Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00479/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 September 2016
On 14 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

A N M N
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Mannan of Counsel
For the Respondent: Mr E Tufan, a Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
2. This is an appeal by the appellant against a decision of the First-tier Tribunal, Judge Housego, who in a determination promulgated on 28 July 2016 dismissed the appellant's appeal.
3. The appellant is a citizen of Sri Lanka who was born on 21 September 1993. The appellant arrived in the United Kingdom on a student visa on 22 August 2011. The visa was valid to 6 January 2013. The appellant claims to have left the United Kingdom on 2 January 2013 returning to Sri Lanka. On 27 July 2015 the appellant made an appointment with the Home Office Asylum Unit. On 6 August 2015 the appellant made a claim for asylum. On 21 December 2015 the respondent refused the appellant's application.
4. The respondent did not accept that the appellant had a well-founded fear of persecution on return to Sri Lanka and did not accept that the appellant had returned to Sri Lanka in 2013 as claimed. On this basis the respondent did not accept that the appellant had been detained and tortured in Sri Lanka in 2014. It was not accepted by the respondent that the Sri Lankan authorities have any interest in the appellant. The respondent also gave consideration as to whether or not the removal of the appellant would breach Articles 2 or 3 of the European Convention on Human Rights or whether the appellant was entitled to humanitarian protection. The respondent did not consider that the appellant qualified for humanitarian protection or that there would be any risk of a breach of Articles 2 or 3 if he were to be returned to Sri Lanka. The respondent considered whether or not the appellant ought to be granted leave to remain on the basis of Article 8 of the ECHR. The respondent considered that the appellant did not satisfy the requirements of the Immigration Rules, in particular paragraph 276ADE, because the appellant would not face any significant obstacles reintegrating into life in Sri Lanka.
5. The respondent considered whether there were any exceptional circumstances that would warrant a grant of leave to remain outside of the Immigration Rules under Article 8 and considered that there were no exceptional circumstances in the appellant's case.
The Appeal to the First-tier Tribunal
6. The appellant appealed against the respondent's decision to the First-tier Tribunal. The First-tier Tribunal found that the appellant did not return to Sri Lanka on 2 January 2013 as claimed. The Tribunal found therefore that the scars on his back were not caused by torture in Sri Lanka. With regard to sur place activity the First-tier Tribunal found that the appellant took up activities for the TGTE only when it became clear that it would assist his claim for asylum. The Tribunal found that the appellant's claim to be an activist and therefore likely to be at risk on return to Sri Lanka could not be given significant weight. The Tribunal found that the Article 3 claim based on medical need could not succeed. The Tribunal found that there was no medical evidence of PTSD and that the appeal should not succeed on the basis of the third appellant in GJ given the clear remit of GS (India).
7. The Tribunal found that there was no evidence to support a claim under Article 8 based on medical reasons and that the appellant has not shown that there would be a paucity of treatment in any event in Sri Lanka.
The Appeal to the Upper Tribunal
8. The appellant applied for permission to appeal against the First-tier Tribunal's decision to the Upper Tribunal. On 23 August 2016 First-tier Tribunal Judge Murray granted the appellant permission to appeal.
The Appeal before the Upper Tribunal
Summary of Submissions
9. The grounds of appeal in essence concern the fairness of the hearing before the First-tier Tribunal and also the reliability of the findings made by the judge as a consequence of a failure to adjourn. There is a general assertion that the judge was not legally entitled to reach the findings that he did in paragraph at paragraph 99-109. This is a bare assertion with no detail. No further details were given orally at the hearing before me. It is asserted that the judge erred by failing to accede to an application by Counsel for an adjournment on the basis that the appellant did not understand the court interpreter fully. It is also asserted that the judge failed to permit Counsel for the appellant to posit questions pertaining to the appellant's mental health.
10. It is submitted that the judge failed to make enquiries of the interpreter as to whether there were problems with interpretation or with communication with the appellant. The appellant raised his concerns after the lunch recess. It is asserted that the judge has instead sought the views of the respondent and has adopted the view that the appellant did not have interpretation difficulties but has irrationally failed to consult the interpreter.
11. It is submitted that the appellant ought to have been able to adduce oral evidence with regard to his mental health and what medication he was taking. It is asserted that Counsel for the appellant did not intend to invite the First-tier Tribunal to make a clinical diagnosis of the appellant's mental health but wanted to lead evidence as to the appellant's mental demeanour and as to what if any medication and/or treatment that the appellant had endured. It is submitted that the First-tier Tribunal materially erred in law by failing to permit the appellant to discharge the burden of proof in this manner. It is submitted that the judge's view was based upon an irrational or perverse view that permitting such evidence to be given would place the judge in a position whereby he would be invited to make a finding of PTSD.
12. It is submitted that the judge's finding in relation to the appellant's evidence and the recording of the evidence must be called into question because it was abundantly clear that the court interpreter had misinterpreted questions and answers. It is submitted that it is of concern that the interpreter was not consulted when questions were raised regarding his competency in interpreting in this particular case. It is submitted that had the judge asked the interpreter if there were any difficulties this matter could have been resolved.
13. It is asserted that the judge's findings are arguably unsustainable as a result of this error of law. As the judge's approach to the evidence was based upon a recording of the evidence, the accuracy of which was disputed by the appellant and Counsel, the evidence considered by the judge was based upon an incorrect depiction of the evidence due to the interpreter's error in interpreting questions and answers correctly.
14. In oral submissions Mr Mannan submitted that the judge had documents with regard to medical scarring and a letter from Surrey and Borders Partnership which clearly indicated that the appellant had raised issues with regard to suffering from posttraumatic stress disorder. Mr Mannan also submitted that this letter specifically mentions that the appellant had recorded experiencing suicidal thoughts.
15. Mr Mannan submitted that, as the case essentially concerned credibility of the appellant, as recorded in paragraph 37 of the First-tier Tribunal's decision, and given that PTSD had been raised both in terms of the document in support of the appeal and at the hearing, the judge ought to have adjourned the matter for a medical report to be obtained. He submitted that credibility was essential in relation to whether or not the appellant had returned to Sri Lanka in 2013. He submitted that if the appellant was suffering from PTSD then that might explain why there had been inconsistencies in the evidence. He submitted that the judge had relied on inconsistencies to form the view that the appellant's account was not credible. He submitted that there was a report that supported the appellant's account of the events in relation to the scarring on the appellant's back.
16. He submitted that the length of time that had elapsed was not very significant in terms of the appellant obtaining medical evidence and given what was at stake in this appeal the judge should have erred on the side of caution and granted an adjournment.
17. With regard to the failure of the judge to adjourn as a result of problems with interpretation he submitted that given credibility was at issue here it was vital that the interpreter was able to understand the appellant's responses correctly.
18. Mr Tufan submitted that the Home Office Presenting Officer present at the appeal before the First-tier Tribunal Judge has set out in the notes that the issue with regard to interpretation was raised at the submission stage. He submitted that there is no merit in this ground of appeal. He submitted that the appellant has not set out any particular error that is apparent from the judge's decision and that this therefore was mere speculation. He submitted that the Secretary of State had put the appellant on notice in paragraph 34 of the Reasons for Refusal Letter that the fact that there was no evidence that the appellant had left the country was in issue and that the Secretary of State did not believe that the appellant had left the United Kingdom.
19. He referred to paragraphs 98, 99 and 100 of the First-tier Tribunal's decision and submitted that there was no appeal against the findings of the judge. He submitted that there was no reliable evidence that the appellant had left the United Kingdom - that evidence was readily available. He submitted that the appellant's cousin did not give evidence despite the appellant being on notice and that this was a matter that was in issue. He submitted that given that there is no appeal against the finding of the judge that the appellant had never left the United Kingdom the appeal cannot succeed because the torture could not have taken place.
20. He also submitted that the appellant had had sufficient time to produce evidence and obtain reports and that matters cannot be held up indefinitely.
Discussion
The first adjournment request
21. When considering a request for an adjournment the Tribunal must always yield to a party's right to a fair hearing. As was set out in the case of Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC) at paragraph 8:
"In determining applications for adjournments, judges will also be guided by focusing on the overarching criterion established in the overriding objective which is that of fairness."
22. The First-tier Tribunal dealt with the requirements in detail. I set out in full the relevant paragraphs. At paragraph 34 headed "The hearing - preliminary point" the Tribunal considered the first adjournment request as follows:
"34. Counsel for the appellant asked for an adjournment. He had been instructed at only 11:03pm last night. He received a hard copy of the bundle only this morning [and it was handed in at the Tribunal and to the Home Office Presenting Officer shortly before the start of the hearing]. He felt professionally embarrassed, because he had not been able to prepare the case properly. There was (understandly) no skeleton argument and he had not been able to prepare a bundle of authorities. In addition, he was concerned at the mental health of the appellant. In the country guidance case of GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) the third appellant had succeeded on mental health grounds, on the basis that there was no adequate treatment available in Sri Lanka. That may well be the case with this appellant. The scarring report prepared yesterday by Dr Lingam indicated that there may well be PTSD, but it was not confirmed (document A1:7 and 17). There was in the bundle details of his medication. Counsel was concerned about whether the witness should be treated as a vulnerable witness. There were issues about the Diaspora activities. It was often the case that people traumatised still continued to take part in such activities, so this was not contradictory. It was trite law that while such adjournments were annoying and inefficient, and that the Home Office and the Tribunal should not have to deal with these matters, the overriding necessity was for a fair hearing. If there was blame, then it was not on the appellant by reason of medical problems. It would not be fair to carry on and would cause problems both the appellant and for Counsel.
35. The Home Office Presenting Officer asked me for the history of the matter. I stated that the file showed that on 04 March 2016 notice was sent to Vasuki Solicitors of a pre-hearing review listed for 22 June 2016 which also gave the hearing date of Wednesday 06 July 2016. An application had been made on 04 July 2016 for an adjournment on the basis that the client attended the office on 02 July 2016 stating that he thought the hearing was 22 July 2016, by mistake. That letter asserted that the appellant suffered mental health issues and had scarring due to torture. Reports needed to be obtained, and they were unable to carry on without psychiatric assessment. They requested an adjournment of four weeks. That letter also stated that the respondent's bundle had not been served. That application was refused on the basis that there had already been a fair opportunity to prepare this appeal.
36. The Home Office Presenting Officer confirmed that the Home Office bundle had not been served, and handed it to Counsel for the appellant, who did not object to its late delivery.
37. I observed that the appeal appeared to turn on credibility, for the Home Office view was that the appellant had never left the UK, and the entire story was therefore fabricated. This was indeed the Home Office viewpoint. I observed that the issues then appeared to be whether the existence of PTSD would itself be a matter relevant to credibility, and secondly whether someone with PTSD would be able to give a good account of himself in evidence. The third point raised by Counsel was that there would need to be evidence about whether or not there was adequate treatment available in Sri Lanka, so as to mount an Article 3 basis of appeal within GS (India), EO (Ghana), GM (India), PL (Jamaica), BA (Ghana) & KK (DRC) v SSHD [2015] EWCA Civ 40, as envisaged by the third appellant in GJ. Counsel stated that the leading case on adjournments strongly indicated that fairness was the guide. It was not possible to have a fair hearing, while that might be someone's fault, if the appellant had PTSD it would not be his.
38. I perused the papers during a short adjournment. The letter requesting an adjournment included a letter dated 13 November 2015 from Surrey and Borders NHS Partnership stating that the appellant had been assessed and wished to address symptoms of PTSD, and that he had been offered cognitive behavioural therapy. It also stated that there was a generalised anxiety disorder assessment of 15. That appointment resulted from an initial assessment, evidenced by letter of 04 November 2015. A Tamil interpreter was present at the assessment. While the letters had been sent to Home Office there was no express mention of PTSD forming part of the appeal. The statement of evidence provided under Section 120 did not mention PTSD.
39. I have considered the case of Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC). In answer to a question from me, Counsel agreed that the case itself had no unusual features for a Sri Lankan asylum case. Counsel told me that he was experienced in such cases. The absence of a bundle of authorities is not a serious disadvantage, nor a skeleton argument. If the appellant's story is accepted as correct, to the lower standard of proof, then he will succeed. The question is whether I can give him a fair hearing in order establish that. The appellant has been represented throughout by solicitors experienced in this work. He has been exploring treatment for PTSD since November, now eight months ago. There is now a scarring report so he is not disadvantaged by the absence of that, as I now have it. I am not prepared to make my own enquiries as to the medication being taken by the appellant, and there is no medical evidence as to what that is for.
40. It is very late in the day for the appellant now to say that he seeks to base his appeal upon PTSD. It is not pleaded in the papers. It is not appropriate to adjourn this application by reason of inefficiencies of the solicitor, if that be the case. There is nothing from the solicitor to indicate that it was their fault. It may equally have been the case that the appellant had simply failed to mention it to them before now. In the circumstances it would not be appropriate for me to adjourn the case. Counsel for the appellant did not seek an adjournment on the basis of the late arrival of the Home Office bundle, and in any even the contents of that bundle consist of the appeal documentation and the interview notes, all of which will have been with the solicitors for the appellant (and case reports of cases with which Counsel was familiar)."
23. The judge set out in commendable detail all the issues pertinent to this case that are relevant in respect of ensuring the appellant had a fair hearing when considering a request for adjournment. He has taken into account the factors identified by counsel and the case of Nwaigwe. The judge considered that although counsel was instructed very late he was experienced in this type of case and that the case had no unusual features. The main issue in relation to the first adjournment request was that counsel was concerned about the appellant's mental health and wished to obtain a medical report. Having identified that the appeal appeared to turn on credibility the judge clearly identified the relevance and importance of the claim to be suffering from PTSD to the fairness of the hearing in this case, 'I observed that the issues then appeared to be whether the existence of PTSD would itself be a matter relevant to credibility, and secondly whether someone with PTSD would be able to give a good account of himself in evidence.'
24. The judge took time to consider the issues and the background to the adjournment request. He noted letters from Surrey and Borders NHS in November 2015 stating the appellant wished to address symptoms of PTSD and that there was a generalised anxiety disorder assessment, that the letters had been sent to Home Office but there was no express mention of PTSD forming part of the appeal and the SEF did not mention PTSD. He set out, 'He has been exploring treatment for PTSD since November, now eight months ago. I am not prepared to make my own enquiries as to the medication being taken by the appellant, and there is no medical evidence as to what that is for. It is very late in the day for the appellant now to say that he seeks to base his appeal upon PTSD. It is not pleaded in the papers...In the circumstances it would not be appropriate for me to adjourn the case.'
25. The judge did take into consideration the possibility that PTSD may have affected the credibility of the appellant. The judge commenced consideration of the appellant's claim by considering whether or not the appellant had in fact returned to Sri Lanka in 2013, an issue put in dispute by the respondent in the Reasons for Refusal Letter. I consider that it is helpful to set out in full the relevant paragraphs:
"98. The primary claim - the appellant has provided a photocopy of a page of a passport with a stamp of 02 January 2013, which he said that his mother had sent to him through photographing it on a mobile phone and sending that via a relative to his cousin's mobile phone. It could, as the Home Office Presenting Officer observed, be of any passport. The passport is in the control of his mother, he says, but no attempt has been made to send over the original or have a notarised or certified copy sent. I was not even shown the text message, email or WhatsApp message by which it was said to be sent to the cousin's phone. Tanveer Ahmed v SSHD (Pakistan) [2002] UKAIT 00439 and TK (Burundi) v SSHD [2009] EWCA Civ 40 considered together mean I give this evidence little weight. In coming to this conclusion I have fully considered Counsel's careful submissions on the point.
99. The uncle is said to have secured the release of the appellant but not of his father, the brother of the uncle. Counsel posited that there may not have been enough money, but that is mere speculation, as not even the appellant said that. The absence of any enquiry by the appellant of the uncle is remarkable as is the absence of any indication of the amount of the bribe paid, and this is, said the appellant, a wealthy family. No reason is advanced as to why the uncle might not be forthcoming to the appellant about the bribe, or about attempts to secure the release of the father, the brother of the appellant's uncle. There was no suggestion that the father and uncle of the appellant had in any way fallen out.
100. The appellant stated that his cousin has been supporting the appellant in the UK, and it was the cousin who bought the appellant a Sri Lankan Airlines ticket for his trip to Sri Lanka arriving on 02 January 2013. He lives with the cousin, yet there is no evidence from the cousin and no attempt made to obtain proof of booking of the flight, or even a bank statement showing a payment to Sri Lankan Airlines. This would have been readily obtainable (and at the very least unsuccessful efforts to obtain that information would have been of assistance to the appellant). There is no suggestion that the cousin's abilities are impaired in any way, and the appellant did not say that the cousin was in any way less supportive of the appellant (and they continue to live together). The absence of the ticketing information is squarely within TK (Burundi). The points leaps loud and clear from the refusal letter, and the failure to address it save at the last minute, and in a way that is not convincing, while not following up a simple route to get corroborative evidence from the airline means that the evidence thus far is unconvincing (and I bear firmly in mind the lower standard of proof - that the appellant must prove only that it is reasonably likely).
101. The absence of any Tamil Diaspora activity at all prior to the asserted return to Sri Lanka is not convincing, particularly the reason given for that - that he was hiding (though from what and why was not explained) - even taking into account that he became more involved in Tamil activities after his asserted experiences in Sri Lanka in 2013. The evidence in re-examination that the appellant's assertion in cross-examination that he had given a statement to be used for the Tamil cause turned out, in re-examination, to be no more than an unspecified conversation with someone in the TGTE when he joined it. The evidence of the appellant that he had not joined the TGTE before 02 January 2013 because he was in hiding was a contradiction of his assertion that he was not then at risk.
102. The scarring evidence of Professor Lingam has also to be considered before a conclusion can be reached. The scars on the back of the appellant are covered in the report which uses the word 'diagnostic' and so there is certainly in the opinion of the expert that the scars on the back of the appellant were caused by hot metal rods. He opines as to their age, which is consistent with the account of the appellant, but also (scarring age being inexact) with self-infliction by proxy (the location of the scars making self-infliction impossible). It is the case of the appellant that his family are rich, so there is no reason for him to take such a dreadful action. However, there is no evidence that they are rich, other than the assertion of the appellant. Self-infliction by proxy is a known event, covered in the Protocols.
103. The appellant did not mention torture with hot metal rods in his earlier witness statement of August 2015. He gave a list of other things done to him, none of which left scars. The absence is explained by his Counsel as a feature of PTSD, and the fact that repeated recollection will elicit more and more detail. First, the appellant has not established (to the lower standard) that he has PTSD, and secondly, (and even though the scars will not be visible to the appellant) it is hardly a detail to be tortured by being burned by hot metal rods so that scars such as those of the appellant are the result. It would seem to be at the top end of anyone's list. This affects his credibility adversely, though I have also considered as a pointer the other way the evidence of the appellant in the hearing that the chilli powder continued to affect his right eye, that evidence being given without hesitation. He may indeed have a problem with his right eye, but the question then would be of causation. There is no medical evidence of any problem with eyesight, and so I am unable to make any finding of fact in that regard.
104. Bearing in mind the possibly fatal, and certainly horrific, consequences of return for the appellant if his account is reasonably likely to be true, then he would take all steps he could to ensure that the appalling event of return did not occur. He suffers, he says, from PTSD, but even if true, that does not render him incapable of action: he is able to participate in his activities for the TGTE, and he has a cousin concerned for him, and solicitors acting for him ever since the appeal was lodged eight months ago.
105. On weighing all the evidence carefully I find that the appellant did not return to Sri Lanka on 02 January 2013, and that the scars on his back were not caused by torture in Sri Lanka, and that he has not established, to the lower standard, that he was tortured in Sri Lanka in 2013 and escaped back to the UK."
26. The judge took into account counsel's submissions. He considered whether PTSD could be an explanation for inconsistencies, failure to obtain evidence or difficulty in recounting events but rejected that as a sufficient explanation.
27. The third point raised by Counsel in the adjournment request in relation to PTSD was that there would need to be evidence about whether or not there was adequate treatment available in Sri Lanka. The Tribunal found that the Article 3 claim based on medical need could not succeed. The Tribunal found that there was no medical evidence of PTSD and that, in any event, the appeal should not succeed on the basis of the third appellant in GJ given the clear remit of GS (India). There was no appeal against this as a specific finding.
28. The judge considered all the correct factors when deciding whether or not to grant the first adjournment. He took into consideration counsel's submissions that PTSD may have affected the evidence given but rejected that as an explanation giving full reasons for so doing. The failure to grant the first adjournment did not give rise to unfairness. There was no error of law.
The second adjournment request
29. In relation to the second adjournment request the First-tier Tribunal Judge set out:
'67. Counsel for the appellant renewed his application for an adjournment. He based this on a submission that the appellant was showing signs of lack of capacity. I asked Counsel to be precise - he said that the appellant was not able fully to follow and comprehend questions. It was the case that the appellant had said in evidence that he had eight sessions of CBT and so had serious psychiatric issues. The appellant's mistake over the hearing date was all of a piece with this. The gaps in his evidence were testament to the condition that the appellant was in.
68. Secondly there had been difficulties in interpreting in the hearing, which the appellant had told Counsel about during the lunch interval. For example, there was an error in the translation of the questions and answers about why he would be concerned and about whom he was worried. Sometimes the answers the appellant had given were twice the length of the interpreter's version. For both these reasons there should be a complete rehearing.
69. The Home Office Presenting Officer objected to this. She said that the appellant was clear and coherent throughout. A couple of times questions had to be rephrased, but there had been nothing to indicate that the appellant had not understood questions properly nor that his answers were not pertinent to the questions. The recommendation for CBT had been in 2015, and was not a surprise. It was clear that the appellant did speak some English, and overall there was nothing to cause concern at the way the appellant had given his evidence. I said that I would hear the other submissions before the ending of the hearing, and make my decision on the second adjournment application and then either grant it, or reject it and make a substantive decision. Both representatives agreed that this was the best way to proceed.
Decision on second application for adjournment
70. I decline to adjourn this hearing, and to relist it before another judge. The fact that an appellant is having CBT is not synonymous with, or even strongly indicative of, inability to give evidence. There is no medical evidence on which to found the contention that the appellant was unable to give evidence. The appellant was, save for one occasion, clear and coherent in his manner, and after a short pause recovered himself. This is not unusual in hearings. The appellant did not give very short answers, but was able to expand. His facial expression gave no indication that he was not a man able to deal with answering questions. While his answers on occasion did not answer the questions I consider this explicable by evasiveness. I found that the appellant was perfectly able to give evidence to me, and did so. The submission was partly based on what I should do for a witness who suffers from PTSD, but this was to put the cart before the horse, as it was for the appellant to establish that there was a reasonable likelihood that he has that condition. He had not done so, as he had produced no medical evidence that he had that condition. At one point in the cross-examination I stopped Counsel asking questions about flashbacks and nightmares: this was the road to seeking a judge to make a medical diagnosis, and I had declined to do so. The submission that the appellant was incapable of giving evidence as he was a vulnerable witness with PTSD had first to produce some evidence that the appellant indeed had that condition, and there was none. (Professor Lingam expressed concern, but expressly did not give evidence on the point. The nearest is the letter from 13 November 2015 stating that the appellant had a Generalised Anxiety Disorder Assessment of 15: but no explanation of that score. That letter also mentions suicidal ideation, but the only recommendations are to keep in touch with the GP, and to give telephone numbers of help organisations).
71. As to the interpreter, the answers the appellant gave were not always directly in answer to the question asked: this is frequently the case in hearings such as these, as anyone who participates in them knows. However, the hallmark of poor interpretation - that the answer is not merely evasive but does not deal with the subject matter of the initial question - was not present. At the commencement of the hearing I had made a particular point of ensuring that the appellant knew that he should raise with me any point about which he was unsure, and he had not done so. The appellant does speak some English as he evidenced during the hearing. An interpretation is just that - it is to convey meaning. It is not literal. The objection that the interpreter was too concise and so did not accurately and faithfully convey the meaning of the appellant is not the way I assessed the questions and answers given. For the benefit of interpreter and appellant and the representatives (and myself) I had made sure that questions asked through the interpreter were put in simple words. If complex sentence structure was used, I had rephrased the questions throughout this hearing. I am confident that the questions were fairly put and understood, and that the answers heard conveyed the proper meaning of what the appellant said.'
30. I note that the judge ensured at the commencement of the hearing that the interpreter and the appellant understood each other. The judge records:
'The initial discussion that I requested they have about their journey to the Tribunal involved little from the appellant before the interpreter said they understood one another. I then ensured that the appellant spoke at some length to the interpreter before concluding that they understood one another. I explained what was to happen and said to the appellant that it was important to me that he understood what went on and that if he was unsure about anything at any time I would be grateful if he would interrupt so that I could explain to him. I asked the appellant if all was clear and he said that it was.'
31. In essence this ground of appeal is that the judge's finding is unsustainable as the evidence considered by the judge was based upon an incorrect depiction of the evidence due to the interpreter's error in interpreting questions and answers correctly. The judge considered the request for an adjournment fully. He considered carefully the evidence that had been given noting that there was one occasion where the appellant had not been clear and coherent in his manner. The judge was confident that the questions were fairly put and understood, and that the answers conveyed the proper meaning of what the appellant said
32. At the hearing before me I pressed Mr Mannon several times to indicate any part of the First-tier Tribunal decision where the evidence as set out by the judge from his record of the evidence was inaccurate or where the judge had failed to record any relevant evidence. Mr Mannan indicated that unless the judge's record of the evidence was available it would not be possible to demonstrate where the evidence was inaccurately recorded. If there was any inaccurate recording of the evidence that has not made its way through to the record set out by the judge it is difficult to see how there can be a material error of law. This is not a case where it is difficult to ascertain the evidence that the judge took into account or his analysis of that evidence. In paragraphs 43 - 66 (most of which are lengthy paragraphs) the judge records in detail the evidence given by the appellant in his witness statements and orally at the hearing. At paragraphs 98 - 103 the judge analyses the evidence in detail giving reasons for the conclusions he reached. Mr Mannan could not take me to a single item of this lengthy record and analysis of evidence where it was asserted that the record or analysis of evidence was inaccurate or based on an inaccurate interpretation of the appellant's answers.
33. There was no unfairness in failing to adjourn in the circumstances of this case, therefore there was no error of law.
Refusal to allow counsel to adduce oral evidence of the appellant's mental health
34. It is asserted that the judge erred by failing to permit the appellant to discharge the burden of proof (presumably referring to proof that he was suffering from PTSD) by permitting evidence to be led as to the appellant's mental health and what medication he was taking. It is asserted that there was no intention that the judge would be invited to make a clinical diagnosis of the appellant's mental health.
35. The judge recorded:
'At one point in the cross-examination1 I stopped Counsel asking questions about flashbacks and nightmares: this was the road to seeking a judge to make a medical diagnosis, and I had declined to do so?
First, there is no medical evidence of PTSD, and I am in no position to judge whether the appellant suffers from it or not?Nor will I take judicial cognisance of the prescriptions. I am not expected to be a pharmacist: it would be wholly wrong for a judge to come to conclusions in an asylum case based, even if only in part, on prescriptions without any other evidence about what those prescriptions were for?'
36. If, as the appellant asserts, the purpose of asking the questions was to enable the appellant to discharge the burden of proof as to his mental health condition then the judge would indeed have been required to make a finding that would in essence amount to a medical diagnosis. There was no error of law in the judge refusing to allow this evidence to be led.
37. The final ground of appeal is simply that the judge was not legally entitled to reach the findings that he did in paragraphs 99-109 and that this consequently affected his assessment of risk on return. This is an unparticularised assertion. It was not amplified at the hearing before me. The findings of the judge on the evidence were ones that were open to him. There was no error of law.
38. The decision of the First-tier Tribunal did not contain any material error of law.
Notice of Decision

The appeal is dismissed. The decision of the Secretary of State stands

Signed P M Ramshaw Date 13 October 2016

Deputy Upper Tribunal Judge Ramshaw