Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12659/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision Promulgated
On 4 November 2016
On 24 November 2016

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
CHANDRAMOHAD KATHIRGAMAMUTHIM
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Wood of Rochdale Law Centre
For the Respondent: Mr A McVitie Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
3. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Pickup promulgated on 5 July 2016 which dismissed the Appellant's appeal against the decision of the Respondent to remove the Appellant from the UK following the decision to refuse the Appellant's claim for asylum.
Background
4. The Appellant was born on 12 January 1971 and is a national of Sri Lanka.
5. 30 May 2002 the Appellant applied for asylum on the basis that he was at risk of ill treatment on return to Sri Lanka at the hands of the Sri Lankan authorities by reason of actual or perceived involvement with and support for the LTTE.
6. 31 July 2003 the Secretary of State refused the Appellant's application. The Appellant appealed that decision and his appeal was dismissed on 5 November 2003 and his application to appeal the decision was dismissed and he was appeal rights exhausted on 6 February 2004.
7. The Appellants application for discretionary leave was refused on 22 March 2005.
8. 18 May 2009 the Appellant lodged a claim for asylum in Northern Ireland in a false name. He was interviewed and his correct identity was discovered.
9. 17 September 2009 his claim for asylum in N Ireland was dismissed.
10. 7 March 2013, 23 February 2014 the Appellant submitted further submissions which were both refused.
11. 12 August 2012 the Appellant was detained pending removal.
12. 11 August 2015 the Appellant sought, and was granted, further time to provide a medico legal report that asserted he was suffering from Moderate Depression and PTSD and was at medium risk of suicide
13. The refusal letter rejecting this fresh claim gave a number of reasons:
(a) The starting point for any decision was the decision of Judge Axtell of 5 November 2003 in which the Judge made a number of adverse credibility findings concluding that the Appellant was of no interest to the authorities
(b) The MLR of Dr Janine Bonnet dated 19 June 2015 was considered but the scars and lesions could have been caused in ways other than those claimed by the Appellant.
(c) While it was conceded that the Appellant had been mistreated it was not accepted that this was at the hands of those the Appellants claims.
(d) The presence of scars on the Appellants body would not put him at risk.
The Judge's Decision
14. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Pickup ("the Judge") dismissed the appeal against the Respondent's decision.
15. Grounds of appeal were lodged arguing that:
(a) The Judge materially erred in his consideration of the MLR failing to consider it alongside all of the other evidence.
(b) The scars were highly consistent with being burned with cigarettes which was consistent with the background material as to a method of torture used by the authorities in Sr Lanka. The Judge was not justified in concluding the scars could have been the result of the shelling experience in 1998.
(c) The Judge compartmentalised his assessment of the MLR and did not consider it alongside the other evidence before him.
(d) The Judge failed to properly direct himself in relation to the overall assessment of the lesions as required by KV (scarring-medical evidence) [2014] UKUT 230 (IAC)
16. The Judge failed to take account of a material matter: the MLR. The Judge was not entitled to give limited weight to the MLR as this was not in accordance with Home Office Policy.
17. The Judge allowed a procedural unfairness in that:
(a) he failed to consider whether the discrepancies in his account could have been attributable to the depressive episode he was suffering from.
(b) The Judge failed to treat the Appellant as a vulnerable witness.
18. On 29 July 2016 First-tier Tribunal Judge Mc Carthy gave permission to appeal.
19. At the hearing I heard submissions from Mr Wood on behalf of the Appellant that
(i) The Judge failed to take into account the concession made by the Respondent that the Appellant had been mistreated.
(ii) The Judge should have taken into account the background evidence relating to the modes of mistreatment and this material was never directly referred to.
(iii) The Judge had compartmentalised the medical evidence from the documents and not considered it in the round.
(iv) The Doctor considered the possibility of SIBP at paragraph 115 pf the report and said it was unlikely. The Judge gave no reason for rejecting her view and no suggestion of SIBP was put to the Appellant in the hearing.
(v) Paragraph 28 of the decision failed to demonstrate that the Judge understood that the Istanbul Protocol required the Doctor to look at the totality of the injuries and come to an overall conclusion. The Judge strayed from appraisal of the MLR to criticism.
(vi) In relation to ground 2 he argued that the Respondents own policy was to accord special status to reports by the medical foundation. The Respondent accepts that the reports cannot be accorded' little or no weight' and that while they are not determinative they must be given appropriate weight.
(vii) In relation to the claim of procedural unfairness the Judge failed to aply the Joint Presidential Guidance Note No 2 of 2013 in relation to Vulnerable witnesses and decide whether the discrepancies could be satisfactorily explained by his psychological history.
20. On behalf of the Respondent Mr Mc Vitie submitted that:
(a) He refers to the fact that this is a Devaseelan case in that the Appellant had a previous appeal dismissed which was the starting point of any decision
(b) The Judge nevertheless dealt with the new evidence, the medical report, at some length. He relied on JL (medical reports-credibility) China [2013] UKUT 00145 (IAC)
(c) The Doctor rejected the possibility of someone else inflicting the injuries, or self infliction simply because the Appellant said they did not .
(d) It cannot be suggested that a medical report is beyond criticism, they are not necessarily determinative or infallible.
(e) In this case the Appellants appalling immigration history which included making a claim in Northern Ireland in a false name was all relevant.
(f) The Judge considered the claim that the Appellant was vulnerable but concluded that he was not as vulnerable as he claimed.
21. In reply Mr Wood on behalf of the Appellant submitted:
(a) The previous decision of Judge Axtell could not be ignored but he had no medical evidence before him and made no reference to background material.
(b) The Respondent considered that the Appellants case was at least arguable.
(c) The Doctor did consider whether the other injuries could have been casued by a shelling attack and found that much less likely.
The Law
22. Errors of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on facts or evaluation or giving legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
23. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue under argument. Disagreement with an Immigrations Judge's factual conclusions, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence that was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration judge concludes that the story told is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
24. In relation to challenging credibility findings in Mibanga v SSHD [2005] EWCA Civ 367 Buxton LJ said this:
"Where, as in this case, complaint is made of the reasoning of an adjudicator in respect of a question of fact (that is to say credibility), particular care is necessary to ensure that the criticism is as to the fundamental approach of the adjudicator, and does not merely reflect a feeling on the part of the appellate tribunal that it might itself have taken a different view of the matter from that that appealed to the adjudicator."
25. I have taken account of the case of KV (scarring - medical evidence) Sri Lanka [2014] UKUT 00230 (IAC) the headnote of which states:
1. When preparing medico-legal reports doctors should not - and should not feel obliged to - reach conclusions about causation of scarring which go beyond their own clinical expertise.
2. Doctors preparing medico-legal reports for asylum seekers must consider all possible causes of scarring.
3. Where there is a presenting feature of the case that raises self-infliction by proxy (SIBP) as a more than fanciful possibility of the explanation for scarring:-
(i) a medical report adduced on behalf of a claimant will be expected to engage with that issue; it cannot eliminate a priori or routinely the possibility of SIBP; and
(ii) a judicial fact-finder will be expected to address the matter, compatibly with procedural fairness, in deciding whether, on all the evidence, the claimant has discharged the burden of proving that he or she was reasonably likely to have been scarred by torturers against his or her will.
4. A lack of correlation between a claimant's account and what is revealed by a medical examination of the scarring may enable a medico-legal report to shed some clinical light on the issue of whether SIBP is a real possibility.
5. Whilst the medical literature continues to consider that scarring cannot be dated beyond 6 months from when it was inflicted, there is some medical basis for considering in relation to certain types of cases that its age can be determined up to 2 years.
6. Whilst if best practice is followed medico-legal reports will make a critical evaluation of a claimant's account of scarring said to have been caused by torture, such reports cannot be equated with an assessment to be undertaken by decision-makers in a legal context in which the burden of proof rests on the claimant and when one of the purposes of questioning is to test a claimant's evidence so as to decide whether (to the lower standard) it is credible.
26. Both parties referred to the case of Devaseelan *[2002] UKIAT 000702 where at paragraph 39 it is stated:
"(1) The first Adjudicator's determination should always be the starting-point. It is the authoritative assessment of the Appellant's status at the time it was made. In principle issues such as whether the Appellant was properly represented, or whether he gave evidence, are irrelevant to this."
Finding on Material Error
27. Having heard those submissions, I reached the conclusion that the Tribunal made no material errors of law.
28. While placed under a number of headings the thrust of the Appellants grounds in relation to the Judge's decision was that his approach to the medical evidence was fundamentally flawed and I have considered this argument very carefully. This was a fresh claim based on a medical report by Dr Janine Bonnet in which was relied on to suggest, in essence, that the Appellant had injuries consistent with his claim and that his physical injuries in particular a blow to the head could have been the cause of the many identifiable discrepancies and inconsistencies in his account.
29. Ground I argues that the Judge failed to consider the MLR in the context of the background material. I do not accept that the Judge compartmentalised the medical evidence in this way. I am satisfied that the decision must be read as a whole no matter what order the issues are addressed. Indeed the Judge repeatedly makes very clear in his decision that he has considered all of the evidence in the round at paragraphs 17-19, paragraph 36 and he specifically states at paragraph 22 that:
"I confirm that I have carefully considered all the evidence together, in the round, in an overall assessment before reaching any of my findings of fact and notwithstanding the order in which issues are addressed below."
30. The Judge chose to address the MLR first and starts by clearly setting out at paragraph 25 that he took into account as supportive of the Appellants factual claim the report which found he met the diagnostic criteria of PTSD and moderate depression, claimed he had a memory disorder as a result of a rifle but injury to his head in 2001 and had a scar that was highly consistent with that blow and had 3 scars that were highly consistent with being burnt by a cigarette which was part of his claim of how he had been tortured by the Sri Lankan authorities. There can be no suggestion that the assessment that followed both in relation to the medical evidence but also the Appellants immigration history was not underpinned by this analysis of what the Appellant was claiming.
31. I am satisfied that the Judge was not required to find that the report was determinative of the outcome of the decision as of course PTSD, depression, a head wound and cigarette burns even if all were accepted could have been as a result of a different history than that given by the Appellant. 'Special status' does not mean infallible. I am satisfied that the Judge's assessment of the medical evidence both physical and mental that followed at paragraphs 26-36 demonstrates that he approached the evidence with care and set out the reasons why he ultimately gave limited weight to the conclusions of the report.
32. Thus he was entitled to find that the although the Appellant had 67 lesions on his body and only 4 of them were attributable to the treatment he described as either consistent (the head injury) or highly consistent (the cigarette burns) but the Doctor did not explain why she concluded the Appellants account was , overall highly consistent : he does not suggest that she was not entitled to reach that conclusion but notes the lack of explanation for the conclusion which he was entitled to do.
33. It was open to him to assess the Appellants claimed confusion and memory problems against a lengthy immigration history in which the Appellant showed a dogged determination in pursuing his claim and the requirement to give instructions to various differing representatives, provide statements, attend a CMR on his own as set out in the lengthy chronology(paragraph 32). The Doctor was required in accordance with caselaw to consider the material provided in respect of the Appellants history and the Judge was entitled to note that there appears to have been little analysis of the possibility of deliberate fabrication by him in the face of witness statements where he claimed not to have a good memory and yet challenged the accounts recorded and gone on to describe in detail demonstrations he attended in the UK between 2003-2011 and such obviously deceptive behaviour such as the claim in N Ireland in the false name . It would have been open to the Judge to additionally note that while the Doctor in the report at paragraph 133 remarks on 'admissions, omissions and inconsistencies' she rather ingenuously states 'I can also see no gain to his asylum case by him doing so' which does suggest a rather uncritical acceptance of the Appellants claimed memory problems rather than a measured consideration of the possibility of fabrication. I am satisfied it was open to the Judge to find that taken in context of the other evidence which he later sets out that the Doctor was 'rather too willing to overlook and attribute the many inconsistencies in the appellants account to a mental health impairment and/or memory problems.'
34. It was argued in the grounds that the Judge fell into error because he was not entitled in accordance with the Respondents own policy document from giving little or no weight to the reports support for the Appellant's account but I am satisfied that this is not what he did: he made clear at paragraph 36 after a detailed and well-reasoned analysis of the report against the background of all the other evidence:
"When I come to assess the evidence as a whole, taking into account this medical evidence with all other strands of evidence, I find that the weight I can give as supportive of the Appellant's account is limited , but I do take it into account overall'
35. I can see nothing in the Judge's decision to suggest that there has been any procedural unfairness in his treatment of the Appellants evidence and that he has not treated the Appellant as a vulnerable witness. I am satisfied that he carefully considered the Appellants claim that his 'memory problems' could be as a result of the rifle butt injury but was entitled to conclude that his memory issues were not made out on the evidence both medical and other evidence before him
36. Thus he was also entitled to find that the Appellants 'Belfast Claim' was 'entirely inconsistent with the presentation he made for the purpose of the MLF report 'in that the Appellant had lied to the N Ireland authorities about never having previously claiming asylum until faced with a fingerprint match and claimed, falsely, in an elaborate and very detailed account to have returned to Sri Lanka since his initial claim and how he funded it by selling his home, the journey ,the agent used but before the Judge claimed this was a mistake by interpreters.
37. I am satisfied that the Judge properly took into account the medical evidence in the context of the previous decision as he was required to by Devaseelan setting out the correct approach at paragraph 48
38. In assessing whether the Judges approach to the medical evidence was flawed I have also taken into account what was said by Lord Justice Stanley Burnton in SS Sri Lanka [2012] EWCA Civ 155
"Generally speaking, the weight, if any, to be given to expert (or indeed any) evidence is a matter for the trial judge (here Senior Immigration Judge Spencer). A judge's decision not to accept expert evidence does not involve an error of law on his part, provided he approaches that evidence with appropriate care and gives good reasons for his decision. Ultimately, therefore, there are only two issues as to the Senior Immigration Judge's treatment of the medical evidence: did he address that evidence with appropriate care and did he give good reasons for his conclusion? Those two questions are interrelated. It is difficult to conceive of a case in which a judge gives adequate reasons for his conclusions on expert evidence yet he is held to have exercised insufficient care. His reasons demonstrate his care."
39. I was therefore satisfied that the Judge's determination when read as a whole set out findings that were sustainable and sufficiently detailed and based on cogent reasoning both in relation to the medical evidence but the evidence as a whole.
CONCLUSION
40. I therefore found that no errors of law have been established and that the Judge's determination should stand.

DECISION
41. The appeal is dismissed.

Signed Date 23.11.2016
Deputy Upper Tribunal Judge Birrell