Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03989/2016

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision & Reasons Promulgated
On 8th February 2017
On 17th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

MI
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr F Junior of Lawlands Solicitors
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction and Background
1. The Appellant appeals against a decision of Judge Obhi of the First-tier Tribunal (the FtT) promulgated on 16th November 2016.
2. The Appellant is a male Sri Lankan citizen born 15th August 1993. He arrived in the UK on 24th August 2015 and claimed asylum the next day. The Appellant's claim was based upon his fear of return to Sri Lanka as he feared an extremist Islamist organisation who had twice kidnapped, detained and tortured him, and he also feared the Sri Lankan Army as he believed that the army suspected he was linked to the extremist group.
3. The application was refused on 2nd February 2016 and the Appellant appealed pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act).
4. The appeal was heard by the FtT on 24th October 2016, and dismissed on all grounds. The FtT heard evidence from the Appellant, and did not find him to be credible or plausible.
5. The Appellant applied for permission to appeal to the Upper Tribunal relying upon six grounds which are summarised below;
Ground 1
The FtT failed to make essential findings of fact about the causation of the Appellant's injuries. The FtT applied the wrong standard of proof when considering causation of the Appellant's injuries, and made equivocal findings, including at paragraph 43 that the Appellant may have been tortured by the Sri Lankan authorities.
The FtT reached a conclusion about self-inflicted injury before considering all of the evidence concluding at paragraph 41 that it is possible that the Appellant's injuries were self-inflicted by proxy, before proceeding at paragraph 42 to consider fresh medical evidence produced at the hearing. There was no indication of how this fresh material could potentially affect the FtT's earlier conclusion.
The FtT at paragraph 42 referred to the further medical evidence presented by the Appellant at the hearing, but did not analyse this evidence. In addition, the FtT gave no weight to Dr Lingham's opinion that the injuries were not self-inflicted. Also, the FtT failed to correct illegitimate speculation by the Respondent's Presenting Officer regarding causation of the Appellant's injuries.
Ground 2
The FtT failed to adequately consider the relevance of the possibility that the Appellant had been tortured by the Sri Lankan authorities.
Ground 3
The FtT took into account material not presented before the Tribunal in breach of the rules of natural justice. The FtT commented upon the general recruitment practices of Jihadi groups worldwide. Neither party had filed objective evidence about this.

Ground 4
The FtT was apparently influenced by evidence improperly given by the Respondent's Presenting Officer who stated that he had checked the Respondent's database of registered attorneys in Sri Lanka, and the attorney upon whose letter the Appellant relied was not registered. The Presenting Officer did not adduce any documentary evidence of his database search.
Ground 5
The FtT failed to approach the Appellant's case with the anxious scrutiny required in asylum cases.
Ground 6
The FtT decision as a whole contains inadequate reasoning.
6. Permission to appeal was granted on all grounds. Following the grant of permission the Respondent lodged a response pursuant to rule 24 of The Tribunal Procedure (Upper Tribunal) Rules 2008. In summary, it was contended that when the FtT decision was read as a whole, it was clear that the FtT did not find the Appellant's account to be credible or plausible, and the FtT had fully explained why it was not accepted that the Appellant had been able to escape twice from his captors which was a major credibility issue. It was contended that the FtT decision did not contain material errors of law and should stand.
7. Directions were subsequently issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FtT decision contained an error of law such that it should be set aside.
The Oral Submissions
8. Mr Junior relied upon the grounds contained within the application for permission to appeal. I was asked to find that the FtT failed to make a finding regarding the causation of the injuries suffered by the Appellant, and failed to take into account Dr Lingham's report regarding causation of those injuries. It was also submitted that the FtT applied an incorrect standard of proof, in that the Appellant was not required to prove with certainty how those injuries were caused.
9. Mr McVeety relied upon the rule 24 response. I was asked to find that the FtT had given clear and adequate reasons for the findings made, and was entitled to find the Appellant neither credible nor plausible.
10. With reference to paragraph 43 the FtT was making an alternative finding by stating that it was possible that the injuries to the Appellant had been caused by the Sri Lankan authorities. This had to be read in conjunction with paragraphs 40-41 in which it was concluded that the injuries had been inflicted upon by the Appellant by proxy.
11. Mr McVeety submitted that there was nothing within the decision to indicate that an incorrect burden or standard of proof had been used, and Dr Lingham had stated in his report that it was impossible to state whether the injuries had been inflicted by a third party at the request of the Appellant. Dr Lingham had stated at page 6 of his report that an injury to the Appellant's tongue was non-specific, which meant it could have been caused in a number of ways.
12. Mr McVeety submitted that the FtT had considered the medical evidence at paragraph 42 which included a letter written by Dr Rogers, which was based upon the Appellant's own evidence.
13. Mr McVeety pointed out that the Appellant's bundle had been submitted to the Tribunal and the Respondent on the day of the hearing, and the Presenting Officer was therefore entitled to ask questions arising out of documentation that had just been presented to him. Mr McVeety submitted that the grounds amounted to a disagreement with findings made by the FtT but disclosed no material error of law. With reference to Ground 3, Mr McVeety submitted that the FtT was referring at paragraph 37 to a report submitted on behalf of the Appellant at the hearing, and with reference to Ground 4 there was no evidence that the FtT was unduly influenced by any questions or submissions made by the Presenting Officer.
14. Mr Junior did not wish to respond to the submissions made by Mr McVeety, and I then reserved my decision.
My Conclusions and Reasons
15. Ground 1
I find no material error of law. The FtT did not fail to make essential findings of fact. The FtT decision must be read as a whole, and in my view if read in that way, it is evident that the FtT considered all the evidence in the round.
16. The burden of proof is on the Appellant to prove causation of the injuries. The FtT found the burden had not been discharged. At paragraph 41 the FtT concluded;
"When considered in the context of the objective evidence and the highly unlikely nature of the claims made by the Appellant it is in my opinion possible that these injuries were inflicted upon the Appellant by proxy".
17. The FtT is stating that it is not accepted, to the lower standard of proof, that the Appellant has proved that the injuries were caused by torture. At paragraph 43 the FtT makes a clear finding that the Appellant's claims are not plausible.
18. The FtT did not apply an incorrect standard of proof. I do not find any indication in the FtT decision that an incorrect standard of proof was applied, and the FtT makes specific reference to the lower standard of proof when setting out submissions made on behalf of the Appellant at paragraph 35.
19. The FtT at paragraph 43 makes an alternative finding. This was not necessary, as a finding had already been made that the injuries were not caused by the Appellant being tortured by an extremist Islamist group. In my view it is an error in paragraph 43 to state that if the injuries were not self-inflicted by proxy, it is possible they were inflicted by the authorities. This, it seems to me, does involve an element of speculation. However this is not a material error, as I am satisfied that the primary finding of the FtT was that the Appellant's injuries were not caused by torture, he had not been kidnapped twice, tortured while detained, and escaped twice, and the most likely cause of the injuries was that they were inflicted by proxy.
20. I do not accept that the FtT reached a conclusion about self-inflicted injury before considering all the evidence. The FtT considered the evidence in the round, but must analyse the evidence in some sort of sequence. It is not the case that a conclusion is reached by the FtT at paragraph 41 without considering the evidence referred to at paragraph 42. The evidence at paragraph 42 relates to a letter from Dr Rogers, a chartered clinical psychologist.
21. I do not accept that the FtT ignored the evidence at paragraph 42. There is specific reference to it at paragraph 44 where the FtT notes that the Appellant is not receiving any therapy. The FtT finds that there is state funded medical care in Sri Lanka, and there has been no criticism of this finding.
22. With reference to Dr Lingham's opinion, it is not the case that the FtT gave no weight to his report. At paragraph 40 the FtT records that Dr Lingham is satisfied that the Appellant's injuries were not self-inflicted, but notes that he accepted that it was impossible for him or anyone else to say whether the injuries were inflicted by a third party at the request of the Appellant.
23. I find no merit in the contention that the FtT failed to correct illegitimate speculation by the Respondent's Presenting Officer regarding causation of the Appellant's injuries. My view is that having been presented with evidence on behalf of the Appellant at the hearing, the Presenting Officer was entitled to ask questions as to the causation of the injuries, in the absence of any objection from the Appellant's representative. If there was such an objection, then the FtT would have to rule upon the propriety of the questions. It is not contended in the grounds that there was an objection to this line of questioning.
24. Ground 2
This ground is based upon paragraph 43 of the FtT decision and contends that the FtT appeared to concede that it is possible that the Appellant's injuries were caused by the Sri Lankan authorities. This was not a primary finding by the FtT. As already stated, I find an element of speculation in this paragraph, but it is not material to the primary conclusions reached by the FtT.

25. Ground 3
There was no breach of the rules of natural justice. At paragraph 37 the FtT makes reference to a news article submitted at the hearing on behalf of the Appellant. The main point made by the FtT is that with reference to Islamist terrorist groups, there is no evidence of forced recruitment. The FtT specifically states this at paragraph 37, and the relevance of this, is that the documentation submitted on behalf of the Appellant does not support his contention that the terrorist group kidnapped him twice, and attempted to forcibly recruit him.
26. Ground 4
I find no evidence that the FtT was apparently influenced by a statement by the Presenting Officer that he had checked the Respondent's database and the attorney whose letter was relied upon by the Appellant was not registered. The FtT makes no finding against the Appellant on this point.
27. Grounds 5 and 6
I take these grounds together. With reference to the contention that the FtT has given inadequate reasons I set out below the head note to Budhathoki (reasons for decisions) [2014] UKUT 00341 (IAC);
It is generally unnecessary and unhelpful for First-tier Tribunal judgments to rehearse every detail or issue raised in a case. This leads to judgments becoming overly long and confused and is not a proportionate approach to deciding cases. It is, however, necessary for judges to identify and resolve key conflicts in the evidence and explain in clear and brief terms their reasons, so that the parties can understand why they have won or lost.
28. In my view, the FtT has fulfilled the obligation to give reasons as set out above. The FtT has explained why the Appellant's account of being kidnapped twice, tortured, thereafter escaping twice, has not been believed. It is in my view clear from reading the decision as a whole, why the FtT does not find that the lower standard of proof has been discharged. I find no evidence that the FtT did not approach the Appellant's case with the anxious scrutiny required in asylum cases, and I find that the grounds are an attempt to re-argue the appeal that was before the FtT, and amount to a disagreement with the findings made, and for which sustainable reasons were given.
Notice of Decision

The making of the decision of the FtT did not involve the making of a material error on a point of law. I do not set aside the decision. The appeal is dismissed.

Anonymity

An anonymity direction was made by the FtT. I continue that direction pursuant to 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.

Signed Date 15th February 2017

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The appeal is dismissed. No fee has been paid or is payable. There is no fee award.

Signed Date 15th February 2017

Deputy Upper Tribunal Judge M A Hall