Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02814/2016
PA/02818/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
Heard on 5th January 2017
on 25th January 2017
Prepared on 18th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

Between

MRS WETHTHANGE SUGATHADASA - FIRST APPELLANT
MR AYUJIHWA KANDAMBY - SECOND APPELLANT
(Anonymity orders not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr J Martin of counsel
For the Respondent: Mr S Whitworth, Home Office Presenting Officer

DECISION AND REASONS

The Appellants

1. The Appellants are both citizens of Sri Lanka and are wife and husband respectively. The first Appellant was born on 5th of October 1984 and the 2nd Appellant was born on 26th of August 1980. They appeal against a decision of Judge of the First-tier Tribunal Wylie sitting at Hatton Cross on 2 September 2016 in which she dismissed the Appellant's appeals against decisions of the Respondent dated 10th of March 2016. Those decisions were to refuse the first Appellant asylum in the United Kingdom with the 2nd Appellant as her dependent. For the sake of convenience I will refer to the first Appellant as the Appellant and the 2nd Appellant as the Appellant's husband.

2. The Appellants entered the United Kingdom on 10 February 2012 when the Appellant had a Tier 4 (General) Student Visa valid until 30th of March 2014. In March 2014 they were granted further leave to remain as a student and dependent respectively until 5th of January 2016. They returned to Sri Lanka on 23rd of May 2014 returning to the United Kingdom one month later on 25th of June 2014. The Appellant's college had its certificate revoked as a result of which on 9 December 2014 the Respondent curtailed the Appellant's leave to expire on 13 February 2015. On that date the Appellant submitted an application for leave to remain under Article 8 but this was refused on 13th of May 2015 with no in country right of appeal. On 29th of July 2015 the Appellant made an appointment to claim asylum and on 6th of August 2015 she formally made her claim for asylum. It was the refusal of that claim by the Respondent on 10th of March 2016 that led to these proceedings.

The Appellant's Case

3. The Appellant's case was summarised by the Judge at paragraphs 8 to 18 of the determination. The Appellant graduated with a degree in Mass Communications from the University in Sri Lanka in 2008. She went to work for Lanka E News (LEN), a news website in September 2008 as a trainee journalist. There were 3 news editors, a business editor, 3 or 4 reporters of varying experience and 3 typists. LEN sometimes published articles critical of the government. During the time the Appellant worked there about 5 or 6 particularly contentious stories were published. One story related to the deaths supposedly of 36 soldiers in a firefight in November 2008 but in all probability far more. The government had minimised the number of soldiers killed but an investigation published by LEN in which the Appellant had participated stated that 3 army trucks had been seen at a funeral parlour with over 100 bodies inside. The authorities arrested the Appellant on 9th of January 2009 and questioned her about where LEN had obtained its information. The Appellant was detained for 3 days and released after a friend of her father, a police officer, intervened and arranged for the Appellant to be bailed and given reporting conditions.

4. The Appellant was required to report weekly every Monday and continued to do so until she left the country in February 2012. A few weeks after leaving Sri Lanka the police came to her parents' home making enquiries about her. She did not tell anyone at LEN about the detention. She left LEN in 2010 because she was getting married. She married her husband on 25th of April 2011 and went to live at his family home. She applied for other jobs but was unable to find them as a journalist or as a lecturer because LEN was blacklisted and her experience there was not considered valid. The LEN offices were set on fire in January 2011 and an editor was arrested in March 2011. The LEN website was closed by court order in April 2011. The Appellant claimed that others who had written or worked for LEN moved abroad or were arrested. The Appellant decided to change her career and retrain. She obtained a Master's degree in International Human Resource Management from the University of Bedfordshire in November 2013. She began to study for a diploma in Strategic Direction and Leadership at Bradford Regional College on 5th of March 2014. On 23rd of May 2014 she and her husband travelled to Sri Lanka. She was detained at the airport and held in custody for 10 days and was then taken to court. The family arranged a lawyer and she was released on bail and ordered to report. She did so until she left Sri Lanka on 25 June 2014 on her existing return air ticket. Her husband arranged a friend to pay a bribe to airport officials to enable her to leave the country.

5. After returning to the United Kingdom the licence of Bradford Regional College was revoked and the Appellant's leave to remain was curtailed. She was unable to find another course in another college. She consulted a solicitor who said that if she claimed asylum she could not continue studying but as she was pregnant she could apply for leave to remain on that basis. She then made an application for leave to remain under Article 8 but that was refused.

6. In support of her eventual asylum application she contacted a number of persons who had known her as a student. She produced a copy of her press card identifying her as a trainee journalist with LEN and a letter from an attorney in Colombo. Printouts of web news reports regarding LEN were also provided. At the substantive asylum interview the Appellant said she had tried to find articles she had written for LEN but had been unable to find them online. All the paper archives had been destroyed in the January 2011 fire. She produced a media accreditation card issued by LEN which the Judge noted was different in style from media accreditation cards issued by the Sri Lankan government.

7. The Appellant also produced a letter from her University lecturer that the Appellant began to work as a trainee journalist with LEN in September 2008. LEN was a popular web news station and the Appellant was placed with the company for work experience. The Judge was satisfied from background information (contained on the BBC website) that LEN had been critical of the government and its offices were burned down in January 2011 with the arrest of a news editor and that the web site of LEN was suspended.

8. Thereafter the Judge indicated that she did not accept the remainder of the Appellant's account. It was surprising that the Appellant had not spoken to a particular individual who appeared to be her journalist mentor about the January 2009 detention. The Appellant's father had not mentioned in his supporting evidence that the Appellant had onerous reporting conditions for three years and neither had the Appellant's husband despite the reporting conditions continuing for two years after the couple had met. The Appellant had changed her address in May 2011 when she went to live with her husband. The Judge did not accept it was credible that the Appellant would continue to report at a considerable distance from her home when she had left her employment as a journalist (or that her husband would not have mentioned the inconvenience this must have meant). Despite being on bail with reporting conditions the Appellant had been able to obtain a passport and visa and leave the country without any problems.

9. As she was married it was not credible that the police would go to her father's address looking for her rather than to her own address. It was reasonable to expect that the Appellant would have changed her address as part of her bail conditions. The Appellant did not leave Sri Lanka because of any ongoing mistreatment but rather because she wanted to follow a new career but could not obtain employment in Sri Lanka.

10. The Judge did not accept the account of the second arrest as credible either. The Appellant claimed she was detained at the airport on return to Sri Lanka in May 2014. Although the Appellant said she was taken to court she did not know if she was charged with any offence. Even if she were too stressed after detention to know that, her father and husband who had it was said instructed a lawyer would have found out what charges there were. If she were bailed with a substantial surety, there would be documents showing the bail order or at least the forfeit of the money but no such documents had been produced. The lawyer who had acted for her was apparently deceased and evidence was produced from a surviving colleague. In a letter produced to the First-tier he did not say how he would know anything about the Appellant's case. He did not comment on the charges on which she was brought to court and added that it would do no good to visit the court records room as he would not be able to obtain official copies of the court record due to restrictions in terrorism -related cases.

11. The Judge was not impressed by this mention of terrorism since the criticisms of the political establishment made by LEN were of corruption rather than indicating support of terrorism. In any event if the court documents could only be given on personal application there was no reason why the Appellant's father could not obtain them. There were inconsistencies between what the Appellant her husband and the Appellant's father said were the reporting conditions of the Appellant's father. The Judge expressed concerns at paragraph 60 of her determination between the letters produced by the Appellant about her involvement in journalism. The Judge also noted the delay of the Appellant in making her claim for asylum which had only been made after she had been refused leave to remain under Article 8. The explanation that she had been advised not to claim asylum as she wished to continue her studies was rejected by the Judge because the Appellant's application to three universities had been rejected before she made the Article 8 application. She had no realistic prospects of continuing her studies at the time of that application. In short the Appellants were not witnesses of truth. Although the Appellant had worked as a trainee journalist in Sri Lanka from September 2008 she had not worked as a journalist since at the very latest December 2010.

12. The Judge directed herself in accordance with the country guidance case of GJ [2013] UKUT 00319. The Appellant had not been engaged in any diaspora activities and had not been involved with LEN for 6 years. There was no reliable evidence that there was any arrest warrant or court order against her or that she would be on a stop list. She did not fall within the groups referred to at paragraph 7(b) or (d) of the headnote to GJ. She was not entitled to a grant of asylum and the appeals were dismissed.

The Onward Appeal

13. The Appellant appealed against the Judge's decision in grounds settled by counsel who had represented the Appellant at first instance and who also appeared before me. The first ground was that once the Judge had found the Appellant had been a journalist, on that basis alone the appeal should have been allowed. The Appellant fell within the risk category identified at paragraph 356 (b) of GJ that is: "journalists (whether in print or other media) or human rights activists, who in either case, have criticised the Sri Lankan government, in particular its human rights record or who are associated with publications critical of the Sri Lankan government". The definition of criticism was not limited to criticism of the Sri Lankan government's human rights record. The Appellant had been associated with a publication critical of the Sri Lankan government. The fact that the criticism was mainly directed at corruption and the Appellant had left 6 years before did not take the Appellant outside that category. Diaspora activity was not a pre-requisite. The Respondent had accepted there was a risk to journalists and there was nothing in GJ which limited the risk to those currently working for the publication.

14. The 2nd ground was that the Judge had applied the wrong test to establish whether the Appellant was at risk of persecution referring to the fact that she, the Judge, did not accept that the Appellant was a person of "high risk of persecution". This undermined the Judge's adverse conclusions. Further the Judge had erred in some of her credibility findings for example that the Appellant's reporting condition did not last until the Appellant came to the United Kingdom. The Appellant's husband had not been asked in cross-examination about how long the Appellant's reporting conditions had gone on for. He had said in his witness statement he believed his wife's account was true. He was thus adopting her account. There was no evidence that people on reporting conditions were unable to obtain a passport or that the issuing authorities would enquire whether someone was reporting. A reporting condition was insufficient to prevent departure, what was needed was a warrant or a passport impeded by a court.

15. At paragraph 55 of the determination the Judge had rejected the 2014 (second) detention because the Appellant did not know what the charges were against her and had not discovered them from her father husband or lawyer. Pre-charge detention was permitted and if that was the case here it was more than likely that there would be no charge. I pause to note here that argument in the grounds misses the point being made by the Judge. It was not so much that the Appellant did not know whether she was charged or not but rather that other persons were in a position to know whether she was charged or not but had not said or made that clear. The grounds continued that given the anti-terrorism powers which the Sri Lankan authorities had it was credible that the Appellant would have been detained under those anti-terrorism powers. The point made by the Judge that the criticisms of the political establishment made by LEN were of corruption rather than a support of terrorism fell away.

16. The application for permission to appeal came on the papers before Designated Judge Murray on 3 November 2016. In refusing permission to appeal the Designated Judge noted that Judge Wylie had not believed the Appellant's account and there was no error when the Judge had said that the Appellant could not have obtained a passport and Visa if she was reporting. The Judge had referred to inconsistencies in the evidence and although she had referred to a high risk of persecution she had made it clear at paragraph 64 of the determination that she was not satisfied on the lower standard of proof that the Appellant had suffered detention in Sri Lanka when she returned there in 2014. The appeal had failed because of a lack of credibility which had been adequately explained by the Judge.

17. The Appellant renewed her application for permission to appeal to the Upper Tribunal on similar grounds to the application to the First-tier. The renewed application came on the papers before Upper Tribunal Judge Rimington on 1 December 2016. In granting permission to appeal she found it arguable that Judge Wylie had erred with regard to the credibility findings as to reporting and/or the May 2014 detention bearing in mind that the Respondent had accepted that the reporting condition was not enough to prevent departure and that pre-charge detention was permitted under the Prevention of Terrorism Act. The Judge's findings that: (i) the Appellant had been a trainee journalist for LEN which had been critical of the Sri Lanka government; (ii) was detained in 2009 and (iii) that she had previously been on reporting restrictions did not sit well with the finding at paragraph 68 of the determination that the Appellant did not fall under the group referred to in paragraph 7(b) of GJ that journalists were persons at risk. All grounds were arguable.

18. I pause to note here that there appears to be an error in the grant by the Upper Tribunal of permission to appeal since although it is the case that the Judge accepted at paragraph 47 of the determination that the Appellant had begun work as a trainee journalist with LEN in September 2008, she had not accepted that the Appellant had been detained in January 2009 and nor did she accept the Appellant's claim to be under reporting conditions from about May 2009 until she left Sri Lanka in February 2012, see the first sentence of paragraph 52 of the determination.

19. The Respondent replied to the grant of permission by letter dated 16th of December 2016 in which she said that the First-tier had directed itself appropriately. Paragraph 3 of the Respondent's letter noted that the Appellant's claimed detention in 2009 and reporting restrictions had been rejected by the Judge as incredible. There was a complete lack of evidence to demonstrate that the authorities had any interest in the Appellant. Although the Appellant had been accepted as working with LEN some 6 years ago the Appellant could not produce any copies of her work and articles were not said to have been published under her name. She had not been involved in any degree of media print for a significant number of years and her account of having been apprehended by the authorities in 2014 when she returned was rejected. GJ had been applied correctly. The Appellant could not demonstrate that she had in any regard criticised the government of Sri Lanka. Since the new Sri Lankan government came into office in January 2015 there has been a change in the ability of media professionals to express themselves. The onus was on the Appellant to demonstrate that she would be at real risk on return from the current rather than the previous government. Her involvement with LEN was an historical engagement. The Tribunal was entitled to conclude that at the date of hearing the Appellant had not discharged the burden of proof upon her.

The Hearing Before Me

20. Counsel sought to make two points. Firstly, it was accepted that the Appellant had worked LEN which had been critical of the government. LEN had been targeted by the authorities. The Appellant was therefore in the risk category identified in GJ of journalists or human rights activists. What had been said in the determination about the first detention of the Appellant was plainly not an adverse finding by the Judge. The Appellant was required to report which indicated that there had been a detention. That evidence was important because it showed that the Appellant worked for LEN. That the Appellant had stopped working for LEN was not decisive because she had worked LEN for 2 years. She still had information about which she could be asked for example who had provided stories to LEN. GJ did not limit in time when the journalism was said to have taken place. There had to be evidence that the journalists concerned were critical or associated with a journal that was critters critical. It would not be sufficient if for example the Appellant had worked for a balanced publication but it had to be one which in the eyes of the Sri Lankan government criticised the government. LEN had been critical and its website had been suspended. That put LEN into that category.

21. The second point was a criticism of the Judge's rejection of the (second) detention in 2014. It was not a fair point to take against the Appellant that her husband had not mentioned reporting conditions. His was a short statement but he knew what was in the Appellant's witness statement. That the Appellant had been able to obtain a visa to travel to the United Kingdom had nothing to do with whether the Appellant was or was not on reporting conditions. The Judge criticised the Appellant's lack of knowledge of what the charges were following the 2014 detention but the Appellant had produced a letter from a lawyer in Sri Lanka. Counsel accepted that court documents obtained by local lawyers were often put forward in Sri Lankan asylum cases although that argument was not a point taken against the letter by the Respondent in the First-tier. I queried with counsel that if the Judge had been right to reject the second detention as incredible would that not show that the Appellant was of no further interest to the authorities. Counsel replied that the Appellant did not have to show a certainty that she would be detained if returned now to Sri Lanka. That she had "got away with it" this time did not mean that she would always get away with it in the future.

22. For the Respondent reliance was placed on the rule 24 response. There was no acceptance by the Judge of the 2009 detention. GJ did not mean that any journalist could succeed in an asylum claim it had to mean that someone had to be critical of the regime. One had to look at the facts in the case as it was 5 years since LEN was closed down and the Appellant had returned to Sri Lanka without any adverse attention from the authorities. That meant she would be at no risk of persecution upon return in the future. The Judge had given more reasons for rejecting the Appellant's credibility than the grounds of onward appeal had said she did. One had to look at the Appellant's immigration history. The Appellant had belatedly made a claim for asylum. The Judge had taken that into account. It was not clear what had been put to the Appellant's husband in cross examination about the Appellant's reporting conditions in the absence of a record of proceedings.

23. In response counsel argued that whilst there were other reasons for the Judge's rejection of the Appellant's credibility including reasons under section 8 of the 2004 Act, one could not be sure that the same adverse conclusion would be reached if some of the supporting strands on which those conclusions were reached were removed. The risk category in GJ was couched in the terms that it was, if you were associated with a critical publication you were at risk. Similarly, there was a risk if one came back from United Kingdom which brought the Appellant within that category.

Findings

24. The Judge at some length and in some detail set out her adverse findings on credibility. The key point made by the Appellant is that it was accepted she was associated with a news organisation critical of the Sri Lankan government. Others, it was well established, had suffered for their involvement and therefore the Appellant following the relevant passage in GJ would be at risk. There are I find difficulties with this approach. The Upper Tribunal has been at pains to point out that risk categories in Sri Lankan country guidance cases are not meant to be a checklist. In GJ at paragraph 229 it was said:
"The judicial head note in LP emphasised that each case should be considered on its own facts, rather than treating the twelve factors as a "check list". We consider that fact-based assessment continues to be the proper approach, and that it is time to reassess the risks overall."

25. This the Upper Tribunal did in GJ when it indicated that journalists were at risk of harm upon return but the reassessment of risks to include journalists did not mean that the "non-checklist" approach set out in LP no longer applied. GJ was not making a new point, that there was now a checklist which, provided an appellant was in one of the named categories, meant that that Appellant automatically succeeded.

26. The Appellant had some association with a media organisation that had been critical of the government, that association with LEN consisted of a placement as a trainee journalist. The Appellant was quite unable to produce any evidence that she herself had written any articles critical of the Sri Lankan government. Had the Judge believed the Appellant's account of detentions and onerous reporting conditions that might not have mattered. However, the Appellant's accounts were in the Judge's view fabricated and the Judge gave cogent reasons for arriving at such a conclusion. The Judge did not apply too high a standard of proof. She made it clear that the case was being determined on the lower standard and said so in terms at paragraph 64.

27. The Appellant could not show she had written any articles, she could not show that she had been persecuted by the Sri Lankan authorities and she could not show that she was of any adverse interest to them. She had been able to return to Sri Lanka in 2014 and stay there for a month and then leave again on her own return ticket according to the findings of the Judge, without suffering any harm. The important point was that the Appellant had to demonstrate a profile that would put her at risk in the future upon return to Sri Lanka. It was not enough for the Appellant to say that she had once been connected to LEN for her asylum claim to be automatically granted. What she had to show was that she had been involved with the publication to the extent that she would arouse the adverse interest of the authorities.

28. The difficulty for the Appellant was that she could not show this. As I have indicated she could not show that she had actually written any articles and her evidence as to being detained or on reporting conditions was rejected by the Judge for the reasons which I have set out above. Her witnesses contradicted themselves on for example what were the reporting conditions of the Appellant's father's. The Appellant had only claimed asylum after her efforts to secure leave to remain in this country on other grounds had failed and the Appellant, the Judge found, had been able to return to Sri Lanka for a month without harm. If the Appellant had been able to do this it was clear that she was of no adverse interest to the authorities. She was not on any form of stop notice, she had not been stopped, although at one point it was claimed that she was. The authorities were not interested in her for any breach of bail conditions suggesting that no such conditions had been imposed.

29. The Appellant's response that she had been lucky thus far but might not be lucky again ignored two points. The first was that the nearer in time to the Appellant's alleged activities the more likely the authorities would still have an adverse interest in her. Secondly as the Respondent pointed out in the rule 24 response country conditions if anything had changed such that someone in the Appellant's position was less likely to be of adverse interest in the authorities. I accept the point that one has to look at GJ on the basis of what it says, even though it is now almost four years old, but there were numerous points in this case where it was reasonable to have expected the Appellant to obtain some form of supporting evidence but she was quite unable to do so. One such example would be articles or other work she had done for LEN and another example would be court documents relating to any court appearances. As I have indicated and as this Tribunal is familiar with, court documents are obtained in relation to persons who have been of adverse interest to the Sri Lankan authorities and taken before the Sri Lankan courts. The argument that such documents could not be obtained because if a case was concerned with terrorism (even ignoring the distinction between corruption cases and terrorism) is clearly not borne out by the objective evidence and by the number of times that court documents are produced to this Tribunal from Sri Lanka showing that a person has been before the courts.

30. The Judge gave cogent reasons for disbelieving the Appellant and it is noticeable that the Appellant has not sought to engage in any detail with many of those cogent reasons. One such is that the Appellant claimed to have been reporting for almost three years before her departure in 2012 and yet at the same time had changed her address and moved a considerable distance away from her original address. That was a significant point which affected whether the Appellant was indeed signing on as she claimed. There has been no answer to that point by the Appellant thus undermining the Appellant's claim that she was arrested detained and then released on reporting conditions between 2009 and 2012. Similarly there has been no engagement with the section 8 point taken against the Appellant as to the delay she made in claiming asylum. The Judge rejected the Appellant's claim that she had delayed making a claim for asylum on advice from a solicitor pointing out the implausibility of that explanation (see paragraph 11 above).

31. The situation that the Judge was thus faced with was an Appellant who had had some involvement with a news organisation that had been critical of the government but who herself had been of no adverse interest to the authorities. The Appellant had been able to leave Sri Lanka, come back and then leave again without any difficulties. She had fabricated an account of arrests, detentions and reporting conditions. The Appellant's case is that merely being a journalist involved in a news organisation critical of the Sri Lankan government is sufficient by itself to establish a claim for asylum. The difficulty is that the Appellant's claim to have experienced problems was rejected by the Judge for sound reasons. What the Appellant cannot demonstrate therefore is that her involvement such as it was with LEN has brought any difficulties for her. In those circumstances the Appellant cannot show a profile sufficient to bring her within the protection afforded by the Refugee Convention. Had the Appellant been able to establish she was a credible witness and her account indicated a reasonable likelihood of future persecution the situation might have been different but that was not the situation faced by the Judge.

32. A number of criticisms were made of the Judge's credibility findings but they are mere disagreements with those findings rather than arguments which raise any real concern as to the Judge's conclusions. Whilst the Appellant's husband might not have been cross examined about the reporting conditions his wife was under, it is reasonable to have expected him to have mentioned those conditions without being prompted since they would potentially have been almost as problematic for him as they were for his wife. He may well indicate that he accepts what his wife's statement says but what the Judge was concerned about was that there was next to nothing from the Appellant's husband as to the effect on him of what his wife the Appellant was said to have gone through. No real explanation for the absence of such comments has been given save to say that the Appellant's husband was not asked about it. The point is if his wife had suffered under severe reporting conditions which would have had an impact on him it is reasonable to have expected him to have said something about it without having to be prompted.

33. The Judge formed the view that if the Appellant was on a reporting condition she would not have been able to leave the country as easily as she obviously did. If the Appellant was of such adverse interest to the authorities one could reasonably expect her to have been on some form of stop notice (as the Appellant herself at one point claimed to be). The Appellant and her husband gave evidence that they were able to leave Sri Lanka through bribes, but given that the Appellant was travelling on her own ticket, she must therefore have been travelling on her own identification documentation. This means that if she was on a stop list that would have come to the authorities' attention and she would not have been able to leave the country. The Judge rejected the evidence that the Appellant had been signing on when she left the country. She impliedly rejected the claim that a bribe would have been paid to enable the Appellant to leave the country since no purpose would be served as the Appellant was not of interest to anyone.

34. The Appellant's argument comes down to a claim that the risk categories in GJ are in effect carved in stone and that one simply has to show one was a journalist or connected to a publication to automatically succeed in an appeal. I do not accept that argument, an Appellant must always show a personal profile which puts them at risk. This Appellant could not show such a profile. For several years she had been able to live without any adverse interest or harm from the authorities in circumstances where if her account were true she would have been at risk of harm. I do not find that the Judge has made any material error of law in this determination such that the determination should be set aside. I dismiss the Appellant's onward appeal.

Notice of Decision

The decision of the First-tier Tribunal did not involve the making of an error of law and I uphold the decision to dismiss the Appellant's appeal

Appellant's appeal dismissed

I make no anonymity order as there is no public policy reason for so doing.

Signed this 25th January 2017

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Judge Woodcraft
Deputy Upper Tribunal Judge

TO THE RESPONDENT
FEE AWARD

No fee was payable and I have dismissed the appeal and therefore there can be no fee award.

Signed this 25th January 2017

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Judge Woodcraft
Deputy Upper Tribunal Judge