Tribunal decisions

The decision

IAC-AH-SAR-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02676/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24th February 2017
On 3rd March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

Mr Rifaz Atham Ali Abdul Hameed
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Jafar, Counsel, instructed by Liyon Legal Ltd
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND DIRECTIONS
1. The Appellant is a citizen of Sri Lanka born on 3rd May 1985. The Appellant applied for asylum claiming that he has a fear if returned to Sri Lanka that he would face mistreatment due to his imputed political opinion, namely that the government believes that he supplied the Liberation Tigers of Tamil Eelam (LTTE) with mobile phones and electronics and now they are looking for him and wish to kill him. That application was refused by the Secretary of State by Notice of Refusal dated 3rd March 2016.
2. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Nolan sitting at Taylor House on 15th August 2016. In a Decision and Reasons dated 13th September 2016 the Appellant’s appeal was dismissed on all grounds.
3. On 23rd September 2016 the Appellant lodged Grounds of Appeal for permission to appeal to the Upper Tribunal. The grounds make the following points:-
(i) That the decision is contrary to background evidence and case law.
(ii) That the judge failed to properly consider the medical evidence in that she put herself in the position of an expert and questioned the medical evidence.
(iii) That the judge has failed to give due and proper consideration to documentary evidence that was provided.
(iv) That the judge failed to make findings on important aspects of the Appellant’s claim, in particular that the Appellant’s claim that his brother-in-law had been running the business and supplied goods to the LTTE and that his brother-in-law went missing on the same day that the Appellant was arrested and is still missing.
(v) That the delay in claiming asylum was not properly considered by the First-tier Tribunal Judge when making findings that the Appellant had no other possible claim for further leave to remain in the UK.
(vi) That the judge erred in law by making findings on her own assumptions.
4. On 15th December 2016 First-tier Tribunal Judge Ransley granted permission to appeal. Judge Ransley basically recites the Grounds of Appeal when granting such permission.
5. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by his instructed Counsel, Mr Jafar. The Secretary of State appears by her Home Office Presenting Officer, Mr Bramble.
Submissions/Discussions
6. Mr Jafar relies on the Grounds of Appeal as his starting point. Both he and the Tribunal are gratefully assisted by the approach adopted by Mr Bramble in this matter. Mr Bramble concedes that two of the grounds, namely Grounds 1 and 3, have merit. He takes me, and Mr Jafar is happy to be led on this matter, to the First-tier Tribunal Judge’s decision. At paragraph 43 the judge therein states:-
“I did not accept as credible that he had remained in Sri Lanka for some time following the alleged dealings with the LTTE without any problem, was able to leave Sri Lanka quite freely in 2009 through the airport using his own passport, and still be of interest to the authorities when he made a visit home during the Easter break in 2013.”
It is accepted by Mr Bramble that in those circumstances there is a failure to apply the guidance of GJ and others and by adopting such a wholesale approach the judge has fallen into error when grappling with the arrest warrant. That issue is addressed at paragraph 47.
7. When looked at the medical evidence Mr Bramble acknowledges that the judge has misinterpreted the evidence at paragraph 43 and that it could have been looked at differently. He would not argue against the decision being set aside and remitted on the basis that those two grounds alone contain material errors of law.
8. Mr Jafar points out that if the errors are material then they must have affected the judge’s credibility findings and that the Appellant’s injuries are accepted at paragraph 45 of the decision and he contends that having made such an acceptance the judge falls into error by rejecting the Appellant’s account of his detention in 2013 and, more importantly, rejecting the Appellant’s claim that his injuries were caused during his detention. It is his argument and submission that if there is an error to the extent that it is disclosed and agreed then in fact all paragraphs are arguable and that the correct approach is to remit the matter back to the First-tier Tribunal for rehearing with none of the findings of fact to stand.
The Law
9. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
10. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge’s factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge’s assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings
11. The Tribunal is greatly assisted in this matter by the approach adopted by the Secretary of State’s representative. The first ground contends that the judge’s finding that the Appellant would not have been able to leave Sri Lanka through the airport using his own passport without being stopped if there was an outstanding arrest warrant against him is contrary to the court document showing that the arrest was issued after the Appellant had left Sri Lanka. There would seem to be merit in that argument and a failure to properly apply the case law as set out in GJ. In such circumstances I find that the approach adopted by the Tribunal falls into error when considering the position of the arrest warrant at paragraph 47.
12. Further, it is fair to say that the judge may well have erred in putting herself in the position of an expert and questioning the medical evidence and in making findings that are not necessarily consistent with those of the medical evidence. At paragraph 45 the judge accepts that the Appellant has the injuries described in Dr Mason’s report and that it is reasonably likely that those injuries were deliberately inflicted upon him rather than being self-inflicted by proxy. I acknowledge that the judge does not, however, accept that those injuries were inflicted for the reasons given by the Appellant but the fact remains that they were inflicted. To make such a finding cannot be consistent with the final sentence of paragraph 45, which rejects the claim that the injuries were caused during detention and that the judge’s credibility finding based on her analysis of the case has to be one that based upon the analysis of the medical evidence it is improper for her to conclude.
13. Turning briefly to the other paragraphs, the fact remains that it is argued and appears from the Grounds of Appeal and consideration of the judgment that the judge has not mentioned the issue regarding the Appellant’s brother-in-law and that may well have an effect on her findings on credibility. In reaching that decision I acknowledge that it is not necessary for every factor in a case to be mentioned by a judge in a decision.
14. The overall position therefore is that there are the above material errors of law in the decision of the First-tier Tribunal Judge. They affect the credibility findings and the correct approach is to set aside the decision and to remit the matter back to the First-tier Tribunal for rehearing with none of the findings of fact to stand. I emphasise, however, to the Appellant that I am only today addressing the issues of whether there are material errors of law in the decision of the First-tier Tribunal Judge. That is not to pre-judge that a differently constituted Tribunal would ultimately come to a different decision to that of the original First-tier Tribunal Judge.

Decision and Directions

The decision of the First-tier Tribunal contains a material error of law and is set aside. The following directions are given for the rehearing of this matter:
(1) On the finding that there is a material error of law the decision of the First-tier Tribunal is set aside with none of the findings of fact to stand.
(2) The appeal is remitted to the First-tier Tribunal sitting at Taylor House to be heard on the first available date 28 days hence before any judge other than Immigration Judge Nolan with an ELH of three hours.
(3) That there be leave to either party to file at the Tribunal and/or serve on the other party an up-to-date bundle of objective and/or subjective evidence upon which they seek to rely at least seven days prior to the restored hearing.
(4) That a Tamil interpreter do attend the restored hearing.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application was made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris