Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07230/2014

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
On 25 November 2016
On 30 November 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

N T N
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Miss J Todd, of Latta & Co, Solicitors
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant is a citizen of Zimbabwe, aged 25. In a decision promulgated on 26 July 2016, Designated First-tier Tribunal Judge Murray dismissed her appeal against refusal of recognition as a refugee.
2. The appellant sought permission to appeal to the UT, on these grounds:
The appeal was dismissed largely on credibility which then arguably informed the assessment of internal relocation and ? state protection ? The judge dismissed the appellant's account that she was in an abusive relationship with a Zanu PF gang leader and was later subject to politically motivated rape.
? The judge misunderstood the medical evidence of the psychologist Dr Tagg ? That evidence was relied on to show that the appellant may have difficulties in recalling events on information and as a form of corroboration of an account of rape and domestic abuse (no medical or article 3 claim was advanced).
At paragraph 83 the judge accepted that Dr Tagg was qualified to make a diagnosis of PTSD and was an expert for present purposes and that tests were carried out which "convinced" Dr Tagg "that the appellant was truthful about her mental state". The judge appears to accept that the appellant suffered from PTSD
At paragraph 84 the judge went on to state, "What I have to consider is whether this mental state is a result of rape and domestic abuse ? in Zimbabwe or whether it is because she is now away from home, her grandmother ?". The judge presents these in binary fashion i.e. the cause is one or the other.
? It is an error of fact to consider that PTSD could be caused by the other issues stated by the judge. The report by Dr Tagg states at the appellant "is currently affected by a complex form of PTSD, typically caused by repeated experiences of violence and abuse and major depressive illness, a dual diagnosis? not unusual in abuse survivors". Events such separation from family and uncertain immigration status are undoubtedly stressful but do not constitute violence, abuse or trauma and so cannot reasonably explain the PTSD diagnosis.
If the diagnosis of PTSD had been properly understood and factored in it is possible that notwithstanding other credibility issues a different assessment could have been made and this would have affected the whole of appeal (if the appellant's account were true this would go to internal relocation, if not also state protection, given the persecutor's ties to the ruling party).
3. A FtT judge refused permission, observing that this was not a case of the appellant not remembering but of her advancing positively false evidence; that the judge gave valid reasons for finding her account not credible; and the judge had been satisfied that the appellant would be able to resettle in any event, her persecutor having no further interest in her.
4. The appellant renewed her application to the UT, relying again on the grounds above, and saying that Dr Tagg explicitly considered the possibility that the appellant was fabricating her account; that the medical evidence had been advanced as relevant not only because it went to the issue of recall of detail, but because it went to corroborate the claimed account; and that the judge posited alternative causes for PTSD which were "simply not correct".
5. A UT judge granted permission, commenting that arguably the judge "needed to deal with paragraphs 63 to 65 of Dr Tagg's report before rejecting the appellant's account as she did at paragraphs 83 to 85".
6. Submissions for appellant. Dr Tagg diagnosed the appellant with complex PTSD. At paragraphs 63 - 65 of her report Dr Tagg carefully considered the possibility of fabrication. Dr Tagg had given oral evidence and been subjected to considerable cross-examination. It had been submitted to the FtT that the report constituted a robust analysis, and was strong evidence to corroborate the appellant's ill-treatment in Zimbabwe. The key passage in the decision was at paragraphs 83 to 85. It was acknowledged that the judge gave the report "some weight", but there were problems with her analysis. At paragraph 84 the judge set out a binary "either or" approach, which oversimplified the issue, and in strayed into the area of medical diagnosis, beyond the judge's competence. The matters which the judge listed as possible alternative explanations might no doubt be upsetting, but they were not traumatic, and so were not true alternatives. There were ancillary errors which added to the misunderstanding of the medical evidence. At paragraph 83 the judge noted that the appellant was no longer receiving antidepressants and had not engaged in counselling, but the appellant's recovery was irrelevant, as no case had been put in terms of article 3. The judge said that the appellant made "no mention of PTSD", but she could not be expected to diagnose her own condition. The judge gave no good reasons for discounting the medical evidence. It was accepted that the judge gave other reasons for not accepting the evidence of the appellant, in particular at paragraph 79 - 82, but the medical evidence if taken at highest was capable of leading to another result. For that reason, the error was material, and a remit to the FtT for fresh hearing was required. The decision did deal with sufficiency of protection and with internal relocation but only briefly, and could not be sustained for these alternative reasons.
7. Submissions for respondent. Dr Tagg examined the possibility that the appellant was fabricating her claims, and accepted her as genuine. That might be a medically valid conclusion within the terms of the report, but the judge had to reach her own decision, based not only on the medical report but on all the evidence. Dr Tagg did not factor in that the appellant was known to be to some extent a dishonest historian, at the very least about how she came to be in the UK. The analysis of why Dr Tagg considered the appellant to be telling the truth was essentially the same as the approach that would be taken by a non-medical person, but not based on all available materials. The judge was in a better position and she had given the medical report some weight. The grounds were essentially only a complaint that the judge had not found the report decisive in the appellant's favour. The weight to be given to a particular item of evidence was up to the judge, within reason, and it could not be said that the judge's conclusions went beyond reason. The judge did not find fault with the report, rather she evaluated it in the context of the rest of the evidence, including past use of deception. In evaluating the report and its diagnosis of PTSD and as confirmation of past ill-treatment, it was open to the judge to take into account that the appellant gave up the use of prescribed antidepressants and declined to take advantage of counselling offered to her. That did not stray into the realm of medical diagnosis. Paragraph 84 was not an oversimplification, but taking account of factors which was proper for the judge to consider. In any event, the case would have failed on the basis of internal relocation. There was no sensible basis on which it might been found that the reach of the appellant's persecutor extended throughout Zimbabwe.
8. Reply for appellant. The SSHD failed to specify where the appellant might choose to relocate, and any such requirement would be unduly harsh, bearing in mind that the appellant has two young children to care for, so paragraph 87 was not an adequate alternative basis on which the decision might stand. Although the Presenting Officer submitted that the judge was correct to limit the weight to be given to the medical report, at paragraph 83 of her decision the judge accepted Dr Tagg as a suitably qualified expert, a finding the SSHD had not sought to challenge.
9. I reserved my decision.
10. The appellant's case has been pressed as strongly as it properly could be in the FtT and again in the UT. However, I am not persuaded that the grounds and submissions in the UT amount to more than reassertion of the same case, and disagreement with its resolution by the FtT. They essentially disclose disagreement with the degree of weight the judge gave to the medical report (which could not decide credibility) rather than error of law.
11. The high point of the appellant's challenge was against the "either/or" question expressed in the first sentence of paragraph 84; but that should not be wrenched out of context. The judge was correct to say in the next sentence that the appellant has not always told the truth. She gave sensible other reasons for finding the appellant not to be a generally credible witness, which rightly have not been made the subject of appeal. The judge did not doubt the mental state described by Dr Tagg, but she evaluated it in a wider context. Her point that there could be other reasons for distress is obvious and sensible.
12. The alternative finding on internal relocation was briefly expressed; but from the evidence it would be difficult to justify a finding of country-wide risk, and equally difficult for the appellant to show that readjustment, if she had to move, would involve problems amounting to undue harshness. No error is shown in that conclusion either.
13. Broadly, I prefer the submissions for the respondent, for the reasons given.
14. The determination of the First-tier Tribunal shall stand.
15. An anonymity direction was made in the FtT. The matter was not addressed in the UT, so that direction remains in effect.

29 November 2016
Upper Tribunal Judge Macleman