ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
(UPPER TRIBUNAL JUDGE MARTIN)
Royal Courts of Justice
Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE MOORE‑BICK
LORD JUSTICE FULFORD
NP (SRI LANKA)
Applicant/Claimant
‑v‑
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent/Defendant
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Ms F Allan (instructed by Warnapala & Company) appeared on behalf of the Applicant
Miss C Patry (instructed by the Treasury Solicitor) appeared on behalf of the Respondent
J U D G M E N T
LORD JUSTICE FULFORD:
Introduction
The applicant was born on 29th April 1966. He left Sri Lanka on 13th March 2011. He arrived in the United Kingdom on 16th March 2011 and claimed asylum on the following day. There was a screening interview and this was followed on 3rd May by a substantive fast track asylum interview. His claim is based on his suggested fear of persecution should he be returned to Sri Lanka and he seeks recognition as a refugee under the 1951 Convention.
In support of this claim, the applicant contends that he owned and ran a prawn farm and a grocery store in Sri Lanka for some years, with a break whilst he lived in Austria with his former wife. In January 2009 a driver of a vehicle belonging to him was stopped at a check point, inside of which the police found bomb making material. The driver escaped, but the applicant, as the owner of the vehicle, was arrested and charged with possession of explosives. He suggests he was detained for two years, during which time he was tortured. He was eventually released on bail after his brother bribed an official to secure removal of the police objections.
The applicant's asylum claim was refused on 11th May 2011. He lodged a notice of appeal on asylum, humanitarian protection and human rights grounds on 27th May 2011. The hearing of his appeal took place on 15th July 2011 before Immigration Judge Jhirad, sitting in the First Tier Tribunal. The judge issued his decision dismissing the appeal on all grounds on 1st August 2011.
The applicant applied on 9th August 2011 for permission to appeal to the Upper Tribunal. Permission to appeal was granted by Upper Tribunal Judge Chalkley on 15th August 2011. On 4th January 2012 Judge Chalkley set aside the original decision on the basis that it contained an error of law. A full re‑hearing took place before Upper Tribunal Judge Martin on 16th July 2013 and 25th November 2013. On 17th December 2013 Judge Martin dismissed the appeal on all grounds.
On 8th January 2014 the applicant sought permission from the Upper Tribunal to appeal to the Court of Appeal. On 14th April 2014 permission to appeal was refused and on 9th May 2014 the applicant applied to this court for permission to appeal.
In the "Grounds in support of an application for permission to appeal", the applicant originally advanced three grounds of appeal: (a) that the hearing before the Upper Tribunal was procedurally unfair because the applicant was prevented from making submissions on credibility; (b) that in any event the Upper Tribunal erred in its approach to the documentary evidence and its impact on the credibility of the applicant; (c) that the Upper Tribunal failed to assess the credibility of the account in the round, having regard to the documentary evidence as well as the oral evidence.
It is to be noted that in the grounds dated 8th January 2014 and the skeleton argument dated 11th July 2014, prepared by the applicant's counsel before the Upper Tribunal, the following assertions were advanced:
"When Counsel for the Applicant commenced submissions addressing in the first instance the credibility issues raised in the reasons for refusal letter, the UT[J] intervened and pointed to the documentary evidence and the fact that the SSHD had not challenged it [grounds paragraph 3]. She stated that the documentary evidence was strong, extensive and emanated from various sources, and made it clear that she did not want to hear submissions on the general credibility of the Applicant's account. As a result, Counsel was prevented from addressing her on the general credibility issues raised in the refusal letter, and following the UT[J]'s comments on the documentary evidence she focused on the documentary evidence, and the facts that the evidence established.
...
It is submitted that the UT's approach was procedurally unfair ... Despite [the UT judge's] position being made clear to the SSHD at the hearing, the Applicant's Counsel nevertheless attempted to pursue and address all issues in the SSHD's submissions and in the reasons for refusal letter on the credibility of the Applicant's account. However, the UT intervened again pointing out the significance of the documentary evidence and that this really was at the centre of the case. She prevented Counsel from making submissions on the general credibility matters raised in the refusal letter.
Having made clear in open Court her position the UT rejected the Applicant's account on the basis of inconsistencies and implausibilities and concluded that the documentary evidence, despite a lack of assistance from the SSHD, could not be relied upon having regard to the otherwise incredible."
On 3rd October 2014 McCombe LJ referred the applicant's application for permission to appeal in this matter to an oral hearing on notice to the respondent. The reasons given by McCombe LJ were that:
"The account of the course of the hearing before the UT given by the applicant in his grounds ... if correct, gives me cause for concern that there may have been a material procedural irregularity, leading to a possible error of law.
In the circumstances, I think it is desirable for there to be an oral hearing of this permission application attended by the respondent. If there is disagreement about the course of the hearing below there may have to be directions for the obtaining of a transcript ..."
Following receipt of the transcript, although the applicant maintains the suggestion that the judge intervened before counsel for the applicant could complete her submissions, he concedes that any further submissions would not have materially affected the Upper Tribunal's findings. As Miss Patry for the Secretary of State observes, she has been asked to attend this hearing to assist on a ground of appeal that has now disappeared.
The present grounds of appeal
In those circumstances the only surviving ground of appeal is set out as follows:
"Did the Upper Tribunal materially err in law in its approach to consideration of the documentary evidence and its impact on credibility?"
On the issue of credibility, the Upper Tribunal Judge made a number of strong findings against the applicant. Indeed, the points taken by the respondent as regards credibility were numerous and significant. They ranged from a number of inconsistencies in his account through to a wholesale inability, as it was suggested, to provide information that would have been forthcoming if his account had been credible. For example, it was highlighted that he had difficulty recalling, first, the names of all of his farm workers; second, whether the bomb making items were found when the vehicle was stopped or after the vehicle had been abandoned; third, the identity of the official who was bribed (it is suggested this was a government minister); fourth, the dates when the applicant set up his various business interests; and, fifth, how many occasions on which he went to court and whether he pleaded not guilty, was found not guilty or was simply released on bail. The judge decided this latter issue very significantly damaged the applicant's credibility, as did his lack of knowledge concerning his representative and the detail of the charges that he faced domestically.
Turning to the applicant's injuries, the judge summarised his account of his treatment in custody as follows:
... He remained in detention for two years. He was not tortured every day but five or six times a month when the officers got drunk. Sometimes he would be hung upside down and beaten either with hands or rifles and he was kicked. Once he was left hanging by one leg for a day and a half and since then has had back problems. Other times he was hung upside down and chillies were burned close to his nose. Another time a pen was put into his left ear and hit with a diary causing his ear to bleed and resulting in deafness. On four or five occasions barbed wire in a steel pipe was inserted into his rectum and he was forced to clean the toilet with his tongue. He was also sexually abused many times by the Army officers when drunk."
The judge was concerned about the lack of supporting medical evidence given the seriousness of the applicant's alleged treatment. She noted that he appeared to have completely recovered from a condition of significant PTSD without the benefit of any counselling. She highlighted that the applicant had not produced any specialist medical evidence relating to the other medical conditions he claims to have experienced as a result of his mistreatment in detention, including loss of hearing, damage to his eyesight and the injuries that would have arisen from the anal abuse to which I have just referred. She noted that in any event:
"I find it extraordinary that if, as he claimed, a pen was inserted into the Appellant's ear and then hit with a diary it did not cause catastrophic damage to the ear if not worse. It is not credible that the result would simply be a 'dull eardrum'."
The applicant submitted a number of documents in support of his case, which included (i) two letters from the officer in charge at the Dankouwa police station (dated 16th February 2011 and 10th June 2011); (ii) a newspaper article from the Sunday Lankadeepa with an accompanying translation; (iii) a letter from the Wijaya newspaper company; (iv) a letter from Mr Wijesiri Sirimevan, an attorney at law; (v) a letter from the applicant's brother M P Piyathilake, which supported aspects of the applicant's account; (vi) an invoice for fish food; and (vii) a vehicle registration document.
The newspaper article is dated Sunday 18th January 2009 and has the heading "A Singhala Tiger who received money from the LTTE caught". The content of the article is as follows:
"A person who attempted to blast bombs in proximity to Colombo having obtained money from the LTTE was taken to custody by the security forces while transporting explosives.
Mr Nuwara Paksha Pedige Nimal Jayalal, a prawn businessman in Puttalam was taken into custody by the Dankotuwa police While transporting explosives in his vehicle numbered 48 SRI 9381. A senior police officer said that he was kept in protective custody for further inquiries."
A letter purportedly from the newspaper confirmed the authenticity of the article and its contents. The lawyer (Sirimevan) suggested that he is acting for the applicant. There is a certificate of registration for a vehicle said to have been owned by the applicant which matched the number of the vehicle referred to in the newspaper article. The other evidence related to the applicant's businesses.
The complaint, in essence, is that although the judge dealt with one of the letters from the officer in charge at the police station, she did not address directly, or in any sense adequately, the contents or the significance of the other written materials, albeit it is accepted there was passing reference in the judgment to the letter from the lawyer, the letter from the applicant's brother, the newspaper article and the letter from the newspaper.
It is emphasised by Ms Allan, who did not appear in the Tribunal below, that the overwhelming majority of the written materials before the Tribunal judge were not subjected to any kind of detailed challenge. In particular, she stresses that the officer in charge of the relevant police station had provided a letter indicating that the applicant had been taken into custody for transporting the explosives, which was not expressly addressed by the Tribunal.
As my Lord observed during the course of submissions, there is no ground of appeal based on the way in which this document was dealt with by the Tribunal judge. Instead, this suggestion merely features in the applicant's statement.
Generally, however, it is contended in the grounds of appeal that the Tribunal failed adequately to address the documentary material.
As regards the first of the two letters from the officer in charge at the police station, the judge observed that the name of the police officer and the address of the police station were not set out in the body of the document. She went on to observe:
... there are other problems with that document. The document purports to be a notification to the recipient, in this case the Department of Immigration and Emigration that the Appellant has been released on bail subject to certain conditions, one of which is that he must not leave the country. It is said that copies of the documents have also been sent to an Employment Bureau, the International Airport and to the Appellant. It indicates that the Appellant was required to hand over copies of his passport and national identity card to the court. That is a direct contradiction to his evidence to me in July when he said quite clearly that his original passport was retained by the court but only a copy taken of his identity card and the original given back to him because it was needed to travel within Sri Lanka. That explanation given in July made sense. It would make sense when foreign travel is prohibited to keep a person's passport. The new ... translation however indicates that the original passport was not retained by the court. I had been given no credible explanation for this discrepancy."
As regards the other documents, the judge dealt with them as follows:
The Secretary of State disputes his claim to own a prawn farm and grocery store. With regard to the prawn farm the Appellant has produced an invoice from one of his suppliers and he has produced a vehicle registration document in relation to a motor‑vehicle. I am prepared to accept that the Appellant, or at least his family, run a prawn farm in Sri Lanka.
The Appellant also produced an original newspaper article and a translation of that article and a letter from the deputy general manager of the newspaper confirming the newspaper article to be genuine. Those documents have not been challenged by the Secretary of State save in the most general terms. The Appellant has produced a letter from his brother and a translation confirming his claim and his involvement in securing his release.
...
I have not been assisted by the Secretary of State in this case. Documents have come in on a 'piecemeal' basis. However, the originals of a number of documents have been available since July, in particular the original newspaper article and yet the Secretary of State has done nothing to check the veracity of any of the documents and indeed on her behalf Mr Nath has challenged documents only in the most general terms. It is difficult therefore for me to make a finding that the documents are unreliable. However, the Appellant's claim of mistreatment is so severe that it is simply not credible that if a government minister was a major factor in his release that he would not know his name and it is not credible that the Appellant, would not know with certainty, given the grave nature of the charges whether he had pleaded not guilty, been acquitted or simply been released on bail. It is also not credible that a person detained on terrorism charges and who had been named in a newspaper would have been released at all, even with a bribe as he would be too high profile ‑ particularly as a Sinhalese aiding the LTTE.
Although I have been given no reason by the Secretary of State to doubt the documents I do so because they cannot be reliable if the claim is incredible as I have found it to be for the reasons I have given."
It is clear, particularly bearing in mind paragraph 49 of the judge's decision set out above, that the judge did not reject the account of the applicant before considering the documentary evidence. Instead, she analysed the applicant's account, focusing on the credibility points in the order in which they were set out in the refusal letter. Thereafter she turned to the documents, noting that the respondent had failed to assist her by subjecting this material to any meaningful investigation.
At paragraph 49 the Tribunal judge undertook a global assessment of entirety of the evidence, and she made her findings on the basis of all the material before her. Her overall conclusion was that the documents that had been produced were necessarily unreliable given the applicant's case was, in her view, simply incredible.
In my view, her approach was sustainable. Although it is to be regretted that the Tribunal was not provided with more assistance by the respondent on the individual documents, it was open to the judge to take the view that the applicant’s account was so inherently unbelievable that the documents provided in support did not lend it credibility. It was for the applicant to establish his claim, applying the lower standard of proof, and the judge was entitled to conclude that the implausibility of the applicant's case meant that he was unable to satisfy the burden of proof, notwithstanding the existence of the particular documents on which he relied. In these circumstances it was not incumbent on the judge to make discreet findings on each document.
An important element of Ms Allan's argument is that the respondent should have investigated the documentary material in detail or the Tribunal should have ordered an investigation into the documents. For my part, I would reject that contention. It is to be emphasised that the Upper 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. In Tanveer Ahmed [2002] Imm AR 318, the Immigration Appeal Tribunal decided that:
In almost all cases it would be an error to concentrate on whether a document is a forgery. In most cases where forgery is alleged it will be of no great importance whether this is or is not made out to the required higher civil standard. In all cases where there is a material document it should be assessed in the same way as any other piece of evidence. A document should not be viewed in isolation. The decision maker should look at the evidence as a whole or in the round (which is the same thing).
There is no obligation on the Home Office to make detailed enquiries about documents produced by individual claimants. Doubtless there are cost and logistical difficulties in the light of the number of documents submitted by many asylum claimants. In the absence of a particular reason on the facts of an individual case a decision by the Home Office not to make inquiries, produce in‑country evidence relating to a particular document or scientific evidence should not give rise to any presumption in favour of an individual claimant or against the Home Office."
The judge looked at the evidence as a whole or in the round, and it follows that, in my judgment, there has been no procedural unfairness.
Ms Allan has made a number of submissions as regards the matters on which the judge placed weight, such as the medical evidence. It is suggested she placed undue emphasis on certain parts of the evidence, and she tended to ignore other facts that merited greater attention.
These, in my view, are matters for her assessment. She was entitled to look at the case in the round, and it is clear that she had all of the relevant evidence well in mind. Her decision was principally based on her conclusion that the applicant's account was incredible.
For the reasons set out above, I would dismiss this application for leave to appeal.
LORD JUSTICE MOORE-BICK: I agree, so the application will be dismissed.