Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00435/2016

THE IMMIGRATION ACTS

Heard at Bradford
Decision and Reasons Promulgated
On 11th April 2017
On 20th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE KELLY

Between

MR MOHAMED ASRSHAD ABDUL LATHEEF
(anonymity not directed)
Appellant

and

the secretary of state for the home department
Respondent

Representation:
For the Appellant: Mrs Pickering, Counsel instructed by Lawrence Lupin Solicitors
For the Respondent: Mrs R Pettersen, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the appellant against the decision of Judge Hillis, promulgated on the 8th December 2016, to dismiss his appeal against the respondent’s refusal of his Protection Claim.
2. The appellant’s case was in essence that he had been arrested, detained and tortured by the Sri Lankan authorities on two occasions in 2009 because, whilst he was acting in the course of his employment as a travel agent, he had unwittingly assisted two members of the LTTE to leave the country. The respondent did not accept that account and so the appellant commissioned a medico-legal expert to opine upon the mechanism of injuries that had left visible marks on his body.
3. On the 9th January 2017, Judge Pullig gave permission to appeal on the first of three grounds contained within the appellant’s original application for permission to appeal, namely, that the judge had not given appropriate weight to the medico-legal report. He did so in the following terms –
Having read the judge’s decision, I find that it is arguable the (sic) he did not consider the evidence in the round but discounted the report mainly in light of his adverse findings on credibility excluding that report. This is an arguable error of law and material to the decision. On this point, I grant permission.
4. At paragraph 37 of his decision, Judge Hillis concluded that the appellant’s behaviour in failing to seek asylum when earlier opportunities had presented themselves was such as to engage the provisions of section 8 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 and had thus adversely affected his credibility. He however reminded himself that this was but one factor to which he was required to have regard within the context of the evidence as a whole. He next considered a document that purported to be a Sri Lankan High Court warrant for the appellant’s arrest. He however concluded, for good and sufficient reasons, that the appellant had failed to demonstrate that it could be relied upon as support for his claim. Next, he considered the medico-legal report that lies at the heart of the present appeal. The critical paragraphs are those numbered 46 and 47 –
46. The doctor’s assessment of the marks/scars on the Appellant’s body are that they are “consistent” with the Appellant’s account on the standards set by the Istanbul Protocol and he does not exclude other mechanisms for those marks, examples of which are set out at paragraphs 66 and 67 of this report.
47. I therefore conclude that assessment of the reasons and causation of the marks/scars on the Appellant’s body is inextricably bound to the Appellant’s credibility.
Finally, the judge turned to consider the credibility of the appellant’s narrative, finding that its various details were implausible when judged against the yardstick of the background country information concerning the approach of the Sri Lankan authorities to suspected LTTE members and supporters.
5. Mrs Pickering did her best to persuade me that – in the terms of the permission to appeal - the judge had failed to consider the evidence “in the round but discounted the [medico-legal] report mainly in light of his adverse findings on credibility excluding that report”. However, with all possible respect to the judge who granted permission to appeal in those terms, it is abundantly clear that Judge Hillis did not do any such thing. Firstly, he made it clear at paragraph 46 that he was accepting rather than discounting the findings of the medico-legal report. Given that the expert’s findings fell very far short of the conclusive end of the spectrum of possible findings under the Istanbul Protocol (known as “diagnostic”) the judge rightly held that they provided only limited support for the appellant’s claim and were thus inextricably linked to the issue of his credibility. Secondly, the judge made it equally clear at paragraph 47 that he was considering the credibility of the appellant’s account in light of rather than despite the findings that were contained within the expert’s report.
6. I therefore conclude that the judge did not make an error of law, whether affecting the outcome of the appeal or at all.

Notice of Decision
7. The appeal is dismissed.
Anonymity is not directed

Signed Date: 18th April 2018

Judge Kelly

Deputy Judge of the Upper Tribunal