Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00960/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Sent
On 14 May 2013
On 03 June 2013

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

M R

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent
Representation:

For the Appellant: Mr S Muquit instructed by K Ravi Solicitors
For the Respondent: Mr T Wilding, Senior Home Officer Presenting Officer

DECISION AND REMITTAL
1. This appeal is subject to an anonymity order made by the First-tier Tribunal pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230). Neither party invited me to rescind the order and I continue it pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698).
2. The appellant is a citizen of Sri Lanka who was born on 18 December 1987. She entered the United Kingdom on 9 May 2010 using her own passport with a student visa valid until 2 July 2012. On 20 June 2012, the appellant claimed asylum. On 23 January 2013, the Secretary of State refused the appellant’s claim for asylum under para 336 of the Immigration Rules (HC 395 as amended). On 25 January 2013, the Secretary of State made a decision to remove the appellant as an illegal entrant by way of directions to Sri Lanka.
3. The appellant appealed that decision to the First-tier Tribunal. Following a hearing, Judge Braybrook dismissed the appellant’s appeal on asylum and human rights grounds. On 4 April 2013, the First-tier Tribunal (DJ French) granted the appellant permission to appeal to the Upper Tribunal on the ground that the First-tier Tribunal had arguably erred in law in reaching her adverse credibility finding. Thus, the appeal came before me.
The Appellant’s Claim
4. The appellant claims to fear ill treatment from the Sri Lankan authorities. Her claim is, in summary, as follows. She is a Tamil from Jaffna where she lived with her family. Her father, who was a fisherman, supported the LTTE. He had been detained and questioned numerous times. The appellant and her elder sister also supported the LTTE from about 2004 onwards by doing administrative duties. Neither the appellant nor any of her family were actual members of the LTTE.
5. In 2006, the appellant, her father and elder sister went to Vanni which was an LTTE controlled area. Her mother and other siblings remained in Jaffna. After her sister contracted malaria, the appellant, her sister and father went to India leaving Colombo on 24 October 2007. They stayed in India until their family told them that it was safe to return which they did on 15 June 2009. They flew back to Colombo and then returned to their home in Jaffna. The appellant and her family no longer supported the LTTE.
6. In November 2009 the appellant says that she was detained by the Sri Lankan authorities along with her father and elder sister. She was fingerprinted, photographed and videoed. She was questioned about her involvement with the LTTE and her father’s role. She says that during that detention she was ill treated including being beaten and burned with cigarettes. After ten days she was released on payment of a bribe by her uncle. Her elder sister, who had also been detained, was released the day before the appellant and had been raped during her detention. Her uncle was unable to secure her father’s release by payment of a bribe. Following release, she stayed at home for a month and then went to stay in her uncle’s home for three to four months before going to Colombo in March 2010 where she made a student application to come to the UK with the help of an agent. The agent took the appellant to the airport, leaving her at the visitor’s point and she flew to the UK.
7. The appellant fears that because of her previous detention in November 2009 she will be of interest to the authorities in Sri Lanka on return and at risk of serious ill treatment.

The Judge’s Decision
8. The Judge did not accept the appellant’s account. She made an adverse credibility finding against the appellant. First, the Judge did not accept the appellant’s account to be plausible. As regards her claimed detention and ill treatment in November 2009, the Judge stated that it was:
“at odds with all their previous experience 2004-2009 when they had been able to live and work and move around by road and air without raising any adverse attention.”
9. In particular, the Judge noted that the appellant and her father and elder sister had had no difficulty in leaving Sri Lanka to go to India or on returning to Sri Lanka from India in June 2009. Further, as regards the appellant leaving Sri Lanka to come to the UK in March 2010, the Judge doubted whether the authorities had any interest in the appellant for two reasons. First, she had gone to a police station to report her passport as lost in order to obtain (on the advice of the agent) a new one which did not show her visit to India. Having done that, she had obtained a new passport from the passport authorities. Secondly, she had been able to exit through Colombo airport on her new passport without any problems being experienced. These circumstances led the Judge to doubt that she was of any interest to the Sri Lankan authorities.
The Submissions
10. Both in the grounds and in his submissions, Mr Muquit challenged the Judge’s adverse credibility finding on two principal grounds. First, he submitted that the Judge had fallen into error in his treatment of the expert report of Mr Andreas Martin, Consultant in Accident and Emergency Medicine dated 26 February 2013 which dealt with the scars upon the appellant’s body. Secondly, he submitted that the Judge, in doubting the appellant’s account of her detention in 2009 and of her exit from Sri Lanka in 2010, the Judge had failed to have regard to the background evidence to which she was referred in reaching what, in effect, were findings of implausibility. Mr Muquit submitted that these errors were material to the Judge’s adverse credibility finding and her decision could not stand.
11. Mr Wilding, who represented the respondent, submitted that the Judge had properly considered the expert report and had given it appropriate weight. As regards the Judge’s overall assessment of credibility, which Mr Wilding described as a “holistic exercise”, the determination was well reasoned and his findings sound. The appellant’s challenge was no more than an attempt to reargue the case.
Discussion
12. I deal first with the Judge’s treatment of Mr Martin’s expert report. The report dealt with three sets of scars. The first set (“scars 1”) is on the appellant’s back; the second set (“scars 2”) is on the appellant’s upper chest; and finally there are two scars on each calf of her lower leg (“scars 3”).
13. As regards “scars 1” and “scars 3”, Mr Martin’s report states that: “[t]he appearance of the scars is typical of injuries caused by intentional blunt trauma with a long narrow blunt implement”. He goes on to say that the scars could not have been caused by accidental injuries and, looking at all their features, it “strongly suggests a non-accidental cause”. In his view: “[t]he cause of these injuries is an intentional one”. Mr Martin expresses the opinion that it was “extremely unlikely (if not impossible)” that the injuries were self-inflicted. It was, in his view, “most likely” that they were caused by another individual but: “from inspection of the injuries it is impossible to be able to say if the injuries were caused by friend or foes as the appearance of the scars would have been indistinguishable.”
14. As regards “scars 2”, Mr Martin states that: “[t]he appearance of the scars is typical of injuries caused by being burned with a small round object such as the one described by the claimant”. I interpose: the claimant had said that they were caused by hot cigarette butts. Having looked at the scars, Mr Martin expresses the view that: “[t]he appearance of the scars is homogenous and with nearly identical features which makes an accidental cause even more unlikely. In my opinion the most likely cause is an intentional one”. Mr Martin goes on to express the view that it was possible, but extremely unlikely, that the scars had been self-inflicted. In his view they were “most likely” caused by others and “[t]his is typical of the description of events by the claimant of being tortured”. As with “scars 1” and “scars 3” however, Mr Martin states that: “[f]rom inspection of the injuries it is impossible to be able to say if the injuries were caused by friend or foes as the appearance of the scars would have been indistinguishable.”
15. Mr Martin then turned to deal with the age of the scars and states this:
“Determining the age of the scars by just visual inspection is not a precise science and often there (sic) is just possible to say that the injuries were mature or immature, enough to give a very approximate range of time when the injuries could have been caused. The quiescent nature of the scars seen on this man’s body means that they are matured and this is inconsistent with the time span described by the claimant”.
16. In his conclusions Mr Martin expresses the view that:
“I have no doubt that the scars were the result of intentionally caused injuries and that there is a high likelihood that the injuries were caused by torture as described by the claimant.”
17. As will be clear, on its face this report is supportive of the appellant’s claim and in particular in relation to what she says occurred to her when she was detained by the Sri Lankan authorities in November 2009.
18. Having set out Mr Martin’s experience and expertise, the Judge at paras 16-19 set out extracts from Mr Martin’s report. At para 20 she noted his “very considerable expertise”. Then at paras 21-24 the Judge analysed Mr Martin’s evidence as follows:
“21. I noted that he had interviewed the appellant’s through an interpreter on 14 February 2013. This was over three years after the appellant’s release and over two years after her arrival in the UK. Mr Martin refers to the difficulty of his task. The appellant in oral evidence said that Mr Martin had not seen the colour photographs of her scars taken in a studio towards the end of June 2012 relied on at interview and this explains why there was no comment from Mr Martin on the process of ageing of the scars in the intervening period.
22. There is no indication with what other documents if any Dr Martin was supplied; he states only that his report was compiled by ‘examination of claimant/brief outline MR’s claim’. There was no suggestion, for example, that Mr Martin had seen the appellant’s interview record. His report suggests he had limited background information. There is no indication he had discussed with the appellant, for example what treatment she had sought for her injuries.
23. There were shortcomings in Mr Martin’s report. In the course of his brief report he refers on two occasions to a ‘male claimant. This was of particular concern in paragraph 18 above where he refers to scars seen on ‘this man’s body.’ I noted that there were scars, including cigarette burns on her right foot, described in interview (Q19) and for which a studio photograph was supplied to which Mr Martin makes no reference at all.
24. Mr Martin also appears to make inconsistent findings: he states at paragraph 18 above that the scars/cigarette burns are ‘inconsistent with the time span described by the claimant’ but a few lines later concludes that ‘there was a high likelihood that the injuries were caused by being tortured as described by the claimant.’”
19. In the light of these matters, the Judge reached the following view in para 24 of her determination:
“24. Given these shortcomings and what appeared to be the limited scrutiny given to the issues, I concluded I could give little weight to his report. Taking this into account with the evidence overall, I was not satisfied that the scars were inflicted in 2009 in the circumstances described by the appellant.”
20. Mr Muquit accepted that Mr Martin’s report should obviously not have referred to the claimant as “male” as he had done on a couple of occasions. But, Mr Muquit submitted, these were obviously typographical errors. Mr Martin had examined the claimant personally and had produced photographs of her injuries. He was obviously aware that the claimant was female and, in any event, the validity of his expert opinion did not depend on the gender of the claimant.
21. Further, Mr Muquit submitted that in paragraph 24 the Judge had misread Mr Martin’s report as to the consistency of the scarring with the timescale in which the claimant had said she had been ill treated. Mr Muquit referred me to a letter dated 9 May 2013 in which Mr Martin stated that when he had said that the nature of the scars means: “that they are matured and this is inconsistent with the time span described by the claimant”, the sentence should have read: “this is consistent with the time span described by the claimant.” Mr Muquit acknowledged that the letter was not before the Judge. However, he submitted that in context what Mr Martin had said in his report must obviously have meant precisely what he now said was the correct reading of his report.
22. Finally, Mr Muquit submitted that the Judge had been wrong to downgrade the important of Mr Martin’s evidence on the basis that he had not seen, for example, the appellant’s interview record or that the report did not indicate how long he had examined the appellant or whether he had discussed what treatment she had sought for her injuries. Mr Muquit submitted that Mr Martin’s report was based upon a proper examination of the claimant and he was clearly aware of the elements of her claim.
23. I was referred by both representatives to a number of cases dealing with the proper approach to medical reports when a Judge is assessing credibility (JL (Medical Report – Credibility) China [2013] UKUT 00145 (IAC); SA (Somalia) v SSHD [2006] EWCA Civ 1302; HH (Ethiopia) v SSHD [2007] EWCA Civ 306; SS (Sri Lanka) v SSHD [2012] EWCA Civ 155; IY (Turkey) v SSHD [2012] EWCA Civ 156; MO (Algeria) v SSHD [2007] EWCA Civ 1276 and RR (Challenging Evidence) Sri Lanka [2010] UKUT 00274 (IAC)).
24. In SA (Somalia), Sir Mark Potter set out the proper approach for an expert when preparing a report, such as in this case, dealing with injuries and their causative agents as follows at [28]-[30]:
“28. In any case where the medical report relied on by an asylum seeker is not contemporaneous, or nearly contemporaneous, with the injuries said to have been suffered, and thus potentially corroborative for that very reason, but is a report made long after the events relied on as evidence of persecution, then, if such report is to have any corroborative weight at all, it should contain a clear statement of the doctor’s opinion as to consistency, directed to the particular injuries said to have occurred as a result of the torture, or other ill treatment relied on as evidence of persecution. It is also desirable that, in the case of marks of injury which are inherently susceptible of a number of alternative of ‘everyday’ explanations, reference should be made to such fact, together with any physical features or ‘pointers’ found which may make the particular explanation for the injury advanced by the complainant more or less likely.
29. In cases where the account of torture is, or is likely to be, the subject of challenge, Chapter Five of the United Nations Document, known as the Istanbul Protocol, submitted to the United Nations High Commissioner for Human Rights on 9 August 1999 (Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) is particularly instructive. At paras 186-7, under the heading ‘D. Examination and Evaluation following specific forms of Torture’ it states:
‘186. .... For each lesion and for the overall pattern of lesions, the physician should indicate the degree of consistency between it and the attribution (a) Not consistent: the lesion could not have been caused by the trauma described; (b) Consistent with: the lesion could have been caused by the trauma described, but it is non-specific and there are many other possible causes; (c) Highly consistent: the lesion could have been caused by the trauma described and there are few other possible causes; (d) Typical of: this is an appearance that is usually found with this type of trauma, but there are other possible causes; (e) Diagnostic of: this appearance could not have been caused in anyway other than that described.
187. Ultimately, it is the overall evaluation of all lesions and not the consistency of each lesion with a particular form of torture that is important in assessing the torture story (see Chapter IV.G for a list of torture methods).’
30. Those requested to supply medical reports supporting allegations of torture by asylum claimants would be well advised to bear those passages in mind, as well as to pay close attention to the guidance concerning objectivity and impartiality as set out at paragraph 161 of the Istanbul Protocol.”
25. In JL, the Upper Tribunal pointed out:
“Those writing medical reports are to ensure where possible that before forming their opinions they study any assessments that have already been made of the appellant’s credibility by the immigration authorities and/or a Tribunal judge ...”
26. At [29], the Upper Tribunal noted the need for an expert to follow the Istanbul Protocol, in particular, dealing with different degrees of consistency. The Upper Tribunal continued:
“When considering causation of injuries said to have been inflicted by torture or other forms of ill-treatment, they are to consider possible alternative explanations.”
27. In my judgment, that is precisely what Mr Martin did in his report. He considered the options of accidental cause and non-accidental cause and, in relation to “scars 1” and “scars 3”, concluded that they were intentionally caused and it was “unlikely (if not impossible)” that they were self-inflicted. He concluded, consistently with the Istanbul Protocol, that they were “typical of the description of events by the claimant of being tortured.” He was not, however, able to determine whether they had been intentionally inflicted by “friends or foes”. As regards “scars 2”, he again considered the options of non-accidental and accidental cause and concluded that they were “most likely” intentionally caused. He considered it was extremely unlikely that the burn marks were self-inflicted although that was possible and he concluded that the most likely cause was by others and it was “typical of the description of events by the claimant of being tortured”.
28. On its face, these opinions merited a proper and reasoned engagement by the judge. I see no basis for the judge discounting Mr Martin’s views on the basis set out in para 22 of her determination that he may not have seen the appellant’s interview record, indicated how long he examined the appellant or whether he had discussed with her the treatment she had sought for her injuries. Mr Martin was clearly aware of the essential elements of the appellant’s account. His report states that in November 2009 she claims that she was taken to a camp where she was “interrogated and tortured: she was blindfolded, kicked, beaten with blunt instruments (unable to describe them as she was blindfolded), she was burned with hot cigarette butts and she was sexually assaulted.” Mr Martin needed to know no more about her account in order to reach an opinion on the aetiology of her injuries. There is no basis for saying that he carried out anything other than a full and professionally competent assessment.
29. As regards the other matters relied upon by the judge, Mr Martin’s reference to the claimant as being male is undoubtedly unfortunate. But, equally, those references are clearly typographical errors. There can be no doubt that the judge was, as Mr Muquit submitted, well aware that the claimant was a woman. He personally examined her. In any event, those typographical errors in no way directly affect his expert opinion on the cause of her injuries. Whilst the mistakes might be described as ‘sloppy’, they do not detract from the overall professional content of Mr Martin’s assessment.
30. As regards the passage in his report in which he deals with the consistency of the claimant’s visible injuries with her being injured in November 2009, it is undoubtedly unfortunate that a mistake appears to have been made. It is worth noting that as written the sentence does not in fact make sense at all. It states:
“the quiescent nature of the scars seen on this man’s body means that they are matured and this inconsistent with the time span described by the claimant.”
31. Even on the judge’s reading of this sentence the word “is” is omitted between the word “this” and “inconsistent”. Clearly, this should have drawn to the judge’s attention that this sentence needed very careful analysis to determine its meaning. Had that been done, it would have been clear that the meaning of the sentence was that the “quiescent nature of the scars” meant that they had “matured” and that “this is consistent with the time span described by the claimant”. The combination of “quiescent nature” and “matured” clearly points to the scars being of some age. As Mr Muquit pointed out, the Freedom from Torture report entitled “Sri Lankan Tamils tortured on return from UK” dated 13 September 2012 (at pages 18-42 of the appellant’s bundle before the First-tier Tribunal) at page 24 states that:
“The healing rate of scars is determined by a number of variable factors and their appearance seldom changes significantly after 6-12 months when healing has taken place. Therefore, it is not usually possible to accurately determine the exact age of scars after this time.”
32. Even if Mr Martin did not have in mind this particular timescale, the point is that “maturity” was, in his view, consistent with the claimant’s case that she had been injured and the scarring occurred in November 2009. That may not be forensically the appellant’s best point arising out of Mr Martin’s report but, correctly read, it is at least supportive to some extent of the appellant’s account.
33. For these reasons, I am satisfied that the judge erred in law in her assessment of Mr Martin’s report and the weight that she attached to it.
34. Mr Wilding submitted that the report did no more than identify that the scars had been intentionally inflicted but whether that was by “friends or foes” Mr Martin could not say. This was not an error, therefore, that undermined the judge’s overall assessment of the appellant’s credibility. In my view, that is not correct.
35. It was never, so far as either representative could tell me, put to the appellant at the hearing that these injuries had been intentionally inflicted upon her by “friends”, in effect deliberately at her request to manufacture supporting evidence for her claim. It has never been expressly suggested that these injuries, typical of the torture described by the claimant, had realistically a different (from that claimed) third party cause. That was a relevant matter in the judge’s consideration of the expert report together with all the other evidence in the case in reaching her overall finding (see, RR (Challenging evidence)). Because the judge took an adverse view of Mr Martin’s report, she never grappled with his evidence and engaged with its terms and its implications in the light of all the evidence in the case.
36. Although Mr Muquit candidly accepted that Mr Martin’s report was only a supporting part of the appellant’s claim to be believed, in my judgment, in itself the Judge’s failure to properly consider that evidence requires that the adverse credibility finding and be set aside. It was an important piece of evidence, relied upon by the claimant, and despite the other reasons given by the judge for not believing the appellant, it is, in my view, impossible to unravel her credibility finding and to be satisfied that it would have been the same even had she taken into account Mr Martin’s report appropriately.
37. In addition, there is also merit in Mr Muquit’s further submissions concerning the judge’s other reasons for disbelieving the appellant. First, that there was, in effect, no explanation as to why the authorities would be interested in the appellant (and indeed her father and sister) in November 2009 when they had previously travelled to India in 2007 and returned in June 2009 without any apparent interest being expressed in them. Secondly, that the authorities could have no interest in the appellant as she had been able to exit Colombo Airport in 2010 on her own passport without any difficulties and, indeed, had obtained a new passport from the authorities following her report to the police (disingenuously) that her passport had been lost. In both these findings, Mr Muquit submitted that the judge had failed to consider the relevant background evidence.
38. As regards the former, Mr Murquit relied upon the Freedom from Torture report at pages 26-27 as follows:
“In 3 cases it is not known with certainty whether this association with the LTTE had or had not come to the attention of the authorities prior to the individual coming to the UK; the other 3 had been previously detained and tortured in Sri Lanka, two of them prior to coming to the UK and one of them when visiting Sri Lanka, while resident in the UK on a student visa.
The means by which the association with the LTTE was established or became known by the Sri Lankan authorities in the former 3 cases is not possible to establish with certainty, though informants are known to have been used to identify the individuals in 2 cases, prior to their detention.”
39. Mr Muquit submitted that this background evidence should have informed the judge’s reasoning and ultimate finding on whether it was possible, for example, that the interest in the appellant and her family in November 2009 (but not on exiting and entering Sri Lanka in 2007 and 2009 respectively) may have been the result of informants.
40. As regards the latter, namely the appellant’s departure from Sri Lanka in 2010, Mr Muquit referred me to the Country of Information Report for Sri Lanka at paras 32.01-32.2 and a letter from the British High Commission in Colombo dated 28 August 2008. Extracts are set out at page 4 of his grounds of appeal. He also drew my attention to the extracts from the COI Report for March 2012 at paras 25.18-25.21 set out in para 46 of the respondent’s refusal letter dated 23 January 2013. That referred to a letter from the British High Commission in Colombo dated 5 January 2012. Mr Muquit submitted that in the absence of a court order or arrest warrant there would be no relevant check upon the appellant, who had a valid passport, which would lead to her encountering difficulties on exit.
41. I do not propose to set these extracts out at length. Mr Wilding also relied upon them as demonstrating that there were a number of security checks through which the appellant would have had to pass prior to leaving Sri Lanka. The material does, indeed, show a number of security checks are in place. The British High Commission letter of 5 January 2012 that the Department of Immigration and Emigration are notified: “only when a court decides to impound the suspect’s passport or an arrest warrant is issued.”
42. In those circumstances the letter continues:
“The details of such persons will be placed on their alert or wanted list within their database. There is no other mechanism to ensure that the Immigration Officers are aware of such instances. Apart from these courts’ powers, Immigration Officers have no power in law to prevent persons embarking. The other method, which is rare and case specific is that the State Intelligence Service (SIS) can inform Immigration Officers of individuals suspected of terrorist activity and those on a wanted list. Again the details of suspects will be put on the DIE database. Without court sanction, Immigration Officers are powerless to put an individual in detention if they are otherwise satisfied that they have a right to enter or live in Sri Lanka. The State Intelligence Service (SIS) has an office adjacent to the immigration embarkation control and DIE officials can refer embarking passengers to them if they think it necessary.”
43. In this case, Mr Muquit pointed out that the appellant had never claimed that an arrest warrant had been issued against her or that any court sanction existed. Indeed, she never claimed that she had been photographed.
44. It seems to me that Mr Murquit’s first point has some merit: the judge did not consider, and therefore, did not discount the possibility that an informant(s) had brought the appellant and her family to the authorities’ attention. Of greater merit, however, is Mr Murquit’s second point. The background evidence to which I have been referred was relevant in assessing whether the appellant’s claimed exit from Sri Lanka without hindrance was or was not plausible. The evidence is not all one way as Mr Wilding submitted. However, the point here is that the judge failed to grapple with this evidence in reaching her finding that it was implausible that the appellant left Sri Lanka unhindered. That in itself, even without regard to the first less strong point, is also an error of law and further undermines the adverse credibility finding.
45. Consequently, in my judgment, the judge’s adverse credibility finding cannot stand and her decision to dismiss the appeal is set aside.
Decision and Disposal
46. The First-tier Tribunal’s decision involved the making of an error of law and its decision to dismiss the appeal cannot stand. That decision is set aside.
47. Both representatives invited me, if the judge’s credibility finding was set aside, to remit the appeal to the First-tier Tribunal. In my view, that is the appropriate course bearing in mind the Senior President’s Practice Statements at para 7.2 and the nature and extent of the fact-finding required.
48. Consequently, the appeal is remitted to the First-tier Tribunal for a de novo rehearing before a judge other than Judge Braybrook

Signed

Judge of the Upper Tribunal)

Date