Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12819/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21st October 2016
On 31st October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

Rukshan [S]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Lewis, Counsel, instructed by Theva Solicitors
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Sri Lanka whose date of birth is recorded as 19th June 1991. He made application for international protection as a refugee but on 18th March 2015 a decision was made to refuse the application and the Appellant appealed. On 28th April 2016, his appeal was heard by Judge of the First-tier Tribunal Mace sitting at Hatton Cross. The basis of the appeal is set out at paragraph 2 of the grounds and given the very realistic approach taken by Mr Bramble in this case it suffices to set out simply that which is summarised in the grounds.
2. In 2010 the Appellant came to study in the United Kingdom but in August/September 2012 when visiting Sri Lanka he had been detained and tortured by the security forces on suspicion of assisting the LTTE. The basis of the accusation was that a friend of the Appellant's had been detained and was said to have confessed himself to being a member of that organisation. The Appellant was assisted in his escape from detention by way of bribes paid by his father; a local politician acted as an intermediary. That politician was a friend of the family. Subsequently the Appellant's father was detained and required to report regularly to the authorities.
3. In support of his case the Appellant had medical evidence from Dr Martin dealing with scarring and from Dr Dhumad, clinical consultant psychiatrist. Judge Mace went on to dismiss the appeal finding notwithstanding the medical evidence that the Appellant's account lacked credibility.
4. Not content with that Decision by Notice dated 19th July 2016 the Appellant made application for permission to appeal to the Upper Tribunal. Permission was eventually granted by the Upper Tribunal itself on 5th September 2016. Thus the matter comes before me.
Was there an Error of Law?
5. I am very grateful to Mr Bramble for his realistic approach to this case. He immediately accepted that the decision was fundamentally flawed. That was because despite the strong medical evidence which went to the scarring on the Appellant's person, and the consideration by Dr Martin of alternative causes of that scarring, it was clear that the medical evidence was to the effect that the scarring had been caused deliberately as a result of torture and whilst the possibility of the injuries being self-inflicted were not ruled out it was unlikely, indeed, he went on to say "extremely unlikely in view of the position of some of the scars". That was something which Judge Mace noted and recognised at paragraph 14 of the decision.
6. I remind myself that the burden of proof in a case such as this is upon the Appellant but it is the lower standard which is to be applied so that when one sees the words "extremely unlikely" the judge has to exercise considerable caution if he or she is to reject the medical evidence. That is not to say that there will not be circumstances in which it is appropriate to do so. The medical evidence forms part of the totality of the evidence: Mibanga [2005] EWCA Civ 367. The judge recognised that also but it seems to me that he did not properly apply that principle because he clearly jumped to finding that these injuries were self-inflicted (that being the only basis upon which he might have been able to reject the medical evidence) but without that having been put in issue by the Secretary of State. This is an adversarial system and it was for the Secretary of State to raise the matter if she thought it appropriate in the course of cross-examination. Of course not every matter must be cross-examined upon but if it goes to the core of the claim it should at least be addressed.
7. Mr Bramble quite properly reminded me that it was open to the judge to deal with the matter if he thought it appropriate. That of course is correct but the right time to do that was during the hearing and not as an afterthought. If it occurred to the judge that there was a real possibility on the basis of the evidence of the injury being self-inflicted then the right, proper and fair thing to do would have been to bring the matter back before him in order that the question could have been put. That was not done. Given that it is not in dispute that there is an error of law the issue for me now is whether to remit the matter or remake it. I come to the view that there is no reason to remit this matter to the First-tier Tribunal. There are sufficient findings in the decision and there is sufficient evidence before me to deal with the matter.
The remaking
8. The Appellant has, as I have said, strong supportive medical evidence that he was tortured. It puts him, given the interest that there would be, I accept, on his return within the risk categories in GS. The Appellant's evidence was supportive by other evidence coming from Sri Lanka and I would observe that it may be unfair to hold against an Appellant the production of evidence towards the date of the hearing when reasonably those advising the Appellant may have taken steps which he, the Appellant, may not have taken himself.
9. The bottom line in this case is that when there is no sufficient basis for finding that the injuries were self-inflicted it follows that the finding has to be that they were not. Once they were not self-inflicted it follows from the remaining evidence that the Appellant falls into a risk category and that he is entitled to succeed.
10. For the avoidance of doubt all of the core of his claim, I find is made out. I need say no more than that because of the realistic approach taken by Mr Bramble to the manner in which I should deal with the matter.
Notice of Decision
The Decision of the First-tier Tribunal was materially flawed and contained an error of law such that it is to be set aside. I remake the decision of the First-tier Tribunal by allowing the appeal on asylum grounds and, it follows, also on human rights grounds.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Zucker 31st October 2016