Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10543/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On Wednesday 28 September 2016
On Friday 30 September 2016

Before

UPPER TRIBUNAL JUDGE SMITH

Between

B B B
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Radford, Counsel instructed by Wilson solicitors LLP
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues. It is appropriate to continue the order. 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.

DECISION AND REASONS
Background
1. The Appellant appeals against a decision of First-Tier Tribunal Judge Bennett promulgated on 25 July 2016 ("the Decision") dismissing the Appellant's appeal against the Secretary of State's decision dated 15 July 2015 refusing his protection and human rights claims. The appeal is on protection grounds only.
2. The Appellant is a national of DRC. There is no official record of the date on which he entered the UK. He claimed asylum by telephone on 23 January 2015 and in person on 4 February 2015.
3. The basis of the Appellant's claim stems from his activities in DRC as a preacher in a church named "Ministere De Deliverance: Allez les Delier". He claims that, as a result of sermons delivered in a three day seminar on 27-29 December 2013 he was detained by the DRC authorities on 30 December 2013 until January 2015 when he had managed to escape with the assistance of a friend of his brother and had thereafter fled to the UK where he claimed asylum. The Appellant claims that he was tortured during his detention and bears scarring injuries in consequence. He says that the DRC authorities had taken an interest in him as a result of the subject matter of the seminar in December 2013 which they had taken to be an implicit criticism of the Government and also as a supporter of Mr MB, a high profile critic of the authorities.
4. The Judge did not believe the Appellant's claim. He found in the alternative that the Appellant would no longer be of interest to the authorities and/or that they would not be aware of his past history. As a result he found that the Appellant would not be at real risk of persecution or ill treatment on return.
5. The Appellant has raised three grounds of challenge to the Decision with which I deal below. Permission was granted on all grounds by First-tier Tribunal Judge Brunnen on 17 August 2016. The matter comes before me to decide whether the Decision contains a material error of law and, if so, to re-make the decision or remit the appeal for rehearing to the First-Tier Tribunal.
The grounds and submissions
6. Ground one concerns the Judge's treatment of the medical report of Mr Andrew Mason dated 14 April 2016. Mr Mason is a specialist in accident and emergency medicine. The report deals with the Appellant's scarring injuries. Mr Mason's report records three scars which he considers were caused more than twelve months prior to his report. The first two he describes as "non-specific" and of a type which might arise as a result of accidental injuries but which he accepts are "consistent" with the cause which the Appellant describes. The third is the source of the Appellant's complaint. That is an injury which the Appellant says was caused by the crushing of his finger with a metal pincer. Mr Mason says that the scarring is "typical" of that sort of crushing injury and that "it is hard to conceive of any accidental way in which a scar of this type might arise".
7. The Judge deals with Mr Mason's report at [17] to [20] of the Decision. Ms Radford submitted that, although, at [20] the Judge purported to accept the evidence, he had nonetheless gone on to find that the scarring to the Appellant's finger could have been caused by other types of crushing injury such as by an accident at work or by the slamming of a gate on the finger. She submitted that the Judge had erred in failing to give appropriate weight to Mr Masons's view not only that the injury is "typical" of the cause attributed by the Appellant (such that he accepts that it is the type of injury which one would expect to see with this type of trauma even if there may be other possible causes) but also Mr Mason's opinion that it would be difficult to conceive of any other accidental cause. Ms Radford submitted that it was not open to the Judge to substitute his own view for that of the expert at least not without good reason being given. She also submitted that the Judge had failed to note Mr Mason's opinion that the scarring when considered overall was "typical" of the torture described.
8. The second ground concerns the treatment of the evidence of Dr Muzong Kodi whose report was put forward as a country expert in relation to DRC. Dr Kodi commented on the core of the Appellant's claim and on the plausibility of certain aspects of the Appellant's account. The Judge set out the main elements of Dr Kodi's report at [21] of the Decision. He dealt with Dr Kodi's evidence in the context of the credibility findings at [32(d)] of the Decision. That followed an acceptance at [23] of the Decision of Dr Kodi's evidence that Mr MB was detained by the DRC authorities in December 2013 at the time when the Appellant said that he was detained.
9. The passage at [32(d)] reads as follows:-
"On the basis of the documentary evidence submitted and Dr Kodi's report, the attack by security forces on Mr MB's home at Lubumbashi and the violent response of Mr MB's supporters in Kinshasa, Lubumbashi and Kindu (including the attack on the airport and the state broadcasting company (with c103 persons killed)) occurred on 30 December 2013, the day on which Mr B was, according to his own account, arrested. Necessarily, if what he stated was true, information against him must have been given by one or more of the young men and women who had attended the third of his seminars, that of 29 December 2013 (Mr B's evidence was, see paragraph 22 of his 2015 statement, that it had been on that day, the last of the three, that he had applied the text from Luke Chapter 3, Verse 9, in the context of the misdoings by the Government). Mr B's evidence was there had been between 100 and 200 persons who had attended on each day. Although Dr Kodi (paragraph 3) referred to there being "anecdotal evidence" that
"Spies from [the national intelligence services in the DRC] keep a close eye on organisations, including churches, which are suspected of expressing anti-regime views"
it was no part of Mr B's case and no evidence was placed before me to support the proposition, and I am not satisfied, that the church had either previously fallen under suspicion or that spies of persons who were not regular members of the congregation had been observed attending either services at the church or at events which the church had organised such as Mr B's seminars. Nor was it any part of Mr B's case, and there was no evidence placed before me to support the proposition, and I am not satisfied, that before he had (if he had) said what he claims to have said on the third day of the seminar, Mr JM (the Pastor) or any other officials or members of the church had said or done anything which might be construed, or had been construed, as the expression of anti-regime views. Nor was there anything on the copies of the leaflets with which I was provided (see above, paragraph 15) to indicate that Mr B was likely to express any anti-Government view in any of his seminars. The attack on Mr MB's home and the violent reaction of his supporters did not take place until after Mr B had completed the third of his seminars. Against that background, there is no obvious reason, even taking into account Dr Kodi's evidence (above), why the national intelligence services should have sent a spy to sit through Mr B's seminars on the chance that he might make an anti-Government remark. And in those circumstances, I am therefore not satisfied that the chance that there was a spy (or spies) from the national intelligence services present on the third day of Mr B's seminar or that any "outsiders" who had attended on that day gave information about what Mr B had stated that day, is within the realms of the reasonably likely, rather than being a mere possibility."
10. I pointed out to Ms Radford that the reason the Judge refused to accept the Appellant's account about the interest of the authorities arising from the seminar arises in large part from the timing of the detention. The seminar took place on 27-29 December 2013 with the remarks which the Appellant says provoked the interest coming on the third and final day. The Appellant says he was arrested a day later. The point made by the Judge is that there was nothing prior to the seminar to excite the authorities' interest and nor could it have arisen from any suspected link between the Appellant and Mr MB because Mr MB was not detained until after the date of the seminar and it was that detention which had led to the violent reaction by his supporters which caused arrest of those supporters. In response, Ms Radford pointed me to the leaflets advertising the seminar which contained the biblical reference which, on the Appellant's account, the Government had understood as being a criticism of it. She also pointed to [32(e)] of the Decision where the Judge rejected any suggestion that information about the seminar might have come from those attending it because they were part of the Appellant's congregation and would be loyal to him. She pointed out that the seminar was a public event and would not therefore be attended only by members of the existing congregation.
11. Ms Radford submitted that the Judge's findings were based on his own views of what was "plausible". Although Dr Kodi's evidence was based on whether the account was plausible, she asserted that the Judge had failed to give Dr Kodi's views weight and had substituted his own opinion which on certain points was highly speculative. She submitted that those findings could not therefore stand.
12. The Appellant's third and final ground concerns the application of the country guidance case of BM and others (Returnees - criminal and non-criminal) DRC CG [2015] 0029. The Judge referred to that decision at [40(c)] of the Decision but only in the context of whether a failed asylum seeker would be at risk on return to DRC on account of his asylum claim.
13. The Judge found at [38] to [40] of the Decision that, even if the Appellant's account were accepted, he would not be at risk on return due to his ability to return on his own passport or ability to obtain a document without disclosing the previous detention, that the authorities would not be aware of his previous detention or would have no continuing interest in him on that account.
14. Ms Radford submitted that those (and indeed other of his) findings were simply not open to the Judge on a fair reading of BM and others when considered with other case law and material. Firstly, BM and others refers to the desire of the DRC authorities to seek out those who have unexecuted prison sentences. They would therefore have an interest in the Appellant. Second, the country guidance decision undermines the Judge's findings concerning the record keeping of the authorities. It is said that the authorities have a black list of those wanted where, for example, there is an unexecuted arrest warrant. The Judge also failed to consider the risk to the Appellant when questioned at the airport on return - the risk of coming to the attention of the authorities did not arise only in the context of the obtaining of documents to return. BM and others supports a submission that leaving DRC on false papers (as the Appellant said he had done) may lead to interest by the authorities at the airport and detention. Third, the Judge did not accept that the Appellant would have been able to escape detention as he asserted. However, that failed to take into account background material which supported the ease with which detainees could escape.
15. Ms Radford also pointed out that the Judge's consideration of the current situation in DRC runs contrary to the evidence. The Judge's assertion at [38(h)(1)] that there was no evidence that the authorities continued to be interested in Mr MB and his supporters failed to note the evidence of Dr Kodi that as recently as January 2016 the DRC authorities continued to hunt down supporters of Mr MB ([15] of the report). Ms Radford also pointed out that the Judge had before him evidence which showed that DRC authorities continued to suppress dissenters. If anything, the background evidence produced showed increasing repression whereas the Judge appeared to think that the situation was improving.
16. In response, Mr Tarlow indicated that he accepted an error of law on ground three. The Judge had failed to take into account the country guidance decision. He conceded that this was an error of law and that the Decision should be set aside.
17. Following discussions, both parties agreed that, if I found an error of law on a basis which might impact on the adverse credibility findings, it would be appropriate to remit the appeal so that credibility could be reconsidered on all the evidence. Ms Radford fairly accepted though that if I found an error on the more limited basis that BM and others had not been applied to the Judge's alternative findings if the Appellant's case was true but did not consider that the error impacted on the credibility findings then it might be appropriate to resume the hearing in this Tribunal.
Discussion and conclusions
18. The Decision contains an error of law on ground three. Based on the country guidance decision and the background evidence and taking into account what is said at [23] to [28] of the Appellant's grounds, I am satisfied that the error is material, particularly in relation to whether the Appellant would be at risk now on return to DRC if his account were true. Although BM and others is primarily concerned with the risk to foreign national offenders and failed asylum seekers per se, some of the evidence which was accepted is relevant to the Appellant's case and needed to be considered when rejecting the Appellant's case on the alternative basis that he would no longer be of interest or no longer be at risk on account of his past detention.
19. If the only criticism of the credibility findings had been that based on the report of Mr Mason concerning the Appellant's scarring injuries I would not have found an error. Whilst, as a counsel of perfection, the Judge might have directed himself to the definition of "typical" in this context and that this is higher than simply "consistent", I do not consider that was necessary. An opinion that an injury is "typical" still permits of alternative causes. Similarly, the fact that Mr Mason himself could not conceive of an accidental basis for the injury does not mean that the Judge did not accept his evidence by providing his own opinion of how such an injury might be caused accidentally. His view was based on what Mr Mason said about the type of injury coupled with descriptions of similar injuries in other documents. Similarly, although Mr Mason does say at [7.1] of his report that his overall opinion of the scarring is that it is "typical", it is clear that this is predominantly based on the finger injury.
20. However, I am persuaded by the Appellant's ground two. Although Dr Kodi could only give an opinion as to the plausibility of the Appellant's account, his views were relevant to the question of whether that account was consistent with the background evidence and the evidence contained in the country guidance decision. The Judge therefore needed to take into account his views and if the Judge intended to depart from them, he needed to give reasons based on the other evidence. Furthermore, whilst the Judge may have been entitled to point to the timing of the detention viz-a-viz the seminar when making the points he did at [32(d)], it is inaccurate to say that there was nothing in the leaflet to suggest that the Appellant was intending to criticise the Government. It is the Appellant's case that it was precisely the biblical reference which is used in the advertisement which the authorities read as an implied criticism of the Government. Similarly, the Judge's finding that none of those attending would have provided information to the authorities about the seminar because they would be members of the existing congregation and loyal to the Appellant misunderstands the evidence that this was a public seminar. Taking this ground together with ground three, the Judge has also failed to take into account Dr Kodi's evidence that the authorities continue to be interested in Mr MB and his supporters. I therefore find that ground two also is made out.
21. Although the Judge has given a number of reasons for the adverse credibility findings which, on further assessment, might lead to the same conclusion, the Appellant is entitled to an assessment of his credibility based on a proper review of all the evidence. For that reason, I consider it appropriate that this appeal be remitted to the First-tier Tribunal for re-hearing.

DECISION
I am satisfied that the Decision contains material errors of law. The decision of First-tier Tribunal Judge C H Bennett promulgated on 25 July 2016 is set aside. The appeal is remitted to the First-tier Tribunal for re-hearing before a different Judge.

Signed Dated: 30 September 2016

Upper Tribunal Judge Smith