Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07209/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22nd September 2016
On 05th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

Ms H M G A
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms J Lowis, Counsel, instructed by Duncan Lewis & Co Solicitors
For the Respondent: Mr Norton, Home Office Presenting Officer

DECISION AND REASONS

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
The First-tier Tribunal made an order pursuant to rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. I continue that order.
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

1. The Appellant, a citizen of Ethiopia, appealed to the First-tier Tribunal against the decision of the Respondent of 10th April 2015 to refuse her application for asylum. Judge of the First-tier Tribunal Boyes dismissed the Appellant's appeal and the Appellant now appeals with permission to this Tribunal.
2. The background to this appeal is that the Appellant claims that she is a supporter of the Tigray People's Democratic Movement (the TPDM) and had supported them since 2005 after the death of her brother in a riot at the hands of the authorities. She married a Dutch national in August 2009 in Singapore and travelled abroad with her partner before returning to Ethiopia in 2009 where she stayed until early 2010. The Appellant claims that she was arbitrarily arrested in January 2010 after being encountered by the Federal Police distributing leaflets for the TPDM. She says that she was detained, interrogated about the TPDM and beaten. She says that her aunt paid a bribe to the police and she was released whilst being transferred to another prison. She claims that she went into hiding and made arrangements to leave Ethiopia for Italy where her husband was working and that she left on 22nd January 2010. She went to Italy where she was issued with a visa on 10th December 2010 to enter the UK as a visitor and she entered the UK in December 2010. She says that after she left Ethiopia her aunt was arrested, interrogated about her whereabouts and in April 2013 her cousin was arrested and the police sent a summons to her aunt in relation to her and her cousin.
3. In considering the Appellant's appeal the judge made a number of findings which are summarised in paragraphs 63, 64 and 65. The judge gave some weight to factors in the Appellant's favour and a number of factors against the Appellant before concluding that the Appellant had not demonstrated to the lower standard that she is at risk from the authorities in Ethiopia because of her political opinion as claimed.
4. In the Appellant's favour the judge gave some weight to her knowledge of the TPDM. The judge also gave weight to a medical report from the Helen Bamber Foundation. The judge accepted that the Appellant had been ill-treated or beaten by others at some juncture resulting in the injuries noted in the medical report and that she has resultant health problems. However the judge said: "It does not necessarily follow that her injuries were inflicted by the authorities as claimed and/or for the reasons claimed" [63].
5. The factors the judge weighed against the Appellant included the fact that she had left Ethiopia legally through an airport on an international flight; the lack of persuasive evidence to demonstrate that she was or continues to be a member of the TPDM as claimed; the letter the Appellant provided from the TPDM was of limited weight; the fact that the Appellant only made contact with the TPDM in 2014 after she claimed asylum; the fact that the Appellant failed to claim asylum in Italy despite living there for eleven months; the fact that the Appellant made contact with the Ethiopian authorities to renew her passport; and that she did not claim asylum in the UK until after she had been here for three years despite several negative immigration decisions in connection with her application and appeals against negative decisions in relation to applications for EEA residence permits.
6. In the Grounds of Appeal the Appellant firstly contends that the medical evidence should have been taken as highly important corroborative evidence of the Appellant's asylum claim and if it was to be disregarded it was incumbent on the judge to give good reasons for so doing. It is contended that the judge took into account an irrelevant consideration in concluding that the medical evidence could not establish who had inflicted the torture or the reasons for doing so when no alternative thesis had been put forward by the Respondent or by the doctor.
7. The second ground is that the judge failed to give sufficient reasons for disbelieving the Appellant's account. It is pointed out that the judge made a number of positive findings regarding the Appellant's credibility generally but also accepted that the medical report constituted independent evidence of torture consistent with her account but despite this the judge rejected her account. It is contended that the judge gave insufficient reasons for this finding or for rejecting the Appellant's oral evidence.
8. Permission to appeal was granted on the basis that, given the evidence accepted by the judge, it was arguable that the remaining credibility deficiencies identified by the judge do not serve to undermine a reasonable likelihood of risk.
Submissions
9. At the hearing before me Ms Lowis relied on her skeleton argument. She submitted that the judge failed to give sufficient weight to the medical evidence and/or failed to give adequate reasons for rejecting the medical evidence. She submitted that, taking into account the other positive findings, the judge failed to give real reasons why he found that the other positive factors should be given less weight than the factors found against the Appellant.
10. She submitted that the evidence as to whether the Appellant was subject to torture was the central pillar of her asylum claim. She submitted that the report was compliant with Istanbul Protocol principles and showed that the Appellant's scars were all the same age and were all either consistent or highly consistent with the explanation given by the Appellant.
11. Ms Lowis submitted that the findings made by the judge in relation to the medical evidence at paragraphs 50 to 53 are different from those in the cases of Y (Sri Lanka) v SSHD [2009] EWCA Civ 362 and SS (Sri Lanka) v SSHD [2012] EWCA Civ 155 where the judges disagreed with the medical reports. In this case the judge accepted the report but failed to approach it with the appropriate care and failed to give reasons for rejecting it. She submitted that this indicates that the judge accepted that the report was corroborative but rejected the report by setting too high a threshold by requiring an explanation or definitive evidence as to who or why the torture was inflicted but she submitted that this is something that no Appellant could ever evidence.
12. Ms Lowis submitted that at paragraph 53 of the decision the judge gave lip service to attaching weight to the report but there is no evidence that the judge actually attached weight to it. She submitted that the duty of the judge is set out in paragraph 11 of the decision in Y. This is not a case of contradictions but there is a general duty to give exceptional reasons for rejecting medical evidence. She accepted as set out at paragraph 21 of SS that it is up to the judge to give due weight to medical evidence but they should give reasons in assessing the totality of the determination. Here there was insufficient weight given to the medical evidence and insufficient evidence for rejecting it.
13. She submitted that in the case of SS the evidence from the doctor was constricted by the Appellant's behaviour but in this case the judge accepted the medical evidence in relation to nature, extent and severity of her injuries. The judge had given insufficient grounds for disbelieving the Appellant on the lower standard of proof and did not apply the correct standard of proof.
14. Ms Lowis accepted that there were findings against the Appellant but pointed out that the judge made other findings in the Appellant's favour. At paragraphs 31 and 63 the judge made positive findings in relation to the Appellant's knowledge and at paragraph 33 the judge rejected the contention in the Reasons for Refusal Letter that the Appellant had been inconsistent in relation to her assertion as to dates in which she had been detained. Further, at paragraph 58, the judge rejected the suggestion that the Appellant had previously deceived the Tribunal.
15. Ms Lowis submitted that, whilst setting out the factors for and against the Appellant, the judge did not explain why those against the Appellant were given more weight than those for the Appellant and that this suggests that the judge did not properly apply the standard of proof.
16. Mr Norton submitted that the judge did apply the correct standard of proof and referred to paragraph 25 where the judge set this out. He noted that at paragraphs 26 to 29 the judge set out the risk factors that apply and that at paragraph 31 the judge noted that some weight should be given to the Appellant's knowledge of the TPDM.
17. He acknowledged that at paragraph 34 the judge noted that the Appellant had been consistent in relation to the periods of detention but submitted that this was simply that the judge did not attach great weight to this factor against the Appellant. It is significant, he submitted, that at paragraphs 36 and 37 the judge concluded that the Appellant sought to become a member of the TPDM in 2014 "in order to obtain evidence to support the asylum claim that she had already made" [36].
18. He submitted that it was open to the judge to conclude that the letter from the TPDM was of limited value and limited weight [37]. He submitted also that it was open to the judge at to conclude that little weight should be attached to the letter from the Federal Police Commission in light of the remarks the judge made about that letter [39-40]. He submitted that the judge recognises that weight should be attached to the medical report but also noted that it is for the Tribunal to assess the credibility of the Appellant's claim correctly [50-53].
19. Mr Norton also highlighted other factors considered by the judge including that the Appellant had left through the airport [55] and that the Appellant had renewed her passport less than two months after the alleged torture and her alleged departure [56]. He noted that the judge does not hold against the Appellant the deception previously alleged. He submitted that the judge was entitled to consider the Appellant's delay in claiming asylum and her period in Italy.
20. He submitted that the judge had considered the medical evidence in accordance with the guidance in SS in that she had accepted how the injuries were caused. He submitted that the judge had given good reasons, had given in fact a myriad of reasons why the claim was not credible. He accepted that another judge may have come to a different conclusion in relation to this evidence. However, there is nothing to show that there is an adequacy of care or a lack of good reasons for rejecting the evidence.
21. In response Ms Lowis submitted that the judge set too high a threshold in his assessment of the evidence and the issue is whether the judge weighed the factors against each other properly or gave a proper explanation as to whether the adverse factors were given sufficient weight.
Error of Law
22. I have considered all of the submissions made by the parties. I note that at paragraph 53 the judge concluded that weight should be placed on the findings in the medical reports and accepted that the Appellant was beaten and ill-treated. However the judge went on to conclude that the medical reports did not provide persuasive evidence that the Appellant was detained, beaten and ill-treated by the Ethiopian authorities or that it was because of TPDM activities.
23. The judge concluded at paragraph 53:
"Considering all of the evidence before me in the round, and bearing in mind my findings elsewhere, I am not persuaded that the report provides specific evidence that the Appellant was detained, beaten and ill-treated by the Ethiopian authorities, or even if her ill-treatment was at the hands of the authorities, that was because of TPDM activities."
24. The judge properly considered the medical evidence and all of the other evidence in the round. The judge could not properly have considered the medical, or any other, evidence to be determinative of the Appellant's appeal. He properly weighed all of the evidence before reaching a conclusion.
25. It is clear that the conclusion is very much in the context of all of the other findings, in particular the findings at paragraph 36 in relation to the Appellant's claim to have joined the TPDM in 2014 after she left Ethiopia. I note that the judge found that the Appellant's oral evidence in relation to when and why she joined the TPDM to be "hesitant, vague and unpersuasive"[36].
26. The judge concluded that the Appellant only sought to become a member in 2014 to obtain evidence to support the asylum claim that she had already made. The timing of the Appellant's claim the circumstances around her leaving Ethiopia, her failure to claim asylum in Italy, her obtaining a passport, all of these factors were factors which the judge legitimately weighed in considering the evidence.
27. I find that the judge has given adequate reasons for weighing the identified factors against the Appellant and for concluding that those factors outweighed those in the Appellant's favour. This is clear in paragraphs 63-65 where all of the findings are summarised and weighed against each other. Whilst the judge gave 'some weight' to the factors in the Appellant's favour [63], he listed the 'whole range' of evidential factors weighing against the Appellant and clearly attached more weight to these factors [37]. I find that it was open to the judge to approach the evidence in this way.
28. In all of the circumstances I am satisfied that the judge considered all of the evidence and weighed all of the evidence applying the correct standard of proof in considering whether or not the Appellant had established her claim in relation to past events. I am satisfied that it was open to the judge to make the findings he did.
Notice of Decision
There is no material error in the decision of the First-tier Tribunal Judge.

The decision of the First-tier Tribunal Judge shall stand.

Signed Date: 4 October 2016

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date: 4 October 2016

Deputy Upper Tribunal Judge Grimes