Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00078/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 November 2016
On 21st November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

S R
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms D Qureshi of Counsel, instructed by Linga & Co Solicitors
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer

DECISION AND REASONS
Background
1. The appellant in this case is a citizen of Sri Lanka born on 24 June 1984. The appellant entered the United Kingdom on 13 October 2006 following a successful appeal against a refusal for a student visa. His student visa was valid from 5 October 2006 until 31 October 2009. The appellant's visa was subsequently extended until 26 December 2011. The appellant stated that he returned to Sri Lanka in January 2011 and then returned to the United Kingdom on 28 March 2015 using a French passport not in his name. The appellant claimed asylum on 26 August 2015, that claim being refused by the respondent on 20 December 2015. The appellant appealed against that refusal under Section 82 of the Nationality, Immigration and Asylum Act 2002. First-tier Tribunal Judge Manyarara in a decision promulgated on 23 September 2016 dismissed the appellant's appeal on all grounds.
2. The appellant appealed with permission on the following grounds:
(1) Ground 1, that the judge's consideration of credibility was incorrect as the appellant's account is plausible;
(2) Ground 2, it was submitted that the judge's consideration and rejection of the appellant's claimed torture was incorrect, including in relation to how the judge applied KV (scarring - medical evidence) [2014] UKUT 00230 (IAC);
(3) Ground 3, it was submitted that the judge incorrectly required corroboration; and
(4) Ground 4, that the judge failed to adequately apply the country guidance case of GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC).
Ground 1
3. Ms Qureshi's submissions relied primarily on the medical report, from the Medical Foundation completed by Dr Susan Leather of the Medical Foundation following examinations in February, March and April 2016. It was also Ms Qureshi's general submission, although I note that this is not in the grounds of appeal for permission to the Upper Tribunal, that the judge had incorrectly applied the standard of proof in this case. Even if such ground were before me the judge at paragraphs [6] to [10] and again at [29] of her Decision and Reasons clearly set out that the burden of proof was with the appellant that he was to establish a reasonable degree of likelihood that he would be persecuted. The judge also set out that in relation to humanitarian protection it was for the appellant to establish substantial grounds for believing that returning him to Sri Lanka would result in a real risk of him suffering serious harm as defined in paragraph 339C of HC 395. In relation to the European Convention on Human Rights (ECHR) the judge again correctly set out that it was for the appellant to show that there were substantial grounds for believing that the appellant would be exposed to a real risk of torture, inhuman or degrading treatment or punishment contrary to Article 3. The judge set out the Article 8 test. At [29] the judge reminded herself that the standard of proof was a low one. Ms Qureshi was unable to point to any specific part of the judge's decision which might support her claim that the judge applied the wrong standard of proof. I do not find any error disclosed in this argument.
4. In relation to ground 1 in general it was argued that the judge's findings were questionable given that the "applicant's account is plausible". It was submitted that the judge omitted to consider that the reason the appellant delayed claiming asylum was out of fear and it was submitted that the judge failed to acknowledge the possible difficulty for the appellant in articulating his circumstances.
5. I do not accept that this ground, which is essentially a disagreement with the conclusions the judge reached, is made out. The judge, at paragraph [29], reminded herself that she had to look at all of the evidence in the round. That was clearly reflected in the detailed and careful consideration by the judge in her Decision and Reasons.
6. The judge considered all aspects of the case including, in the round, the appellant's failure to make a timely asylum application (at [75] to [76] of the Decision and Reasons). The judge gave clear and detailed reasons for not accepting that the appellant was credible in his account, from paragraphs [32] to [68] of the decision. The appellant's submissions in this regard that the appellant's account is "plausible" amount to nothing more than a disagreement with the judge's clear findings that the appellant was not credible.
7. No material error of law is disclosed in ground 1.
Ground 2
8. This was the main thrust of Ms Qureshi's argument. Ms Qureshi took me in detail through the medico-legal report of Dr Leather and it was her submission that no due weight had been given to Dr Leather's findings. Ms Qureshi also submitted on more than one occasion that the judge had reached her own "clinical" findings on the appellant's claimed injuries. However, she was unable to point to any specific finding by the judge which might support such an allegation. I did not find it to be made out. Equally any suggestion that the judge, in effect, dealt with evidence in isolation and therefore departed from the guidance in Mibanga is similarly without foundation.
9. It was Ms Qureshi's submission that the doctor did not need to look at the issue of Self-inflicted Injuries By Proxy ("SIBP"). Ms Qureshi relied on her grounds that the country guidance case of KV (scarring - medical evidence) v The Secretary of State for the Home Department [2014] UKUT 00230 (IAC) and specifically indicated that the doctor should only be expected to consider SIBP as a possible cause where there was some basis for considering that there was a real possibility, a possibility that was not a merely fanciful or theoretical one (paragraph 286 of KV). The Tribunal in KV stated that presenting factors which might require the doctor to engage with SIBP could be of two kinds, clinical and non-clinical presenting factors. The Tribunal did not seek specifically to exhaustively define these but stated that non-clinical factors would arise when there was a clear mismatch between the claimant's account of when and where and how he was tortured and the established facts. One example would be where the claimant had stated that he was tortured in his country of origin in a particular month in the year but it was incontrovertible that at the relevant time he was in the UK.
10. It was submitted by Ms Qureshi that neither the respondent nor the judge had identified a "presenting feature" that required the doctor to engage with SIBP.
11. I do not accept that this was the case. The respondent in the Reasons for Refusal Letter did not accept that the appellant had returned to Sri Lanka in January 2011 at all noting that there was no evidence to show that he had returned. The respondent did not accept the appellant's credibility in general.
12. The judge at paragraphs [56] to [67] of her Decision and Reasons considered Dr Leather's report and findings in some considerable detail including setting out a number of her findings. The judge also engaged with the Istanbul Protocol. The judge reached a conclusion, at paragraph [64], that whilst Dr Leather had attributed the appellant's scarring to torture the judge found that this is not determinative of whether the appellant's scarring was as a result of torture and detention. The judge considered Dr Leather's findings in light of the case of KV (scarring - medical evidence) [2014] UKUT 230 (IAC). In particular the judge set out the considerations in relation to SIBP including that the presenting feature needed to be more than a fanciful possibility. It was clear that the judge engaged with the proper test. The judge also considered that KV engaged with the issue of whether scarring can be dated after a two year period as considered in KV and the judge took into consideration at [67] that the appellant's scarring would have been almost two years old by the time he was examined on the basis of the appellant's time line.
13. Although Ms Qureshi submitted that Dr Leather did not need to engage with SIBP as there was no presenting feature which raised it as more than a fanciful possibility, I am not satisfied that this is the case including as noted above that the respondent did not accept that the appellant had left the UK at all at the time when the appellant claimed the torture took place. SIBP was more than a fanciful possibility. This is supported in my view by the fact that Dr Leather did to some extent engage with the issue of SIBP. At paragraph 59 of the medico-legal report Dr Leather stated: "It is highly improbable that these injuries were self-inflicted and highly unlikely that such extensive injuries could be self-inflicted by proxy. He is right-handed and would not have been able to reach to inflict any of the injuries." The doctor also at paragraph 94 of the report, the concluding paragraph, which was relied on by Ms Qureshi, stated that she found clear physical and psychological evidence confirming the appellant's consistent account of experiencing extensive torture. The doctor concluded that the scars are clearly demarcated and diagnostic of or highly consistent with ill-treatment and the physical findings also typical reactions to and collectively diagnostic of ill-treatment that any suggestion of a false allegation of torture can be discounted.
14. It is apparent that Dr Leather considered SIBP to be more than a fanciful possibility as she specifically rejects it. However, the judge gave adequate reasons for not being satisfied that Dr Leather had adequately addressed the issue of SIBP. The judge noted that the doctor's only real comment on the position was in relation to the appellant not having inflicted the scars on himself as he was right-handed. The judge at [66], did not consider that Dr Leather adequately dealt with the issue of causation and specifically SIBP. The judge took this into consideration, together with the judge's findings that, relying on KV, the process of determining the cause of his scars would not have necessarily been a straightforward process due to the lapse of time. The judge found that the doctor's conclusion that the appellant did not inflict the scars himself did not take his claim that the scarring was the result of torture and detention any further given that "any alternative view would not only include whether the appellant had inflicted the scars himself but whether the scars may be SIBP."
15. Mr Avery submitted, in relation to paragraph 289 of KV, that if a person had been burnt on the back it would be necessary for that person to have been unconscious throughout the procedure and that was likely to have required anaesthetisation. In those circumstances it is incumbent on an examining doctor to consider whether the torture claim is clinically plausible. Mr Avery relied on the fact that the doctor had detailed at paragraph 58 that the markings on the appellant's back were "typical of those expected following past branding with a hot implement ?" Mr Avery submitted that this was further evidence of the doctor's failure to engage with the possibility of SIBP in this scenario or generally.
16. Although Ms Qureshi submitted that the doctor did not have to deal with the issue of SIBP in relation to all of the other injuries which the doctor set out at some considerable length in her report I do not accept that this is the case. I am satisfied that the judge was correct in reaching the conclusions she did that the presenting features of the case raised SIBP as more than a fanciful possibility. This is notably the case given the respondent's lack of acceptance that the appellant had established he was even outside the UK at the time of the alleged torture (as set out at [55] of the decision and reasons). Dr Leather in her report indicated that she had read both the appellant's statement of evidence for interview form dated 17 December 2015 and the Reasons for Refusal Letter. In light of this, the judge made no error in her conclusion that Dr Leather had failed to engage adequately with the issue of SIBP and gave adequate reasons for not being satisfied that the medical evidence established the appellant's claimed torture at the hands of the Sri Lankan authorities. The judge did not accept the appellant's account to have been of interest and did not accept that he was detained on his claimed return to Sri Lanka in January 2011. The judge did not accept that the appellant's scarring was as a result of torture at the hands of the Sri Lankan authorities. That was a properly reasoned conclusion that was open to her.
17. Ms Qureshi also relied on the fact that Dr Leather, in reaching her conclusion that the appellant had been tortured, had considered in some detail the appellant's psychological claimed difficulties and at paragraph [92] of the medical report the doctor had considered the issue of suicide risk. I am satisfied that the judge gave adequate reasons for the findings she reached on the appellant's mental health including in relation to suicide. At [86] of the Decision and Reasons the judge noted that Dr Leather did not refer to any imminent risk and that although Dr Leather referred to the support the appellant receives from his family as a protective factor the appellant was able to attend his appeal alone. The judge gave cogent reasons for not accepting the appellant's account in this regard. The judge considered Dr Leather's psychological assessment of the appellant in detail at paragraphs [81] through to [86] of the Decision and Reasons and again gave adequate reasons that were open to her for not accepting the appellant's account including that Dr Leather's findings were inconsistent with the appellant's own evidence of the lack of input he was receiving in relation to his mental health problems at the time.
18. I am not satisfied that any material error of law has been identified.
Ground 3
19. Although it was submitted that the judge required corroboration this was misconceived. The judge correctly directed herself at [46] that there is no requirement for an appellant to provide corroboration. However, the judge was entitled to make the point that she did that the appellant relied on the fact that his activities in the UK were "widely publicised". There is no error in the judge taking into consideration that it was reasonable to expect that if those activities were indeed widely publicised that the appellant would have been able to produce evidence to substantiate that claim. Equally the appellant had relied on his claim to have been a "known activist" and had stated that he had taken part in protests and demonstrations which were photographed and filmed and widely publicised and circulated on the internet, in magazines and newspapers etc. Again there was no error in the judge taking into consideration, in the round, that the appellant ought to have been in a position to produce evidence if it was widely available as he claimed.
Ground 4
20. Ms Qureshi did not actively pursue this ground before me. However, I find no error in the judge's approach to GJ and others. The judge has made adverse credibility findings open to her and in light of those findings the judge considered the appellant was not at risk on return for the reasons she gave at [69] to [74] of her decision. This included her finding that the appellant's attendance at a few demonstrations in the UK together with his past claimed involvement in 2005 does not place him in any of the identified risk categories. Those were findings that were clearly open to her.
Notice of Decision
21. The appellant's appeal to the Upper Tribunal is dismissed. The decision of the First-tier Tribunal Judge Manyarara does not disclose any material error of law and shall stand.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
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.

Signed Date

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

No fee is payable and therefore no fee award is applicable.

Signed Date

Deputy Upper Tribunal Judge Hutchinson