Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13404/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 August 2016
Signed and sent for
Promulgation on 3rd August, 2016.
On 9th August, 2016

Before

Upper Tribunal Judge Chalkley

Between

C K
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Toal, Counsel, instructed by Wilson Solicitors LLP
For the Respondent: Mr I Jarvis, Senior Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Cameroon who was born on [ ] 1972. He appealed against the decision of the respondent, taken on 27th March, 2013, to give directions for his removal from the United Kingdom following refusal of his claim for asylum.

2. His appeal was heard by First-tier Tribunal Judge Graham at Birmingham on 1st April, 2016. In the respect of the appellant's asylum claim he relied on and submitted to the judge a medical report from Dr Charmaine Goldwin and a psychological report from Dr Rachel Thomas, a chartered consultant clinical psychologist. The judge considered the oral evidence she had heard together with the two medical reports to which I have referred and a further medical report in the form of a letter from a Dr Mishra of the Birmingham and Solihull Mental Health NHS Foundation Trust. She found the appellant not to be credible. The judge dismissed the appeal on asylum grounds, dismissed the appeal on humanitarian grounds and dismissed the appeal on human rights grounds.

3. Dissatisfied with the judge's decision he appealed to the First-tier Tribunal and on 3rd June, 2016 First-tier Tribunal Judge Fisher granted permission to appeal to the Upper Tribunal. In granting permission, Judge Fisher said this:-
"2. The grounds seeking permission are lengthy, extending to some five pages. Space prevents me from repeating them here. However, in essence they assert that the judge failed to apply to correct standard of proof, especially when considering the medical evidence. They include a claim that she rejected the credibility of the appellant's account on the basis of factors which were irrelevant to that exercise. The grounds also assert that the judge misdirected herself as to the effect of the country guidance, having regard to the expert evidence before her, and that she erred in finding that the appellant would not be at risk on return because he had signed an agreement with the authorities because that amounted to concealing his true opinions.
3. In paragraph 10 of her decision, the judge correctly identified the burden and standard of proof. Arguably, however, she did not apply it when observing that the medical conclusions fell short of being diagnostic, and when she rejected evidence in paragraph 46 of her decision on the basis that it was 'unlikely'. It is also arguable that, by rejecting the appellant's account because he could not produce the agreement which he signed, when there was no evidence that he had been given a copy of it, she applied too high a standard of proof."
4. At the hearing before me, Mr Toal asserted that the judge had failed properly to consider the medical evidence before her in the round with all the other evidence before making findings of fact. In particular she failed to properly consider the medical evidence of Dr Goldwin. At paragraph 44 of the determination the judge notes that the injuries were not considered by the doctor to be diagnostic. That was an error. Criticism is made wrongly by the judge of the fact that the appellant was not told until some years after his father's death, when his cousin told him, that his father had been poisoned. The judge did not find it credible that the appellant would not have considered the possibility of foul play in respect of his father's death sooner. However, until the appellant had been told by his cousin that his father had been poisoned, there was no reason for him to have believed that there had been foul play. The judge also noted that there were no suspicions raised by the SDF which the judge thought unlikely, if there were a number of deaths involving high ranking SDF officials whilst holding high office. The difficulty with that finding is that the circumstances of the individual's deaths were not known and it was not until his cousin told him of his father's being poisoned that he had reason to suspect any foul play.

5. Mr Toal asked me to note that at paragraph 45, the judge accepted that the medical report is capable of being supportive of the appellant's account that he was tortured, but in reality the medical report is compelling evidence of that torture and the judge was obliged to make a proper assessment of the evidential weight of the medical report, which she failed to do. The judge failed properly to consider the report of Dr Goldwin and failed also to consider the report of Dr Thomas, which substantially corroborates the report of Dr Goldwin in respect of the appellant's PTSD. The judge says in paragraph 46 that she finds these conclusions to be surprising given that the appellant remained in Cameroon between 2008 and 2011. However, it was improper for the judge to discount the expert evidence and unlawful for her to go behind the reports.

6. Mr Jarvis suggested that the judge was required to have careful regard to the reports, but it was not necessary for the judge to enter into a dialogue between the medical report and the judge's reasoned findings. The judge says in terms that the scarring in part of the medical report of Dr Goldwin is capable of supporting the appellant's claim, but that the judge has to consider it along with the remaining evidence.

7. The judge noted that scarring was "highly consistent" but that, Mr Jarvis sought to remind me, is in the mid-range category of consistency findings open to the doctor to make under the Istanbul Protocol. In short, the judge was entitled to find that she did and did not err.

8. Both representatives agreed that were I to find that there was an error of law, the most appropriate course of action would be for the matter to be remitted to the First-tier Tribunal for hearing afresh before a judge other than Judge Graham.

9. Having carefully read the reports of Dr Goldwin and of Dr Thomas I believe that First-tier Tribunal Judge Graham has erred in failing properly to take account of the evidence before her.

10. I do not believe that the judge's finding that it was not credible that the appellant would not have considered the possibility of foul play in respect of his father's death sooner than he did, was open to the judge to make, given that it was not until 2002 that the appellant says his cousin told him that his father had been poisoned. Similarly, I do not believe that the finding in the first sentence of paragraph 46 was one which was open to the judge to make. She criticises the appellant for not recalling the doctor's name when asked at interview, but takes no account of the fact that the appellant had been suffering from PTSD and as Dr Thomas said at paragraphs 69 and 70:-
"69. [the appellant] currently finding it extremely difficult to concentrate on his studies in college and said that fortunately his tutor is very understanding and patient with him. He reported finding it very difficult to focus on his work and that he was always forgetting things he has learned.
70. [the appellant] also described general forgetting, such as if he has an appointment. He said that, in his circumstances, that he has to ask a friend to remind him of the appointment as he otherwise always forgets."
11. Also in paragraph 46, the judge, unfairly in my view, makes criticism of the appellant for being unable to submit a copy of the agreement which he says he signed in Cameroon. However, the appellant says in his statement at page 76 of the appellant's bundle (paragraph 111), that he was not given a copy of the agreement, suggesting again that perhaps the judge has failed to consider the evidence placed before her. The judge says at paragraph 46 that she does not find any part of the appellant's account relating to the agreement he signed to be credible, but when one considers the reasons given by her for making such a finding, they are, in my view, wholly inadequate.

12. At paragraph 55, having already said that she did not find that part of the appellant's account relating to him having signed an agreement in 2008 to be credible, the judge went on at paragraph 55 to say:-
"I am therefore not satisfied that the appellant would face persecution or serious harm if returned to Cameroon. There is no satisfactory evidence that the authorities ever had an adverse interest in the appellant, but even if I am wrong on this point I do not accept that the authorities in Cameroon authorities [sic] would have resumed an adverse interest in the appellant since the agreement he says he made in 2008. It follows, I am satisfied the appellant can safely return to his home area in Cameron where he has a large number of siblings and extended family members who can provide a viable support system. I therefore dismiss this asylum appeal."
13. The judge made that finding notwithstanding her earlier finding that she did not find the appellant's evidence relating to the agreement to be credible.

14. In the circumstances, I am satisfied that the First-tier Tribunal Judge has erred in law by failing to properly consider the appellant's evidence. Both representatives were agreed that in the event that I found an error of law and set aside the determination it would be necessary for me to remit the appeal to the First-tier Tribunal for hearing afresh before a judge other than First-tier Tribunal Judge Graham.

15. Accordingly, I set aside the determination of Judge Graham and remit the appeal for hearing before a First-tier Judge other than First-tier Tribunal Judge Graham. A French Cameroon speaking interpreter will be required at the hearing for which I would respectfully suggest that three hours should be allowed.

Richard Chalkley
Upper Tribunal Judge Chalkley

Anonymity

The First-tier Tribunal made an anonymity direction. Neither representative asked me to vary or amend that direction which remains. No report of these proceedings shall directly or indirectly identify the appellant or any member of the appellant's family life. This direction applies both to the appellant and to the respondent. Failure to comply with this order could lead to contempt of court proceedings.

Fee Award

No fee is paid or payable and therefore there can be no fee award.

Richard Chalkley
Upper Tribunal Judge Chalkley