Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03208/2016

THE IMMIGRATION ACTS

Heard at Birmingham
Decision and Reasons Promulgated
on 6 April 2017
On 10 April 2017

Before

UPPER TRIBUNAL JUDGE HANSON

Between

SCWD
(Anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Pipe instructed by TRP solicitors
For the Respondent: Mr Mills Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against a decision of First-tier Tribunal Judge Row promulgated on 5 October 2016 in which the Judge dismissed the appellant’s appeal on both protection and human rights grounds.
2. At the start of the hearing before the Upper Tribunal Mr Mills confirmed that the Secretary of State accepted that the decision of Judge Row was infected by legal error material to the decision to the extent that the same should be set aside, that there should be no preserved findings, and that the matter should be remitted to the First-tier Tribunal to be considered by another judge on its merits.
3. It was accepted by Mr Mills that there is merit in the grounds of challenge which include:

i. Making a perverse assessment of the report of Dr Frederica Jansz. The Judge appears to be under the impression that such expert report should be agreed in advance by the respondent, which has no legal basis, and claims that he has no way of telling if the author is an expert or even exists when the author’s credentials are clearly set out at pages 12 – 14 of the appellant’s appeal bundle. It is accepted the Judge has mischaracterised the substance of the report which specifically addresses plausibility, risk on return, protection and relocation which the Judge fails to engage with.
ii. That the Judge has made a material misdirection in law when dealing with the medical report of Dr Frank Arnold. The Judge speculates at [33 – 36] as to alternative causation for the scarring when the Judge has demonstrated no expertise that would enable such an assessment to be made. It is stated to be irrational to find the report of Dr Arnold was undermined because he did not have the appellant’s GP records when Dr Arnold took a detailed history and made a thorough examination. Dr Arnold is said to be a specialist in the problems of wound healing whose experiences set out within the appellant’s bundle.
iii. The Judge failed to consider material matters. The Judge commenced substantive findings at [21] focusing on photographs without taking as a starting point the fact the respondent had accepted that the appellant had told the truth about a significant portion of his claim indicating a considerable part of the claim was conceded. In not assessing the claim in a balanced manner the Judge’s findings are flawed.
iv. The Judge at [44 – 51] finds the appellant is not a journalist but does so from a standpoint which arguably feted his consideration of what constitutes a journalist. It was submitted the appellant came within the aforementioned category, which is recognised as a category in respect of whom there may be a plausible real risk according to the country guidance case of GJ [2013] UKUT 319. The Judge appears to have failed to consider that the respondent accepted that the applicant designed posters and cartoons for PPM in Sri Lanka and that he has written articles for his website in the United Kingdom. Notwithstanding the timing of such articles the Judge was required to consider whether these are likely to have come to the attention of the authorities in Sri Lanka and if so whether the appellant will face a real risk of persecution on return.
v. It is stated the Judge failed to consider material evidence in that reference was made in submissions to country information showing journalists were still persecuted in Sri Lanka which the Judge does not refer to in the decision. Relevant pages are stated to be at Tab B pages 1, 2, 3, 4, 18, 21 and 23. There is no reference to the specific evidence with the Judge citing at [53] from pages 33 and 34 before appearing to find there was no persecution of the press. It was accepted this may be a finding going behind GJ which is not adequately reasoned.
vi. It is also asserted the Judge made irrational findings when assessing the risk to the appellant from the PBS which is addressed by Dr Jansz. Country evidence provided demonstrated this is a hard-line violent organisation which is contrary to the Judge’s finding at [56] that Buddhists are not traditionally associated with acts of violence.

4. The failure to consider the evidence with the required degree of anxious scrutiny and failure to give adequate reasons for the findings made make the decision unsafe.
5. I set the decision aside and find there can be no preserved findings, the nature of the error being such that it cannot be said that any of the findings flowing from the rejection of the medical or expert evidence can be said to be arguably safe.
6. This is a case in which detailed findings of fact are required and in which it can be said the appellant has not yet received a proper assessment of the merits of the case before the First-tier Tribunal. In accordance with the Presidential guidance I am satisfied this is one of those cases where it is right and proper to remit the appeal to the First-tier Tribunal sitting at Sheldon Court in Birmingham to be heard afresh by a judge other than Judge Row.

Decision

7. The First-tier Tribunal Judge materially erred in law. I set aside the decision of the original Judge. I remit the appeal to the First-tier Tribunal sitting at Birmingham to be heard afresh.

Anonymity.

8. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated the 6 April 2017