Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05031/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 31 January 2017
On 27 February 2017

Before

MR JUSTICE LAVENDER
UPPER TRIBUNAL JUDGE CANAVAN

Between

KELIPERT REXON KANIJUD PELDANA
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the Appellant: Mr. R. Spurling
For the Respondent: Mr. T. Wilding

DECISION AND REASONS
(1) Introduction
1. The Appellant is a citizen of Sri Lanka. He was born on 26 November 1982. He entered the United Kingdom on 24 December 2013. He made an asylum claim and a human rights claim. His claims were refused by the Respondent on 6 March 2015. He appealed against that decision to the First Tier Tribunal. His appeal was dismissed by First-Tier Tribunal Judge Heynes in a decision promulgated on 13 May 2016.
2. The Appellant appealed to this Tribunal, advancing four grounds of appeal. The hearing of his appeal commenced on 29 September 2016 before Deputy Upper Tribunal Judge Chana. In a decision promulgated on 11 October 2016, Judge Chana: (a) rejected grounds 1 and 3; but (b) in relation to ground 4, held that there was an error of law in respect of Judge Heynes' consideration whether the Appellant can safely be returned to Sri Lanka. She adjourned the hearing of the appeal, to allow for this tribunal to re-make the decision on the Appellant's appeal against the refusal of his human rights claim.
3. The Appellant contended that Judge Chana had failed to make a decision on ground 2, which concerned his asylum claim. Upper Tribunal Judge Blum gave directions on 23 November 2016. Pursuant to those directions, the Appellant served written submissions entitled "Application to Reinstate Error of Law Hearing".
4. At the hearing on 31 January 2017 Mr. Spurling invited us to hear submissions as to the merits of ground 2. Mr. Wilding frankly and sensibly accepted that it was difficult to say that Judge Chana had dealt with ground 2. Accordingly, we decided to hear submissions on ground 2. This is our decision on that ground.
(2) The Appellant's Asylum Claim
5. Judge Heynes summarised the grounds for the Appellant's asylum claim as follows in paragraphs 19 to 24 of his decision:
"19. The Appellant, a Tamil, was not a member of the LTTE but had attended demonstrations in support of that organisation, most recently in 2005. He was arrested by the army in 2006, 2007 and 2009.
20. In 2005, three men stayed at the Appellant's house. The Appellant did not know that they were members of the LTTE. In 2005 and 2006, they killed three men who supported the army. The Appellant was interrogated by the army in connection with these deaths. In February 2007, after two days of torture, the Appellant was taken to hospital.
21. In 2009, the Appellant was arrested whilst he was living in Mulithivu. As a result of his treatment, he was hospitalised. His mother secured his release by the payment of a bribe.
22. In his witness statement, the Appellant confirmed that the main risk upon return related to the murder of the three men. He was arrested in October and November 2006 and in February 2007. He left his home in Jaffna three months after coming out of hospital and went to live in Vanni where he remained until 2009. He was arrested in Mullaitivu, detained for four days and tortured because the authorities came to know about his previous arrests. They continued to look for him after his departure from Sri Lanka.
23. The Appellant also claimed to have attended a Heroes Day Celebration in the United Kingdom and to have been photographed.
24. In a witness statement dated 11 September 2015, the Appellant stated that he left Sri Lanka using the services of an agent in October 2013. The agent travelled with him to Ghana, taking from him the passport used for the journey. He stayed in Ghana for two months before flying to the United Kingdom. He changed flights en route. After the Appellant received the refusal letter, he "came to know" by means that are not explained that he had travelled to the United Kingdom via Rio De Janeiro."
(3) The Medical Reports
6. The Appellant relied on two medical reports. The first, dated 18 September 2015, was made by Mr. Andres I. Martin FRCSEd, FCEM, a consultant in emergency medicine. The second, dated 11 March 2016, was made by Dr. Rozmin Halari, BSC, MSc, PhD. C.Psychol, DClinPsych, DClinHyp, AFBPSs, a chartered clinical (neuro)psychologist.
(3)(a) Mr. Martin's Report: Scars
7. Mr. Martin's report addressed the many scars on the Appellant's head, chest, back, arms and legs. In relation to a number of the scars, he said as follows:
"In my opinion the only possible cause is an intentional one and this could have been caused in two ways:
- Self-inflicted injury - In my opinion impossible in view of the position of the scars, in areas difficult to self-reach and the numerous scars and the severity of the scarring. Self-inflicted injuries also tend to be more superficial and in areas easy to self-reach.
- Caused by a third party - This is the most likely cause, however, from inspection of the scars it is scientifically impossible to differentiate self-infliction of injuries by proxy (SIBP from injuries caused by torture). Although SIBP as a possible cause cannot be discarded I considered there are not presenting facts to make it more than a remote possibility. Also these injuries were not caused by any recognised religious or cultural rituals and it were not caused by any surgical procedure."
8. Mr. Martin's conclusion was as follows:
"The scars on the back, upper and lower limbs were typical of the events described by the claimant of being intentionally burnt. The rest of the scars are less specific but did not show any inconsistencies with the description of events by the claimant and when were assessed as a whole, in view of the number of injuries and in different anatomical areas; an intentional cause by a third party should not be discarded and it is a likely explanation for these injuries too. Following the recommendations in Chapter V, Section D, Paragraph 188 of the Istanbul protocol where it states that "ultimately it is the overall evaluation of all lesions and not the consistency of each lesion with a particularly for of torture that is important in assessing the torture story", overall in my expert opinion many of the scars are typical of intentionally caused injuries and that they are likely to have been caused by a third party as described by the claimant."
(3)(b) Dr. Halari's Report: Psychological Assessment
9. Dr. Halari expressed, inter alia, the following opinions in her report:
"129. Overall his clinical presentation is consistent with the account he has given to me and, with that of other torture victims I have seen in clinical practice. With reference to the Istanbul Protocol, I would consider overall his clinical picture as "typical of" those found in torture survivors. This would be the highest level of consistency I would be able to use in an asylum case, as there is not a certain way from a clinical picture of PTSD the specific details of the torture can be "diagnosed". There is a potential problem differentiating torture as a potential cause of his PTSD from other similar traumas, without relying on the victim's account of the content of their symptoms.
130. The intense emotional reaction Mr Paldana had when describing the traumatic events, that is freely flowing tears, anxiety and find tremor with dissociation following this, would be difficult to feign, and links symptoms to the account. He also became shaky and displayed symptoms of an anxiety attack. At times he seemed disorientated and confused in his recall of events. He also presented with symptoms of paranoia.
131. His symptoms have worsened over time and it is very typical that he has avoidance of going out, being around strangers and men.
132. Overall I would consider other possibilities, i.e. that he has not been traumatised, as unlikely."
"134. As recommended in the Istanbul Protocol I have given consideration to whether Mr Paldana could be making a false allegation of torture to bolster his application for indefinite leave, and I have not accepted his account uncritically. I have not interpreted this as the likelihood of malingering, as it would be for the Tribunal to decide overall on his credibility. DSM-IV-TR states malingering should be strongly suspected when a combination of the following appear:
- medicolegal context
antisocial personality disorder
marked discrepancy between complaints and objective findings
and lack of cooperation with the assessment or treatment.
135. There is no evidence that Mr Paldana has a personality disorder of any sort. He cooperated with the assessment despite his distress, I found no discrepancy between his complaints and the objective findings on psychological examination. Overall, his description of symptoms and the signs he showed during the interview were convincing.
136. People who malinger PTSD tend to recite symptoms in textbook learnt lists and this was definitely not the case here. The cognitive examination has some very easy items that only the most demented subject will fail to get correct and here, malingerers overplay their part. There were no gross deficits shown by Mr Paldana.
137. In my opinion feigning of symptoms is unlikely. This is not to say that Mr Paldana would always tell the truth or never embellish aspects of his account, but it is my opinion on his psychological symptoms."
10. Dr. Halari also addressed the Appellant's ability to give an account of his experiences. For example, she said as follows:
"151. In my opinion, Mr Paldana is experiencing symptoms of post traumatic stress disorder which have been precipitated by his experiences of violent physical torture and experiencing significant mental torture in custody. Reliving his experiences through flashbacks and nightmares and his fear of returning to Sri Lanka are maintaining his current symptoms.
152. His symptoms are impacting on his confidence, concentration and memory, that is, his ability to recall past memories are affected, as a result of his high levels of anxiety."
"156. Mr Paldana presented with moderate cognitive impairment as evidenced in his performance of cognitive assessments. He was unable to concentrate, register, recall or retain information. He was unable to articulate a clear and comprehensive response and this was underpinned by significant anxiety.
157. In my professional opinion, Mr Paldana's cognitive difficulties and his PTSD symptoms could act as significant obstacles to him giving oral evidence.
158. Based on the findings of the assessment, he is not fit to attend a formal interview with the home office or give evidence in court. His presentation will be significantly affected by his anxiety and cognitive difficulties. He will not be able to concentrate or follow the train of questioning. He will experience symptoms of re-living, threat and his anticipatory fear will result in overt symptoms of anxiety. As a result of the aforementioned factors, he will be unable to recall or retain information."
(4) Judge Heynes' Decision
11. Judge Heynes considered both medical reports before going on to make findings of fact and to express his conclusions.
(4)(a) Judge Heynes' Discussion of Mr. Martin's Report
12. Judge Heynes commented on Mr. Martin's report in paragraphs 38 to 46 of his Decision. In particular, he said as follows:
"40. In relation to a number of the scars, Mr Martin has stated that "it is scientifically impossible to differentiate self-infliction of injuries by proxy (SIBP) from injuries caused by torture." Mr Martin did not find "presenting facts or features" to make SIBP more than a remote possibility. The report does not indicate what these might have been."
"43. Scars 4-11 could, in Mr Martin's opinion, only have been caused by a third party. Again, it is unclear what "presenting facts" were absent to lead to the conclusion that SIBP was no more than a remote possibility."
13. Mr. Spurling submitted that the Judge's implied criticism of Mr. Martin in these paragraphs was inappropriate and potentially unfair, given that Mr. Martin's report complied with the best practice described in paragraph 294 of the tribunal's decision in KV v. Secretary of State for the Home Department [2014] UKUT 00230 (IAC). We agree, although in the circumstances to which we will refer it does not appear that the point is a material one.
14. In relation to the Appellant's scars, Judge Heynes made the following finding in paragraph 64 of his Decision:
"There is no doubt that the Appellant has scars and that they are likely to have been caused by another person. The question is whether they were inflicted in the circumstances claimed by the Appellant."
15. It is clear that Judge Heynes was here finding that the scars were not self-inflicted injuries. It is less clear whether he was making any finding in this paragraph as to whether the scars were the result of self-infliction by proxy. It is significant, however, that the Judge did not refer to that possibility in paragraph 66 of his Decision, when he said as follows:
"Given the credibility issues in the Appellant's account and the unreliability of the documents he has produced, I find that the Appellant has not proved to the low standard applicable that the injuries occurred in the circumstances claimed. It is possible that he was the victim of a beating or that he was tortured in the circumstances that he has not revealed. I do not find there to be sufficient evidence to conclude that his account should be taken as reasonably likely to be true."
16. Effectively, therefore, Judge Heynes appears to have accepted Mr. Martin's evidence that the Appellant's scars were inflicted by a third party and were not the result of self-infliction by proxy. The crucial question for the Judge was whether the Appellant had been beaten or tortured in the circumstances which he described, or in some other, undisclosed, circumstances. Dr. Halari's report was relevant to that question.
(4)(b) Judge Heynes' Discussion of Dr. Halari's Report
17. Judge Heynes considered Dr. Halari's report in paragraph 47 to 50 of his decision. He began by making an error, when he said as follows, in paragraph 47 of his Decision:
"? I mean no disrespect to Dr Halari by pointing out that hers is not a medical report; she is a Doctor of Philosophy and not a medical practitioner."
18. In paragraph 21 of her Decision, Deputy Judge Chana held that this error was not material. However, she was not considering this error in the context of the Appellant's ground 2.
19. Judge Heynes dealt with Dr. Halari's evidence about the Appellant's ability to recall relevant events in paragraph 48 of his Decision, where he said as follows:
"In summary, Dr Halari concluded that the Appellant's symptoms were convincing, that he suffered from PTSD and was not fit to give evidence. In making this last assessment, Dr Halari has not commented upon the fact that the Appellant managed to give a detailed account of events in an interview amounting to well over 300 questions and subsequently provided the detail for his first witness statement. She was not to know, of course, that he was able to produce a second detailed witness statement a month after she saw him."
20. In his consideration of the Appellant's account of events in paragraphs 56 to 61 of his Decision, Judge Heynes identified a number of "discrepancies and credibility issues". In doing so, he referred to what the Appellant had said in interview on 1 March 2015. Judge Heynes said:
"61. There is no evidence directed to the issue of whether the Appellant's performance at this interview was attributable to any mental condition. ?"
"62. As noted above, the report of Dr Halari does not comment upon the ability of the Appellant to respond to such an extensive interview or suggest that his mental state contributed to the inaccuracy of his answers."
21. The statement that Dr. Halari did not comment on the ability of the Appellant to respond to such an extensive interview is unsustainable in the light of the passages from Dr. Halari's report which we have quoted.
(5) Ground 2
22. By his second ground of appeal, the Appellant contended that Judge Heynes erred in his assessment of the scarring report (i.e. Mr. Martin's report) and in rejecting the Appellant's account of how and in what circumstances those scars were inflicted. In support of that ground, the Appellant relied, inter alia, on paragraphs 134 to 137 of Dr. Halari's report, which we have quoted.
23. In our judgment, Judge Heynes did make an error of law in relation the evidence as to the Appellant's scarring. He accepted Mr. Martin's evidence that the Appellant's scars were inflicted by a third party and were not the result of self-infliction by proxy. He rightly went on to consider whether the Appellant had established that his scars were inflicted in the circumstances alleged. But in doing so he misdirected himself: (a) that Dr. Halari's report did not contain any evidence relevant to the issue whether the Appellant's performance in interview was attributable to his mental state; and (b) that Dr. Halari was not a medical practitioner. We cannot say that this was an immaterial error, because Dr. Halari's evidence was relevant to a proper assessment of the credibility of the Appellant's account, including any inconsistencies in that account.
(6) Summary
24. We find that the First-Tier Tribunal decision involved the making of an error of law. For this reason the decision is set aside.
25. Because the error relates to the assessment of the Appellant's credibility, it is appropriate to remit the case to the First-Tier Tribunal for a fresh hearing.

Notice of Decision

(1) The decision of Judge Heynes is set aside.
(2) The case is remitted to the First-Tier Tribunal for reconsideration.
(3) No anonymity direction is made.

Signed Date 23 February 2017

Mr. Justice Lavender
Upper Tribunal Judge Canavan