Tribunal decisions

The decision

IAC-AH-dh-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/35374/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7th December 2016
On 10 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

SSAS
(ANONYMITY DIRECTION CONTINUED)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms K Tobin instructed by S Satha & Co Solicitors
For the Respondent: Ms J Isherwood, Home Office Presenting Officer

DECISION AND REASONS

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
The First-tier Tribunal made an order pursuant to rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. I continue that 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.

1. The Appellant, a citizen of Sri Lanka, appealed to the First-tier Tribunal against a decision of the Respondent dated 18th August 2014 to refuse to grant him asylum. First-tier Tribunal Judge Herlihy dismissed the appeal. The Appellant now appeals with permission granted by Upper Tribunal Judge Blum on 10th November 2016.
2. The background to this appeal is that the Appellant claims that he is a Sri Lankan Tamil and that he had an association with an uncle in the LTTE helping him to put up posters and attending demonstrations. He claims that the Sri Lankan Army came looking for him in October 2005 and that he was conscripted into the LTTE in March 2007 by the Sri Lankan Police but did not participate in any fighting and left in 2007 after training as he was released due to his size and age. He claims that he was in hiding from 2007-2009 and that he was taken by the Army to Ramanthan camp where he was held until 2011. He claims that he was arrested by the army in 2012 and detained for about three or four weeks and released upon payment of a bribe by his father. He claims that he was again arrested in November 2013 and was taken to Colombo and beaten and was released from detention in January 2014 upon payment of a bribe. He says that he stayed with his aunt in Colombo for one month and left Sri Lanka in February 2014 using his own passport.
3. The case put for the Appellant in the First-tier Tribunal was that, as a result of a serious psychiatric disorder including a diagnosis of post-traumatic stress disorder, he was not fit to give oral evidence. The Secretary of State was not represented in the First-tier Tribunal. The First-tier Tribunal Judge heard evidence from Dr Raj Persaud a Consultant Psychiatrist who examined the Appellant and prepared a report dated 24th February 2015. The judge rejected the medical evidence including the evidence of Dr Persaud, finding that she was not satisfied that the Appellant was not able to instruct his solicitors or to have made a statement dealing with the inconsistencies in his account as noted by the Respondent [40]. The judge found that the Appellant's account was not credible and dismissed the appeal.
Error of Law
4. The Appellant's first Ground of Appeal to the Upper Tribunal contends that the judge acted procedurally unfairly in failing to raise points of concern that she had with Counsel so that these could be addressed. It is contended that the judge drew an adverse inference from the failure of the Appellant to have submitted any evidence in support of his claim which he could have obtained from his family in Sri Lanka without putting this to the Appellant's representative. It was further contended that the judge erred in drawing an adverse inference from the fact that there was no report or evidence of any scarring or injuries as a result of torture said to have been suffered by the Appellant without having put that to Counsel as, had it been raised, it could have been explained that the scarring had faded to such an extent that the report would not have assisted the Tribunal.
5. The second Ground contends that the First-tier Tribunal Judge's assessment of Dr Persaud's report and the other medical evidence was fundamentally flawed leading to conclusions not supported by the evidence. It is contended that the judge erred in stating that Dr Persaud had relied entirely on the Appellant's account from the documents provided whereas in fact in the report Dr Persaud said that the Appellant was difficult to assess because he was withdrawn and almost monosyllabic but that he was able to relay the symptoms through the interpreter. It is contended that the judge erred in relying on a letter from Ms Matheson of 20th September 2015 which states that the Appellant was able to relate his story coherently yet in another version of that letter it is contended that the Appellant was distressed and crying most of the time. It is further contended that the judge erred in failing to put to Dr Persaud any of the concerns that she had about his evidence.
6. It is contended in the third Ground that the First-tier Tribunal Judge held herself out as an expert in considering and reaching conclusions in relation to the risk of suicide. Although the experts took the view that there was a high risk of suicide it is contended that the judge erred in concluding that the Appellant's circumstances in the UK are likely to have contributed to this and the judge should have put these issues to Dr Persaud before disregarding the medical evidence.
7. At the hearing before me Ms Tobin accepted that, although the grounds refer to two versions of the letter from Ms Matheson, it was not clear that the second version of that letter was before the First-tier Tribunal.
8. However Ms Tobin submitted that the First-tier Tribunal fell into error in making a factual mistake as to what evidence had been before Dr Persaud. She submitted that the First-tier Tribunal erred in concluding that there was no basis for Dr Persaud's assertion that the Appellant had made two suicide attempts when the judge failed to consider the possibility that this must have been disclosed to Dr Persaud during the assessment. She submitted that the judge erred in failing to take account of the fact that Dr Persaud said that the Appellant did give an account of the symptoms (paragraph 3 of page 3 of the report). She submitted that the judge's conclusion that Dr Persaud did not state that the Appellant told him of his suicide attempts [36] contradicts paragraph 24 where Dr Persaud said in oral evidence that the Appellant had mentioned to him about cutting his wrists. She submitted that the judge should have put any doubts about this to Dr Persaud. Ms Tobin referred to paragraph 40 and submitted that the assessment of Dr Persaud's evidence is central to this case because it is clear that it underscores the totality of the credibility assessment made by the judge in this case. Because of the limited weight the judge attached to Dr Persaud's report the judge did not accept that the Appellant was not able to instruct his solicitors or to have made a statement dealing with the inconsistencies pointed out by the Respondent. Ms Tobin submitted that the judge held herself out as an expert in relation to the Appellant's claimed suicidal ideation instead of relying on the medical reports. She submitted that the judge should have raised the issue of the lack of medical evidence as to scarring with the Appellant's Counsel.
9. Ms Isherwood submitted that there is no material error in this case. She submitted that the decision is very well reasoned and goes through the detail of the medical evidence. She submitted that it had not been contended in the grounds of appeal that doubts about Dr Persaud's evidence should have been put to him. She submitted that, in the absence of the Secretary of State, the judge is there to seek clarification and not to pursue elements of the Appellant's case. She referred to paragraphs 20 to 24 which sets out Dr Persaud's evidence at the hearing and submitted that it was significant that there was no statement from Counsel who had appeared in the First-tier Tribunal clarifying whether the judge did ask any questions or whether there were any issues in relation to Dr Persaud's evidence. She submitted that the judge was entitled to take adverse inferences from the fact that there was no evidence from the Appellant's family in Sri Lanka. She pointed out that Dr Persaud said in his report that the Appellant had not related his history but had related his symptoms. She submitted that it is not clear from the way the oral evidence is recorded in paragraph 24 when the Appellant is said to have told Dr Persaud about cutting his wrists, it may have been in the most recent appointment which was just before the hearing. She submitted that the judge reasonably concluded at paragraph 38 that Dr Persaud had not examined other reasons why the Appellant could be suffering from PTSD or major depression. She submitted that, although the judge attached limited weight to Dr Persaud's report, she did not ignore that report and it was open to the judge to deal with the report in this way. She submitted that the judge deals with Dr Persaud's oral evidence at paragraphs 55 to 57. She submitted that the judge considered Dr Persaud's up-to-date evidence about the Appellant's active suicidal ideation set out at paragraph 57. Ms Isherwood submitted that the judge's assertion at paragraph 33 in relation to the absence of medical evidence of scarring or injuries was a comment rather than an adverse inference and she pointed out that no weight was given to this factor elsewhere. She submitted that the focus of the evidence and of the judge's findings was on the Appellant's mental health and therefore any apparent reliance on the absence of evidence in relation to physical symptoms was not material.
10. In response Ms Tobin submitted that it was clear from paragraphs 55 to 57 that the judge's concerns were not put to Dr Persaud. She submitted that there was significant evidence of a lot of medical interventions and referrals which were central to the assessment of this appeal and she submitted that the way the judge addressed it is that this evidence is flawed and material.
Error of Law
11. At paragraphs 36 and 37 the judge says that she cannot determine how the suicide attempts were known to Dr Persaud as they are not mentioned in the GP's letter or notes prior to Dr Persaud's assessment of the Appellant. The judge mentions this matter a number of times at paragraphs 36, 37 and 39. I note in the psychiatric report Dr Persaud states at page 3 that the Appellant;
"?was difficult to assess as he appeared so psychiatrically ill as to me almost monosyllabic during the interview. He was withdrawn, sitting looking down abjectly at his feet and exhibiting what is referred to as 'psychomotor retardation' which is often a symptom of extreme depression and involves hardly moving or speaking. I had to refer to the documents provided to me by his solicitors for his history in Sri Lanka."
Dr Persaud went on to say in the next paragraph;
"He was able to relay the symptoms to me through the interpreter but answered questions only after a long delay where he appears to be perplexed and wondering what to say and he also answers questions briefly. I am not convinced that he fully understands what is going on around him. It is my opinion that he is unable to assert his wishes or explain his circumstances properly due to his severe mental illness."
12. The judge considered Dr Persaud's report at paragraphs 35-39. I accept, as the judge stated at paragraph 37 of the decision, that the chief difficulty with Dr Persaud's report is that it does not clearly set out what the Appellant told him.
13. However I take into account the record of Dr Persaud's oral evidence. Dr Persaud is recorded as having said that he did not think that the Appellant had attempted suicidne since he last saw him [21]. At paragraph 23 it is recorded that Dr Persaud said that the Appellant had said that he would take his own life if he was returned to Sri Lanka and that he "was occupied with ideas about taking his own life". Also at paragraph 24 where Dr Persaud is recorded as having said; "that the Appellant had mentioned to him about cutting his wrists." Ms Isherwood submitted that this could have been told to Dr Persaud in his consultation with the Appellant prior to the hearing. However it is recorded at paragraphs 21 and 56 that Dr Persaud "was asked if he was aware of when the Appellant's last suicide attempt was and he said he did not think the Appellant had attempted suicide since he last saw him..." This indicates that Dr Persaud was not referring to the more recent consultation with the Appellant at paragraph 24.
14. At paragraph 36 the judge said "Dr Persaud does not state that the Appellant told him of his suicide attempts as he indicates that the Appellant was monosyllabic". At paragraph 37 the judge said that the two suicide attempts referred to by Dr Persaud at page 4 of his report "are not recorded in the GP's notes at all". However, Dr Persaud did say in the report that the Appellant answered questions briefly and after a long delay. Further, Dr Persaud said in oral evidence that the Appellant had told him about cutting his wrists [24]. In the circumstances I accept that it is possible that, when the judge expressed concerns about the source of Dr Persaud's information about the suicide attempts at paragraphs 36, 37 and 39, she may have failed to take into account that Dr Persaud said in his report that the Appellant answered questions briefly and after a long delay and Dr Persaud's oral evidence in particular that recorded at paragraph 24. In my view this is significant because, whilst the judge also raises other issues in relation to Dr Persaud's report, it is clear from paragraphs 36, 37 and 39 (over half of the consideration of the report) that the judge attaches significant weight to this issue.
15. This is central to the determination of the appeal in light of the fact that the judge went on to say that, because of the limited weight attached to Dr Persaud's report, she did not accept that the Appellant was not able to instruct his solicitors or to have made a statement dealing with the apparent inconsistencies in his account even if he was unable to give oral evidence [40]. As a result of this conclusion the judge went on to make adverse credibility findings in relation to matters which go to the very heart of his appeal [41-44].
16. Therefore the judge's error in failing to take account of Dr Persaud's oral evidence led to her decision to attach limited weight to Dr Persaud's report. This decision led significant adverse credibility findings. In these circumstances I find that the judge's error in her failure to consider Dr Persaud's oral evidence is a material error.
17. In these circumstances I conclude that I must set aside the decision of the First-tier Tribunal. Given that the error goes to the central issue of the assessment of credibility I cannot preserve the findings of the First-tier Tribunal.
18. The parties were in agreement with my view that, in these circumstances, the nature and extent of the judicial fact finding which is necessary in order for the decision to be remade is such that (having regard to the overriding objective in Rule 2 of the Upper Tribunal Procedure Rules 2008) it is appropriate to remit the case to the First-tier Tribunal.
Notice of Decision

The decision of the First-tier Tribunal contained a material error of law.

I set aside the decision of the First-tier Tribunal and remit the appeal to the First-tier Tribunal to be remade.

Signed Date: 9th January 2016

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD

There is no fee order as no fee has been paid.

Signed Date: 9th January 2016

Deputy Upper Tribunal Judge Grimes