Tribunal decisions

The decision

IAC-AH-CJ-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08003/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 January 2017
On 07 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

UR
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr J Butterworth, Counsel
For the Respondent: Mr P Duffy, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the appellant against a decision of the First-tier Tribunal (Judge Rimington) dismissing her appeal against the respondent's decision of 12 May 2015 refusing her protection claim.
Background
2. The appellant is a citizen of Sri Lanka born on 28 July 1985. She arrived in the UK on 4 October 2009 with a visa as a Tier 4 (General) Student valid until September 2010. Her leave was subsequently extended to 22 September 2014. On 23 January 2015 she made an appointment to attend the Asylum Screening Unit and did so on 17 February 2015 when she claimed asylum.
3. The basis of the appellant's claim was that in February 2007 she moved to Anuradhapura to live with her brother and he arranged for her to take an English language course. While travelling on a bus she met a man she came to know as GS and on one journey in April 2007 the bus broke down and she started to talk to him. He was a Tamil studying at the local technical college and his family came from Jaffna. They exchanged telephone numbers and their relationship developed. Subsequently, there was a bomb explosion at Anuradhapura Airport as a result of an attack by the LTTE. She tried to contact GS but there was no response.
4. In November 2007 four CID officers came to her home and she was blindfolded and taken to an unknown location where she was held for four months. She was questioned about GS and was told that it was not his true name but she was unaware of his real identity. She did not suspect he was involved with the LTTE and believed he was killed in the attack on the airport although this was not confirmed. She claimed that whilst detained she was repeatedly beaten and tortured, her fingernails and toenails were pulled out and a bag full of petrol was put on her head and she was hit with a belt. She had marks on her back from being burned with iron rods and cigarettes.
5. She was transferred to Anuradhapura jail where she was raped repeatedly by two men. She was not charged and was not taken before a court. She was released in March 2008 when her brother managed to arrange bail for her. The police dropped her, still blindfolded, at a bus station and she travelled to her mother's home where she was to report to the police every week. The police were very abusive but she was not charged with any offence. Her mother said that she should leave Sri Lanka and instructed an agent to assist her but she could not at that stage get an offer of a college in the UK and as a result did not apply for a UK visa until September 2009, eighteen months after she was arrested on bail. She arrived in the UK with her student visa on 4 October 2009.
The Hearing before the First-tier Tribunal
6. At the hearing before the First-tier Tribunal the appellant and her partner JA gave oral evidence. The appellant confirmed that she had attended college from 2009 to 2014 but did not complete the CIMA course, having taken five out of nine papers. She stopped attending in May 2014. She had met her partner in April 2014 and their relationship began in January 2015. She had not approached student services or any counselling services for her mental health problems when she was at college nor did she register with a GP at that time. She first registered in June 2014 and confirmed that she first mentioned her problems to her GP in March 2015, two months after she had claimed asylum.
7. The following medical documentary evidence was submitted in support of the appeal: three letters written by her GP, Dr L Clarke, dated 3 June 2015, 1 March 2016 and 22 March 2016, a report from Dr Lawrence, a consultant psychiatrist, and a medical report from Professor Lingam.
8. The judge set out her conclusions at [42]-[75]. In the course of doing so, she considered the report of Professor Lingam at [45]-[51]. He described the appellant's scarring and confirmed that those on the appellant's back were caused by heated metal equipment such as a thin metal rod but accepted that a medical expert in this field could not scientifically differentiate between deliberately inflicted wounds (say at the third party's behest) or from wounds inflicted from any trauma. It was his opinion that the cigarette burns were consistent with the history given by the appellant but the judge noted that there were inconsistencies with regards the appellant's claim regarding her fingernails and toenails. In her asylum interview she claimed that she had had her fingernails and toenails pulled out. The judge described this as a very significant claim and one which it would be reasonable to expect the appellant to relate consistently, particularly when explaining it to a medical expert. This had not been recorded in the history given by the appellant to Professor Lingam.
9. It had been put to the appellant at the hearing that the injury was self-inflicted either on her own or organised through a third party but she had merely stated that this had not happened. Professor Lingam had dismissed the possibility of self-inflicted injury because the scars were in a position the appellant could not reach but did not address the possibility that a third party was engaged but the judge considered, bearing in mind all the evidence, that that was a real possibility.
10. The judge then considered the letters from Dr Clarke, the appellant's GP, at [49]-[51]. She noted that it was only on 4 March 2015, after her claim for asylum, that on the doctor's notes she was recorded as a victim of torture. This information had clearly come from the appellant. The doctor added in his notes that he understood that she had been assessed by a doctor at Yarlswood and that this corroborated her history and physical examination whereas the judge commented that the rule 35 report in fact related the appellant's own account of her experience without any consideration of credibility. The judge also noted that the appellant first registered with migraine problems on 2 February 2015 and that was her first encounter with a medical practice in the UK despite having been here since 4 October 2009. She commented that even if the appellant had not wished to discuss rape with the doctor, it was open to her to discuss the injuries she claimed she had received whilst in detention and their claimed effect but that she had not done so.
11. She considered the report of Dr Lawrence at [52] onwards. It was her view that the report contained contradictions within the report itself, contradictions with the expert report of Professor Lingam, and that, although part of the appendices stated that victims of PTSD could have a delayed reaction, this was not addressed in the body of the report itself [52]. She noted the view of Dr Lawrence, when considering whether it was possible that the appellant was simulating her symptoms, that he thought this to be highly unlikely as it was possible to pretend to have a particular symptom but very difficult to simulate a complete syndrome containing a pattern of symptoms which all had to match, many of which were not intuitively obvious.
12. The judge commented that the symptoms of PTSD were widely available on the internet and that the appellant had not sought any medical attention until after claiming asylum. Dr Lawrence referred to observing physiological symptoms during the appellant's description of being in jail but did not actually describe what they were or indeed whether this referred to Yarlswood or Sri Lanka. The judge referred to HE (DRC - credibility and psychiatric reports) DRC [2004] UKIAT 000321 and to the comment of Ouseley J that there were usually other obviously potential causes for signs of anxiety, stress and depression. The judge also considered that Dr Lawrence's report appeared to stray into assessing credibility [64] and noted his comment that the appellant did have PTSD and if what she described was not the cause, another cause would have to be postulated and discovered but this had not been explored.
13. The judge identified inconsistencies within the appellant's account, by way of example at [69]-[70]. She explained at [71] why she regarded the appellant's partner's evidence as carrying little weight. She took into account the provisions of s.8 of the Asylum and Immigration (Treatment of Claimants) Act 2004. The appellant had not claimed asylum on entry to the UK despite knowing of her problems at that point and asserting that she had come to the UK for protection. The judge did not accept in the applications that she made for leave to remain and her contact with the Home Office that she would not have raised her claim for asylum, particularly as she was aware of her problems on entry and this was the reason why on her account she left Sri Lanka.
14. Having considered the evidence overall the judge found that the appellant's credibility was damaged and that her account was undermined and not credible. The judge did not accept that she was detained or mistreated in Sri Lanka or that she fell within the risk categories set out in GJ and Others (Post-civil war: returnees) Sri Lanka CG [2013] UKUT 319. For these reasons the claim for asylum was dismissed as was the claim for humanitarian protection. The judge went on to consider the application on human rights grounds but was not satisfied that the appellant could bring herself within the Rules or that there were adequate reasons for considering a grant of leave under article 8 outside the Rules.
The Grounds and Submissions
15. The grounds are very lengthy and detailed. They are not simply grounds of appeal or even a skeleton argument, they are a full written submission 24 pages long in response to a decision 18 pages long. I will summarise the grounds and identify the core issues being raised. Ground 1 argues that the judge erred by making clinical judgments concerning the medical findings of the GP. In substance, it is argued that the judge erred in that instead of assessing credibility in the light of the medical evidence, she in fact made a medical diagnosis when she held at [66] that she did not accept that the appellant would not have sought specialist professional medical help prior to 2014 if she had the difficulties she claimed. Mr Butterworth relied in support of the general principle that a judge should not make a clinical diagnosis on the judgment in R v Secretary of State ex parte Kharia [1998] INLR 71 where Jowitt J held that he did not see on what basis a lay person was able to express a view on a medical issue without the benefit of some medical advice.
16. Mr Butterworth submitted that there were four significant points: the GP had met with the appellant for more than a year, he had been consulted as a medical doctor, he had diagnosed her condition as significant and referred her to psychiatric services and had expressed a clear view that she had these medical conditions, whereas the judge at [66] was expressing the view that she did not. He submitted that the judge had not simply made a finding on credibility but had sought to exercise a medical judgment when she was not in a position to do so.
17. Ground 2 raises a similar issue arguing that the judge erred by making clinical judgments concerning the medical findings of Dr Lawrence. Dr Lawrence had reached a medical conclusion, finding that the appellant suffered from PTSD and this was a medical diagnosis. He submitted that the judge had been wrong to go behind a clinical assessment and that it was not sufficient to refer to the fact that symptoms of PTSD were widely available on the internet and that the applicant may have viewed those websites. Dr Lawrence had made the point that it was very difficult to simulate a complete syndrome containing a pattern of symptoms. Mr Butterworth submitted that Dr Lawrence and Dr Clarke had been the best qualified to make clinical findings as to whether or not the appellant had PTSD or depression and the judge was not so qualified and had erred in doing so.
18. Ground 3 deals with the impact of PTSD and vulnerability on discrepancies with regard to the evidence of torture. Mr Butterworth accepted that the judge had mentioned the guidelines in [42] and [43]. The ground sets out the discrepancies identified in [46] and [47] but it is argued that there was a failure to take into account the article produced in the appellant's bundle from the British Medical Journal ("BMJ") "Discrepancies and autobiographical memories - implications for the assessment of asylum seekers: repeated interview study". Mr Butterworth also relied on dicta in JA (Afghanistan) v Secretary of State [2014] EWCA Civ 450 on the potential for unfairness in relying on apparent discrepancies between a screening interview record and subsequent evidence. The screening interview, the asylum interview, the rule 35 report, the GP letters and two expert reports were all provided following meetings or interviews spaced over a considerable length of time and the BMJ article indicated that this increased the risk of an individual providing inconsistencies and discrepancies as did the diagnosis of PTSD.
19. Ground 4 relates to Professor Lingam's report and the consideration of whether the scars were self-inflicted. The judge said that the appellant had a motive to self-inflict her injuries where Professor Lingam had said that there was no way of knowing how the scars were caused and did not address the possibility that a third party was engaged. However, Professor Lingam had considered alternative causation and had rejected that of self-infliction.
20. Ground 5 relates directly to the issue of third party infliction. It is argued that the judge was wrong to reject Professor Lingam's report on the basis that the history given by the appellant was inconsistent on the issue of injuries to toenails and fingernails and that he did not address the possibility that a third party was engaged. So far as the matter concerning toe and fingernails was concerned, this was potentially a reason for finding the appellant not to be credible but the scarring report was not solely contingent on the history provided by the appellant but relied on the assessment of the clinical plausibility of the scars together with the account of the individual. As far as the second point was concerned Professor Lingam could not be expected to have done more than he did concerning third party infliction. He had considered alternative causes and applied the Istanbul Protocol while accepting the limitation of scarring evidence in relation to third parties. This did not render his report of no value, so Mr Butterworth argued, and did not permit little or no weight to be attached to it. It was important to note that his conclusion was that the metal rod injuries were diagnostic of burn injuries and the cigarette burns highly consistent with cigarette burn.
21. Ground 6 argues in substance that the judge was wrong to attach little or no weight to the expert medical reports to the extent that they relied on information provided by the appellant. The grounds summarise at para 40 where the judge highlighted the extent to which the medical evidence relied on what the appellant had said. Mr Butterworth submitted that the medical evidence did not depend on the appellant's account but constituted independent experts making their own findings and expressing their own opinions.
22. Ground 7 argues that the judge failed to consider the country evidence regarding torture methodology. In substance, it is argued that weight should be given to evidence which is consistent with methods of torture known to be practised by relevant authorities and that the appellant's evidence is consistent with the country evidence concerning Sri Lankan torture methodologies. The judge had failed to mention this evidence and had not compared it with the available country evidence.
23. Ground 8 relates to the judge's comments about the appellant's brother. It is argued that the judge erred in her analysis of the university stamp and of the letters produced in evidence and had applied an excessively high standard of proof by expecting further corroboration. He submitted that when these documents were properly analysed, there was a high degree of likelihood that they were reliable and genuine.
24. Ground 9 deals with the judge's comments about the appellant's husband at [70]. The grounds argue that the judge did not consider the evidence in full, that in the light of her account of his aggression and alcoholism and that she had been wrong to find that she could not accept that the appellant or her mother would turn to him for protection when coming to the UK. The grounds argue that the rejection of this evidence amounts to inappropriate reliance on subjective concepts of plausibility contrary to the guidance from the Court of Appeal in HK v Secretary of State [2006] EWCA Civ 1037.
25. Ground 10 argues that the judge erred when she commented that the appellant had inadequate knowledge of Anuradhapura when she had provided detailed evidence about that city in her asylum interviews.
26. In his submissions Mr Duffy adopted the respondent's rule 24 statement of 19 December 2016. He submitted that the judge had made findings of fact open to her on the evidence. This was not a case where she had fallen into the error identified in Mibanga v Secretary of State [2005] EWCA Civ 367 of compartmentalising the evidence. She had not attempted to go behind the scarring or psychiatric evidence as such but had given reasons why she had not found that the appellant was a credible witness. So far as the evidence from the GP was concerned, he submitted that it was generally not for a GP to diagnose PTSD and, in any event, the GP had referred the appellant to a psychiatrist.
27. The judge had given clear reasons for her findings. She had not attempted a medical diagnosis but had explained why she did not find the appellant's evidence to be credible. It was accepted that the appellant had burning injuries but the experts were not able nor had they attempted to say who had caused the injuries. The judge was entitled to take account of other matters including the delay in claiming asylum and the fact that the appellant had only sought medical advice after she had claimed asylum. In substance, the grounds were an attempt to re-open issues of fact where the judge had reached findings properly open to her.
Consideration of Whether the Judge Erred in Law
28. The first issue raised in the grounds seeks to challenge the way the judge dealt with the medical evidence and argues that she went beyond making findings on the credibility of the appellant's account taking due account of the medical evidence and, in substance, made a medical diagnosis or a clinical judgment about medical evidence.
29. Ground 1 focuses on the evidence from the GP which consisted of three letters dated 3 June 2015, 1 March 2016 and 22 March 2016. When assessing that evidence the judge was entitled to consider the content of that evidence and the extent to which it reflected the doctor's opinion as opposed to recording what information he had been given [49]. In this context the judge was entitled to note that the substance of the information clearly came from the appellant or from the doctor's understanding of what had been recorded by the doctor at Yarlswood. When assessing this aspect of the evidence the judge was entitled to take into account as she did at [51] that the GP had made no mention of the time the appellant had been in the UK and the fact that she was not recorded as being a victim of torture or having anxiety and depression until after her visa had expired and after she had made an appointment to claim asylum.
30. The judge was also entitled to note that the appellant had delayed for nearly a year between registering with the GP and claiming that she was a victim of torture and experiencing symptoms suggestive of PTSD and at [66] that the appellant had said at para 22 of her witness statement that she had to leave Sri Lanka to save her life after being detained, tortured and raped, but had not claimed asylum until six years after entering the UK. She had attended college with student services and was in the country with free medical healthcare but she had not registered with a GP or sought treatment for PTSD.
31. The judge was entitled to find that the appellant's claim that she did not know she could claim asylum was not credible. I am also satisfied that the judge was entitled to comment that she did not accept that the appellant would not have sought specialist professional medical help prior to 2014 if she had the difficulties she claimed. I am not satisfied that this is a case where the judge made or attempted to make a medical diagnosis but where she has made adverse findings of fact on the medical issues after considering the evidence as a whole.
32. Ground 2 makes a similar point in respect of the findings of Dr Lawrence, arguing that the judge erred by making clinical judgments. However, the judge had to assess Dr Lawrence's report and opinions in the context of the evidence as a whole. The judge highlighted her concerns about this report in [52]. She noted that in the appendices it was stated that victims of PTSD could have a delayed reaction but this was not addressed in the body of the report itself. She also took into account the fact the appellant claimed in her screening interview that she had depression in 2008 and her mother had sent her medicine. The judge was entitled to comment that she did not accept that the appellant would not have consulted a medical professional on this issue at an earlier stage.
33. Dr Lawrence in his report considered whether the appellant was simulating her symptoms and expressed the view that this was highly unlikely. The judge dealt with this issue in [56] and was entitled to take into account that the symptoms of PTSD were widely available on the internet and also, importantly, the delay in seeking medical attention until after claiming asylum. The judge also referred to contradictions within the report and between the report and Professor Lingam's report [57]. These were also matters the judge was entitled to take into account when assessing the weight to be attached to the report. Again, I am not satisfied that the judge was making a clinical judgment as opposed to making an assessment of the evidence.
34. So far as the question of discrepancies raised in Ground 3 are concerned, there is no reason to believe that the judge was unaware of the care with which discrepancies should be considered in cases relating to vulnerable appellants. Indeed, the judge had reminded herself of this at the beginning of her conclusions in [42] and [43]. The judge was also entitled to give weight to the concerns she set out at [59]-[61] arising from the concern expressed by Dr Lawrence that the appellant found it impossible to concentrate on a simple course whereas she had undertaken a general English course and proceeded to take a health and social care course level 3 for two years.
35. She also considered the contrast in Dr Lawrence's report that the appellant had experienced rape and had subsequently felt helpless, hopeless and pointless whereas in the appellant's own witness statement referring to her current partner, she said that they were very much in love and started living together very soon after they started dating and that their lives were with each other. On the one hand the appellant was unable, according to the report, to experience joy while on the other hand she was very much in love. The judge commented that the accounts to her mind appeared to conflict fundamentally. She also noted with regard to PTSD that Dr Lawrence had made generalised comments saying that the appellant had a physical reaction when she described her mistreatment in Sri Lanka but did not say what it was and that this was highly significant as it was very difficult to simulate. The judge also commented that Dr Lawrence said that in particular the appellant's inability to study was a surprise to her and this was a classic symptom of PTSD but, as seen, the appellant was able to study and far from being unable to make decisions had decided to get married.
36. The judge was also entitled to take into account at [62]-[63] the inherent difficulties for psychiatrists to treat what he observes is objectively verified, than it is for the description of physical conditions, because they are more readily feigned as set out in HE. In summary, I am satisfied that the judge gave clear reasons for finding that Dr Lawrence's report only carried very limited weight.
37. Grounds 4 and 5 deal with the issue of scarring as set out in Professor Lingam's report. This issue is covered at [45]-[48]. Professor Lingam accepted that the medical expert could not differentiate between deliberately inflicted wounds from wounds inflicted from any other trauma. The judge accepted that it was Professor Lingam's opinion that the appellant could not have inflicted the burn injuries herself as they were out of reach but the point the judge was making at [48] was that he did not address the possibility that a third party was engaged. The judge considered, bearing in mind all the evidence, that this was a real possibility. That was an issue for the judge to assess and it was not a matter on which Professor Lingam had sought to express an opinion.
38. Ground 6 challenges the judge's decision to attach little or no weight to the expert report of Dr Lawrence, the GP's letters and the rule 35 report to the extent that they rely on information provided by the appellant. I am not satisfied that the judge erred in this way. The judge was entitled to make the point about the extent of the information given by the appellant and its relevance in the weight to be attached to the medical report. The grounds contained an extensive citation from R (on the application of AM) v Secretary of State [2012] EWCA Civ 521 but I am not satisfied that the judge fell into the error of rejecting the medical reports simply because they were based on the appellant's own information. The judge was obviously aware that the authors were independent medical practitioners expressing their own views. It was for her to assess those views and consider them in the context of assessing the appellant's credibility.
39. In AM the Court of Appeal was considering the issue of whether there was independent evidence of torture and at [30] made the point that a requirement of evidence was not the same as a requirement of proof, conclusive or otherwise, and that whether evidence amounted to proof, on any particular standard (and the burden and standard of proof in asylum cases was not high) was a matter of weight and assessment. I am satisfied that when the judge was considering the medical evidence, she did not fall into the errors set out in the grounds but was weighing and assessing the evidence.
40. Ground 7 argues the judge did not consider the country evidence regarding torture methodology. I am not satisfied there is any substance in this ground. There is no reason to believe the judge was not well aware of the torture methods used by the Sri Lankan authorities and, in any event, she did not base her decision on any inconsistency with the background evidence.
41. Ground 8 relates to the issue concerning the name of the appellant's brother. The judge commented in [67] that the witness statement from the brother was in one name and her representative had googled academic names from a university in Anuradhapura and found someone by that name whereas in the screening interview a different name was used and that the name signed on the letter was without explanation different from that of the stamp. She regarded the witness statement as lacking credibility and serving to undermine the appellant's account.
42. Mr Butterworth made submissions based on the documents he had produced to the effect that it was clear that the academic was the same individual as the appellant's brother. However, in substance, this was a re-argument of an issue of fact and I am not satisfied that it amounts to an error of law. In any event, the judge was entitled to comment that the witness statement made no mention of the brother's detention, merely that his address had been located as opposed to the appellant's account at interview that he had been taken in two and a half years previously by the authorities and held for a few days and questioned over her disappearance.
43. Ground 9 relates to what the judge had to say about the appellant's husband in [70]. I am not satisfied that this ground raises any issue of law but seeks to re-open an issue of fact. It was for the judge to assess what inferences should be drawn from the matters she had set out in [70].
44. Similarly ground 10, referring to the fact that the appellant provided detailed evidence of the city in Anuradhapura, simply raises issues of fact and does not raise any properly arguable point of law.
45. The grounds, therefore, do not satisfy me that the judge erred in law such that the decision should be set aside. I am not satisfied that she fell into the error of making her own clinical diagnosis on medical matters. The judge was required to consider the medical evidence in the context of the evidence as a whole. The appellant's grounds raise numerous challenges to the way the judge dealt with the evidence but in substance they are an attempt to re-open and re-argue issues of fact.
46. In summary, I am satisfied that the judge reached findings and conclusions properly open to her for the reasons she gave.

Decision
47. The First-tier Tribunal did not err in law and its decision stands. The anonymity order made by the First-tier Tribunal remains in force until further order.

Signed H J E Latter Date: 6 February 2017

Deputy Upper Tribunal Judge Latter