Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05640/2016

THE IMMIGRATION ACTS

Heard At Field House
Decision and Reasons Promulgated
on 28th February 2017
On 18th April 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

MR.MRN
(ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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.

Representation:
For the Appellant: Mr. Jones, Counsel, instructed by Wimbledon Solicitors.
For the Respondent: Mr P. Nath, Home Office Presenting Officer.

DECISION AND REASONS

Introduction

1. The appellant is a national of Sri Lanka born in May 1987. He came to the United Kingdom in February 2009 for the purpose of study. His application for permission to appeal says that he travelled from Bangladesh rather than Sri Lanka but this is not material. His visa was valid until October 2011.Thereafter he overstayed. In September 2015 he was encountered attempting to enter the Republic of Ireland and was returned to the United Kingdom whereupon he claimed protection.

2. His claim was refused by the respondent in April 2016. The respondent concluded the relevant Convention ground arising was religion . The appellant said that he had been harassed before leaving Sri Lanka and since coming to the United Kingdom had written books on religion. The respondent accepted his identity and that he followed Islam. His fear related to individuals. The respondent took the view the Sri Lankan authorities could provide adequate protection and he could reasonably relocate within his home country to avoid localised problems.

3. His appeal was heard by First-tier Judge Agnew on the papers in July 2016 and was dismissed. The judge had the usual bundle from the respondent. She also had the notice of appeal; various e-mails and attachments; extracts from his writings as well as information about the situation in Sri Lanka.

The Upper Tribunal.

4. The appellant made a 16-page application for leave to appeal and submitted additional evidence. Permission was refused by a First-tier judge who saw no error in the decision. The application was renewed and granted by an Upper Tribunal judge. This was on the basis the First-tier tribunal had referred to the appellant's family being able to live in Sri Lanka without risk as Muslims. It was arguable the tribunal had misunderstood the case being made by the appellant, namely, that the interpretation he publicly advances of Islam which would be regarded as heretical by mainstream adherents.

5. The appellant has attended his appeal, represented by Counsel. Counsel sought to argue a claim that the appellant was at risk of self-harm. To this end he provided a report from a Dr.Assalman, consultant psychiatrist dated May 2016. This was not raised in the application for permission to appeal and this report was not before the judge. It was contended that this issue was alluded to by the appellant in the course of his substantive asylum interview which was followed up by the respondent encouraging him to access the community mental health services. Reference is made to healthcare facilities in Sri Lanka being limited to the cities. Counsel accepted that there was no medical evidence before the First-tier tribunal judge.

6. The presenting officer referred me to paragraph 10 and 11 of the decision. The latter states:

`The appellant's argument appears to be that over and above his religion he has an unusual psychological state which sets him apart from others and would make him a target of persecution (see question 2 of substantive interview). There was no independent psychological or other medical evidence before me to substantiate this claim albeit I note that the appellant wrote in the Notice of Appeal he would be submitting medical evidence. Even if he had psychological problems, and I have not found on the limited evidence before me that the appellant has established he has, the respondent makes reference in the refusal letter to positive background country information on medical facilities available in Sri Lanka for those with mental health conditions. It has not been established that the appellant could not avail himself of medical support for any mental health condition he has in Sri Lanka.’

7. I find that the report from Dr.Assalman provides a good insight into the appellant. The diagnosis was of an emotionally unstable personality disorder. It records that he told the doctor he was sexually abused from the age of 12 to 16. His abuser was exposed but this caused some hostility within the community towards the appellant and his family. The report refers to the appellant turning to religion as a means of coping with stress and his inability to deal with rejection. The doctor records that when he is angry and stressed he might think life is not worth living but has no intention, plans or serious thoughts of ending his life and that his religion is a big protective factor. On examination his mood was subjectively and objectively euthymic.There were no suicidal thoughts or ideas of self-harm, and he was not delusional. Treatment options included therapy to discuss past events.

8. That report clearly indicates he does not present as a suicide risk and that his religion is a major protective factor. In the skeleton argument is submitted that this is because he feels safe in United Kingdom and impliedly the situation would be different on return. There is a high threshold to engage article 3 or 8 in this context. The respondent in making the decision on the appellant’s claim did identify this as an issue and dealt with it in the refusal letter. A judge cannot be expected to speculate as to how someone will fare on return. The issue is the foreseeable consequences. The judge did not have any medical evidence available to her. The judge can also not be expected to make an appellant's case for them. The fact the judge considered this issue; how she dealt with it in the context of an appeal on the papers without assistance from representatives, is indicative of the care taken by her. I find no merit in the ground being advanced.

9. Permission to appeal was granted on the basis it was arguable that the judge misunderstood the basis of his claim. Essentially, the argument is that the appellant is not at risk because he is a member of the Malay minority and the Muslim. Rather, it is the way he presents his beliefs in public which would places him at risk from Muslims and non-Muslims. He has also been active in United Kingdom as a writer promoting his views. Factored into this is his personality. In support of this argument is a reference by the judge at paragraph 10 that his family members have not faced persecution. The judge referred to his parents, three brothers and a sister, who are of the same religion and hold similar views.

10. The extract from paragraph 10 however is being taken out of context. If that paragraph is read in line with the following paragraph it is clear the judge has considered the appellant’s situation as unique. She refers to his argument as suggesting he would be targeted because of his unusual psychological state. She also refers to him being targeted because of his appearance, including the way he dresses and the perception he may be homosexual. The judge concluded he had failed to establish he would be at risk of persecution because of these factors. At paragraph 16 she went on to consider specifically his writings. Taking matters at their height she suggested he might be subjected to bullying but not persecution. I find this a perfectly rational conclusion which accords with the evidence presented. It is clear that the judge was not simply considering the claim on the basis he was a Muslim from a minority community. Rather, the judge was looking at him as a unique individual.

11. The final ground advanced relates to article 9. It was acknowledged this was not explicitly advanced by the appellant but was an obvious ground. In my view by the same token it is obvious the judge took this into account. She dealt with how he manifested his religious beliefs. This was in the consideration of his practice of Islam, his appearance and his own observances and writings.

12. My conclusion is that the judge fully grasped the issues arising from the claim and had careful regard to the material presented. The decision indicates the care taken by the judge in exploring issues, all of which were not presented in a clear manner by the appellant. The judge correctly identified the issues arising and gave clear and cogent reasons for her conclusions. These included credibility findings which have not been challenged. The relevant standard and burden of proof was applied and the judge had due regard to the relevant country guidance decisions and the background information. I find no material error of law in the decision. Consequently, the outcome, dismissing the appellant's appeal shall stand.

Decision.

No material error in the decision of the First-tier Tribunal dismissing the appeal has been established. Consequently, it shall stand.

Deputy Upper Tribunal Judge Farrelly.

28th February 2017