MN (Sri Lanka) v Secretary of State for the Home Department

This is an appeal against the decision of the Upper Tribunal dismissing the appellant’s appeal on the grounds that the First-tier Tribunal had not erred in law.

The appellant is a Sri Lankan national of Tamil ethnicity, who entered this country on 17^th September 2009 on a student visa issued to him on 28^th August that year. In February 2012 he claimed asylum on the grounds that he was at risk of persecution in Sri Lanka because of his former involvement with the LTTE. He said that he had travelled to this country on a false passport.

The appellant said that on 1^st May 2009, when he was on his way home after his day’s work, a visit to the mosque and a game of cricket, he was kidnapped by three men who bundled him into a van at gun point. His hands were tied and he was gagged and blindfolded. He was driven to a building where he was held for five days, during which he was tortured. After that, he was taken to an army camp where he was photographed, and his fingerprints were taken. At that stage his wallet was inspected and the contents (which included money he had collected from depositors with the bank at which he worked) were taken. He was questioned and accused of having given shelter to members of the LTTE at his home. When he denied having done so, he was slapped and told that he was lying. He was made to kneel down and was then struck on the back with a rifle butt and knocked to the ground. He then confessed to harbouring seven people whom the army said were prominent members of the LTTE. He said that they had paid him for sheltering them, but he had not known they were members of the LTTE.

The appellant said that he had been detained for about a month, during which he had been questioned and beaten with electrical cables and iron bars. He was told he was going to be killed and was driven to a place in the jungle. He was told to turn his back and expected to be shot, but he saw his father and uncle who had come to take him away. They said they had paid Rs40,000 to free him. Following his release he stayed for about seven weeks at a house belonging to one of his uncle’s friends.

The Secretary of State refused the appellant’s claim for asylum because she did not accept the truth of his account in a number of respects. She did not accept that the passport on which he had travelled was false and, although she accepted that he was of Sri Lankan nationality, she did not accept that he was of Tamil ethnicity. She did not accept that he had been arrested and detained, as he claimed; nor did she accept that he had been tortured by the army.

The appellant appealed to the First-tier Tribunal. At the hearing he gave evidence in Tamil through an interpreter and in support of his case he relied on, among other things, a report from a doctor, Dr. Bell, working for the Medical Foundation for the Care of Victims of Torture, who had examined scars on his back and ankles. Photographs of the scarring were also provided to the tribunal. The scarring on the appellant’s back was extensive and there was also scarring on his ankles. The doctor’s conclusion was that the scars were highly consistent with the appellant’s account of being suspended by a rope around the ankles and with being beaten with heavy duty electrical cables. He considered that the scars could not have been self-inflicted and indicated that the appellant had been beaten by two men. The appellant said that, having escaped captivity by the payment of a bribe, he would still be of interest to the authorities if he were to return to Sri Lanka and that as a result it was likely that he would be stopped, detained and subjected to ill-treatment.

The tribunal accepted the appellant’s evidence of his own identity and that he was a national of Sri Lanka. It accepted the evidence of the Medical Foundation, which it described as “a highly reputable organisation”. However, it did not accept that the appellant had been detained in the manner and for the reasons he had given. The appellant had said that he had allowed two of the people he had sheltered to stay at his father’s shop, but the authorities had shown no interest in his father, despite the fact that his name was over the shop. Nor had they apparently shown any interest in other members of his family, despite the fact that some of the people involved had been sheltered in the appellant’s home. In addition, there were internal discrepancies in the appellant’s evidence, there was the fact that he had remained in Sri Lanka for three months after his release and there was his failure to claim asylum until he had been in this country for over two years, all of which tended to undermine his credibility. As a result, the tribunal did not accept that the authorities in Sri Lanka were interested in the appellant or that he would be at risk of harm if he were returned there. Moreover, the tribunal found that the appellant had no profile of a kind that would put him at risk on return and that, even if his account were true, he was no longer of interest to the authorities.

The appellant obtained permission to appeal to the Upper Tribunal on the grounds that it was arguable that the First-tier Tribunal had failed to have proper regard to the medical evidence and had failed to explain properly why it did not accept that the appellant had been injured at the hands of the army as he claimed. In a determination promulgated on 4^th July 2013 the Upper Tribunal dismissed his appeal, holding that Judge Burnett in the First-tier Tribunal had not made an error of law. On the contrary, it held that he had considered the evidence properly and fully and had given sufficient reasons for the conclusions he had reached. He had not made a positive finding that the appellant had not been detained or beaten as he alleged; the appellant had simply failed to satisfy him that he had been detained and tortured by the army, as he claimed.

These findings presented Ms Jegarajah with something of a challenge, since it was necessary for her to submit, as she did, that the medical evidence admitted of only one conclusion, namely, that the appellant’s account was true, and that it was perverse on the part of Judge Burnett not to have made a finding to that effect. She submitted that the tribunal had rejected the appellant’s account as lacking credibility without having taken into account the injuries themselves, which tended to support his claim.

For obvious reasons the medical evidence lies at the heart of this appeal. It comes from a highly respected source and provides strong support for the conclusion that the appellant had at some time been suspended by his ankles and that he had been beaten by two people using heavy duty electrical cable and batons of some kind. It was not possible, however, for Dr. Bell to say when the injuries had been inflicted. All he could say was that they were more than 12 months old, but by the time he made his report the appellant had been in this country for two years.

The scars on the appellant’s back made it clear that he had been the victim of a severe beating by two people, but they told one nothing about when or in what circumstances that attack had taken place. 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.

The matter does not end there, however, because of the tribunal’s finding that even if the appellant’s account were accepted at face value and he had been detained and tortured by the army as he described, he would no longer be of interest to the authorities if he were to return to Sri Lanka. The basis of the finding appears to be that, following the suppression of the LTTE, the authorities’ attention is now directed only to those elements of the population and members of the Sri Lankan diaspora who are thought to have a desire and an ability to undermine the regime. There was nothing about the appellant’s activities, either in Sri Lanka or this country, which suggested that he might fall into that category.

Ms Jegarajah submitted that, if the appellant had at one time been of sufficient interest to the authorities to be detained and tortured and had obtained his freedom by bribery before the army had chosen to release him, the authorities had not exhausted their interest in him and he therefore remained at risk on return. Whether that is so or not, however, is a question of fact, on which the tribunal was entitled to reach its own conclusion based on the evidence before it. Ms Jegarajah accepted that the tribunal had correctly applied the country guidance as it stood at the date of its decision and in my view the finding that the appellant was unlikely to be of any further interest to the authorities was one which it was entitled to make in the light of the evidence before it. If, therefore, the First-tier Tribunal did make an error of law in failing to accept the appellant’s account, it was immaterial to the outcome of the appeal.

In those circumstances the Upper Tribunal was right in my view to hold that the First-tier Tribunal had not made a material error of law and the appeal must be dismissed.

I agree.

I also agree.