MA (Fresh evidence)

JurisdictionEngland & Wales
JudgeMR JUSTICE OUSELEY,PRESIDENT
Judgment Date21 June 2004
Neutral Citation[2004] UKIAT 161
CourtImmigration Appeals Tribunal
Date21 June 2004

[2004] UKIAT 161

IMMIGRATION APPEAL TRIBUNAL

Before:

The Honourable Mr Justice Ouseley (President)

His Honour Judge N Huskinson (Vice President)

His Honour Judge G Risius CB (Vice President)

Between:
MA
Appellant
and
Secretary of State for the Home Department
Respondent

For the Appellant: Ms N Finch, instructed by Irving and Co

For the Respondent: Ms J Anderson, instructed by the Treasury Solicitor

MA (Fresh evidence) Sri Lanka *

DETERMINATION AND REASONS
Introduction
1

The Appellant is a citizen of Sri Lanka who was born in 1975. He entered the United Kingdom in August 2002 and claimed asylum upon arrival. His claim was rejected and his asylum and human rights appeals were dismissed by the Adjudicator, Mr G D Thompson, in a determination promulgated on 9 th July 2003.

2

This was scarcely surprising as the Adjudicator had heard the evidence of the Appellant to the effect that the story he told in his original claim, in his SEF statement and in his interview, was untrue. This untrue story had not been withdrawn in the ordinary or additional grounds of appeal before the Adjudicator. It was to the effect that he had been helping the LTTE through supplying food to them with his family, that he had been arrested and tortured by the army and made to identify an LTTE member who had committed suicide to avoid arrest. He had escaped through bribery, but realised that the LTTE knew he had identified one of its members and would try to shoot him for that betrayal. As a result of the peace agreement, the LTTE were roaming the country, looking for those who had betrayed them. In support of his claim, he produced numerous photographs and letters, including one from the village headman, confirming some of what the Appellant had said, and one from the Red Cross confirming his arrest and release after severe torture, bearing the stamp of the magistrate who was the chairman of the Red Cross branch concerned, with the right rubber stamp and on properly headed notepaper. He agreed in evidence that his mother had got the documents to help his claim; she had pleaded for the letter from the Red Cross to help stop him being deported; the contents of the letter from the village headman and the Red Cross were untrue.

3

Some weeks before his appeal to the Adjudicator was heard, the Appellant changed his story and it was notified to the Secretary of State. He had joined the LTTE in 1989, and after training he had been involved in fighting. He was severely traumatised as a result of heavy fighting in the early 1990s and spent a year recuperating. Later, he became a sentry, in charge of a local group. He was wounded, and the ebb and flow of the war caused him to move about. In 1997, he was put in charge of an LTTE group and led a group of 45 fighters in LTTE advances in 1998–9. After the start of peace talks, he was sent to an army controlled area where he undertook intelligence work and propaganda for the LTTE. He felt himself in danger from the army, and had had enough of fighting after nine years but thought that the LTTE would punish him for leaving it. He obtained a passport and although he had difficulties leaving at the airport where the police questioned him suspiciously about the LTTE, he reached Singapore where he was given a new passport, French identification and another document. He feared both the Sri Lankan authorities and the LTTE. He supported this story with more photographs, a video, a medical report which was consistent with the injuries he said he had received in the fighting, and a report from Dr Good on conditions in Sri Lanka, which said that nothing in the second story was inconsistent with what had happened and was happening in Sri Lanka. Dr Good thought that the Appellant would be very well known to the Sri Lankan authorities especially in the army and would be well known in his neighbourhood for having been in the LTTE. It confirmed what the Appellant said about the attitude of the LTTE towards those who had left it without permission.

4

The Appellant explained that he had changed his story because he had received better legal advice from different solicitors. The first story was what he had been advised to say by his agent who told him that he should not say that he had been a member of the LTTE, because it was a proscribed organisation in this country. He had not himself been involved in any of the terrorist activities of the LTTE which were carried out by a special unit.

5

The Adjudicator regarded the fact that the second story was a detailed and complex story as no guide to its truthfulness since the Appellant's first and untrue story had also been a detailed and complex one, supported by false documents. He was prepared to go to some lengths to tell a false story. The changing circumstances in Sri Lanka as the peace process developed had caused him to change his story to one which gave him a better chance of staying, as his prospects were considerably reduced under his first story.

6

The Adjudicator also found implausible other parts of the second story: the circumstances in which he said that he would be blamed for the death or disappearance of two LTTE men in Colombo, the event which he said precipitated his departure; his fear that he was being looked at suspiciously by Army officers who he alleged had seen him at a peace negotiation in 1991 when he was just sixteen. The medical report was seen as neutral as between the truthfulness of either account or other possibilities and the photographs were not proved reasonably likely to be genuine. The fact that the second story exposed the Appellant to a risk of exclusion was not persuasive as to its genuineness.

7

The Adjudicator concluded in paragraph 61:

“In conclusion, I find that the appellant is not credible and that both his first and second stories are completely untrue. In the words of the Tribunal in Dasdemir HX/00957) (when they applied Karanakaran, Court of Appeal, 25.2000) I comprehensively disbelieve the appellant and I make it clear that I see no reasonable likelihood of truth in any evidence which he has given relating to the material issues in this case and that I have found all such evidence to be incredible to the extent that I am not prepared to consider it at all. I completely reject it. It follows that he cannot prove his case. In view of my credibility findings it is unnecessary for me to consider the question of ‘ Exclusion’ from Convention protection.”

8

He thought that the Appellant would face no difficulties on return because of his scarring and continued:

“I conclude that, in possession of a temporary travel document from the Sri Lankan High Commission in London, he would simply be waved through the airport controls, as the background evidence and Tribunal decisions indicate is the case with returned asylum seekers who do not have particular risk factors attached to them. Because of my complete rejection of his credibility I also totally reject his evidence of his having had difficulties at the airport on leaving Sri Lanka. The result of my credibility finding is that I conclude that he has not proved to the lower standard of proof a genuine 1951 Convention fear of persecution which is objectively well-founded.”

9

After the appeal was dismissed, the Appellant sought leave to appeal on two grounds. The first was that the Adjudicator had failed to set his criticisms of the Appellant's evidence in the context of the background evidence and had also relied on his own experience rather than the cultural background when assessing the credibility of supporting material. Second, it was said that the Adjudicator had not put to the Appellant questions which would have enabled him to answer issues of concern to the Adjudicator which he took against the Appellant. There was a third ground of appeal so-called but it was no more than an application to call fresh evidence to support the second story, on the ground that the Adjudicator and Tribunal were part of a continuing appeal process. This fresh evidence was to come from three witnesses: one had known the Appellant in the LTTE and had Indefinite Leave to Remain in the United Kingdom, another also knew the Appellant to have been in the LTTE through his brother whom he would identify in the photographs and the third was to deal with the origin of the photographs. The reason given for the calling of the first two was given as follows:

“These witnesses were not called at the hearing before the Adjudicator as the question of whether the Appellant was a member of the LTTE had not been put into question and his solicitors believed that the detail given in the Appellant's witness statement and the photographs and video he was able to produce were sufficient to meet the burden of proof which fell on him.”

10

Leave to appeal was refused on the ground that the Appellant was a liar and there was no reason why he should be allowed to call further evidence in support of his second story which had been disbelieved in a careful determination. It was contended in an application for statutory review that the Tribunal had erred in its approach to the reception of fresh evidence. The duty of anxious scrutiny coupled with the role of the Tribunal as part of a continuing asylum determination process required the Tribunal to admit the evidence. The reason now given for the absence of the third witness was that there had been no reason to suppose that the probative value of the photographs would be doubted. Statutory review was granted, not because of the merits of the case but because of “ some other compelling reason”, namely the need for the Tribunal to give guidance about the reception of fresh evidence when dealing with a jurisdiction based on error of law.

11

By the time the appeal came on to be heard, further fresh evidence was sought to be adduced: a further witness from Sri Lanka who knew the Appellant there, a...

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