Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00156/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 25 January 2017
On 26 January 2017

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

[W K]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Ms D. Revill, Counsel instructed by AH Solicitors
For the respondent: Ms Z. Ahmed, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appealed against the respondent's decision to refuse a protection claim. First-tier Tribunal Judge Abebrese dismissed the appeal in a decision promulgated on 28 July 2016 on the ground that he did not accept the credibility of the appellant's claim to have been persecuted for reasons of his sexual orientation.

2. The appellant appeals against the First-tier Tribunal decision on the following grounds:
(i) The judge failed to give anxious scrutiny to the claim in a number of respects. Firstly, he refers to a witness and evidence that was not in fact before the Tribunal. Secondly, he failed to have regard to aspects of the appellant's claim with reference to the Court of Justice decision in A, B, C v Staatssecretaris van Veiligheid en Justitie (C/148/13).
(ii) The judge failed to make any findings relating to the medical evidence as part of a holistic assessment of credibility contrary to the principles outlined by the Court of Appeal in Mibanga v SSHD [2005] EWCA Civ 367.
Decision and reasons

3. After having considered the grounds of appeal and the submissions made by both parties I am satisfied that the First-tier Tribunal decision involved the making of an error on a point of law.

4. It seems quite clear from the evidence and the judge's note of the proceedings that the appellant and two witnesses were called to give evidence. The additional witnesses were the appellant's aunt, Shakeela Iqbal, and his cousin, Raheel Iqbal. The judge summarised their evidence at paragraphs 23-24 of the decision. At the end of paragraph 24 he stated:
"The appellant's last witness also gave evidence that he believed the appellant to be gay and that he himself is a person who has associated with the appellant whilst in this country. He admitted that his situation is slightly different from the appellant as he has taken steps to have a change of gender but this process has not yet been completed."
5. The judge made the following findings at paragraph 33:
"33. ? I did not find the evidence of the appellant's witnesses to be credible ? I also make a finding that the evidence of the appellant's friend that he believed the appellant to be gay is not supported by the evidence hence my credibility findings. The position of the appellant's friend is different from that of the appellant in that he himself is contemplating a gender transformation operation."
6. I accept that the judge's reference to the "last witness" does not necessarily mean that he purported to be considering the evidence of an additional witness other than the appellant and his two family members, but on the face of it the appellant did not call a friend to give evidence. I am told that at no point was any evidence produced of a witness who was contemplating a "gender transformation operation". The witness statements of the appellant's aunt and cousin outline no such evidence.

7. Ms Ahmed argued that there was nothing in the decision to show that the judge had placed undue weight on this point or that it would have made any material difference to the outcome of the appeal. If the factual error was confined to paragraph 24 it might be dismissed as a drafting error, but the fact that a second reference is made to a non-existent witness in paragraph 33 gives me cause to doubt whether the judge made the decision with the correct factual matrix in mind. It matters not whether the alleged evidence made any material difference to the outcome of the appeal. If the judge confused evidence from a different case it is sufficient cause to doubt whether anxious scrutiny was given to the particular facts of this case.

8. I am also satisfied that the second ground of appeal discloses a material error of law in the First-tier Tribunal decision. At paragraph 32 the judge stated:
"32. I have also taken into consideration the medical evidence which has been provided by the appellant in relation to his present condition and physical and mental state of mind. The medical evidence is not accepted because of the lack of credibility of the account provided by the appellant in respect of his appeal. I do make a finding that the mental and physical condition of the appellant has been provided to the Tribunal in order to bolster a weak asylum claim made after all avenues available to him have failed."
9. While I acknowledge Ms Ahmed's submission that a judge does not have to make findings on each and every aspect of the evidence it is incumbent on a judge to make adequate findings on material aspects of the evidence. The decision in Mibanga makes clear that medical evidence should form part of a holistic assessment of the appellant's credibility. In this case the medical evidence was relevant to the credibility of the appellant's account of past detention and ill-treatment. Not only does the judge fail to engage with the nature or quality of the evidence, which included a report as well a number of other pieces of evidence relating to ongoing treatment, but it is quite clear that the only reason given for rejecting it was that he had already come to a negative decision in relation to the credibility of the appellant's account. While many of the judge's credibility findings were unarguably open to him to make on the evidence, the cursory way in which the judge rejected the medical evidence was clearly disapproved by the Court of Appeal in Mibanga.

10. I am satisfied that the combination of the above two points is sufficient to conclude that the First-tier Tribunal decision involved the making of an error on a point of law. The parties agreed that the matter would need to be remitted to the First-tier Tribunal for a fresh hearing.

DECISION

The First-tier Tribunal decision involved the making of an error on a point of law

The decision is set aside and remitted for a fresh hearing in the First-tier Tribunal

Signed Date 25 January 2017
Upper Tribunal Judge Canavan