Tribunal decisions

The decision

Asylum and Immigration Tribunal
HH (medical evidence; effect of Mibanga) Ethiopia [2005] UKAIT 00164

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 8 November 2005
25 November 2005

…………………………………

Before

Mr A R Mackey (Senior Immigration Judge)
Mr P R Lane (Senior Immigration Judge

Between

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr D Bazini, Counsel, instructed by
Messrs Hanne & Co, Solicitors
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

This determination is reported for what is said at paragraph 21 about the case of Mibanga [2005] EWCA Civ 367

DETERMINATION AND REASONS

1. The appellant, a citizen of Ethiopia born on 18 February 1985, claims to have arrived in the United Kingdom on 15 March 2005. She claimed asylum on 17 March 2005 and on 6 April 2005 her asylum claim was refused and a decision was made by the respondent to remove the appellant as an illegal entrant.

2. The appellant appealed against that decision to an Immigration Judge, Mr N Froom, sitting at Hatton Cross, who by a determination that followed a hearing on 5 July 2005 dismissed the appellant's appeal on asylum and human rights grounds. On 28 July 2005 an order was made under section 103A of the Nationality, Immigration and Asylum Act 2002 for the reconsideration of the Immigration Judge's determination. The appellant's application to the High Court for an order for reconsideration asserts that the Immigration Judge erred in law in coming to his adverse credibility findings regarding the appellant's account of her experiences in Ethiopia. Given that the grounds consist of a series of criticisms of almost all of the Immigration Judge's credibility findings, it will be convenient for the Tribunal to deal with those grounds, and Mr Bazini's submissions in support of them, as we describe the Judge's findings.

3. At paragraph 21 of the determination, the Immigration Judge recorded that the appellant's alleged fear of the Ethiopian authorities arose from the activities of her uncle and of her father with the Oromo Liberation Front ("OLF"). At her Home Office interview, the appellant had been unable to say what "OLF" stood for, who was its leader or what its aims and objectives were. She claimed, however, to know that her father and uncle were not involved in violent activities with the organisation but that they were "collecting money to buy weapons". She knew that the uncle and father held meetings every week but did not know what these meetings were about. In her later written statement, the appellant sought to explain her lack of knowledge by saying that she did not attend the meetings, but just carried in the drinks. It did not occur to her to ask her uncle or father about their positions.

4. At paragraph 22, the Immigration Judge, having noted that the appellant's residence in Addis Ababa, as opposed to Oromiya, might have accounted "in part for her lack of interest in Oromo issues" and that she "may have been deliberately kept apart from what would have been illegal meetings", nevertheless found "it very difficult to reconcile the appellant's account that her closest relatives were involved with OLF and hosted regular meetings with her almost total lack of knowledge about the movement". The Immigration Judge found it "hard to imagine how an Oromo living with OLF activists over a period of years in early adulthood could fail to pick up the basics about the organisation".

5. Mr Bazini submitted that those last two findings of the Immigration Judge did not sit comfortably with his earlier observation regarding the appellant who, it is common ground, lived at all material times with her uncle. The Tribunal does not agree. The Immigration Judge was fully entitled as a matter of law to find it incredible that the appellant could have lived with someone who was hosting regular OLF meetings, and yet not know anything of significance about that organisation. Mr Bazini submitted that it was speculation to infer that the appellant and her uncle must have spoken about such matters, if the appellant were telling the truth. No impermissible speculation was, however, involved. The Immigration Judge had the benefit of hearing and seeing the appellant give her evidence. There is nothing perverse or otherwise unlawful in his conclusion that it was simply not believable that a person in the appellant's position, who knew that her father and uncle were collecting money to buy weapons but were nevertheless not involved "in violent activities", would simply not know anything of significance about the organisation in whose name her father and uncle allegedly carried out these activities.

6. At paragraph 23, the Immigration Judge explained why he did not consider certain alleged discrepancies in the appellant's evidence to be of significance. At paragraph 24, however, he set out what he regarded as significant "confusion" in the appellant's evidence about where people were when they were arrested. At interview, the appellant had said that her father and uncle were arrested in January 2005 and that her father was "in the house" and she did not know where her uncle was arrested. In her statement, however, she had said that her father had gone out at the time that he was arrested and her uncle was arrested at his home. When the point was put to the appellant in cross-examination, she said that she had said at interview that her uncle was at home. The Immigration Judge, however, noted that "that is not what was recorded at her interview and the error was not corrected in the letter” (that is to say, the letter from the appellant’s solicitors to the respondent, commenting on the interview record – see paragraph 9 below).

7. The grounds accompanying the application for reconsideration sought to show that the Immigration Judge was incorrect in inferring that the relevant passage in the appellant's interview record related to her father's second arrest. Before the Tribunal, Mr Bazini did not seek to advance that assertion, which we in any event find to be false. On any proper reading of questions 31 to 39 of the interview record, the appellant was describing the father's second arrest.

8. Before the Tribunal, Mr Bazini's criticism of paragraph 24 of the determination was advanced on a different basis. At paragraph 23, the Immigration Judge, referring to the Court of Appeal judgment in Dirshe [2005] EWCA Civ 421, had chosen to disregard certain discrepancies in the appellant's evidence, on the ground that the appellant was not accompanied by a solicitor at her interview and that the interview record had not been read back to her at the time. It was in effect illogical of the Immigration Judge, Mr Bazini contended, to adopt a different approach in paragraph 24, in relation to the location and timing of the arrest of family members, given the Judge's implied acceptance that there had been problems with the interview.

9. The Tribunal does not accept this submission. The Immigration Judge has given a legally coherent reason why he found as he did at paragraph 24: namely, that the undated letter from the appellant's solicitors, which appears to have been sent within 5 working days of the interview on 24 March 2005, dealt with certain corrections to what was recorded in the interview record, but that these did not include the issue of where and when people had been arrested. That issue was not dealt with until the appellant's written statement of 25 April 2005, where differences with the interview record were apparent. The Immigration Judge was, in effect, entitled to find that these belated changes damaged the appellant's credibility. The weight to be placed upon the various aspects of the appellant's overall evidence was one for the Judge to determine (R (Iran) [2005] EWCA Civ 982).

10. Mr Bazini's second criticism of paragraph 24 was that the Immigration Judge chose to give the appellant no credit for the fact that the discrepancies arose only because the appellant chose to set the record straight in her statement of 25 April. The Immigration Judge had no legal duty to give the appellant any such credit. The fact was that discrepant evidence had been placed before the Immigration Judge. Plainly, there might be several reasons for this. The Immigration judge was under no legal duty to find himself compelled to conclude that the one now advanced by Mr Bazini – namely, that the appellant was seeking to put the record straight – was the only reason the Immigration Judge could accept.

11. There is nothing of significance in the criticism levelled at paragraph 25 of the determination. Here, the Immigration Judge gave weight to the fact that the appellant had not mentioned at interview that she was made to sign a piece of paper on leaving the detention centre. Rather, she had told how she secured her release from detention (following the arrests of her father and uncle) "on the condition that for me (sic) to think about it and go back to them and give them the details about people that were having meetings with my father and uncle" (question 65). Mr Bazini submitted that the reference to being released "on condition" was not incompatible with the appellant's signing a piece of paper relating to her acceptance of bail conditions. Again, however, the point is whether the Immigration Judge was entitled as a matter of law to regard it as significant that the appellant had not at interview referred to signing anything. We find that he was so entitled. The Immigration Judge noted at paragraph 25 that this too was a matter which could and should have been dealt with in the solicitor's letter that followed the reading back to the appellant of the interview record (presumably at the solicitor’s). Likewise, the Immigration was entitled to find that the appellant had, in effect, belatedly tried to introduce into her account the allegation that she had been released on bail.

12. At paragraph 26 of the determination, the Immigration Judge recorded that he found the appellant's oral evidence vague as to what the paper (which she signed) was supposed to have said. The Immigration Judge then noted that he had pointed out to the appellant at the hearing that, by her account, her father and uncle were already in detention. This was in response to her assertion that she had been told "to come back with information about her father and uncle's activities". Paragraph 26 then records that the appellant responded by indicating that the authorities "probably wanted to know whether there were any documents in the house". The Immigration Judge found it significant that the appellant had, in so saying, "enlarged her account further". Mr Bazini so criticised that finding on the basis that the appellant had in effect been forced by the Immigration Judge into the position of speculating on the motivation of the authorities in requiring her to return with information. Again, however, the Tribunal does not find that any material error of law has been exposed here. What happened was that the Immigration Judge asked (as he was entitled to do) about what seemed on the face of it an illogical stance on the part of the Ethiopian authorities. The most the appellant could do in response was to suggest that those authorities may have wished her to ascertain whether there were documents in the house. However, as the Immigration Judge said, "the authorities could reasonably be expected to search the house themselves rather than rely on the appellant to do it for them".

13. At paragraph 27, the Immigration Judge noted that, when asked about her addresses, the appellant "became very evasive during her examination and even Mr Nicholls [her Counsel] had difficulty obtaining clear answers". The grounds of appeal make no criticism of this finding. Plainly it was, once again, one that was open to the Immigration Judge. So too was the related finding that the appellant actually gave contradictory evidence regarding an address for her parents in Ethiopia.

14. At paragraph 28, the Immigration Judge turned to a medical report of Dr Hiley that had been submitted on behalf of the appellant. Dr Hiley is a general practitioner (but not the appellant's own GP). She heard the appellant give an account of her experiences in Ethiopia. This included a description of the appellant's alleged ill-treatment whilst in detention following the arrest of her father and uncle. Dr Hiley observed that "the types of injuries described by [the appellant] do not typically leave permanent scarring" (paragraph 16). Dr Hiley found it "therefore unlikely that significant diagnostic scars would be seen". She was, however, able to observe "a small circular irregular and pale scar of unknown origin" on the inside the appellant's right thigh. On her back there were "two patterns of scarring, firstly on the left upper spine over the shoulder blade there is a circular pattern of well healed scars which could be consistent with being beaten across this bony prominence. On the right side of the spine there was "a pattern of four smaller circular but irregular scars, it is possible that these patterns of scarring were caused by being beaten". Lower on the spine there was "an oval shaped irregular scar near the mid line but this is non specific, there are also multiple non specific scars on the arms and legs but it is not possible to draw any conclusions about the aetiology of these" (paragraph 17).

15. At paragraph 20 of her report, Dr Hiley had this to say:

"20. I believe that [the appellant] is suffering with (sic) some elements of post traumatic stress and I have encouraged her to discuss these further with her GP. I have attached a copy of the diagnostic criteria for post traumatic stress for your information; I believe she meets criteria A1 and A2, B1 and B4. In addition she has many symptoms of depression and is also grieving for her family losses."

16. At paragraph 21, Dr Hiley said:

"21. There is little physical evidence which can absolutely confirm this lady's history; however the types of injury described would not be expected to leave diagnostic scars. I would therefore not recommend any conclusion drawn from any lack of scarring".

17. At paragraph 28, the Immigration Judge found that Dr Hiley's conclusion, that the appellant had been the victim of imprisonment and beatings in the way described, was not one that he could share since it was the Judge's "function to make an assessment based on all the evidence I have heard". Dr Hiley, by contrast, had based her conclusions in part on her view that the appellant's account had been consistent. Plainly, the Immigration Judge concluded otherwise. As for scarring, the Immigration Judge was "not able to place much weight on her conclusions in this particular case. There is a tension between her statements that the appellant has consistent scarring and that there is little physical evidence to confirm the appellant's claim". Mr Bazini took issue with this finding of the Immigration Judge. Whether another Judge would have used precisely the terminology employed by the Immigration Judge in this case is, however, beside the point. What emerges from the medical report is that the evidence of physical scarring, such as it was, did not advance the appellant's case to any significant extent and that Dr Hiley in effect acknowledged this. As regards the psychological aspects, paragraph 20 of the report is somewhat curious. There is no express finding of post traumatic stress disorder by Dr Hiley. This is notwithstanding that she says that she believes the appellant meets criteria A1 and A2, B1 and B4, set out in Appendix D to the report. According to Appendix D, such a finding would appear to have permitted an actual diagnosis of PTSD. The explanation for Dr Hiley's reticence (if such it be) may well be that, as the Immigration Judge found, Dr Hiley claims no expertise or specialism in psychiatric medicine. But whether or not Dr Hiley was, or was intending to, make a specific finding of post traumatic stress disorder in the appellant, the Immigration Judge was entitled as a matter of law to limit the weight placed upon her conclusions by reason of the fact that she lacks the qualifications that one would expect to see in the curriculum vitae of a person making a diagnosis of PTSD. Dr Hiley is not a psychiatrist or someone with other specialist psychiatric training.

18. At the end of paragraph 28, the Immigration Judge noted that Dr Hiley did not seem "to have considered that [the appellant's psychological symptoms] could have other causes, such as the anxiety and loneliness felt by all asylum seekers particularly those who have already been refused by the Home Office." The Tribunal does not find anything wrong in law with that conclusion. Very many appellants fail in their appeals because they are not found credible, notwithstanding that they have been diagnosed by appropriate specialists as suffering from PTSD. The Immigration Judge was doing no more than draw on his judicial experience in order to ascribe an explanation for this in the appellant's case.

19. Finally, the grounds assert that the Immigration Judge erred in law in failing to treat the medical report as part of the overall evidence in this case, to be considered "in the round" before coming to any conclusion as to the appellant's credibility. Reference is made to the Court of Appeal judgments in Mibanga [2005] EWCA Civ 367, in particular paragraph 24 of the judgment of Wilson J:

"It seems to me to be axiomatic that a fact-finder must not reach his or her conclusion before surveying all the evidence relevant thereto. Just as, if I may take a banal if alliterative example, one cannot make a cake with only one ingredient, so also frequently one cannot make a case, in the sense of establishing its truth, otherwise than by combination of a number of pieces of evidence".

20. In the present case, it is manifest that the Immigration Judge has arrived at his conclusions as to credibility by looking at the evidence in the round. At paragraph 16 of the determination, he reminded himself that "I must look at the case in the round in light of all the relevant circumstances". At paragraph 20, the Immigration Judge confirmed that he had "considered the appellant's evidence in the round together with the background evidence and her interview record". Plainly, the medical report was part of the appellant's evidence.

21. The Tribunal considers that there is a danger of Mibanga being misunderstood. The judgments in that case are not intended to place judicial fact-finders in a form of forensic straightjacket. In particular, the Court of Appeal is not to be regarded as laying down any rule of law as to the order in which judicial fact-finders are to approach the evidential materials before them. To take Wilson J's "cake" analogy, all its ingredients cannot be thrown together into the bowl simultaneously. One has to start somewhere. There was nothing illogical about the process by which the Immigration Judge in the present case chose to approach his analytical task.

22. The Tribunal finds that the Immigration Judge's determination contains no material error of law and we accordingly order that his determination, dismissing the appellant's appeal on both asylum and human rights grounds, shall stand.

Signed Date

P R Lane
Senior Immigration Judge

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