United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/01147/2017

 

 

THE IMMIGRATION ACTS

Heard at Bradford UT	Decision & Reasons Promulgated
On 13 th November 2017	On 1 st December 2017

 

 

Before

 

DEPUTY upper tribunal judge ROBERTS

 

Between

 

mr M.A.H.

(ANONYMITY DIRECTION MADE)

Appellant

 

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

 

Respondent

 

Representation :

 

For the Appellant: Mr S Tettey of Counsel

For the Respondent: Mrs R Pettersen, Senior Presenting Officer

 

Anonymity

 

Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008

An anonymity direction is made. As this is a protection claim, it is appropriate to make such a direction.

 

DECISION AND REASONS

1.              The Appellant is a national of Sri Lanka born [ ] 1967. He arrived in the UK on 22 ^nd March 2011 as a dependant of a student (his wife). Their son also entered as his wife's dependant.

2.              On 24 ^th April 2012, shortly before the expiry of her current leave to remain, the Appellant's wife made an application for further leave to remain as a student. That application was refused by the Respondent on 7 ^th November 2012.

3.              On 11 ^th December 2012 following refusal of his wife's application for leave, the Appellant claimed asylum naming his wife and son as his dependants.

4.              The Respondent refused the Appellant's application for asylum/humanitarian protection on 23 ^rd January 2017. The Appellant appealed against that decision to the First-tier Tribunal.

The First-tier Tribunal

5.              In a decision promulgated on 23 ^rd March 2017, First-tier Tribunal Judge Hussain dismissed the Appellant's appeal.

6.              The judge noted that in summary the Appellant's claim is that he feared being returned to Sri Lanka because he feared a man known as Colonel Karuna. The Appellant's claim is that he was a serving naval commander in the Sri Lankan Navy. He saw and witnessed atrocities carried out by Colonel Karuna who at that time was complicit with the Government. He reported matters to his superior officer and was informed that action would be taken against Karuna. However a year after he had reported these matters, the Appellant was arrested on false allegations of embezzlement of Government funds.

7.              He said that he was held in detention for eighteen months without charge. At the conclusion of the eighteen months he was released and informed that he was suspended from duty pending a court martial.

8.              He returned home but had been there only one day when he was awoken in the night. He saw Colonel Karuna who had sent armed men to kill him. He managed to escape and spent a year hiding upcountry. In the meantime his wife applied for a student visa to come to the UK, naming the Appellant and their son as her dependants. The Appellant and his family travelled to the UK entering on 22 ^nd March 2011. His claim for asylum was not made until 21 months after he arrived in the UK.

9.              Judge Hussain found that he comprehensively disbelieved the Appellant's account. He found therefore that he could not be satisfied, even to the lower standard of proof, that the Appellant would be at risk on return to Sri Lanka. Accordingly he dismissed the appeal.

10.          The Appellant applied for permission to appeal against the FtT's decision. The First-tier Tribunal refused permission but the Appellant renewed his application before the UT. On 27 ^th September 2017 permission was granted by UTJ O'Connor in the following terms:

"It is arguable that the FtT erred in its consideration of the credibility of the Appellant's evidence, for the reasons set out in the lengthy grounds. Whilst individually the errors may not be material, when taken cumulatively it is arguable that absent the making of such errors the FtT could have come to a different conclusion."

11.          Thus the matter comes before me to decide initially, whether the decision of the FtT discloses such error of law requiring it to be set aside and remade.

Error of Law Hearing

12.          The Grounds of Appeal assert that the Tribunal judge:

•                 failed to provide adequate reasoning for the adverse credibility findings made against the Appellant

•                 failed to have proper regard to the established facts before him and made a material misdirection by omitting to properly apply the country background material and country guidance cases

•                 misdirected himself in relation to GJ and others (post civil war returnees) Sri Lanka CG [2013] UKUT 319 (IAC) on the basis that the Appellant is a naval officer who abandoned his post during conflict and would therefore inevitably be questioned and detained on return

•                 did not keep in mind the inordinate delay by the Respondent in dealing with the Appellant's claim

Cumulatively it is said, these matters make the judge's decision unsafe.

13.          Mr Tettey 's submissions closely followed the points raised in the grounds. He addressed me at length, saying initially that the FtT erred by omitting to have proper regard to an established fact, this being the Appellant's rank as a senior naval officer. The Respondent had accepted the Appellant's rank.

14.          Following on from this the judge omitted to provide adequate reasoning for an adverse credibility finding against the Appellant. In particular, Judge Hussain made a finding concerning the contradictory nature of the Appellant's evidence regarding his treatment in detention. The judge uses that finding as a reason for making an adverse credibility finding about the Appellant's time in detention. Mr Tettey stated that the contradiction is as follows: on the one hand the Appellant said he was detained but not ill-treated in detention; on the other hand the Appellant said he was detained and threatened in detention but the threats did not manifest. Mr Tettey's argument ran on that it is wholly unsustainable to suggest that such evidence demonstrates a contradiction. It was this point which had led the judge to form his conclusion that the Appellant's testimony of his time in detention was not credible.

15.          Following on from that point Mr Tettey said that the judge had misdirected himself by failing to properly apply the country background material. The judge made an adverse credibility finding against the Appellant on the basis that the Appellant was not credible when giving his account of being detained for eighteen months without trial. The judge had based his finding on one source of evidence namely the Sri Lankan Naval Act which says that detention of naval officers without charge is permitted for a period of seven days only. Mr Tettey said that it is well established over many years of jurisprudence and country guidance cases that the Sri Lankan Security Forces consistently omit to apply the rule of law.

16.          The next point at issue is that the judge failed to recognise that the Karuna faction has consistently been involved in conflict and politics in Sri Lanka and that the faction has at various times been opposed to the Sri Lankan Government and at other times supported it. He accepted that the background documents show that Karuna himself is now in custody awaiting trial on various serious matters. The detention or release at any time of General Karuna did not negate the human rights abuses carried out by members of his faction and his paramilitary organisation and the Appellant would still be at risk from these people.

17.          Mr Tettey then submitted that FtTJ Hussain misdirected himself in relation to the case of GJ and Others. The guidance in that case very clearly identified a mechanism for return and the process of return includes identifying the returned individual at the point of return. He submitted that the Appellant was a naval officer who abandoned his post during conflict. He would inevitably be questioned, detained and ill-treated as part of the identification process on return.

18.          Finally it was said that there has been an inordinate and unexplained delay in the Respondent dealing with the Appellant's case. At no stage has an explanation for the delay been given. The FtT omitted to deal with this matter. No findings are made as to the disadvantage to the Appellant, of the impact that such a delay has on his ability to recall or gather evidence, nor the fairness of permitting the Respondent's decision to stand. Therefore taking all these matters together, the decision should be set aside and remitted to the First-tier Tribunal for a fresh hearing.

19.          A Rule 24 response was filed on behalf of the Respondent. Mrs Pettersen's submission relied upon the summary contained in the Rule 24 response. She submitted that the judge had taken into account all the evidence which was before him and emphasised that the judge was correct to find a contradiction in the Appellant's interview notes concerning his time in detention. She went on to say that in any event this was only one piece of evidence considered by the judge. He had looked at the evidence in the round as he was obliged to do and had made clear findings that the Appellant's testimony was not credible.

20.          She emphasised that part of the judge's reasoning clearly hinged on the Appellant's own account that he had come to the UK in order to seek protection yet had made no claim to asylum until nearly twenty-one months after his entry. That greatly affected the Appellant's credibility not least because his reasons for failing to claim promptly simply did not ring true. In the circumstances there were no material errors in the FtT's decision. The findings were wholly sustainable and the grounds amounted to no more than a disagreement with the decision. The decision should stand.

21.          Mr Tettey responded briefly reemphasising that the Appellant had left Sri Lanka at a time when Sri Lanka was in a state of conflict and would therefore be at risk on return as a naval commander who had left his post. At the end of submissions I reserved my decision which I now give with my reasons.

Consideration

22.          In my consideration I shall deal with the matters in the order set out in the renewed grounds for permission to appeal. I do this bearing in mind that permission was granted on the basis that whilst individually the errors complained of may not be material when taken cumulatively it is arguable that absent the making of such claimed errors, the FtT could have come to a different conclusion. I also remind myself that when analysing a decision which contains adverse credibility findings which are the subject of a challenge, it is important to remember that the FtTJ saw and heard evidence from the Appellant which I have not, and that a judge is only required to give sufficient reasons to explain his decision, which in this case was to find the Appellant not credible.

23.          The first point of challenge made by Mr Tettey turns on [11] and [12] of the decision. The judge is criticised for his adverse credibility finding against the Appellant regarding his treatment in detention. The grounds assert that the alleged contradiction is as follows: on the one hand the Appellant said he was detained but not ill-treated in detention; on the other hand the Appellant said he was detained and threatened in detention, but the threats did not manifest. Mr Tettey's submission is that there is no contradiction in this. It is simply a question of the wording used. The Appellant's claim, he said, is that he was not mistreated in the sense of being tortured physically, but rather he received threats which did not manifest.

24.          I have looked carefully at the Appellant's responses in interview. This is a matter that was raised in the Respondent's refusal letter and the judge clearly compared (AIR 34/35) with (AIR 53). At AIR 53 the Appellant is noted as saying, " when I was in the detention centre many attempts were made to kill me and I received threats saying they would kill me." It is clear from a reading of the decision that the judge took care to identify this as a material inconsistency in the Appellant's narrative. It is a serious matter to say that an attempt has been made on one's life. The Appellant was not saying that there had been just one attempt, he was clearly saying that there were many attempts. There has never been any satisfactory explanation put forward why the Appellant gave the response that he did at AIR 53.

25.          On the contrary by the time of his witness statement dated 24 ^th February 2017 that point seems to have been sidelined altogether. At [10] of this statement the Appellant simply says about his time in detention that he was forced to work very hard and, " there were threats to my life whilst I was detained, but I was not actually physically attacked in detention." No explanation is given for his response at AIR 53. I find no merit therefore in Mr Tettey's assertion that the judge has erred in his consideration of this point. I find that on the evidence before him, the judge was entitled to find that the Appellant had given inconsistent evidence about his treatment in detention.

26.          This brings me onto the next point raised by Mr Tettey which was that the judge materially misdirected himself by omitting to apply the country background material when making an adverse credibility finding against the Appellant on the basis of his claimed eighteen months detention without trial. The judge disbelieved this claim because he preferred the evidence of one background source which stated that the Sri Lankan Naval Act permits the detention of naval officers without charge for a period of seven days only. Mr Tettey's criticism is that the Appellant is from Sri Lanka and that it is well established over many years of jurisprudence that the Sri Lankan Security Forces consistently omit to apply the rule of law. The judge's reason for finding against the Appellant on this point is that he finds it implausible that the navy disregarded the Act. It is quite right that as Mr Tettey points out, the military do disregard abuses relating to time in detention. However as in all cases the weight to be attached to a particular piece of evidence is a matter for the trial judge. This one point has to be looked at in the context of the claim as a whole, including what is set out in [9] through to [14] including the evidence, or rather lack of it, relating to the arrest warrant.

27.          The surrounding evidence shows that the judge noted that by the Appellant's own account he had reported General Karuna's activities to Admiral Karamnagada, his superior officer. Yet according to the Appellant it was Admiral Karamnagada who had him arrested. The judge took into account that when the Appellant left Sri Lanka, despite his assertion that the security forces had visited and searched his house, he was able to bring with him documents which together read as a C.V. of his service time in Sri Lanka. What he did not bring was the warrant which he says Admiral Karamnagada had issued for his detention. He said he was given the warrant but did not bring this document with him. His explanation for failing to bring a document which would have been of great assistance to him was found by the judge to be less than satisfactory. The judge therefore had good reason for finding the Appellant's account of his detention unsatisfactory.

28.          The judge's lack of belief in the Appellant's account was reinforced by the narrative concerning his claimed escape from General Karuna's men in July 2010. The judge found it lacking in credibility that the Appellant dressed only in his shorts would be able to outrun and escape from ten to twelve armed men descending upon him in the middle of the night. The judge found the Appellant's narrative implausible and I see no reason to interfere with that finding.

29.          The most telling point of the Appellant's credibility however is the fact that he entered the United Kingdom on 22 ^nd March 2010, in order, he said, to escape his problems in Sri Lanka. Yet he only claimed asylum 21 months after entry, at the time that his wife's application for further leave was refused. His explanation for his delay in claiming was that he did not know about claiming asylum and thought that he would remain here and be safe pending a change of Government in Sri Lanka. The FtT Judge properly took this into account when assessing the general credibility of the Appellant and found the explanation to be lacking. I find I agree with both Mrs Pettersen and the judge's assessment on this point. The Appellant is an educated man who has attained a high rank in the Sri Lankan Navy. To say he did not know about claiming asylum when he now says the whole purpose of his flight was to seek protection undermines his credibility. I see no reason therefore to disagree with that finding made by the judge.

30.          Mr Tettey argued that as a high ranking naval officer, and someone who has claimed asylum, the Appellant is bound to be on a watch or stop list and thus at risk on return to Sri Lanka. He pleads the country guidance case of GJ and Others in support of this. The difficulty for this Appellant is that asylum claims are fact sensitive. They require the foundation of credible evidence of the circumstances pertaining to a claim. In the Appellant's case, the judge found that he comprehensively disbelieved the Appellant's claim.

31.          Mr Tettey submitted that the Appellant would be at risk on return simply on account of his being a serving naval officer who has claimed asylum. This point was addressed by the FtTJ at [33] and [34]. The judge found that there was no credible evidence that the Appellant was of interest to the authorities. He came to this conclusion by taking into account that the Appellant was able to leave Sri Lanka on his own passport and after passing through the numerous checkpoints along the road to Colombo airport. Moreover, the Appellant has simply not established any foundation for being on a watch list, because he has been found to be not credible about his real reasons for leaving Sri Lanka. I see no reason to interfere with the FtTJ's findings.

32.          The final point raised by Mr Tettey asserted that the FtTJ omitted to deal with the matter of there having been an inordinate and unexplained delay in the Appellant's case. He said that the judge made no findings about the disadvantage to the Appellant that the impact of such a delay would have on his ability to recall or gather evidence. It is right that there was no explanation from the Respondent on why it had taken her more than four years to make a decision. Equally however there was nothing to show that the Appellant has in some regard been unlawfully disadvantaged. I see no evidence that the Appellant raised any concern with the Respondent over the delay. I note that the Appellant was interviewed fairly soon after making his claim and therefore any impact which it is said the delay has had on his ability to recall evidence is limited.

33.          The FtTJ noted that a further feature of the Appellant's concerns appears to revolve around the ability or otherwise of his son to attend university in the UK. The judge made a finding that even there, the Appellant gave unsatisfactory testimony. He said that his son can no longer speak Sinhalese and thus would not be able to attend university in Sri Lanka. The judge found this improbable. He noted that the Appellant's son spoke Sinhalese only up to the age of 12 years. Both parents are Sinhalese speakers and certainly for the FtT hearing a Sinhalese interpreter was requested for the Appellant. The judge found for proper reasons that the Appellant's claim that his son can no longer speak that language was not credible. The Appellant also said that universities in Sri Lanka would not accept his son's English qualifications. I see no evidential foundation for that claim and I find the judge was correct therefore to place no weight on this.

34.          In conclusion therefore I find that the First-tier Tribunal was entitled to conclude that the Appellant had not met the requirements for the forms of international protection that he relied on. Accordingly I find no material error of law in the decision of the First-tier Tribunal.

Notice of Decision

There was no material error in the decision of the First-tier Tribunal. The decision to dismiss the Appellant's appeal on asylum/humanitarian protection/human rights grounds stands.

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 C E Roberts Date 30 November 2017

 

 

Deputy Upper Tribunal Judge Roberts