Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03983/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3rd March 2017
On 16th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

vp
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Mackenzie instructed by David Benson Solicitors
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
2. The Appellant is a citizen of Sri Lanka whose date of birth is recorded as 31 July 1986. He entered the United Kingdom on 24 September 2009 as a visitor. He then applied for admission as a student and was granted leave until 25 September 2012. However, on 10 May 2011 his leave was curtailed and subsequently expired on 27 May 2011. On 25 May 2011 he made an application for international protection as a refugee. That application was refused as was his subsequent appeal heard by Judge of the First-tier Tribunal Herlihy in or about October 2011. Further submissions were made on 30 September 2013 and 12 August 2015. Those fresh submissions resulted in a further refusal dated 7 April 2016. It was against that decision that the Appellant appealed to the First-tier Tribunal and forms the subject matter of the appeal before me.
3. In summary, the Appellant’s case was that he had worked as a teacher in an LTTE controlled area of Sri Lanka working for a catholic organisation. There, he undertook LTTE training with the pupils. On 15 February 2008, he was forcibly taken by the LTTE for weapons training but two days later his release was secured by the catholic organisation for which he had been working. He returned to his home area. On 3 March 2008, he was arrested, beaten and questioned by the CID. On 28 March 2008, he was released from detention. He was not take to court but released on condition that he reported to the police. On 26 July 2008, the authorities came to his home. He was instructed to sign a book. On 1 December 2008, this happened again. In January 2009, he was again questioned. Subsequently, with no difficulties, he left Sri Lanka using his own passport but on 14 April 2010, an arrest warrant was issued against him. On 10 November 2010, his father was arrested. The Appellant was informed by the catholic organisation that it was no longer safe for him to return to Sri Lanka.
4. In further submissions, the Appellant stated that his father was arrested on 5 November 2012 and still missing. He also contended for sur place activities, having, on his case, taken part in demonstrations and meetings of the Tamil Diaspora groups in the United Kingdom as an active member of the TGTE.
5. There was a discreet article 3 ECHR point arising out of the Appellant’s claim to be at high risk of committing suicide (that is additional to the potential connection between the propensity to suicide and the substantive events contended for). (There is medical evidence and a history of attempted suicide). He relies further on Article 8 ECHR not only in respect of the substantive matters to which I have already referred but because he has now, on his case, established a private life in the United Kingdom the circumstances in which it would almost be impossible to begin again in Sri Lanka.
6. The Appellant appealed to the First-tier Tribunal. His appeal was heard on 14 October 2016, by Judge of the First-tier Tribunal Woolley sitting at Columbus House, Newport. Judge Woolley rejected the Appellant’s account. It was accepted that the Appellant had worked as a music teacher in an LTTE controlled area but it was not accepted that the Appellant had been involved in training with the LTTE. It was not accepted that the Appellant had been arrested, tortured or that, importantly, there was any ongoing interest in him. Although there was evidence of scarring it was not accepted that it had been established that this was caused by torture as contended for by the Appellant. Still further it was not accepted that there was any “linkage between the Appellant and his father’s disappearance”. The judge found that there had been no arrest warrant issued against the Appellant. As to the arrest of the Appellant’s father, the judge found the evidence lacking. As to any continuing activity by the Appellant in the United Kingdom in support of the LTTE there was no sufficient evidence that the Appellant would be identified. Rather the Appellant was no more than “a face in the crowd”.
7. Turning to the medical evidence, there was a psychiatric report from Dr Saleh Dhumad, consultant psychiatrist, whose report was dated 29 July 2015 which was accompanied by an addendum dated 7 October 2016. There was also a psychiatric report from Mr Balasubramaniam dated September 2013 and several reports from one Dr Henderson to whom the Appellant had been referred after a further suicide attempt in May 2016 (there had been an earlier attempt in 2012). The physical scarring was addressed in a report dated 15 September 2011, by Professor S Lingam.
8. It was found that the medical evidence pointed to the Appellant suffering from post traumatic stress disorder. Following a review of the authorities including in particular, J -v- Home Secretary [2005] EWCA Civ 629 and N -v- UK [2005] UKHL 31 (2008) 47 EHRR 39, Judge Wooley found that the high threshold in Article 3 cases was not established notwithstanding the risk of suicide. The judge then went on to consider the Article 8 aspect to the appeal but in the event, all grounds were dismissed.
9. Not content with the decision of the First-tier Tribunal, by Notice dated 8 November 2016 the Appellant made an application for permission to appeal to the Upper Tribunal. Initially the application was refused with the First-tier Tribunal Judge coming to the view that Judge Woolley had set out,
“With enormous care the applicant’s case and in detail the submissions made to him. He had taken each element of the case and examined it with extreme care. He had analysed the elements and submissions over some 25 pages, separately from stating the Appellant’s case.”
He found for the reasons given by the judge that the findings were entirely open to him in relation to each element complained of.
10. On a renewed application to the Upper Tribunal, on 26th January 2017, permission was granted by Upper Tribunal Judge Blum. It appears that Judge Blum was particularly persuaded to grant permission because of the recent guidance from the European Court of Human Rights in the case of Paposhvili -v- Belgium (application number 41738/10). Though it is clear that Judge Blum granted permission to the Appellant to appeal on all grounds.
11. The grounds fall into two distinct parts.
12. Firstly, it is submitted that the judge failed to make a sustainable finding about the father’s disappearance. This it was submitted was important because in the submission of Mr Mackenzie the evidence pointed to the Appellant’s father having disappeared and a clear finding on that would at least have supported the Appellant’s case that he was of continuing interest to the authorities.
13. The second limb to the grounds related to the Appellant’s mental health. There had already been two attempts at suicide with there being medical evidence that were the Appellant to face return to Sri Lanka he would suffer serious deterioration in his mental health. Relying therefore on the case of Paposhvili the Tribunal, it was submitted, should take a different view so that even if the Appellant were not at imminent risk of dying (because he would face a real risk because the absence of appropriate treatment in Sri Lanka or the lack of access to such treatment, or being exposed to a serious, rapid irreversible decline in his state of health) the Tribunal should have found that the Article 3 threshold was met.
14. The ground is expanded upon over some paragraphs but as Mr Mackenzie fairly conceded at the beginning of the hearing before me, reliance upon the Paposhvili point was dependent upon whether the finding by the judge that there were sufficient resources available to the appellant in Sri Lanka was unsustainable. In that regard the Appellant had relied on the guidance in GJ (post civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) in which at paragraphs 454 and 456 it was said that, “Such facilities as existed, do not provide appropriate care for mentally ill people”. The grounds submit that although the judge took that into account he came to his findings having regard to evidence to which he was not entitled to have regard and where such evidence upon which he did rely was insufficient.
15. In his submissions to me Mr Mackenzie began, having taken me through the grounds, by taking me to the case of SI (reported cases as evidence) Ethiopia [2007] UKAIT 00012 in which at paragraph 26 reads:
“... Furthermore, both the Practice Directions in force at the time and Tribunal case law had fully recognised the value of some reported decisions of the Tribunal not only as guidance on country conditions but also as containing summaries of factual evidence. In addition, it would be very strange indeed for there to be any legal principle effectively preventing evidence of the background situation in a country from being admitted simply because it was contained within a legal decision. Of course, when contained in a legal decision it is one stage further from the source and is necessarily hearsay. Furthermore, since facts are decided by the evidence, it is important for the fact-finding Tribunal not to proceed as if it thought that facts were to be found in law books. For this reason, when reported cases are relied on as evidence, there may often be a need for the Tribunal to insist on the production of the original sources themselves – country reports, expert reports and the like. But reported decisions of the Tribunal can generally be taken to contain accurate summaries of such items of evidence. Not to allow such summaries to be admitted into evidence would be likely to engender unnecessary and unwieldy bundles of documents. If a party to Tribunal proceedings considers that an IAT or AIT quotation from or summary of the background country materials is inaccurate, then it is open to that party to demonstrate this”.
16. In reliance upon the passage above, I was taken by Mr Mackenzie to the case of GJ and Others (post civil war: returnees) Sri Lanka CG [2013] UKUT 00319 which reads:
“454. The evidence is that there are only 25 working psychiatrists in the whole of Sri Lanka. Although there are some mental health facilities in Sri Lanka, at paragraph 4 of the April 2012 UKBA Operational Guidance Note on Sri Lanka, it records an observation by Basic Needs that “money that is spent on mental health only really goes to the large mental health institutions in capital cities, which are inaccessible and do not provide appropriate care for mentally ill people”.
455. In the UKBA country of origin report issued in March 2012, at paragraph 23.28 – 23.29, the following information is recorded from a BAC (British High Commission) letter written on 31 January 2012:
“23.28 The BAC letter of 31 January 2012 observed that: “There are no psychologists working within the public sector although there are [sic] one teaching at the University of Colombo. There are no numbers available for psychologists working within the private sector. There are currently 55 psychiatrists attached to the Ministry of Health and working across the country.”
Post traumatic stress disorder
23.29 The BAC letter of 31 January 2012 468 observed that:
“Post traumatic stress disorder (PTSD) was first recognised in Sri Lanka in patients affected by the 2004 Tsunami. Many of the psychiatrists and support staff in Sri Lanka have received training in Australia and the UK for the treatment of the disorder. A consultant psychiatrist from NIMH said that many patients often sought ayurvedic or traditional treatment for the illness long before approaching public hospitals, adding that this often resulted in patients then suffering from psychosis”.”
17. I was then taken to paragraph 83 of the decision of Judge Woolley who had said that he had had the benefit of being referred to more recent country information than was available to the Tribunal in GJ without, it was said, the judge saying what that was, though Judge Woolley does refer to the Reasons for Refusal Letter at paragraph 94 which reads:
“It is also noted that a Med COI noted in a response dated 11 May 2015 the following treatment is available:
psychiatric counselling/medication assistance by a psychiatric nurse;
psychiatric treatment by means of psychotherapy e.g. cognitive behavioural therapy;
psychiatric treatment by means of psychotherapy, other than cognitive behavioural therapy.”
That was not, in the submission of Mr Mackenzie, sufficient because it said nothing as to the quantity or quality of such treatment as might be available.
18. Still further Mr Mackenzie submitted that Judge Woolley had misunderstood the medical evidence. At paragraph 77 Judge Woolley summarises the psychiatric evidence noting a risk that the Appellant might contemplate suicide were he to be deported against his wish without making specific reference to the observations of Dr Dhumad, consultant psychiatrist in his latest report where he says at 5.2:
“In relation to the risk of suicide, the risk factors in his case are depression, PTSD, hopelessness, in addition to intense fear of torture, and death, he has attempted to end his life twice by overdosing most recently in May 2016. In my opinion the risk is significant in the context of removal. Hopelessness has a serious and significant association with suicide risks. The risk will be greater when he feels that the deportation is close, and any threat of removal, in my opinion will trigger a significant deterioration in her [sic] mental suffering and subsequently increases the risk of suicide. I do not believe that the risk can be minimised in the context of removal.”
19. As I have already observed this point becomes relevant only if the finding of the judge that the facilities available to the Appellant in Sri Lanka were sustainably adequate.
20. Turning to the continuing interest in the Appellant’s father as contended for, I was taken to paragraph 66 of the decision in which the judge says,
“Even if his father was arrested in November 2010 and disappeared in November 2012 I have not accepted either of these events can be linked to the authorities continuing interest in the Appellant, rather even if they did however they are likely to relate to continuing interest in the father”.
21. Mr Mackenzie submitted that it had not been established that there would be any basis for any interest in the Appellant’s father other than because of an interest in the Appellant and so the judge was merely speculating.
22. Mr Whitwell for the Secretary of State accepted that the guidance in GJ was clear but he submitted that the judge had dealt adequately with the point at paragraph 82 by distinguishing GJ on the facts of the current case. It was also relevant that the judge had acknowledged at paragraph 82 of his decision, the guidance in GJ noting that it had concluded that “the resources in Sri Lanka for Mental Health Services were sparse and limited to the cities”. Mr Whitwell concede on the facts of GJ the Tribunal was right to have found that returning that Appellant would have resulted in a breach of Article 3. However, Mr Whitwell went on to point to the Tribunal in GJ making its findings based upon evidence presented in the early part of 2013 so that at the time of the decision, now under appeal, two and a half years or so had passed. The decision in GJ, he submitted was fact specific so that in GJ the Tribunal was not seeking to lay down any country guidance as to mental healthcare facilities in Sri Lanka for returnees. That however was not the end of the matter. The judge had available to him, in the Reasons for Refusal letter extracts clearly sourced from reports upon which the judge was entitled to have regard. At paragraph 90 of the Decision and Reasons, reference was made to a letter from the British High Commission and at paragraph 93 reference was made to the World Health Organisation.
23. Mr Mackenzie subsequently submitted that those were points not so well made because the letter from the British High Commission, which spoke of a commitment on the part of the Sri Lankan government to contribute to social and economic development in Sri Lanka by achieving the highest attainable health status was dated October 2010. The World Health Organisation Report referred to at paragraph 93 of the refusal letter appears to have been dated 2001.
24. However, Mr Whitwell pointed to paragraph 84 where the Judge went further in distinguishing the facts in GJ from the instant appeal. The Judge observed that the Appellant had a mother and sister in Sri Lanka with whom he continued to be in contact. There was also a person, who had given evidence for the Appellant, based in the United Kingdom, who had supported the Appellant whilst in the United Kingdom. The judge found that that support would continue were the Appellant to return to Sri Lanka. Additionally, the Appellant had, it was found, received much support through the Church. Whilst therefore the judge had accepted a subjective fear on the part of the Appellant about being returned to Sri Lanka the judge had rightly found, no objective basis for it and the reality was that there was sufficient support. It was reasonable notwithstanding the criticisms in the report of 2010 and open to the judge to find in the light of the letter from the British High Commission dated 25 October 2010 that with the war having passed, the situation in Sri Lanka would have improved. The evidence from the Medical Country of Origin Information request that is to say the Med COI postdated the guidance in GJ and was summarised at paragraphs 95 to 97. That reads:
“95. Most of this treatment is available at the Mental Health Unit in the University of Jaffna, Puliyadi Lane. This is a public facility. Other places offering this type of treatment/some of this treatment are Vavuniya General Hospital and Jaffna Teaching Hospital although there are no psychiatrists available in Mullaitivu and Kilinochchi District. The closest mental health units with the above facilities are available only in Jaffna and Vavuniya. Mental health units in hospitals in Mullaitivu and Kilinochchi are run by medical officers and medical nurses trained in mental health. A psychiatrist from Jaffna Teaching Hospital, University of Jaffna and Vavuniya General Hospital visit these two districts on a not so regular basis to supervise the aforementioned medical officers paramedical staff.
96. Psychiatric treatment through psychotherapy is competently carried out in Vavuniya General Hospital and the mental health unit of the University of Jaffna (including cognitive behavioural therapy, other behavioural therapies and EMDR for PTSD).
97. There are no registered resident psychologists in Mullaitivu, Vavuniya and Kilinochchi. A few psychologists from Colombo practice at Vavuniya General Hospital and Jaffna Teaching Hospital on a temporary basis and visit government hospitals in Mullaitivu and Kilinochchi very rarely (once in six months). Above professionals and treatment facilities are rare if not available in the private sector in these districts. There are no suicide prevention crisis and detention centres established in northern districts.
25. The conclusion of the caseworker in which it appears the judge ................ was that medical treatment would be available to the Appellant and the point taken .......... that the report from Med COI as I have already said postdated GJ. Mr Mackenzie had submitted that the full report should have been provided to the Appellant if it was to be relied upon. Mr Whitwell’s response to that was that the point should have been taken below and does not appear in the skeleton argument. Still further in GJ there was no settled position as to the number of psychiatrists because at one point there appeared to be evidence of 25 and at another 55. What was more the Appellant in the case of GJ was so ill that he was unable to give reliable evidence. That was not the case facing the Appellant in the instant appeal.
Was there an error of law.
26. I begin with the criticisms made with respect to what is said to be a lack of adequate findings on the part of the judge. I am mindful of the guidance of McCombe LJ in VW (Sri Lanka) [2013] EWCA Civ 522 in which at paragraph 12 he said:
“Regrettably, there is an increasing tendency in immigration cases, when a First-tier Tribunal Judge has given a judgment explaining why he has reached a particular decision, of seeking to burrow out industriously areas of evidence that have been less fully dealt with than others and then to use this as a basis for saying that the judge’s decision is legally flawed because it did not deal with a particular matter more fully. In my judgment, with respect, it is no basis on which to sustain a proper challenge of a judge’s findings of fact.”
27. In my judgment, the issue relating to the appellant’s father is something of a red herring. The pertinent finding was that there was no continuing interest in the Appellant. There was nothing perverse or irrational in that finding. The judge very carefully considered the evidence which was made available to him and set out in some detail the evidence given by the various witnesses explaining why certain parts of the evidence was accepted whilst others were are not. The judge explained why he gave little weight to certain parts in the evidence for example at paragraph 25 finding as he did that that evidence of the two witnesses produced was largely hearsay.
28. Documentary evidence was carefully analysed. The judge properly took as his starting point, following the guidance in Devaseelan [2002] UKIAT 00702, the earlier findings of Judge Herlihy but quite properly reminded himself how that guidance was to be applied for example at paragraph 49, when dealing with evidence of one of the witnesses, but more particularly paragraph 62, when considering medical evidence the judge reminded himself that he had to assess the psychiatric evidence in the round with all the other evidence. It is quite clear to me reading the decision as a whole, that the judge properly approached the evidence.
29. Specifically dealing with the arrest of the Appellant’s father, the judge at paragraph 50, explained adequately why he placed little weight on the evidence from one of the witnesses because he found, as was open to him, that it was not clear why the police should promise to a priest that the Appellant’s father would be released after the enquiry about the Appellant. Though that particular witness had stated that the appellant’s father was tortured and interrogated by the Sri Lankan police, the judge noted that that witness did not say how he knew or whether he had personal knowledge or simply been told of it.
30. There was evidence by way of affidavit from the Appellant’s mother to the effect that her husband had been arrested in 2010 and subsequently in November 2012 but the judge did not find credible that the authorities would have waited so long after the Appellant had left Sri Lanka before taking the steps they did. Again that finding was entirely open to the judge. What is more, and this is why I find that the issue in relation to the Appellant’s father is a “red herring” the judge went on at paragraph 54 to consider the circumstances in which the second arrest might have occurred in the alternative. “This may have been for his own activities and I find there is no evidence that it was an account of the Appellant’s”. It was open to the judge to find that there was insufficient evidence. It is to be remembered that the legal burden in this case, albeit to the lower standard, remained upon the Appellant throughout. The Appellant’s mother had spoken of a subsequent arrest in 2012 but the judge found that there was no sufficient evidence that these unknown people were in no way connected with the Sri Lankan authorities. It is unfortunate that the judge uses the word “conclusive” when saying, “The mother says that two of them (that is to say two who arrested the father) wore Sri Lankan Army uniforms but this is not conclusive that they were from the Sri Lankan Army”, but again that is simply a reflection of the judge finding a lack of evidence. More importantly the arrests were not accepted it is perfectly clear that that was the case at paragraph 54. I do not read into the use of the word, when reading the Decision, as a whole, the judge applying a higher standard of proof.
31. At paragraph 62 the Appellant was noted as having described several dramatic events in Sri Lanka which had been accepted by the first Immigration Judge such as his detention. In that same paragraph the judge noted that the Appellant had further described other traumatic events such as the information he received as to the disappearance of his father. Mr Mackenzie submitted that it was not accepted however by the judge that the Appellant’s father had disappeared; that is not the same however as a report having been received by him. The point is that the judge found that it was not made out, and I repeat yet again, that it is perfectly clear that the judge found that the Appellant was no longer of any interest to the authorities and that is the material point. That means that any interest in the Appellant logically and therefore any illness being suffered by the Appellant is not objectively well-founded in relation to the substantive events contended for but maybe subjective. Indeed, the judge found as a fact that the Appellant was suffering from fear of return but that that was subjective. (See paragraph 80 of the decision).
32. In short the judge carefully went through each of the witnesses explaining why in each case their evidence was being discounted or being given little weight including aspects of the evidence in which it appeared to the judge that it was almost as if words had been put into the mouths of the particular witnesses having looked at correspondence passing from the letters of instruction.
33. Having discounted the evidence with adequate reasons, the judge was left with the original findings of the Tribunal in 2011; that was quite proper. The evidence generally was just unreliable.
34. As to the medical evidence, it has to be accepted that the Appellant is vulnerable and has attempted suicide on two occasions. It was common ground however that if the resources available to the Appellant in Sri Lanka were not shown to be inadequate then the issue about where the threshold lay given Paposhvili or N did not fall to be considered. The burden of proof in this case was upon the Appellant. It was not sufficient in my judgment for Mr Mackenzie simply to point to GJ without more and all the more so when the Secretary of State in the Reasons for Refusal Letter had pointed to other evidence. If the Appellant’s legal team wanted the Secretary of State to produce the reports in full (those reports mentioned in the refusal letter) then the time to do that was in advance of the hearing in the First-tier Tribunal. Mr Mackenzie was for saying that it was not for the Appellant to assist the Respondent in making her case. That is true but once the Secretary of State has demonstrated that there appears to be some evidence pointing to a sufficiency of medical care in the receiving state which postdates that in the country guidance, to which I shall return, it was incumbent upon the Appellant to obtain more up-to-date evidence: MY (Country Guidance cases – no fresh evidence ) Eritrea [2005] UKAIT 00158. I remind myself that the guidance in the case of TK (Burundi) [2009] EWCA Civ 40 in which it was said that where evidence is easily obtainable and is not then that is a factor which may be taken against a party. I did invite Mr Mackenzie to tell me whether he intended to make application to adduce any more up-to-date evidence and he said that he was not.
35. There was nothing perverse or irrational in the approach taken by the judge in finding that the evidence in GJ was simply inadequate for the Appellant to make the point being relied upon. I observe that Mr Whitwell was quite right to submit that GJ was not country guidance upon the point. I accept the submission made by Mr Mackenzie that there will be times when it will be appropriate to view evidence that was before another Tribunal along the lines of the guidance in the case of SI but as Mr Whitwell pointed out, the evidence in GJ was not entirely clear given the number of available psychiatrists was not clearly established. I find it was entirely open to the judge to find as he did that it had not been established that there were not adequate facilities. Indeed the judge was able to go further on the basis of the evidence available that the Appellant could access medical care. That was the evidence before him. There was no sufficient evidence to rebut that the legal burden upon the Appellant. In any event these cases are fact specific and the judge recognised that the Appellant had his mother, sister, the Church and a friend of the family based in the United Kingdom all of whom could provide support.
36. In all of the circumstances this appeal fails.

Notice of Decision
The appeal to the Upper Tribunal is dismissed.

Signed Date

Deputy Upper Tribunal Judge Zucker