Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05896/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 January 2017
On 18 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

mr niroshan nanda kumarapriya chandrasiri rathnagoda baranaduge
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Kumudeusena, Legal Representative
For the Respondent: Mr I Jarvis, a Home Office Presenting Officer

DECISION AND REASONS

Introduction

1. The appellant appeals to the Upper Tribunal (UT) with permission from First-tier Tribunal Judge Gillespie (Judge Gillespie) who found that it was arguable that the Immigration Judge who decided the appeal to the First-tier Tribunal (FTT) – First-tier Tribunal Judge O’Rourke - (the Immigration Judge) had given insufficient reasons for rejecting certain original documents.

Background

2. The appellant is a citizen of Sri Lanka who was born on 5 September 1979. The appellant first came to the UK as a Tier 4 multiple entry student migrant following an application at the British Deputy High Commission in Chennai. This was issued on 23 March 2011 valid from 29 March 2011 until 30 September 2013. He arrived in the UK on 29 April 2011. On 3 September 2013, he applied for a T2 SW-DEP – partner applying with relatives – LTR. This was originally refused but granted on appeal until 14 October 2016. Change will Leave was curtailed on 30 September 2016, however, “with no Right of appeal (ROA)” to expire on 5 December 2015 as a Tier 2 sponsor licence was revoked. On 30 November 2015, the appellant claimed asylum at Croydon Asylum Screening Unit.

3. The asylum decision was taken on 25 May 2016 when the respondent decided the appellant did not qualify either under the Refugee Convention 1950 or for humanitarian protection under paragraph 339C of the Immigration Rules. In considering the application the respondent found it necessary to consider paragraphs 339F-339M. The respondent decided that the appellant had not established a well-founded fear of persecution nor had he established that there were substantial grounds for believing there was a risk of serious harm if she were returned to Sri Lanka. In her decision letter the respondent summarised the basis of the claim. The appellant had lived in Mulleriya, Colombo between 5 June 2010 and 29 April 2011 until he had left Sri Lanka in 2011. His wife and son were dependent on his asylum claim. On 10 June 2010, he claims that the CID came to his house and questioned him about two Tamil employees. The appellant claims that he was arrested, taken to an unknown place and placed in a cell. He claims to have been detained for five days, during which he was questioned and beaten. He claims also to have been tortured.

4. The respondent refused his application for asylum/human rights/humanitarian protection because he did not accept the credibility of the appellant’s account, pointing out that there appeared to be no potential risk to the appellant. In the circumstances the appellant could safely return to Sri Lanka.

5. The appellant appealed the refusal. The Immigration Judge decided that although his initial account of his arrest and detention in 2010 was consistent and it was not implausible that two employees who came to the attention of the police would be questioned, he nevertheless rejected the appellant’s account of subsequent events including his departure from Sri Lanka. The Immigration Judge took account of the medical evidence but concluded that there were other possible causes of scarring and injuries to the appellant. The appellant was not of continuing police interest and, like the respondent, the Immigration Judge concluded that the appellant could safely return to Sri Lanka. Because there were two dependants included in the application, their interests also had to be considered. The Immigration Judge looked at the best interests of the appellant’s child but it was clear that there was an extended family in Sri Lanka to which the appellant would be returned.

The Hearing

6. At the hearing the appellant’s representative, Mr Kumudeusena, stated that the Immigration Judge had rejected certain documents without justification. He referred me to paragraph 24 of the decision where the Immigration Judge had made favourable findings and said that the subsequent unfavourable findings were not consistent with objective evidence showing that the appellant had escaped from custody. I was particularly referred to paragraph 26 of the decision which stated that it was not accepted that the appellant was of continued interest to the police having regard to the documents produced. The respondent did not accept they were genuine documents. I was referred to page 40 in the appellant’s bundle in this respect which was said to be indicative of the true intentions of the authorities. Furthermore, there was a medical report supporting the appellant’s injuries. This stated that the appellant’s injuries were “highly consistent”. The Immigration Judge had been wrong to deal with the matter in the manner that he had. He attached too much weight to the delay (presumably a reference to his delay in claiming asylum for a period of five years) which had occurred for which there was an adequate explanation, Mr Kumudeusena said. The Immigration Judge failed to give adequate reasons for rejecting the possible payment of a bribe by the appellant which helped to explain his escape from detention. Such bribes were regularly paid, as the authority of PJ [2014] EWCA Civ 1011 confirmed. I was invited to find a material error and remit the matter to the FTT. I was invited to set-aside the adverse credibility findings prior to doing so.

7. Unsurprisingly, Mr Jarvis took the opposite view. He pointed out that the forensic analysis of a decision of the FTT was inappropriate. The appellant had been over critical of the Immigration Judge’s findings. The Immigration Judge had not been bound to accept the appellant’s account. There is no obligation on the Secretary of State to carry out enquiries into documents that were produced. I was referred to paragraph 29 of the case of PJ where the Court of Appeal decided that the involvement of lawyers did not create any presumption that documents produced were reliable. The Immigration Judge had reached findings that were well within the ambit of what was permitted and the underlying claim was unreliable. Furthermore, NP (Sri Lanka) [2015] EWCA Civ 975 suggested that the Tanveer Ahmed [2002] Imm AR 318 decision was still good law. The Immigration Judge had indicated at paragraph 26 of his decision that he had identified the correct issue. The Immigration Judge had rejected much of the appellant’s account of his continued interest to the police. I was referred to numerous passages in the appellant’s bundle which tended to support these submissions. The documents had not been obtained until very late in the day, there was a major credibility issue as to the delay in claiming asylum and these matters all weighed in the balance. The fact that the Immigration Judge accepted some of the appellant’s account only showed that the Immigration Judge had given the matter his proper scrutiny.

8. The appellant briefly responded to say that the whole matter needed reconsidering. The evidence of a warrant having been issued was credible and there were several reasons, including the medical evidence, why the decision of the FTT was unsustainable.

9. Both parties appeared to agree that if I was to find a material error of law in the credibility assessment it may be necessary to set that assessment aside and make fresh findings either in this Tribunal or by remitting the matter to the FTT.

10. At the end of the hearing I reserved my decision which I will give after the following discussion.

Discussion

11. As I indicated at the hearing, the Immigration Judge clearly distinguished between the period prior to the appellant’s release from his initial arrest and detention in custody and the date of his later departure from Sri Lanka. The Immigration Judge was entitled to decide which parts of the appellant’s account he accepted and which parts he rejected. The Immigration Judge was not bound to accept a document merely because it had an air of authenticity about it. As the Court of Appeal said in NP (Sri Lanka) (at paragraph 28), approving the earlier case of Tanveer Ahmed, the Tribunal “was not bound to conclude that just because the documentation had not been investigated or challenged by the respondent, it was to be attributed enhanced weight”. Documentary evidence is treated in the same way as oral evidence in the sense that it is a matter for the judge hearing the case decide how much weight to give it. The Immigration Judge was entitled to conclude that the appellant had not given a truthful account of his release from custody and subsequent events. He was also, in my view, entitled to the reject appellant’s documentary evidence.

12. In addition to the case of NP (Sri Lanka) I have also been I have been helpfully referred to the case of PJ (Sri Lanka) [2014] EWCA Civ 1011. In that case, the Court of Appeal explained that it was open to an immigration judge to conclude that documents were false or unreliable and there was no requirement on the Tribunal to go as far as finding a forgery. Based on the well-established authority referred to above, the burden rests on the party relying on a particular document to show that it is both reliable and true. There is no additional weight to be afforded to allegedly official documents, e.g. those emanating from the police, the courts or from lawyers in the country of origin. A court or Tribunal is entitled to take robust view and reject that evidence. In this case, this supported the conclusion that the appellant had not been detained and tortured as claimed. This conclusion was open to the Immigration Judge on the evidence presented to him.

13. In this case, it is notable that the appellant was content to make various immigration applications with a view to remaining in the UK and it was not until he had exhausted these options has he turned to considering advancing an asylum claim. It seems that, provided he applied, as he did, the low standard of proof which pertains in these proceedings, the Immigration Judge was entitled to reach the adverse view that he did on the appellant’s credibility. The delay of five-years in claiming asylum and only doing so after all other avenues had been exhausted reflected adversely on the appellant’s credibility (see paragraph 25 ii of the Immigration Judge’s decision).

Conclusions

14. The principal basis upon which the decision of the F TT is challenged is the alleged failure to fully consider the documents which, Judge Gillespie characterised as, “original documents produced by the appellant". However, it is clear that Immigration Judge dealt with the documents as part of his overall assessment of the case presented for the appellant. It was notable, and the Immigration Judge commented on this at paragraph 18 of his decision, that the appellant had not even referred to the documents during his first interview even though this took place many years after the appellant first came to the UK. In my view the immigration judge dealt fairly with the evidence, including evidence favourable to the appellant. For example, he dealt Fully with the medical evidence making a fair assessment of it and indicated generally assisted the appellant’s case. But the fact that a judge makes a favourable assessment of part of the evidence does not mean he is bound to accept the whole case. He seems to have dealt fully with the documents. Overall, the immigration judge reached an adverse credibility assessment based on the evidence presented before him and the present appeal amounts to little more than a disagreement with his conclusions.

15. For these reasons, I have concluded that the appellant’s grounds do, indeed, amount to an “over forensic” analysis of the decision which was based on broad fact-findings set against the correct background and legal authority as required.

Notice of Decision

I have decided to dismiss the appellant’s appeal. Accordingly, the decision of the FTT stands.

No anonymity direction is made.

Signed Date 11 April 2017

Deputy Upper Tribunal Judge Hanbury

TO THE RESPONDENT
FEE AWARD

No fee award was made by the FTT and I make no fee award.

Signed Date 11 April 2017

Deputy Upper Tribunal Judge Hanbury