Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01253/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5th October 2016
On 20th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD

Between

MR SG
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mrs A Mughal, Legal Representative
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of Turkey whose appeal to require international protection was dismissed by First-tier Tribunal Judge Aziz in a decision promulgated on 18th August 2016. The judge noted (paragraph 67) that even if there had been past incidents of ill-treatment the Appellant was not at real risk of persecution upon return to Turkey. He then went on to dismiss the appeal on all grounds.
2. The grounds of application are succinct. It is said the judge made an error in law and fact by giving insufficient weight to the medical report of Dr Hajioff. Contrary to the submissions made by the Home Office Presenting Officer to the judge Dr Hajioff had concluded that the injuries were applied in a deliberate manner and he had gone on to consider that it was very unlikely that it was self-inflicted or self-inflicted by proxy. The judge had stated in paragraph 62 that while he noted the findings of Dr Hajioff that the various injuries and scars were either highly consistent or consistent with the account provided by the Appellant he was not persuaded that the injuries were obtained in the manner described. It was said that the judge failed to attach the appropriate weight to the conclusions in Dr Hajioff's report relating to the Appellant's scars and did not address his post traumatic stress disorder.
3. The grounds were found to be arguable and permission to appeal was granted. A Rule 24 notice was lodged by the Respondent stating that the judge "properly took into account the medical report and made adequate findings of fact." The judge found at paragraph 66 that "the Appellant does not have a profile that would put him at risk on return to Turkey."
4. Thus the matter came before me on the above date. Given that the grounds of application were particularly clear and narrow in their approach I invited Mr Jarvis for the Home Office to address me first. He submitted that the decision was sound and reflected what was said in IK (Returnees - Records - IFA) Turkey CG [2004] UKIAT 00312. He also referred me to the approach taken to the writing of medical reports as set out in JL (Medical Reports - Credibility) China [2013] UKUT 00145 (IAC). In particular he referred me to paragraph 30 that set out the guidance given in the Istanbul Protocol. In this case it was notable that Dr Hajioff had only found that the findings were consistent or highly consistent. Had he really been looking at other matters of how the scars came about, and had properly considered those issues then his findings would have been likely to have been at the higher end of the Protocol scale. In all the circumstances it was said that there was no error in law and the decision should stand.
5. For the Appellant Mrs Mughal relied on the grounds. The judge had misread the terms of the medical report which was a material error in law. The matter would have to be heard again at First-tier Tribunal level.
6. I reserved my decision.
Reasons
7. I agree with what is said in the grounds of application that the judge did not make proper findings on the medical report and did not give adequate reasons (in paragraph 62) why he was not persuaded that the injuries were obtained in the manner described. This was an important and central issue before the judge and full reasoning was required. The terms of the medical report were very much in the Appellant's favour. Dr Hajioff pointed out that he had seen many self-inflicted cuts on arms but had never seen as much damage on a forearm and believed that it was very unlikely that it was self-inflicted or self-inflicted by proxy. He judged the scars on the left arm as highly consistent with the Appellant's description of how they were caused and the scars on the back of the hands were also highly consistent with deliberately inflicted cigarette burns. The scar on the right knee was consistent with an injury caused by a blow and the scar and thickening of his right ring finger were consistent with its having received a heavy blow. For reasons given he went on (paragraph 49) to conclude that the Appellant was suffering from chronic PTSD and has evidence of injury consistent with his account. The judge does not deal with Dr Hajioff's opinion and the reasons for it but says he was "not persuaded" that the injuries were obtained in the manner described (again paragraph 62). Against that background I conclude that the judge failed to attach the appropriate weight to the conclusions in Dr Hajioff's report. He was wrong to say that there was a significant failing in the report in that the expert did not address the issues of whether the injuries could have been caused another way - Dr Hajioff did. While noting that Dr Hajioff notes that the Appellant is suffering from chronic PTSD the judge makes no findings in that regard.
8. As stated the issue of whether or not the Appellant was seriously ill treated was central to the outcome of the appeal and the judge has not given adequate reasons for rejecting the medical evidence that supported his claim which clearly amounts to an error in law. It therefore seems to me that the judge's decision is not safe and cannot stand. In my view further fact-finding is required and the matter will have to be heard again by the First-tier Tribunal.
9. The decision of the First-tier Tribunal is therefore set aside in its entirety. No findings of the Tribunal are to stand. Under Section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 the nature and extent of the judicial fact-finding necessary for the decision to be re-made is such that it is appropriate to remit the case to the First-tier Tribunal. I shall maintain the anonymity direction.
Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision.
I remit the appeal to the First-tier Tribunal.
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 their 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 J G Macdonald 20th October 2016