Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01495/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 February 2017
On 6 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

NITHIYANANTHAN THINESH
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent
Representation:

For the Appellant: Ms S Iengar, (Counsel) Instructed by Satha & Co, solicitors
For the Respondent: Mr S Kotas,Senior Home Office Presenting Officer
DECISION AND REASONS

1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.

2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Miller promulgated on 21 November 2016, which dismissed the Appellant’s appeal on all grounds.

Background

3. The Appellant was born on 19 August 1989 and is a national of Sri Lanka.

4. On 9 January 2015 the Secretary of State refused the Appellant’s protection claim.

The Judge’s Decision

5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Miller (“the Judge”) dismissed the appeal against the Respondent’s decision. Grounds of appeal were lodged and on 13 January 2017 Judge Andrew gave permission to appeal stating inter alia

It is arguable that in coming to his decision in this matter the Judge did not consider the report of Dr Persaud with the anxious scrutiny he should have done. This, I am satisfied, is an arguable error of law.

The Hearing

6. (a) Ms Iengar, for the appellant, moved the grounds of appeal. She immediately told me that she would not be moving the first ground of appeal, which related to perceived bias. She told me that the First-tier Judge failed to give anxious scrutiny to the medical evidence. She took me to [34 (a)] of the decision and told me that that paragraph contains a material error of fact, demonstrating an absence of anxious scrutiny of the medical evidence. It is there that the Judge records that Dr Persaud’s report is two pages long, when in fact the psychiatric report is five pages long, the remaining 16 pages containing the authors CV. She told me that [34(a)] demonstrates that the Judge took account of only 40% of the medical report, ignoring three pages of a five-page report.

(b) Ms Iengar told me that the Judge’s approach to the medical evidence was fundamentally flawed. She took me to [34(b)] and told me that there the Judge goes behind the clinical assessment of a medical expert without providing any reason to basis for doing so. She referred me to JL (medical reports-credibility) China [2013] UKUT 145 (IAC) and told me that the Judge failed to follow the guidance contained therein. She told me that that failure betrayed an inadequacy of fact finding and a lack of reasoning. She relied on the cases of MK (Pakistan) (2013) UKUT 00641(IAC) & Budhathoki [2014] UKUT 00341 (IAC).

(c) Ms Iengar took me to [34(e)] to [34(g)] of the decision, and told me that there the Judge incorrectly uses a log of GP records to undermine the findings of the psychiatric reports. She told me that that exercise is an approach which is incorrect in law. She told me that the Judge failed to assess the appellant as a vulnerable person. She reminded me that it is accepted that the appellant is a victim of torture. She told me that consideration should have been given to the Presidential guidance note No 2 of 2010 (“ child, vulnerable adult and sensitive appellant guidance”), referring me specifically to paragraph 15 of that guidance.

(d) Ms Iengar told me that the decision contains no assessment of the appellant’s vulnerability. She told me that the absence of such assessment is a material error of law because it would have shifted the focus for the assessment of credibility.

(e) Ms Iengar told me that the Judge’s consideration of articles 3 and 8 ECHR grounds of appeal is wholly inadequate. She reminded me that the opinion of Dr Persaud is that the appellant suffers from PTSD and is at risk of suicide. She reminded me of Y & another v SSHD [2009] EWCA Civ 362, and told me that the appellant’s vulnerability and the risk of suicide engaged article 3. Those factors, she said, have not been considered properly by the First-tier Judge. She told me that the Judges conclusions at [36] are not safe. She asked me to allow the appeal, to set the decision of the First-tier aside and to remit the case to the First-tier Tribunal to determine of new.

7. (a) For the respondent, Mr Kotas vigorously opposed the appeal. He told me that the decision does not contain errors, material or otherwise. He told me that the decision showed that the Judge has given anxious scrutiny to the medical evidence. He took me to [29] of the decision, where the Judge notes that the appellant was fit and well when interviewed. He then took me to [34], where the Judge clearly identifies that the report from Prof Lingham is not controversial, but the report from Dr’s Persaud and Dhumad require consideration. He told me that throughout each subparagraph at [34], the Judge gives full and proper reasons for attaching little weight to the report of Dr Persaud. He took me to [34(e)] and [34(f)] where, he told me, the two psychiatrists could not agree about the circumstances surrounding a perceived suicide attempt.

(b) Mr Kotas took me to [34(j)] and reminded me that the Judge was concerned that Dr Dhumad’s report contained factual inaccuracies which created the appearance of cutting and pasting from another report. He told me that the Judge gave adequate findings for attaching little weight to the psychiatric reports, and the finding that the appellant had exaggerated his position. He told me that having made such findings the consideration of suicide risk and the impact that has on the article 3 ECHR argument falls away.

(c) Mr Kotas told me that even if there is an error of law it is immaterial because, on the established facts in this case, the appellant does not fall within a risk category identified in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC). He told me that the appellant’s account of being the subject of an arrest warrant is rejected by the Judge. He said that the Judge gives adequate reasons for concluding that the appellant is not on a stop list, and that the medical evidence does not approach the elevated threshold required to engage article 3.

(d) Mr Kotas urged me to dismiss the appeal and to allow the Judge’s decision to stand.

Analysis

8. In JL (medical reports-credibility) China [2013] UKUT 145 (IAC) the Tribunal held (inter alia) that, Judges should be aware that, whilst the overall assessment of credibility is for them, medical reports may well involve assessments of the compatibility of the appellant’s account with physical marks or symptoms, or mental condition: (SA (Somalia) [2006] EWCA Civ 1302). If the position were otherwise, the central tenets of the Istanbul Protocol would be misconceived, whenever there was a dispute about claimed causation of scars, and Judges could not apply its guidance, contrary to what they are enjoined to do by SA (Somalia). Even where medical experts rely heavily on the account given by the person concerned, that does not mean their reports lack or lose their status as independent evidence, although it may reduce very considerably the weight that can be attached to them.

9. Dr Persaud’s report is reproduced in the appellant’s bundle. The first half page appears under the heading “Expertise of author of the report” and catalogues Dr Persaud’s professional achievements. The next 1 ½ pages fall under the heading “History and examination” and relate to the appellant. The third page contains Dr Persuad’s opinion. He starts the final paragraph of his opinion by saying

I have based my opinion on what the client has told me, without access to any corroborating information from key informants, and my report has to be interpreted in that light.

The fifth page of the report is a declaration. The remaining pages are the author’s CV

10. At [34(a)] the Judge does not say that the report is only two pages long. It is the second sentence of [34(a)] which is complained about. There, the Judge says

Although the report is some 20 pages long, little more than two pages actually consider the appellant!

The Judge is right. Not only is the Judge right, but what he says is nothing more than an observation to draw focus on the relevant aspects of the report. It is not an error of fact.

11. Between [34(a)] and [34(j)] the Judge carefully considered the medical evidence. He carefully analyses the content of Dr Persaud’s report, then moves on to a consideration of the report from Dr Dhumad. Between [34(h)] And [34(J)] the Judge sets out his concerns about Dr Dhumad’s report. At [34(i)] he notes that the two doctors differ in their conclusions. Throughout the various sub-paragraphs of [34] the Judge carries out a careful analysis of the medical evidence, and sets out his reasons for attach little weight to the report of either Dr Persaud or Dr Dhumad.

12. The Judge manifestly gives anxious scrutiny to both Dr Persaud’s report, and to Dr Dhumad’s report. The appellant is not happy that the Judge found the evidence contained in those two reports to be less than supportive and attaches little weight to the reports, but the conclusions the Judge reaches are carefully reasoned and are well within the range of conclusions available to the Judge.

13. The third paragraph of Dr Persaud’s opinion starts with following

the risk of suicide in this case is difficult to evaluate……

At [34(f)] the Judge considers Dr Dhumad’s report and specifically the record of the suicide attempt contained there. The Judge sets out his conclusions at [36]. The Judge finds that the appellant has exaggerated his symptoms. Because the Judge finds that the appellant does not establish a diagnosis of PTSD or a significant mental illness, and because the Judge finds the evidence of suicide risk is nothing more than neutral, the Judge specifically finds that the evidence does not engage the elevated threshold to engage article 3 ECHR. The Judge specifically finds that the evidence is insufficient to engage article 8 ECHR.

14. It is clear from the Judge’s findings that he did not find the appellant to be a vulnerable witness. Those are findings which are well within the reasonable range of conclusions available to the Judge on the facts as he found them to be.

15. In GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) the Tribunal held that

(vii) The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are: (a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka. (b) Journalists whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government. (c) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses. (d) A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a “stop” list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant. (viii) The Sri Lankan authorities’ approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual’s past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government. (ix) The authorities maintain a computerised intelligence-led “watch” list. A person whose name appears on a “watch” list is not reasonably likely to be detained at the airport but will be monitored by the security services after his or her return. If that monitoring does not indicate that such a person is a Tamil activist working to destabilise the unitary Sri Lankan state or revive the internal armed conflict, the individual in question is not, in general, reasonably likely to be detained by the security forces. That will be a question of fact in each case, dependent on any diaspora activities carried out by such an individual.

16. The facts in this case are that the appellant is a Tamil, he carries scarring and has twice been detained and tortured. On the facts as the Judge found them to be, the appellant is not of interest to the Sri Lankan authorities. He is not on a stop list. There is no arrest warrant for the appellant. He does not therefore fall within the risk categories set out in GJ. At [32] the Judge identifies the only risk category which might apply to the appellant. Having considered the evidence, the Judge found that the appellant does not fall within the risk categories.

17. Permission to appeal was granted on the basis that the Judge had not given anxious scrutiny to Dr Persaud’s report. At [34] of the decision, the Judge accurately identifies the fact that he must consider the reports from Dr Persaud and Dr Dhumad. Throughout [34], [35] & [36] the Judge engages with that task. He manifestly gives anxious scrutiny to the documentary evidence and he sets out adequate reasons for attaching little weight to the reports of doctors Persaud & Dhumad. Having done so, he reaches conclusions which were well within the range of reasonable conclusions available to the Judge.

18. Having taken correct guidance in law and made sustainable findings of fact, the Judge reached his conclusion. It is not a conclusion that the appellant likes, but it is a conclusion which was reasonably open to the Judge on the facts as he found them to be.
19. In Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC) the Tribunal held that (i) Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge; (ii) Although a decision may contain an error of law where the requirements to give adequate reasons are not met, the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant Country Guidance has been taken into account, unless the conclusions the judge draws from the primary data were not reasonably open to him or her.

20 There is nothing wrong with the Judge’s fact finding exercise. In reality the appellant’s appeal amounts to little more than a disagreement with the way the Judge has applied the facts as he found them to be. The appellant might not like the conclusion that the Judge has come to, but that conclusion is the result of the correctly applied legal equation. There is nothing wrong with the Judge’s fact finding exercise. The Judge gives careful and anxious scrutiny to each of the medical reports, and sets out adequate reasons for attaching little weigh to the opinions of Dr Persaud and Dr Dhumad. The correct test in law has been applied. The decision does not contain a material error of law.
21. The Judge’s decision, when read as a whole, sets out findings that are sustainable and sufficiently detailed and based on cogent reasoning.
22. No errors of law have been established. The Judge’s decision stands.

DECISION
23. The appeal is dismissed. The decision of the First-tier Tribunal stands.

Signed Date

Deputy Upper Tribunal Judge Doyle