Tribunal decisions

The decision

IAC-fH-nl-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/08174/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 January 2017
On 30 January 2017

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

tK
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Haywood of Counsel instructed by Kesar & Co Solicitors
For the Respondent: Mr D Clarke, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Sri Lanka and his date of birth is 5 April 1979. He made a claim for asylum which was dismissed by the First-tier Tribunal by Judge of the First-tier Tribunal Kainth in a decision that was dated 8 November 2016 following a hearing on 26 July and 3 October 2016. Permission was granted to the appellant by First-tier Tribunal Judge Macdonald on 5 December 2016.
2. The appellant was initially interviewed in relation to his asylum claim and he gave an account that he had been arrested and detained in 1994 and that he had joined the LTTE on a permanent basis in 1995. He was appointed an administrator and he was responsible for supplying weapons, food and first aid and he helped remove injured fighters from fighting zones. He left the LTTE in 2009 and has not been involved since with the LTTE or in any political activity. The appellant ran a business in Sri Lanka and was a member of an organisation called the Commerce Union and it was attended by members of the CID with whom he became familiar. He befriended a CID officer called Upali and the appellant supplied goods and alcohol to local CID officers for a number of years and he was able to borrow money from the CID officer called Upali. Business competitors informed Upali that the appellant had been a member of the LTTE. The account that the appellant gave in his interview was that in February 2014 he was approached by Upali and informed that he had to tell the central CID in Colombo about the appellant's past and he gave him ten days in order to leave the country. The appellant left Sri Lanka with a passport that he obtained with the help of an agent.
3. The appellant in his witness statement of 14 February 2016 changed his evidence stating that he had been detained and tortured in January 2014 and that he did not reveal this during the course of his asylum interview because it was one of the conditions of his release that he would not disclose this, otherwise his family would be "wiped out". It was only after taking advice here in the UK that the appellant was reassured that the information relating to this incident would not be made known to the Sri Lankan authorities. He had first made a reference to the detention to a therapist, Margaret Watson, of the Refugee Council in December 2014. The appellant's account that he relied on at the hearing was arrested on 2 January 2014 and was detained for 27 or 28 days. He was released by way of a bribe. Whilst he was detained he gives an account of very serious physical and sexual mistreatment. He states that 17 or 18 days after he was released he left Sri Lanka. He claimed asylum when he arrived here at the airport. The reason why he did not disclose the information about his detention in 2014 at an earlier stage was in order to protect his family.
Grounds of Appeal
4. The grounds of appeal before me are very lengthy and at times repetitive but I heard extensive oral submissions from Mr Haywood (which were fortunately more focused) and Mr Clarke on behalf of the Secretary of State. The grounds can be summarised. The Judge failed to take into account in the context of the evidence as a whole the evidence of the country expert (Frances Harrison), the medical report of Dr Sinha of 4 January 2016, a letter from Freedom from Torture of 9 February 2016, a referral from Margaret Watson Therapist at the Refugee Council of 25 July 2016 and an update letter from Freedom of Torture dated 22 July 2016. It is argued that the Judge made credibility findings without taking into account the above-mentioned evidence and did not consider the evidence in the round. It is also argued that the Judge gave inadequate reasons for finding that the appellant's account was not credible in the light of Dr Harrison's report in whose opinion the appellant's account was consistent with her expert and detailed knowledge.
5. In relation to Dr Sinha, his qualifications were accidentally omitted from the appellant's bundle that was before the Judge, but this was not made known to the appellant's representative at the hearing. The Judge concluded that the doctor was not qualified to express an opinion on the appellant's mental health diagnosis or suicide risk, but this was based on an erroneous assumption.
6. It is argued that the Judge failed to adequately reason the credibility findings. He focused on the inconsistent accounts (in his asylum interview and the evidence in his witness statement that he relied on at the hearing) and inaccurately and unfairly characterises the difference in the accounts as being a substantial and material deficit in the appellant's account and a "glaring conflict" but this is acknowledged by the appellant who relied on the second account and not the first and had explained why he changed his account.
7. It is further argued that the Judge erred in concluding that the report of Dr Sinha was not compliant with the guidance in KV (scarring - medical evidence) Sri Lanka [2014] UKUT 230 because Dr Sinha failed to consider whether the appellant's scars could have been self inflicted by proxy (SIBP) or to give reasons for not doing so. It is argued that this is a misunderstanding of KV which only requires experts to comment on the possibility that scars may be self inflicted if "there is a presenting feature of the case that raises self infliction by proxy as a more than fanciful possibility as the explanation for scarring" and this was absent in this case.
8. It is further argued that the Judge failed to identify or apply the correct legal test in relation to the risk of suicide. There was an application to amend the grounds which was not opposed and which I granted arguing that the Judge erred in the treatment of the appellant's wife's witness statement and specific reference was made to [60] of the decision. It was argued that the Judge did not properly consider the reason why the appellant's wife was not giving oral evidence and there was insufficient analysis of the evidence when concluding that little weight should be attached to it.
Conclusions
9. I have taken into account Mr Clarke's submissions and whilst I agree that when making credibility findings a Judge has to start at some point and no arguable error of law arises from a Judge starting at the consideration of the appellant's evidence and then following with findings in relation to the medical evidence or other expert evidence, the crucial point is that the evidence must be considered as a whole and that findings must be made following a holistic assessment. I do not accept that this has been done by the Judge in this case. At [48] of the decision the Judge engages with the change in the appellant's evidence and he concludes that there is a substantial and material deficit in the appellant's account because of the failure to mention the 2014 detention in his asylum interview where he had stated that he had befriended Upali who advised him that he would have to notify the authorities in Colombo and he gave the appellant ten days to leave the country. The Judge made reference to "glaring conflict" in the appellant's updated account noting that it is substantial and affects his credibility to a high degree and he concludes that it is inconceivable that the appellant had a conversation with Upali post his arrest in January 2014 and that the two accounts cannot be consistent with each other. The Judge at the end of the paragraph asks himself whether either account is plausible or credible and concludes that in his judgment neither is. It is at that point that the Judge finds the appellant not credible and rejects his account of having been arrested and detained in 2014. It clear to me that the rejection of his evidence is based on the inconsistencies between the first and the second account and the failure of the appellant to mention when interviewed that he was arrested in 2014. Whilst the change in his evidence is a real problem for the appellant, the Judge reached unequivocal adverse credibility findings and rejected his account without consideration of the other evidence including the medical evidence.
10. The Judge concludes at [59] when considering Dr Sinha's evidence; "there are however a substantial number of reasons as to why I have not accepted the appellant's explanation/claim. They have been set out in comprehensive terms within the body of this decision". In my view this wholly support the ground of appeal that credibility was considered on the basis of the appellant's evidence only. The judge materially erred for this reason alone.
11. I heard extensive submissions from both parties and I will deal with most of these. Whilst it is material to credibility that the appellant changed his account, it was never his case that he relied on both accounts that he has given. The judge attached significant weight to the fact that the accounts are inconsistent, but this was not a material matter because the appellant's case was not advanced on the basis that the first account (in respect of Upali warning him and giving him 10 days to leave) reflected what had happened.
12. Dr Sinha does not consider self infliction but what he does do is go through each and every scar and his overall evaluation is at [16] of his report. Dr Sinha's evidence is that a number of scars are typical of the cause, others are highly consistent and others consistent with the torture as described by the appellant. He concludes that there are no groups of scars that are inconsistent with the stated mechanism of injury and he concludes that the clinical picture of the quantity of scars distributed on different parts of his body and with different appearances and the presence of scarring on sites not commonly injured accidentally (the backs of legs, knee and feet) is overall highly consistent with the torture he has described. There was no suggestion by the respondent that the report does not comply with the Istanbul Protocol and by any account the expert considered possible alternatives. The Judge makes an assessment of this evidence at paragraphs 55 to 59:
"55. Dr Sinha examined the appellant on 25th August 2015 approximately eighteen months after the appellant arrived in the United Kingdom. The doctor does not in his report consider the potential of self-infliction by proxy as highlighted in the case of KV (Sri Lanka) [2014]. Although the doctor utilises paragraph 186 of the Istanbul Protocol, nowhere within his report does he make reference as to why he felt it appropriate not to consider the question of self-infliction by proxy. The report is not compliant with respect to the observations made in KV. I have considered Dr Sinha's full report and comment on the 'highly consistent' finding as follows. The doctor makes reference to some of the scarring being highly consistent with the trauma described. Scar 7 is attributed to being burnt (photograph 5). The doctor makes reference to possible alternative causes but goes on to state that the appellant has not stated history or current evidence of a skin condition such as eczema. This tends to suggest that the author of the medical report has accepted the appellant's account as opposed to going into grater detail with respect to possible alternatives. The fact that the appellant does not give any other possible explanation does not remove the obligation upon the doctor to consider other possible reasons.
56. Scars 16 and 17 (photographs 11) are noted as highly consistent with respect to the appellant being burnt with a cigarette during his torture. The doctor makes reference to potential various alternative causes such as infected boil or inset bite or other skin wound or lesion. A similar reference is made with regards to scar 18 (photograph 12) cigarette burns. It remains unclear whether the mark is attributable to the 2014 or 1994 detention or whether it is the result of SIBP.
57. Photograph 14 relates to scar 20 the loss of a toenail. The appellant's explanation is that it was removed by metal nails having been pushed under the toenail. Dr Sinha considers the appellant's account as highly consistent. Alternative causes were dismissed on the basis that there was no evidence of any fungal infection involving other nails on either foot and that there was no reported accidental trauma or any occupational history that would put him at risk of such trauma. The doctor does not however consider whether the absence of fungal infection on other nails could be an alternative cause for the loss of the nail. No reported accidental trauma or occupational history given by the appellant in itself does not address the question of alternative potential causes.
58. In conclusion, Dr Sinha is of the opinion that the clinical picture of the quantity of scars distributed on different parts of the appellant's body and with different appearances, and the presence of scarring on sites not commonly injured accidentally is overall highly consistent with the torture described by the appellant. The injuries sustained by the appellant in 1994 to those claimed to have been inflicted in 2014 could not be distinguished. This was the conclusion reached by Dr Sinha at paragraph 139. I note the quantity of scarring and Dr Sinha's medical opinion, however, I do not accept that the appellant was detained in the manner and for the reasons he had given. The scarring does not in my judgment confirm when and in what circumstances the alleged attack/torture had taken place. Detention and torture by the army/security services was one possibility, but there are others as well. It is not possible to say when the injuries were inflicted. He could have been the victim of an attack by people with a grudge or detained and tortured by the authorities under other circumstances or the injuries could have been inflicted with his consent to improve his claim for asylum. No reference has been made to self-infliction by proxy. Dr Sinha at paragraph 131 of his report attempted to explain (unprompted) that the appellant's poor health at the time of his SEF interview may have given rise to some of the discrepancies and inconsistencies. The doctor makes reference to the appellant complaining that he had a fever during interview. The doctor does not however go on to explain as to what type of fever would impact upon individuals' ability to give answers to questions asked. The doctor does not make reference to what he would expect by way of an individual's body temperature to have an adverse impact upon answering questions.
59. Dr Sinha then makes reference with regards to the appellant's mental health and has diagnosed the appellant as suffering from PTSD and a major depressive disorder in light of his history of torture. At paragraph 119-121 the doctor considered the possibility of feigning or exaggeration. The doctor concluded that there was no evidence in the appellant's presentation to suggest that he was trying to exaggerate or feign any psychological distress. He commented on the appellant's delay in disclosing the rape and sexual abuse that he claimed to have suffered. He concluded that the explanation given by the appellant with respect to non-disclosure were clinically plausible, i.e., that they may have been in order to protect his family who remained in Sri Lanka. If disclosed to authorities in Sri Lanka his family may well have been targeted. I do not agree with respect to this assessment. The observations made by Dr Sinha are based upon the account given by the appellant. The appellant had every option to give information with respect to the torture that he now complains of which he openly gave with respect to the claimed detention in 1994. He was aware that coming to the United Kingdom would offer safe sanctuary for him. It was a country of choice and arrangements had been made to come to the United Kingdom specifically. Although I accept that there may be a whole host of reasons as to why allegations of male rape are not reported immediately, the appellant's explanation for non-report I do not accept. He claims the sexual violence towards him took place in January 2014. He came to the United Kingdom towards the end of February 2014 so within a matter of a month of his claimed sexual violence. He had the option of making reference to the torture element of the January 2014 detention without making direct reference to the sexual violence. Neither was reported. Dr Sinha at paragraph 170 stated that the appellant had previously had suicidal thoughts but did not describe any current thoughts of self-harming or suicidal intent. He went on to explain that it was possible for the appellant to develop a risk of suicide if he knew he was going to be returned to Sri Lanka. At paragraph 178 of his report, he determined that the appellant was a high risk of self-harm and suicide. I do not agree with the doctor's interpretation. Unusually and surprisingly, no curriculum vitae was attached for Dr Sinha and there was no documentary evidence to identify whether Dr Sinha was a specialist in mental health and approved under Section 12 of the Mental Health Act 1983. Ms McGovern in her submission stated that Dr Sinha had experience of acute psychiatry although there was no documentary evidence to identify or support this. The front page of the medical report made reference to Appendix A (notes and references) and Appendix B (biographical details of Dr Ritesh Sinha). Neither were attached to the report at Appendix B Bundle A. Ms McGovern made reference to an extract from the British Journal of Psychiatry (page 121 Tab D Bundle A) which commented upon late or non-disclosure during Home Office interviews with respect of victims of sexual torture. Under the sub-heading Results, it was noted '...Those with a history of sexual violence reported more difficulties in disclosing personal information during Home Office interviews, were more likely to dissociate during these interviews and scored significantly higher on measures of post traumatic stress symptoms and shame than those with a history of non-sexual violence'. I read the document very carefully and noted the importance not to make an adverse credibility finding solely on the basis of late disclosure. There are however a substantial number of reasons as to why I have not accepted the appellant's explanation/claim. They have been set out in comprehensive terms within the body of this decision."
13. The evidence of Dr Sinha is comprehensive and whilst he does not consider self-infliction of injuries he does consider possible alternatives (which is accepted by the Judge at [55] and [57]). The Judge concluded that consideration of alternative causes is not sufficient. There was no suggestion from the respondent that the injuries were self-inflicted. The respondent was aware of the appellant's change in evidence by the time of the hearing as his statement had been served, on my understanding, eight months prior to the substantive hearing. There was nothing in my view in Dr Sinha's report or the evidence generally which would suggest more than a fanciful possibility of self-infliction.
14. Mr Clarke submitted that the fact that the appellant had been arrested and detained in 1994 and that he had now changed his account together with the doctor being unable to accurately date the scarring injuries was in itself sufficient to oblige the expert and the Judge to consider self-infliction, but I do not agree with him. There is nothing unusual about an experts considering this type of evidence being unable to reliably date scarring. That the appellant changed his account was not in my view sufficient to suggest self-infliction of injuries was a matter that should have been investigated by the doctor and determined by the Judge and in any event. If I am wrong about that, at no time was the appellant put on notice that self-infliction was an issue in this case.
15. I have now had sight of Appendix B of the medical report which for one reason or another was not placed before the Judge. I accept that this was not known to the appellant's representative at the hearing. Appendix B contains biographical detail relating to Dr Sinha who is a general practitioner and it sets out his experience and training. His training included six month rotations at St. George's Hospital including the emergency department and the acute medical unit and he has worked in acute psychiatry at Queen Mary's Hospital, Roehampton. He is currently working as a GP registrar at a GP practice in Battersea where he offers a full range of general practice. The Judge noted that there was no documentary evidence that identifies Dr Sinha having experience of acute psychiatry. He found that the lack of experience in acute psychiatry to significant. Dr Sinha is not a specialist in mental health and the judge correctly recorded that he is not approved under Section 12 of the Mental Health Act 1983, but the Judge was not right about Dr Sinha having no experience of acute psychiatry.
16. I have taken on board Mr Clarke's submissions that the Judge was concerned that the appellant had given two completely different accounts. In my view the account is not wholly different, but he has significantly added to it and by any account he failed to mention material evidence when he was initially interviewed and this presents a problem for the appellant. A judge is entitled to conclude that this damages his credibility and to reject his account. However, the findings must be reasoned and grounded in the evidence. It is a fact that the judge made adverse credibility findings which have not been challenged in the grounds, in particular the finding relating to the appellant having fled Sri Lanka using his own passport and other findings at paragraphs 67, 69 and 70. These have not been challenged in the grounds. However, the judge did not take into account all of the evidence and in any event, did not properly consider the medical evidence. The findings are as a result unsafe.

Notice of Decision
17. The judge materially erred and the decision to dismiss the appeal on asylum grounds, Art 2, 3 and 8 is set aside. No findings are preserved and the matter is remitted to the FtT for a fresh hearing.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
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 their 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.

Signed Joanna McWilliam Date 27.01.17

Upper Tribunal Judge McWilliam