Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04310/2016

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 28th March 2017
On 29 March 2017

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

K K
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms P Yong of Counsel, instructed by Wimbledon Solicitors
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The appellant is a citizen of Sri Lanka born on 15th December 1981. He arrived in the UK on 19th October 2015 and claimed asylum the next day. His application was refused on 15th April 2016. His appeal against the decision to refuse asylum was dismissed by First-tier Tribunal Judge Bowler in a determination promulgated on the 16th November 2016.
2. Permission to appeal was granted by Upper Tribunal Judge McWilliam on 8th February 2017 on the basis that it was arguable that the First-tier judge had erred in law in failing to properly factor in the report and diagnosis of Dr Hajioff with respect to the appellant’s PTSD into the credibility assessment.
3. The matter came before me to determine whether the First-tier Tribunal had erred in law
Submissions – Error of Law & Re-making
4. The grounds of appeal, which are long and confusing, contend in summary as follows.
5. Firstly, it is said that the First-tier Tribunal failed to consider the psychiatric evidence of Dr Hajihoff (who is found by that Tribunal to be a highly qualified doctor) when considering whether the appellant had experienced ill-treatment and serious harm and thus if there was future risk of such persecution in the future. It was not correct to find Dr Hajihoff had not practiced since 2007; it was not correct to find Dr Hajihoff had “simply recounted what the appellant says”. The conclusion that the diagnosis of PTSD should be rejected or treated with caution is inadequately reasoned. In failing to give proper weight to the fact of the appellants’ “chronic PTSD” the First-tier Tribunal failed to appreciate evidence that the appellant’s history had credibility and that he was a vulnerable witness, whose condition might explain other inconsistencies in his evidence particularly given the other supporting evidence of memory problems from the appellant’s GP. It is identified that the appellant’s evidence about going into hiding in 2010 as a case in point and his poor recall of dates, see paragraph 31 of the decision. It is clear that the diagnosis is also consistent with the fact that the First-tier Tribunal accepted that the appellant had previously been detained, see paragraph 47 of the decision, although the finding may seem less certain at paragraph 54 of the decision.
6. Secondly it is contended for the appellant that the First-tier Tribunal relied upon no country of origin evidence to support the fact that leaving on his own passport meant the appellant was not likely to appear on a stop list. In oral submission Ms Yong added that there was a key concession in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 at paragraph 170 by Counsel for the respondent that given the prevalence of bribery and corruption in Sri Lanka it was not possible to say that leaving Sri Lanka lawfully was not probative of a lack of adverse interest, and that this concession was supported by expert evidence cited in GJ & Others.
7. Thirdly it is argued that it was perverse of the First-tier Tribunal not to find the appellant was at risk as a family member given his brother-in-law who had given evidence abroad against the Sri Lankan authorities, and in particular Major Diaz, and in the light of the First-tier Tribunal’s own findings of his own previous LTTE activities (i.e. from 2006 at paragraph 30 of the decision; and his detention for 3 days in 2014 at paragraph 47(iv) of the decision) and the failure of the Tribunal to decide whether the appellant’s wife’s history that the police and CID were looking for him (see his statement at paragraph 11) was correct. It was unreasoned to find that the appellant was not at risk as his brother-in-law was not a blood relative (see paragraph 51) and that his brother-in-law was not a human rights activist as this brother-in-law had given public evidence against the Sri Lankan government because of his belief in the rights of the Tamil people. As the appellant’s brother-in-law had given this evidence in a public forum the appellant should be seen as someone with “elaborate links” with the LTTE.
8. These facts are all clearly relevant to whether the appellant might be perceived to be a threat to the integrity of the Sri Lankan state, as per paragraph 356 risk category 7 (a), as identified in GJ & Others . This is clearly a separate risk category to those involved in post-conflict Tamil separatism within the diaspora, see comments of the Court Appeal at paragraph 43 in MP and NT (Sri Lanka) v SSHD [2014] EWCA Civ 829.
9. Fourthly it was not correct to have found the appellant’s statement unreliable because of his hesitance in adopting it.
10. Fifthly the First-tier Tribunal erred by refusing an adjournment to submit a copy of the appellant’s brother-in-law’s asylum interview which had led to him being granted refugee status in Switzerland and the DVD transcript of his brother-in-law’s evidence. The basis for refusing the adjournment was not in accordance with SH (Afghanistan) v SSHD [2011] EWCA Civ 1284. The appellant was not in a position to give evidence about his brother-in-law’s role with the LTTE due to his lack of knowledge and memory problems, and the First-tier Tribunal found the appellant to be unclear on this issue, see paragraph 55 of the decision. Absent this evidence it was not possible for the First-tier Tribunal to assess the appellant’s strength of links with the LTTE. Due to this error the appellant did not have a fair hearing.
11. In a Rule 24 notice the respondent argues that the grant of permission notes that the grounds are lengthy and lack focus. The respondent argues that the consideration of the medical report (whose conclusions were accepted by the First-tier Tribunal Judge) did inform the credibility and risk assessment, see paragraph 45 to 63 of the decision.
12. The respondent argues in the Rule 24 notice that it was rationally open to the First-tier Tribunal to find that even if the appellant was detained in 2014 the fact that the appellant could travel on his own passport and did not encounter any other problems prior to leaving means that he was not considered a threat by the Sri Lankan authorities or put on a stop list, see paragraphs 54 and 59 of the decision.
13. Mr Clarke added in oral submissions that there was evidence at paragraphs 59 of GJ & Others that indicated a chief immigration officer did supervise the exit area making bribery at that point harder, and that this evidence was given weight by the Upper Tribunal ,see paragraph 236 of the decision. Mr Clarke argued that therefore that reliance on departure through legitimate channels was a matter which rationally the First-tier Tribunal could say supported a conclusion that the appellant would not face further persecution on return to Sri Lanka. Similarly it was rational for the First-tier Tribunal to place weight on the lack of contact between the Sri Lankan authorities and the appellant’s wife and other family (see paragraph 47 (iii) and (vi)) in the period after the appellant escaped from detention and before he left Sri Lanka. There is no error of law in the decision.
Conclusions – Error of Law & Remaking
14. I do not find that the refusal of the adjournment was unfair as there are no reasons given as to why the evidence of brother-in-law could not have been put in full in a written statement and why the translation of the DVD of his evidence against the Sri Lankan government could not have been done by between 19th September 2016, when the application for an adjournment was made, and the 3rd October 2016, when the hearing took place. It is clear that the appellant could not have given the evidence himself about his brother-in-law but it is entirely unclear why an adjournment was needed given the First-tier Tribunal’s willingness to accept a written statement from this witness. The First-tier Tribunal properly directs itself with respect to the adjournment request being assessed on the basis of fairness at paragraph 9 of the decision.
15. Contrary to what is said at paragraph 46 of the decision Dr Hajioff does provide evidence of his current qualifications and practice, this is set out at paragraph 1 of the report. He is a consultant psychiatrist who has been employed for the past 15 years as visiting psychiatrist to Pentonville prison. Dr Hajioff does not attribute the appellant’s PTSD to any particular cause, so he cannot be criticised for not considering other causes of the chronic PTSD. He clearly attributes the appellant’s his poor memory to that PTSD. This evidence should therefore have been considered as potentially corroborating the appellant’s history of detention and ill-treatment, and as definitely corroborating memory problems in relation to the appellant’s evidence. However, it is notable that in any case the First-tier Tribunal however accepts the appellant’s detention and ill-treatment in June 2014 (see below).
16. The First-tier Tribunal find that the appellant was detained in June 2014 for three days for political reasons, see paragraph 47 of the decision. It is also accepted the appellant was also ill-treated during that time, see paragraph 59 of the decision. It is also accepted that the appellant’s brother-in-law in Switzerland has LTTE involvement and has given evidence in Switzerland against Major Diaz, but not that this means that the appellant has elaborate LTTE links, see paragraph 57 of the decision.
17. The only question of any materiality in these circumstances before this Tribunal is whether the decision under paragraph 339K of the Immigration Rules of the First-tier Tribunal, that there are “good reasons” why the ill-treatment this appellant previously suffered will not be repeated, was one rationally open to the First-tier Tribunal or whether that decision was sufficiently reasoned.
18. It is notable that the appellant’s ill-treatment took place well after the end of the civil war in May 2009, so the country guidance provided in the decision of GJ & Others (Sri Lanka) on who presently faces a real risk of serious harm on return to Sri Lanka must be interpreted as meaning that at that point in June 2014 when he was detained and ill-treated the appellant was seen as someone who was working for Tamil separatism and trying to destabilise the unitary Sri Lankan state, and who had a significant role in post-conflict Tamil separatism. The only logical basis on the facts of this case on which this could possibly be the case is the connection with his brother-in-law.
19. Whether this decision errs in law therefore comes down to whether the fact that the appellant was able to live in Sri Lanka between June 2014 and October 2015 hiding with relatives, and during this period his wife was not troubled at home, and whether the fact that he could leave Sri Lanka on his own passport in October 2015 meant that he was not on a stop list and no longer wanted on the above basis, and thus that there are “good reasons” why the serious harm he experienced in June 2014 will not repeat itself.
20. I find that the First-tier Tribunal did err in law in finding that these matters meant that there were good reasons why the serious harm would not repeat itself as the conclusions on this matter are insufficiently reasoned. With respect to leaving Sri Lanka through official channels whilst it was open to the First-tier Tribunal to refer to paragraph 58 of GJ & Others at paragraph 54 of the decision, it was necessary for that Tribunal also to deal with the concession by counsel for the Secretary of State at paragraph 170 of GJ & Others and also the expert evidence set out at paragraph 146 and Appendix K, paragraph 15, of Mr P Anton Punethanayagam which both support the conclusion that this departure is not indicative of the appellant not being wanted by the Sri Lankan authorities. No reasoning is given at paragraph 39 of the decision as to why it was not credible that the Sri Lankan authorities did not look for him for 16 months, and this has to be put in the context that those same authorities are accepted as having detained and ill-treated the appellant some three years after his brother-in-law gave his evidence and in the context that it is accepted that he escaped detention due to payment of a bribe, see paragraph 47 (v) of the decision.
21. It was accepted by both parties that it was appropriate for me to remake this decision simply by looking at these two issues and remaking them with greater reasoning starting from the proposition found by the First-tier Tribunal that the appellant had experienced persecution (in the form of detention and ill-treatment) for reason of his actual and imputed political opinions in June 2014, and that the submissions set out above were all that either party wished to submit for this remaking.
22. In the context of the original act of persecution of the appellant having taken place after some considerable delay after the most likely cause of the Sri Lankan authorities having an interest in the appellant, and in the context of his having escaped from detention via payment of a bribe which might reasonably be supposed to have contained some element of payment to keep the authorities away from the appellant’s matter for a period of time I do not find that the lack of contact between the Sri Lankan authorities and the appellant’s family prior to his departure from that country (a period of 16 months) to be a factor which leads me to conclude that there are no good reasons why the ill-treatment would not be repeated if he were to be returned.
23. I am similarly persuaded that whilst GJ & Others does include evidence accepted as reliable from Mr Lewis that would make it seem difficult to use corruption to exit Sri Lanka whilst wanted by the authorities on your own passport that ultimately the conclusion of counsel for the respondent, Mr Hall, as is set out at paragraph 170, that an appellant leaving on his own passport was not “probative of a lack of adverse interest in an individual” is the most reliable position, and I note that this conclusion is supported by the accepted expert evidence of the Sri Lankan barrister, Mr Punethanayagam.
24. It follows that I conclude that neither of these issues give “good reason” to conclude that the serious harm that the appellant experienced in 2014 would not be repeated, and that his appeal should be allowed on asylum and human rights grounds.

Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. I set aside the decision of the First-tier Tribunal dismissing the appeal
3. I re-make the decision in the appeal by allowing it on asylum and human rights grounds.
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. I do so in order to avoid a likelihood of serious harm arising to the appellant from the contents of his protection claim.

Signed: Fiona Lindsley Date: 28th March 2017
Upper Tribunal Judge Lindsley