Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08728/2015

THE IMMIGRATION ACTS

Heard at Columbus House, Newport
Decision and Reasons Promulgated
On 7 July 2016
On 27 September 2016

Before

DEPUTY UPPER TRIBUNAL L J MURRAY

Between

L Y
(ANONyMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss Solanki, instructed by Uma Duraisingham Solicitors
For the Respondent: Mr Richards, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of Sri Lanka. He applied for asylum in the United Kingdom and asked to be recognised as a refugee. In a decision dated 8 May 2015 the Respondent refused his application and decided to remove him under section 10 of the Immigration and Asylum Act 1999. The Appellant appealed against that decision and his appeal was heard and dismissed by First-tier Tribunal Judge Solly in a decision promulgated on 1 February 2015. The Appellant sought permission to appeal which was refused by the First-tier Tribunal on 24 February 2016 and granted on renewal by Upper Tribunal Judge Eshun on 10 March 2016.
2. Upper Tribunal Judge Eshun found that it was arguable that the First-tier Tribunal failed to apply the approach in Mibanga v SSHD [2005] EWCA Civ 367 in addressing the medical evidence only after she had reached her conclusions on the Appellant's credibility. This was particularly evident in her conclusion at paragraph 79. Whether the Judge's error in her approach materially undermined her decision was a matter that needed to be addressed.
The Grounds
3. The grounds contend that the First-tier Tribunal comprehensively rejected the Appellant's account and found the Appellant not to be credible before turning to the medical evidence. She then found that the corroborative medical report of Dr Sinha did not help the Appellant as she did not find her to be a credible witness. The grounds contend that this approach was in error and had she had regard to the detailed diagnoses of mental health problems and the medical evidence she may have had a different approach to the issues. It is further issued that the approach to credibility was flawed because the Judge misunderstood a submission in respect of the Appellant's age.
4. It is further argued that the First-tier Tribunal Judge materially erred in her approach to risk. It is asserted that she failed to properly consider whether the Appellant fell under the MP (Sri Lanka) & Anor v Secretary of State for the Home Department [2014] EWCA Civ 829 "list of risk categories,?the UNHCR's "more elaborate links" examples as risk factors". It is also asserted that she failed to consider paragraphs 288-294 of GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 and the argument that the Appellant's cousins fell within the UNHCR risk category 4 as 'Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE' and the Appellant as such fell into category 6 'Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles'. It is further argued that the First-tier Tribunal failed to consider that the Appellant was from the North of Sri Lanka and that his too arguably placed him at heightened risk given his accepted family links and the militarisation in the area.
5. The final ground asserts that the First-tier Tribunal materially erred in her approach to the Appellant's health claim.
The Rule 24 Response
6. The Respondent submitted a Rule 24 response dated 21 March 2016. It is submitted that the Judge clearly stated at paragraph 50 and 51 that her findings were based on the totality of the evidence (both oral and documentary). The Judge listed the evidence at paragraphs 24 and at 26 noted that an expert medical report was submitted a week before the hearing. It is submitted that the adverse credibility findings took place after considering all of the evidence. The Respondent contends that the determination is well written and considers all of the evidence and properly addresses it.
The Hearing
7. At the hearing Ms Solanki expanded on her grounds of appeal. She submitted that the Judge adopted the wrong approach to the medical evidence. She failed to refer to specific submissions and case law and finally she erred in relation to health care and in relation to paragraph 276ADE. It was clear that the adverse findings started at paragraph 50. It was clear that there had been an assessment of his credibility and a consideration of the medical evidence after a rejection of the account due to inconsistencies. At paragraph 79 she considered the R35 report in the last sentence and said that it was predicated the on Appellant's account. The report had been considered as an add-on. It was exactly the error fallen into in Mibanga. The Judge had no criticism of report but rejected all of that evidence on the basis of her grave concerns as to credibility. It was simply not the correct approach especially where there was such strong medical evidence. Because of the approach taken to the medical evidence, she held against him that he did not try to explain that inconsistencies were due to health. However, you would not expect him to be aware why he would be inconsistent. There were good explanations advanced there. Dr Sinha based his conclusions on the whole picture. In the report and in the Appellant's own witness statement there was a detailed explanation as to why he had not received medical treatment. Ground 3 linked to the approach taken to medical evidence. Paragraphs 90 and 91 of the decision referred to Dr Sinha's finding that there was a severe level of depression. The Appellant had a lack of trust of officials. The Judge did not set out submissions in relation to GJ and others. Those with mental health problems were treated with real stigma. It was submitted to tribunal that on a case by case basis mental health may be determinative. There was also background evidence put before the Tribunal and from the OGN. None of that was engaged with. The fact that he could not access treatment was not relevant. Judge had failed to engage with the fact that there would good reasons why he could not access treatment. The Tribunal was referred to MP and it was argued that the Appellant's cousins fell in the risk category. It was said that that it placed the Appellant into a risk category. Significantly the Judge did accept that the Appellant's cousins had been involved in significantly assisting LTTE at paragraph 55 of the decision but did not engage with submission in that regard and without that assessment being made the findings were incomplete.
8. Mr Richards submitted that there was no material error of law disclosed. The Judge dealt in considerable detail with the evidence and particularly with the medical evidence at paragraphs 72 to 79. This was not a case of a Judge coming to a conclusion on credibility and then coming to conclusion on report as an "add on". What was important is that the Judge considered the evidence in the round. She did because at paragraph 86 she said she had considered all of the evidence in the round. She properly weighed the evidence and made a key finding in paragraph 86 that the inconsistencies were too numerous to be explained by his mental health. The finding was open to her. In essence she conducted a very detailed analysis of the whole of the evidence and her conclusions were in no way infected. In relation to the Appellant's health with regard to Articles 3 and Article 8, the Judge found at paragraph 92 that there would be no suicide risk even without the Judge reminding herself of the extremely high threshold. At paragraph 100 in relation to Article 8 she had said she has considered his medical health weighing against removal. There was no material error of law in that regard. With regard to the MP point, the cousin was not a close family member. Even if that point were not specifically dealt with it could not be a material error of law and no issue should arise from such an omission. No material error of law had been identified and it should stand. I was asked to dismiss appeal.
9. In reply Ms Solanki said that his cousins were witness who attended and said that he grew up with them and did so until he left for the UK and therefore it was material. In relation to the health claim the difficulty was that Sri Lankan health claims were different. This was not just a structural failing.
Discussion and Findings
10. The First-tier Tribunal set out her conclusion in relation to the Appellant's credibility at the outset of the section of the decision entitled "Evidence and Findings". She stated that she found that the Appellant's account contained discrepancies and statements which were internally inconsistent and inconsistent with the background evidence and the cumulative effect was to cast serious doubt on the reliability of his evidence and veracity of his case. She then engaged with the evidence and set out the discrepancies which she found to exist in the evidence from paragraphs 52 to 71. She found numerous discrepancies in his account and comments in the course of these findings that the conflicting evidence detracts from his account but that she weighs it up in the light of the surrounding evidence.
11. After having found numerous inconsistencies in his account she sets out the conclusions of Dr Sinha, who provided expert medical evidence in accordance with the Istanbul Protocol. She sets out the records of scaring, Dr Sinha's conclusions as to the consistency of the scaring with the Appellant's account and Dr Sinha's conclusions on the Appellant's mental health. Her evaluation and assessment of the medical evidence is found at paragraphs 76 to 79 of the decision. The key findings in respect of Dr Sinha's report are at paragraphs 76 and 77 and I set them out in full below:
"76. I consider whether the inconsistencies in the Appellant's account can be attributed to his mental health. The appellant was composed in his account to Dr Sinha (paragraph 29 of his report, pate 11 of the appellant's bundle). He was composed before me. There were no indications of formal thought disorder and no recorded symptoms of thought block or thought broadcast according to Dr Sinha. He was oriented in time, person and place (paragraphs 33 and 35 of his report, page 12 of appellant's bundle). I have carefully considered this report as a whole and in particular paragraph 65 which considers inconsistencies in testimony. I heard the appellant's conflicting evidence before me and at no time when inconsistencies were pointed out to him did he seek to explain them by reference to health save once on length of detention in Sri Lanka. In this cases the inconsistencies are too numerous to be explained by his mental health given his presentation.
77. The opinion expressed by Dr Sinha is predicated on acceptance of the appellant's account of mistreatment. I do not find the appellant a credible witness due to the very substantial inconsistencies in the evidence. Once his history is removed the report adds little to the picture. The scars have alternative causes as mentioned by Dr Sinha, and PTSD, low mood and depression may be due to other causes. The report cannot assist in establishing that the torture was politically based or for other reason relevant to this appeal which is a matter for me."
12. Dr Sinha's report is at pages 8 to 28 of the Appellant's bundle. He assessed the Appellant against the DSM IV criteria for Major Depressive Episode, Post-Traumatic Stress Disorder and in accordance with the Istanbul Protocol. He concluded at paragraph 57 that the Appellant had a cluster of symptoms indicating a major depressive disorder and that he met the diagnostic criteria for PTSD as set out by the DSM-IV. With regard to the physical injuries, he found that three of the scars or groups of scars were highly consistent with the Appellant's account of the stated mechanism of the injury and six of the scars or groups of scars were consistent with the described mechanism of the injury. In his overall evaluation he concluded 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, was overall highly consistent with the torture he had described (paragraph 87). Further, he stated that the Appellant took care to describe each incident where he could not be sure of the attribution and to take care to say when he could not, or could not remember or did not know the cause of the scars. This, in his experience, made it more likely that he was not confabulating. He also concluded that none of the injuries could be suggestive of self-harm (paragraph 91).
13. As Dr Sinha noted at paragraph 87 of his report, the Istanbul Protocol Chapter V, paragraph 188 states that it is ultimately the overall evaluation of all lesions and not the consistency of each lesion with a particular form of torture that is important in assessing the torture story. Since his overall evaluation was that the presence of scars was highly consistent with the torture he described, according to the definition of terms, the lesions "could have been caused by the trauma described and there were few other possible causes."
14. In Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367 Mr Justice Wilson stated at paragraph 24:
24. What the fact-finder does at his peril is to reach a conclusion by reference only to the appellant's evidence and then, if it be negative, to ask whether the conclusion should be shifted by the expert evidence. Mr Tam has drawn the court's attention to a decision of the tribunal dated 5 November 2004, namely HE (DRC - Credibility and Psychiatric Reports) [2004] UKIAT 00321 in which, in paragraph 22, it said:
"Where the report is specifically relied on as a factor relevant to credibility, the Adjudicator should deal with it as an integral part of the findings on credibility rather than just as an add-on, which does not undermine the conclusions to which he would otherwise come."
15. Whilst I find no error in the First-tier Tribunal's evaluation of the Appellant's mental health at paragraph 76, it is clear from the reasoning in paragraph 77 that she found the Appellant not to be credible due to the substantial inconsistencies in his account and then concluded that Dr Sinha's conclusions on scarring could be disregarded for this reason. This is the approach that was found to be in error in Mibanga. Further, Dr Sinha, did not, as recorded by the First-tier Tribunal in paragraph 77, find that the scars had alternative causes, he found that the scars were highly consistent which meant that there were few other possible causes. The medical report was a critical and objective analysis of the injuries displayed and had status as independent evidence and should have been accorded weight as such.
16. The First-tier Tribunal also approached the R35 report prepared whilst the Appellant was in detention in a similar manner, disregarding it because the Appellant was found not to be credible. The Judge stated at paragraph 79:
"The report identifies scars on both lower limbs and his face. He is recorded as having ongoing mental difficulties particularly at night involving reliving the episodes of torture and beating. There is some consistency between the scarring identified in this report and in Dr Sinha's report as being due to torture and beating. However the report is predicated on the appellant's account. Given my grave concerns on his credibility I consider that once his account is discredited little weight can be given to this report in establishing ill-treatment."
17. In the circumstances I find that the error is material as had the correct approach to the evidence of scarring been adopted, notwithstanding the many discrepancies in the Appellant's account, the conclusions on the Appellant's credibility may have been different. In the light of the fact that it was the Appellant's case that he was detained and ill-treated in 2014 after the end of the civil war in May 2009 it was arguable that according to MP (Sri Lanka) v SSHD [2014] EWCA Civ 829 that the Appellant was perceived to be a threat to the integrity of Sri Lanka as a single state or that the evidence showed that the Government might regard him as posing a current threat to the integrity of Sri Lanka as a single state even in the absence of evidence that he had been involved in diaspora activism.

Conclusions:
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision.
I remit the decision to the First-tier Tribunal for rehearing with no findings of fact preserved.

Anonymity
The First-tier Tribunal made an order and I continue that order (pursuant to 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 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.

Signed Dated

Deputy Upper Tribunal Judge L J Murray 27 September 2016