Upper Tribunal (Immigration and asylum chamber), 2014-12-11, AA/03056/2014
| Jurisdiction | UK Non-devolved |
| Date | 11 December 2014 |
| Published date | 19 March 2015 |
| Hearing Date | 28 November 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | AA/03056/2014 |
Appeal Number: AA/03056/2014
Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03056/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 28 November 2014 |
On 11 December 2014 |
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Before
Deputy Upper Tribunal Judge Pickup
Between
Mayuran Vigneswaran
[No anonymity direction made]
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:
For the appellant: Ms F Allen, instructed by S Satha & Co
For the respondent: Ms J Isherwood, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
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The appellant, Mayiran Vigneswaran, date of birth 6.9.92, is a citizen of Sri Lanka.
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This is his appeal against the determination of First-tier Tribunal Judge Eban promulgated 5.9.14, dismissing his appeal against the decision of the respondent, dated 24.4.14 to refuse his asylum, humanitarian protection and human rights claims made on 18.10.13, and to remove him from the UK. The Judge heard the appeal on 15.8.14.
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First-tier Tribunal Judge Reid granted permission to appeal on 2.10.14.
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Thus the matter came before me on 28.11.4 as an appeal in the Upper Tribunal.
Error of Law
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In the first instance I have to determine whether or not there was an error of law in the making of the decision of the First-tier Tribunal such that the determination of Judge Eban should be set aside.
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In essence, the grounds of appeal submit that:
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the judge erred in law in concluding that the appellant would not be at risk on return and that her conclusions were not supported by GJ or her own findings of fact;
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the judge erred in failing to consider how the appellant would be viewed in light of his sur place activities;
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the judge failed to give sufficient weight to the medical and psychiatric reports in support of the appellant’s account, in respect of which the judge’s approach and conclusions were procedurally unfair;
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the appeal should have been allowed under 339K.
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In granting permission to appeal, Judge Reid found “it is arguable that the judge’s conclusions on risk on return are inconsistent with her findings of fact in relation to past treatment and sur place activities with reference to country guidance case law. The grounds disclose an arguable error of law.”
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The Rule 24 response, dated 13.10.14, submits that the First-tier Tribunal Judge directed herself appropriately and was entitled to make the findings of fact set out in the determination. “The judge took into account the appellant’s claimed activities in Sri Lanka, medical evidence and activities in the UK i.e. attending demonstrations and found that the appellant would not be at risk on return to Sri Lanka. The judge has properly considered GJ and Others (post-civil war returnees) [2013] UKUT 00310 (IAC), and applied it to the particular facts of the case.”
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The paragraph numbering and layout of the determination is rather confusing. However, at §9 the judge set out those facts accepted by the respondent. At §27 the judge made additional findings, continuing the findings numbering from those in §9.
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It is clear that in §23 and §28 the judge made several errors as to the dates of detention. The appellant was first detained in February 2009, released in October 2009. Thereafter, he was detained for a week in February 2011 during which time he was beaten. The judge accepted the June 2011 detention, which had been rejected by the respondent, but rejected the claim to have been targeted again in November 2012 during which he claims to have been tortured and burned so badly that scars remain. The reasons for that conclusion are set out in detail in §24 and the following several sub-paragraphs. As part of those reasons the judge considered that it is reasonably likely that the authorities would have discovered all there was to know about the appellant and his LTTE involvement by the end of his June 2011 detention. In those circumstances, and in light of the fact that the area where he was had been previously controlled by the LTTE that he had trained with the LTTE, The judge considered at §24(9) that it was not reasonably likely that a ‘tip-off’ in November 2012 would have been of any interest to the authorities. Also considered was the medical evidence, but at §25 the judge gave reasons for attaching limited weight to the report. As the Court of Appeal recently stated in MN (Sri Lanka) [2014] EWCA Civ 1601,
“Detention and torture by the army in the circumstances the appellant had described was one possibility, but there were others; for example, he could have been the victim of an attack by people who had a grudge against him, or he could have been detained and tortured by the authorities under circumstances and for reasons other than those he described, or his injuries could even have been inflicted with his consent to improve his claim for asylum. It was impossible to say when the injuries were inflicted and his own account of the circumstances in which he received them was unsatisfactory in a number of significant respects. It is unfair to say that the tribunal rejected the claim of torture because it did not fit the view it had taken independently of the appellant's credibility; it was simply not persuaded that the appellant's injuries had been inflicted by the authorities in the way he described. In my view it is not possible to say that the First-tier Tribunal was perverse or that it erred in law in not accepting the claimant's account as reliable.”
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To succeed on the basis of failure to accord sufficient weight to the medical injuries the appellant would have to demonstrate that they admitted of only one conclusion, namely, that the appellant's account was true, and that it was perverse on the part of the judge not to have made a finding to that effect. I find the judge gave adequate and cogent reason for the limited weight to be accorded to the medical evidence in assessing whether the 2012 detention and torture took place.
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The grounds complain that there was no reference to Dr Goldwyn’s report (A9). However, the judge stated at §23 that the evidence had been considered as a whole, including the medical evidence. The report itself limits its own utility. At §O of the opinion section, the doctor points out that he is not a psychiatrist but only has experience in examining patients who have claimed to be tortured. In that light, his opinion that it is extremely difficult to feign a “full-blown mental illness convincing experienced clinicians,” can carry limited weight. It is also worth noting that the appellant was able to give details of the burns in July 2013 but a few months later in September 2013 was unable to recall the causation.
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In summary, the judge concluded that the appellant has had low-level LTTE involvement, was detained and mistreated during detentions in 2011, but was of no further interest to the authorities in Sri Lanka.
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Further, the judge did not accept, for the reasons stated, that the appellant had any significant role in diaspora activities designed to destabilise the unitary Sri Lankan state or revive the internal armed conflict. His own case was that he had attended two peaceful demonstrations in the UK, only one of which was organised by the British Tamil Forum; the other was a Trade Unionist and Social Union demonstration outside Downing Street.
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The judge noted that at §336 of GJ, the Tribunal found that attendance as demonstrations in the diaspora alone was not sufficient to create a real risk or a reasonable degree of likelihood that a person will attract adverse attention on return to Sri Lanka. At §351 the Tribunal found that the Sri Lankan authorities had the ability to distinguish those who are actively involved in seeking to revive the separatist movement or destabilise the unitary state. “Attendance at one, or even several demonstrations in the diaspora is not of itself evidence that a person is a committed Tamil activist seeking to promote Tamil separatism within Sri Lanka. That will be a question of fact in each case, dependent on any diaspora activities carried out by such an individual.”
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When considering at §27, §28, and thereafter, what interest the authorities might have in the appellant today, the judge concluded that the Sri Lankan authorities would know, because of their...
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