulgated a week later, on 22 February 2016, Judge Moxon dismissed the appellant's appeal. The appellant now appeals against that decision with permission granted by First-tier Tribunal Judge Shimmin on 15 March 2016. Essentially although the grounds take issue with the judge's Article 8 findings the main challenge is to the dismissal of his asylum/Article 3 claim and in particular as to the credibility findings which the judge made and the basis upon which he made them. It is argued on behalf of the appellant both in the grounds and orally before me that essentially the judge's credibility findings were both unfair for the reasons which I will set out and also in some parts wrong.
3. The appellant makes four main points. The first is that the judge unfairly relied upon the appellant's failure to call corroborative evidence to support assertions within his case that had never been challenged previously by the respondent. In particular, at paragraph 34 of his determination the judge stated that "I do not accept that the appellant is well-known within Sri Lanka as any type of media personality" and in this regard he noted "a lack of supportive evidence, such as newspaper articles, which would have been plenty if this account was correct". Ms Bayati points out correctly that the respondent had in the refusal letter at page 8 specifically accepted the appellant's sexuality and had not made any challenge to the assertion that the appellant was a well-known media personality within Sri Lanka. It is also right to say that the appellant had referred at questions 32, 33 and 57 of his asylum interview to his activities in media within Sri Lanka and this again was not challenged.
4. At question 32 in answer to being asked whether he had worked in Sri Lanka the appellant had said "yes, I worked in Media Ministry and ABC radio network". In answer to question 33 he had said that sometimes he had done newsreading and he was also head of retail marketing, designing programmes and marketing. He had also written speeches for ministers. Then, in answer to question 57 he had said when asked what kind of life he could have as a gay person he had answered that "because of my work, I worked in public media, I was in fear because people know who I am". He added that "if they found out about my sexuality as gay, they would write in the newspaper, and this is a disgrace for me and my family and especially will affect my children's future, this is my main worry and concern". He also added that it would be "detrimental to my family in general".
5. It is said on behalf of the appellant that it was not clear from the decision whether the judge had even accepted that he worked in the media and certainly there was no reference within the determination to the fact that at his screening interview he had produced a media card confirming that he had. That is apparent at question 1.17 of the screening interview where it is set out that he had produced a media card.
6. It is said in summary that the judge's rejection of that part of the appellant's account which was not in issue was unreasonable, particularly the suggestion that the appellant had not produced evidence as claimed.
7. The second plank of the appellant's submissions, which is contained from paragraph 6 of the grounds, is that the judge had no reason, or no good reason for rejecting the appellant's claim that his colleagues had become suspicious of his sexuality. It would appear from the determination that this was a finding made because of the adverse credibility finding in general but no further reasons had been given for this. If the judge's credibility findings are tainted, it is suggested, then that whole decision is tainted with regard to his colleagues' suspicions.
8. The third plank of the grounds relates to the judge's findings with regard to inconsistencies, or alleged inconsistencies in relation to the evidence. At paragraph 33 of his decision the judge states as follows:
"I have heard inconsistent evidence as to whether [the appellant's wife] currently works in Sri Lanka. I have heard evidence from Mr Fonville [a previous partner of the appellant] that the appellant sends his wife money which is not a fact disclosed by the appellant himself".
In fact, this is incorrect because in answer to question 66 of his asylum interview the appellant had stated as follows: "She is working as an interior designer, set up her own business, managing [something ?]. When I was working, I helped financially. Now my current partner who is living with me sends money once a month to the children".
So it is not correct to say that this fact had not been disclosed by the appellant himself.
9. Also at paragraph 33 the judge states that no explanation had been provided as to how his wife had discovered his sexuality or why she would seek to inform others of it, and he goes on to say:
"The appellant states that the people she has told include people in the United Kingdom yet I have had not written or oral evidence from these people to support his account. I find these omissions to be damaging to the appellant's credibility".
10. At the time of his interview, as Ms Bayati pointed out to the Tribunal, the appellant's case was that his wife did not know of his sexuality but he explains in his statement how this changed. At paragraph 43 he says that "over the last few months my wife has had an idea that I am living with a man (and has implied we are having a sexual relationship)". He then goes on to say that:
"During this time she has informed all my close friends and family in both Sri Lanka and the UK, including my ex-colleagues in the media. Her parents, brothers and sisters are constantly verbally abusing me on the phone and mentally harassing me."
11. At paragraph 50 of his statement he says that he can only speculate how his wife had come to know he was gay but adds that: "I have since had phone calls from friends in both London and Sri Lanka who are asking me whether it is true that I am a homosexual as they heard it from my wife. It seems that she has told everybody I know."
12. The way in which the appellant's case in this regard is put in the grounds is [and this is at paragraph 7 of the grounds]:
"It is submitted that since it was the applicant's case that she [the appellant's wife] had informed some in the United Kingdom, who had told the applicant and as a result wanted nothing to do with him, it is highly unlikely that they would then give evidence on his behalf"
and that "such expectation is wholly unreasonable in the circumstances". In fact, the appellant's evidence is not quite in terms that these people had told him that they no longer wanted anything to do with him. However, it is certainly not unreasonable to infer from the statement that the friends were asking whether it was true that he was a homosexual as they had heard it from his wife that one reasonable interpretation from that is that they were very disapproving. It is submitted on behalf of the appellant that in those circumstances it is simply unfair to hold it against the appellant, as the judge appears to have done, that he could not call corroborative evidence from these people.
13. The fourth point made within the grounds and repeated later relates to the Article 8 claim, but it is not necessary for the purposes of this decision for me to deal with this aspect of the claim.
14. On behalf of the respondent Mr Melvin's main argument was that what Ms Bayati was in effect doing on behalf of the appellant was, as he put it, to make an "unmeritorious forensic attack" on the judgment which does not have materiality to this appeal. He submitted that the respondent by not making a forensic attack on every aspect of the appellant's case could not reasonably be taken to accept all the facts asserted and that it was for the appellant to make out a case for those aspects on which he placed reliance. Mr Melvin referred to the well-known decision to this effect in TK (Burundi).
15. So far as whether or not the appellant was a well-known media personality, this was irrelevant to the core issue which is whether or not the appellant would be at risk on return. There was nothing to suggest that he had suffered any persecution previously in Sri Lanka on account of his bisexuality and he certainly appeared to have had many affairs with men which were at a time when he was raising a family with his wife. There was nothing to show any past persecution such as would indicate he would be at risk of persecution if he returned to Sri Lanka.
16. So far as colleagues talking or whispering about him, this would not in any event be persecution as such. Just because the judge was concerned about his lack of a media personality was not in fact material to the core of his claim which was whether he could return safely.
17. With regard to inconsistencies in the evidence, which finding had been challenged, Mr Melvin suggested that this could not possibly be material to the outcome. The country guidance decision in LH and IP was explicit in showing that there was little evidence that gay men were persecuted in Sri Lanka. The findings of fact in that case were not under challenge. Mr Melvin did accept that that case did not indicate that every gay man was safe in Sri Lanka but emphasised the fact that there was no evidence in this case to show that anyone would persecute the appellant if he returned. So even if this Tribunal was to find that some of the credibility findings made against the appellant were not justified this would not be relevant to the core findings which were set out from paragraph 38 of the decision onwards. Mr Melvin then made submissions with regard to Article 8 but for the reasons which follow it is not necessary for me to deal with this aspect of the claim.
18. There was various discussion also as to the relevance of the leading case of HJ (Iran) in which the Supreme Court had set out the approach to be taken where gay people were returned in circumstances where they would intend to live discreetly.
Discussion
19. In my judgment, although this is a finely balanced case Ms Bayati's complaint as to the manner in which the judge approached his task of making credibility findings is made out. I consider that the judge's approach was flawed as argued. Although the respondent is not obliged to challenge specifically every aspect of a claim and a failure so to challenge does not amount to a concession that what has not been specifically challenged is accepted, nonetheless it is not in my judgment reasonable to rely upon a failure to call evidence to support a part of a case which has not been challenged and which might not even be central to the claim as evidence of adverse credibility.
20. It is not at all surprising that the appellant did not call evidence at the hearing to back up his statement that he was well-known as a media personality within Sri Lanka because he had no realistic expectation that this would be challenged. Indeed, having looked at the Record of Proceedings it does not even appear to have been challenged in cross-examination. If the point had been taken by the judge during the hearing it would have been open to the appellant either to have asked for an adjournment in order to enable him to deal with this point or at the very least to be able to submit further written submissions following the hearing. In the absence of such opportunity I do not consider that the judge could properly rely on the absence of such corroboration as a material fact in this case.
21. Nor do I consider that the judge was entitled to find against the appellant on the basis that he had not given evidence himself as to the support he was providing to his wife. This, as I have already noted, was simply wrong because the appellant had in his interview stated this fact. Also, although the appellant did not state in terms that his former friends in the UK whom according to him his wife had contacted had broken off all relations with him that is at the very least a reasonable influence from his statement and in those circumstances it is not a rational conclusion from his failure to call these people to give evidence that his evidence on this point cannot be believed.
22. Accordingly I must now consider whether, having found that the credibility findings are tainted, the errors in this regard can properly be said to be material to the decision overall in the sense that but for the errors a judge might have reached a different conclusion. In my judgment I cannot rule out the possibility that had the judge approached the evidence properly his conclusion might have been different.
23. I have regard in particular to the finding, which is the core finding in this case, at paragraph 41 which is as follows:
"41. I note that despite his marriage the appellant has been able to undertake various homosexual relationships within Sri Lanka. He has not disclosed any adverse consequences at the hands of the general public or the authorities save for the evidence about his colleagues and employer which, for the reasons outlined above, I have rejected. I do not accept that the appellant is a well-known media figure. I am satisfied that he could safely live as an openly homosexual male in Colombo".
24. The finding that the appellant could safely live as an openly homosexual male in Colombo is, it would therefore appear, predicated in part at least on the rejection of the appellant's claim regarding how his colleagues and employer had reacted and also the rejection of his claim that he was a well-known media figure. Although the country guidance decision in LH and IP had found that generally homosexual males within Sri Lanka were not persecuted, it is not the case that that decision is authority for the proposition that every homosexual within Sri Lanka will be safe. Although the appellant may ultimately find it difficult to establish that he personally would be at risk on return, that is a matter which can only be determined following a proper assessment of all the facts and in light of my finding that in this case the judge did not fairly assess all the facts that assessment has not yet properly been carried out.
25. As the adverse credibility findings must be set aside it is clear that the entire decision will have to be remade and that none of Judge Moxon's findings can be retained. Accordingly and in light of the practice guidance which has been given it is appropriate for this appeal now to be remitted back to the First-tier Tribunal for rehearing afresh by any judge other than Judge Moxon.
26. It follows that this decision must be set aside and remade and I shall so decide.
Decision
The decision of the First-tier Tribunal dismissing the appellant's appeal is set aside.
The appeal will be remitted to the First-tier Tribunal sitting at Hatton Cross for rehearing by any judge other than Judge Moxon.
No anonymity direction is made.

Signed:

Upper Tribunal Judge Craig Date: 29 July 2016