Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04127/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 January 2017
On 2 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

p p r k
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Martin of Counsel instructed by Biruntha Solicitors
For the Respondent: Mr P Armstrong, Senior Home Office Presenting Officer

DECISION AND REASONS
Background
1. The appellant in this case, Mr PPRK, was born on 16 January 1986 and is a citizen of Sri Lanka. The appellant first entered the UK with valid entry clearance as a student valid from 10 September 2009. The appellant applied for asylum on 6 July 2015. In a decision dated 10 December 2015 the respondent refused the appellant's claim for asylum and humanitarian protection. The appellant's human rights claim was also dismissed. In a decision and reasons promulgated on 25 October 2016 Judge of the First-tier Tribunal Nicholls dismissed the appellant's appeal on asylum, humanitarian protection and human rights grounds.
2. The appellant appealed with permission to the Upper Tribunal on the grounds that the judge made a fundamental error in relation to the appellant's links with an organisation which supported LTTE activity and the appellant's detention and interrogation about two named men, which was accepted as credible by the First-tier Tribunal Judge. The appellant claims that he had links with two men, K, a union person who arranged for deliveries to the LTTE and R, who had also been helping the LTTE and who fled to India. In his interview the appellant stated that he had been questioned about both men while detained in Sri Lanka. The judge considered this at [14] of his decision and reasons and firstly referred to them both as being members of SEWA Lanka when only R was. The judge then went on to state that "there is no confirmation that the appellant had any real dealings with either of these two people... there is no indication that the Sri Lankan authorities know of any connections between the appellant and these two people". It was submitted that this was a factual error. It was submitted that the authorities were aware of the connection which is why the CID questioned the appellant about these individuals as set out at questions 63 and 64 of his asylum interview.
3. It was submitted that this was a material error as K and R are listed as prohibited people in an official list produced by the appellant (and Mr Martin referred me to that list in the appellant's bundle which was an extract from the Gazette of the Democratic Socialist Republic of Sri Lanka dated 21 March 2014 at pages 49 to 87 of the bundle). In particular, the names of the men in question are listed at pages 68 and 85.
4. It was submitted by Mr Martin that given the judge's acceptance of the appellant's detention and interrogation that it must be accepted he was questioned about these two wanted individuals. As they are still wanted then the judge erred in his approach. It was further submitted that the judge failed to properly assess the evidence from the appellant's mother and the Human Rights Commission. This showed that there was ongoing adverse interest in the appellant and this is consistent with the interest in the other two men that the appellant was linked to.
Error of Law Discussion
5. The respondent in the Rule 24 Notice dated 20 December 2016 submitted that the determination included explicit reference to GJ & Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC). Mr Armstrong maintained that there was no error and that the decision was sustainable.
6. Mr Martin took me to the Gazette document which was relied on at pages 68 and 85 of the appellant's bundle. Whilst he conceded that it did not say, in terms, that these individuals were wanted, he indicated that this document had not been disputed and the judge did not dispute it in his decision. Mr Martin referred me to the beginning of the document which indicated that it was the Gazette of the Democratic Socialist Republic of Sri Lanka and therefore a document of the authorities in Sri Lanka. The first entries in the document were the LTTE and the second entry was the Tamil Rehabilitation Organisation and other Tamil organisations were listed. It was Mr Martin's contention, which was not disputed, that this 2014 document indicated that these were individuals who the Sri Lankan authorities had an ongoing interest in.
7. At paragraph [14] of the decision and reasons the judge found:
"The Appellant claims that the Sri Lankan authorities are interested in two more senior members of the foundation whose names have appeared on the list in The Gazette. There is no confirmation that the Appellant had any real dealings with either of those people and, it is notable, the witness Mr S made no mention of them. There is no indication that the Sri Lankan authorities know of any connection between the Appellant and these two people, much less that it would form the basis of enquiries or perceptions that he had become a person working to destabilise Sri Lanka. I find that the Appellant has not shown a real likelihood that there exists a reason why he would be perceived as a person threatening the Sri Lankan state by that association."
8. Mr Martin submitted that this did not sit well with the evidence, including at C11 and C14 of the respondent's bundle which were the appellant's answers at asylum interview at questions 63 and 104 and 105, where he was asked about Mr R and Mr K.
9. Whilst the judge's decision might have been structured more clearly, I do not share Mr Martin's contention that the judge made an error in relation to the evidence before him in stating that:
"There is no indication that the Sri Lankan authorities know of any connection between the appellant and these two people, much less that it would form the basis of enquiries or perceptions that he had become a person working to destabilise Sri Lanka."
10. The judge set out the evidence before him in some considerable detail at paragraph 7(a) through to (m) which spans four and a half pages of the decision and reasons.
At 7(c) the judge sets out the appellant's evidence including that:
"He was interrogated and asked about the people who worked for S. including a man called R, who was a vice-chairman in the Vavuniya area. The Appellant said he was asked where the LTTE hid their weapons and money, about his contacts in the LTTE and incidents that had occurred in the Vavuniya area."
11. The judge then went on at 7(f) to refer further to the appellant's evidence including at interview and question 104 where the appellant stated that the security forces came to his family home in February 2015 and claimed that two people he had worked with in the organisation S. were wanted by the police and that because of perceived links with R the appellant was wanted for investigation. The judge went on to consider that in his witness statement the appellant explained further in relation to S. and R and that the appellant had known that R had helped the LTTE and had fled to India.
12. The judge at [12] accepted the credibility of the appellant's account in relation to his work in Sri Lanka, his supplying of medical supplies to a contact in the LTTE and the likelihood that he was arrested, detained and interrogated about that work. The judge concluded that it is "both credible that the appellant was released after payment of a bribe and likely that there would be no interest in him created by such a release".
13. At [13] the judge went on to find that
"Taken at its highest, for a period of time from early 2005 to early 2009, almost four years, it is accepted that the appellant worked for a non-governmental organisation through whom he bought medical supplies, some of which he passed to a contact in the LTTE. For almost all of that time there was a period of ceasefire and the provision of humanitarian assistance of that kind is not likely to raise any real suspicions about the appellant's activities or his connections with the LTTE. I accept that in early 2009 he may well have been perceived as a person with useful information but those events are now well over seven years ago, the structure of the LTTE in Sri Lanka has been destroyed and there is no evidence that this appellant has taken any action outside Sri Lanka to involve himself in political activities."
14. I am satisfied considering the judge's decision as a whole, that the judge was aware and took into account that the appellant had been questioned in relation to the two individuals including as is set out at 7(c) in relation to R. Whilst the judge erred in referring to the second individual, Mr K as being a member of S., that error is not material. As the judge duly took into account the appellant's claims that "the Sri Lankan authorities are interested in two more senior members" the fact that Mr K had a different role is not material to that consideration as there was no dispute that both individuals are named in the Gazette as considered by the judge at [14] and already discussed by the judge at 7(j).
15. The judge was aware therefore that the appellant was questioned about these two individuals and it was the judge's findings, which were open to him on the evidence, that there was no indication the Sri Lankan authorities know of any current (my emphasis) connection between the appellant and these people (and indeed the judge placed weight on the fact that the further witness at the appellant's appeal made no mention of these individuals) or that if the appellant were returned to Sri Lanka now it would form the basis of enquiries or perceptions that he had become a person working to destabilise Sri Lanka. It is clear the judge had in mind the relevant principles, including the relevance of past persecution as an indicator of future risk, but for the cogent reasons he gave the judge was not satisfied that this appellant would be at risk on return
16. The judge considered and discounted that the appellant could fall within paragraph 7(a) of the head note of GJ and Others (post civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC), which provides:
"7(a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the Diaspora and/or a renewal of hostilities within Sri Lanka."
17. Mr Martin contended that the appellant fell within 7(d):
"7(d) A person whose name appears on a computerised 'stop' list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a 'stop' list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant."
18. The judge specifically discounted this at [16] of his decision and reasons in finding that "there is no evidence which suggests that he might be on a stop or watch list".
19. I have also taken into consideration that the judge, whilst he accepted that the appellant had been questioned in 2009, did not accept as reasonable his explanation for not claiming asylum until he did and considered this as damaging to his credibility. The judge noted that the appellant will have received advice from lawyers including that he conducted an appeal before the First-tier Tribunal in late 2013. The judge took into consideration, at page 88 of the appellant's bundle, the statement the appellant submitted for his 2013 appeal which gave no hint of any background or worries about returning to Sri Lanka.
20. Although Mr Martin submitted that the judge's findings in relation to the claimed continuing interest in the appellant were not sustainable, this is not the case; The judge found at [15] that the appellant had provided no evidence to confirm any continuing interest by Sri Lankan security officers:
"Other than a letter at pages 24 and 25 of the bundle which it is claimed were sent by his mother and mentions a visit by CID officers on 20 February 2015, following which she went to complain to the Sri Lankan Human Rights Commission. Although there are documents that deal with the raising of funds to secure the release of the appellant, there is also a letter on the notepaper of the Human Rights Commission of Sri Lanka dated 25 February 2015 which refers to a complaint dated 24 February 2015 which was registered and was receiving attention (Bundle, page 48). There is no subsequent report, document or indication of outcome of that complaint. There is no evidence to suggest that any form of formal enquiries or proceedings were being taken against the appellant, all of which would have been available from the relevant courts on proper application."
21. The judge went on to find at [16] of his decision and reasons that "bearing in mind the very low level of the appellant's involvement with the LTTE during, mainly, the ceasefire" that he was not satisfied that the evidence showed that any subsequent enquiries by CID officers disclosed an adverse interest in the appellant which would mean that there was a real likelihood that he would be detained on arrival.
22. The judge made this finding in light of his previous favourable findings that the appellant had been involved in the manner he claimed and that he had been detained and questioned. However the judge gave considerable weight to the lack of any evidence to suggest that there were any formal enquiries or proceedings being taken against the appellant which would have been available from the relevant courts on application. The findings that the judge made therefore, that the evidence did not show that "any subsequent enquiries by CID officers disclosed an adverse interest", were well reasoned and he reached a conclusion that was open to him on the evidence.
23. Mr Martin submitted that the judge's findings at paragraph [15] did not amount to a rejection of the letter from the appellant's mother at pages 24 and 25 of this bundle (with subsequent translation). However, the judge considered the possibility of enquiries by CID officers, in the context of this letter, but was satisfied that in light of all the evidence including the "very low level of the appellant's involvement" and that it was mainly during the ceasefire and that there was no evidence to suggest any formal enquiries or proceedings against the appellant, that there was no evidence which would mean there was a real likelihood he would be detained or that he was on a stop list. The fact that CID may have come and enquired about the appellant in 2015, as specifically considered by the judge, was not sufficient in his findings to bring the appellant within the risk categories disclosed in GJ and Others.
24. As already noted, these findings, that the appellant is not at risk on return, were also made in the context of the judge not accepting as reasonable the appellant's application for only claiming asylum when he was informed of the visit by security officers in 2015 because he had only then began to consider his position and take advice.
25. The judge's decision contained cogent reasoning and contains no material error.

Notice of Decision
26. The decision of the First-tier Tribunal does not disclose an error of law and shall stand. The appellant's appeal is dismissed.
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 his 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

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

As I have dismissed the appeal there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Hutchinson