AA/10150/2014

• Status of case: Unreported
• Hearing date: 18 Oct 2016
• Promulgation date: 14 Nov 2016
• Publication date: 14 Aug 2020
• Last updated on: 14 Aug 2020

The decision

IAC-FH-CK-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10150/2014


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 18th October 2016
On 14th November 2016



Before

DEPUTY UPPER TRIBUNAL JUDGE DAVIDGE


Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr S S
(anonymity direction continued)
Respondent


Representation:
For the Appellant: Mr T Wilding, Home Office Presenting Officer
For the Respondent: Mr S Muquit, Counsel, instructed by A & P Solicitors


DECISION AND REASONS
EXTEMPORE JUDGMENT

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

Anonymity having previously been ordered in the First-tier Tribunal and there being no application to remove the order, I see no reason to do so and the order remains in place. Unless and until a Tribunal or Court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify them 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.
This appeal is brought by the Secretary of State against a decision of Judge Mayall promulgated on 11 August 2016 in which he allowed the Sri Lankan Appellant's appeal against a refusal of international protection.
Permission was granted in the First-tier Tribunal on four grounds.
The first ground is that that there has been a material misdirection in law in the context of the assessment of the Appellant's credibility with reference to Section 8 of the Treatment of Claimants Act 2004.
Section 8 requires a Judge to take into account arguments put forward by the Respondent concerning credibility as affected by issues listed therein including the failure to take a reasonable opportunity to claim asylum in a safe country before making a claim in the United Kingdom. In the context of this case, the Respondent points out that the Appellant, in his screening interview at 4.4 asserted that he did not have such an opportunity because he was prevented from doing so because he was under the control of somebody with whom he was travelling. The Respondent does not ask about it again in the substantive asylum interview.
1. The Judge sets out the entirety of the Respondent's consideration of Section 8 at page 7 of the determination [21] to [23], including the explanation I have referred to. The Respondent, in the Reasons for Refusal Letter, does not give any reasoning as to the rejection of the Appellant's explanation. At the hearing, the Respondent chose not to field a representative. In his oral evidence, the Appellant repeated his explanation and expanded upon it expressly in response to direct questioning from the Judge. It is quite clear that the Judge had it firmly at the forefront of his mind.
The Judge does not provide detailed reasoning specifically on Section 8 in the assessment of the evidence between [51] and [58] but, reading the decision as a whole, it is quite clear that he takes Section 8 into account, even clarifying matters himself. The explanations offered by the Appellant were not challenged by the Respondent. In that context it can be of no surprise to the Respondent that in the absence of cross-examination or further reasoning in the Reasons for Refusal Letter the Judge finds that he accepts the Appellant's explanations so that the position did not adversely impact the overall assessment of the Appellant's credibility.
In making the assessment of credibility, the Judge does not simply accept everything that the Appellant says, instead he clearly sets out difficulties with the Appellant's evidence, and plainly finds that the issue of credibility does not go all one way, to the point that it can be seen that the Judge reaches a balanced view. The points that have been made today are points that could quite properly have been made by the Respondent if she had fielded a Home Office Presenting Officer on the day, but she chose not to do so, and plainly the Judge was not assisted by the absence of the Respondent's representative.
2. The second ground asserts difficulties with the treatment of the medical evidence and, in particular, that the Judge has taken the wrong approach with regard to it. The assertion is that the Judge erred in considering the medical evidence first, when assessing the credibility of the historical factual account given by the Appellant. I find that this is the right approach, as directed by Mbanga, and that the submission that it runs contrary to Mbanga is incoherent. I turn to paragraph 24 of that case, where Mr Justice Wilson sets out: when medical evidence comes forward the crucial point is that the Judge should take account of that medical evidence before making an assessment of the factual context of the account of the Appellant, and that it may well be that the context which is provided by such expert evidence could be a crucial aid to the decision as to whether or not the Judge should accept the truth of the factual matrix put forward. I find that at [51] that is exactly what Judge Mayall is doing in this case.
3. Mr Wilding has suggested that in concluding at [51] that scars were inflicted as a means of torture that the Judge has limited consideration to whether or not there was evidence that the scars, and in particular two types of scars; namely from metal rods and from cigarette burns, were inflicted through proxy or by the Appellant inflicting the harm on himself. There might be other causes, he asserts.
4. I am satisfied that the Judge has not restricted his consideration of the evidence. [51] of the Judge's conclusions must be read in the round, including reading back to [11] where he Judge sets out that Professor Lingam, one of three experts, concluded that the scars could not have been caused by medical conditions, surgical procedure or accident, findings which were also supported by the second expert report from Dr Martin. Again, in the assessment of the medical evidence, it is quite clear that the Judge was fully aware of difficulties and inconsistencies that had come forward by the Appellant's own statements to the clinicians.
5. Standing back and looking at [51] in the context of the whole of the decision, I am satisfied that when the Judge says that there was no explanation other than the conclusion that the scars were inflicted as a result of torture, it is a finding which is quite clearly rooted in the medical evidence which properly discounts alternative explanations.
6. The third ground raises a point in respect of GJ. I find nothing in the point. Judge Mayall sets out fully, the reasons for refusals right at the beginning of the decision, occupying several pages identifying clearly that the Respondent's dispute was that the Appellant had failed to establish that he had been detained and tortured in 2013 as he had claimed. The Judge concludes that in light of the evidence of torture, and contrary to the Respondent's view, he had met the burden of showing that he had been detained in 2013, and further that that was as a result of being a suspected member of the LTTE.
7. Reading that factual position in the context of GJ and the country information, the Judge's conclusion that that post-conflict interest in the Appellant is sufficient to found a real risk, to the low standard of proof, of interest in him on return now, is sustainable. It is quite clear reading GJ that it is only perceived interest or perceived activity and involvement at a high level in the separatist cause which would have prompted such an arrest, detention and torture. Whilst it has been posited today that that might have come from other circumstances including accident and fights between the Appellant and his associates, and possibly even from the LTTE, that is simply to add new arguments. The Respondent had the opportunity of making those points and putting those matters to the Appellant at the hearing and did not do so.
8. In resolving the dispute between the parties, the Judge correctly reaches resolution premised on the matters raised in the reasons for refusal. Whilst it is self-evident that had the evidence, as it came out in the hearing, presented such alternatives as speculated before me today, the Judge would have had to deal with them, but there is nothing before me to show that any such arose.
9. The fourth ground concerns Diaspora activities. The point adds little to the grounds, because the Appellant's case has not been one of actual involvement but of perceived involvement in terms of the arrest and detention in 2013, and perception is the key. If the Appellant's case had been that his risk arose purely on the basis of the Diaspora activities, then the dispute resolution at [57] would be arguably inadequate but, in the context of the case as it was argued and presented by the parties to the Judge, I am satisfied that the reasoning which follows on at [58] is an adequate consideration of the position under GJ.
Notice of Decision
10. The Secretary of State's appeal is dismissed and the decision of the First-tier Tribunal allowing the claimant's appeal stands.


Signed E Davidge Date 11 November 2016

Deputy Upper Tribunal Judge Davidge