Tribunal decisions

The decision

ST

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08705/2013

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 January 2017
On 01 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

M J S K
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Jafar, counsel
For the Respondent: Mr D Clarke, Home Office Presenting Officer

DECISION AND REASONS

1. This matter comes before me for consideration as to whether or not there is a material error of law in the determination of First-tier Tribunal Judge Coll ("the FTTJ") promulgated on 25 July 2016, in which she dismissed the appellant's appeal against the refusal of his asylum claim.

2. An anonymity direction was made in the First-tier Tribunal and I maintain it in this Tribunal.

Background

3. The appellant is a Sri Lankan citizen of Tamil ethnicity who claims to have been detained and tortured by the authorities in Sri Lanka on the grounds of suspected involvement with the LTTE. The respondent refused his asylum claim. The appellant's appeal was heard on 15 October 2013. It was dismissed appeal in a determination promulgated on 6 November 2013. On 23 January 2014 the decision was set aside by Upper Tribunal Judge Drabu due to an error of law. There were a number of procedural delays which are of no relevance to this appeal; eventually the rehearing of the appeal came before FTTJ Coll on 14 June 2016.

4. FTTJ Coll dismissed the appeal principally on the grounds that the appellant's account was not "entirely credible" (see [81]) and not corroborated by the medical and documentary evidence, ([66] and [76] refer).

5. Permission to appeal was granted by Upper Tribunal Judge Rintoul because it was "arguable that First-tier Tribunal Judge Coll erred commencing her analysis of the appellant's credibility by reference to section 8 of the 2004 Act and, also, as appears from her decision at [79] that she failed properly to apply JT (Cameroon) [2008] EWCA Civ 878 and/or SM (Iran) [2005] UKIAT 00116." Nonetheless he granted permission on all grounds. Hence the matter came before me.

Submissions

6. Mr Jafar, for the appellant, submitted the FTTJ had given undue weight to the appellant's delay in claiming asylum: the appellant had been granted leave to remain as a student and relied on the advice of an agent; delay did not reflect the absence of fear. The FTTJ's reasoning on this issue was not coherent. She had started with a finding pursuant to s8 and proceeded on the basis of her adverse credibility finding made pursuant to that section. She had not engaged at [55] with the appellant's explanation. There was no rounded appraisal of the evidence. Mr Jafar accepted that if the remaining analysis of the appellant's evidence relating to credibility were sustainable, this ground of appeal would fail. Turning to the FTTJ's analysis of the medical evidence, Mr Jafar, submitted the FTTJ had failed to give this evidence anxious scrutiny; furthermore, she had made findings "as a medical expert". She had not taken into account the experts' qualifications. There was insufficient reasoning to justify the adverse finding. It was an error for the FTTJ to criticise Dr Frazer for failing to engage with other possible causes than those claimed; KV (scarring - medical evidence) Sri Lanka [2014] UKUT 00230 (IAC) did not require it. Further, there were no presenting features raising the possibility of self-infliction by proxy (SIBP). Dr Mason's report was well grounded and consistent with the other evidence. Insufficient weight was given to the whole of the report. The two reports should have been taken into account in considering whether the appellant was telling the truth. The evidence of the lawyers should have been evaluated overall; that evidence was dismissed after FTTJ had rejected the high court documents, preferring the respondent's document verification report. The FTTJ took inappropriate judicial notice at [71] and [72]. The FTTJ failed to make a finding on whether or not the appellant's father had been missing, as the appellant claimed.

7. In response, Mr Clarke for the respondent submitted that the weight to be given to the evidence before the tribunal was a matter for the FTTJ. The FTTJ had cited s8 and directed herself appropriately. She had made a global assessment, reverting to the s8 point at [79]. As regards the medical evidence, it was for the FTTJ to consider the probative value of the medical evidence and how it impacted on the appellant's credibility. The amount of detail in the report would not unreasonably affect the weight given to it. The FTTJ had referred at [63] to all the appellant's claimed injuries sustained in detention; the experts had failed to engage with all those individually. It was appropriate for her to criticise the reports for lack of a thorough investigation of all the claimed injuries, as she had cited them at [63]. The criticisms of the assessment of the legal documents and lawyers' correspondence were an attempt to relitigate the issue: the FTTJ had adequately reasoned why she preferred the DVR to the appellant's evidence. She rejected the appellant's explanations for good reasons. This was a textbook approach to documentary evidence in an asylum case. The FTTJ was entitled to take judicial notice of matters which could be anticipated. The failure to make a finding with regard to the appellant's father's claimed disappearance was immaterial: the FTTJ had found the appellant not credible.

Discussion

8. On the face of it, it appears from [55] and [56] that the FTTJ made an adverse credibility finding at the outset, treating s8 as the starting point for the assessment of credibility, contrary to the guidance in SM (Iran). However, it is clear from the decision as a whole, which is detailed and comprehensive, that the FTTJ scrutinised all the appellant's evidence carefully and identified various issues of concern, in addition to the delay in seeking asylum. See, for example, her assessment of the reliability of the appellant's documents and his mother's letter. Thus she carried out a global assessment of the evidence before concluding the appellant's account was not credible (R (Sivakumar) v SSHD [2003] UKHL 14 and JT (Cameroon)). It follows that, even if s8 were her starting point, this was not a material error of law; it is clear from the lengthy and detailed analysis that the FTTJ took all the evidence into account in reaching her conclusion on credibility of the appellant's claim. That finding is sustainable on the evidence and was a conclusion open to her.

9. As regards the medical evidence, the FTTJ has not considered this in isolation. She has noted at [63] the appellant's claimed injuries sustained in detention. She has noted the two medical reports do not address all these claimed injuries, only some of them. Her criticisms of the report of Dr Frazer are appropriate, given the content of his report. Her approach to his report is balanced and she has clearly considered it carefully. She notes Dr Frazer has not engaged with other causes of scarring and that he is required to do this pursuant to KV. Paragraph 2 of the headnote to KV states "Doctors preparing medico-legal reports for asylum seekers must consider all possible causes of scarring". Paragraph 246 also refers to "the need for a medical expert to approach matters in terms of possible causes is well-established by case law ?". As regards, Dr Mason's report, generally the concerns of the FTTJ are grounded in the report. It was not appropriate for the FTTJ to suggest Dr Mason should have addressed SIBP. No presenting features had been identified to put this possibility in the frame. However, this criticism has no material impact on the outcome of the assessment and, in any event, it is not an issue raised in the grounds of appeal before me. The FTTJ notes Dr Mason undertakes no analysis of the other parts of the body which the appellant claimed had been injured in detention. Importantly, the FTTJ does not wholly discount the content of the two reports. Instead, she places "little weight" on them. The amount of evidential weight given to expert evidence is a matter for her, based, as it is, on the evidence. Her conclusions are sustainable given the appellant's own evidence on all the injuries sustained, the fact the two reports do not address all those claimed injuries and the relative brevity of the reports in terms of their findings. Taking the expert evidence as a whole and noting her misgivings about it, the FTTJ's decision at [66] that the reports do not "corroborate that the Appellant suffered ill-treatment at the hands of the authorities in Sri Lanka" is sustainable. The criticisms raised by the appellant in this appeal amount to a disagreement with the FTTJ's assessment, an assessment which took into account all the evidence, including that of the appellant himself. Whilst not submitted, I have also considered whether the expert evidence was assessed on the premise the appellant was not a credible witness; that was not the case: the medical evidence was considered in the round and in the light of the appellant's own account as summarised at [63].

10. The FTTJ carried out an appropriate assessment of the documentary evidence. She preferred the DVR produced by the respondent and her reasons for so doing are sustainable and open to her. The respondent had identified a discrepancy in the case reference on the high court documents. She considered the explanation proffered but rejected it in the light of the evidence. Her reasons are at [70] and [71]. Whilst the FTTJ states she takes "judicial notice" of the way in which cases are numbered, in fact, as is clear from [71] and [73] she simply prefers the evidence of the respondent in the DVR as to the numbering system employed in the Trincomalee High Court. Thus, while her reference to taking judicial notice is unfortunate, it is not a material error of law since it is clear that she has relied on the DVR to find the numbering is wrong; that is a reasonable conclusion, based on the content of the DVR.

11. I do not accept the FTTJ made an error of law at [80] by making an assumption as to how National Insurance numbers are issued. It is not unreasonable to conclude a government department would not accept an uncertified copy of a person's passport, without other identification, as a basis for issuing a national insurance number.

12. There was no need for the FTTJ to make a specific finding as to whether or not she accepted the appellant's father had disappeared given her finding that the appellant's evidence was reliable. That evidence encompasses the claimed disappearance of the appellant's father.

13. For these reasons, there is no material error of law in the FTTJ's decision.

Decision

14. The making of the decision of the First-tier Tribunal did not involve a material error of law and the decision is preserved.

15. This appeal is dismissed.

A M Black
Signed Date 30 January 2017
Deputy Upper Tribunal Judge A M Black

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.

A M Black
Signed Date 30 January 2017
Deputy Upper Tribunal Judge A M Black