Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01863/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29 November 2016
On 30 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

TG
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Pascoe of Counsel
For the Respondent: Mr Staunton a Home Office Presenting Officer

DECISION AND REASONS
Background
1. The respondent refused the appellant's application for asylum or ancillary protection on 10 February 2016. His appeal against this was dismissed by First-tier Tribunal Judge Taylor ("the Judge") following a hearing on 30 August 2016.
2. 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 appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. I do so given the continued protection issues involved.
The grant of permission
3. Upper Tribunal Judge Canavan granted permission to appeal (3 November 2016) stating it is arguable that;
1. "?the judge may have failed to give sufficient consideration to the doctor's conclusion that the scarring was unlikely to have been self-inflicted and was 'diagnostic' of burning with heated metal rods, in light of the background evidence before him, which showed that this is a common form of torture in Sri Lanka [pg 54 appellant's bundle]. In rejecting the account due to the discrepancy regarding the cause of the scarring he gave no consideration to the possibility that a person who has been subjected to torture may have difficulty in recalling events."
2. "I grant permission on all grounds."
3. I note here that the additional grounds remaining after the rejection of the ground that the case should have to be adjourned to enable the experts to explain inconsistencies between the accounts were;
(a) attaching inadequate weight to the reason for delaying his asylum claim,
(b) providing inadequate reasons in finding a letter from his father to be inconsistent with the overall claim, and
(c) a failure to note that it is perceived opinion which is the trigger for possible persecution and not his actual LTTE involvement.
Respondent's position
4. The respondent asserted in her reply (18 November 2016) and orally that the Judge directed himself appropriately. He was entitled to make findings on inconsistencies and overall credibility bearing in mind the delay in claiming asylum. He correctly took into account the failure by the appellant to say he had been burned.
Discussion
5. The Judge stated [16];
"Of particular significance is the medical evidence submitted by the appellant which he states supports his account. In his interview at question 18 the appellant stated that he was beaten on the back with sticks and then with a fibre rope. They then sexually assaulted him, tied his hand above his head and beat him again. At question 19 the appellant stated that his attackers placed a large sack over his head which had been soaked in petrol and continued to beat him. The appellant makes no allegation of burning or that the sack was set alight. The medical report repeats a brief history of the account and states that the scars are diagnostic of burning rather than beating, as claimed by the appellant. All of the scars were from burn injuries rather than beating. The report opines that the scars could not be from beatings and definitely not from beating with a rope. The author of the report attempted to explain away the discrepancy, by speculating that the beating they have been with a hot metal rod, but that was not the evidence of the appellant. The report concluded that the author had to explain to the appellant that the scars were from burn rather than beating, which was not consistent with his claim, he was very gentle with the appellant but he became upset. The report continues to discuss what it called 'mind scars' resulting from traumatic experiences but make no specific findings with regard to the appellant, the author of the report was not a psychiatrist. I find that the medical report does not support the appellant's account and in a significant degree contradicts the appellant's account, which severely diminished his credibility. On a subsidiary that the appellant's oral evidence on the length of time of his treatment in a clinic in Sri Lanka is contradicted by the submitted clinic record. In his written statement and in evidence, the appellant claimed that he had treatment at the clinic for ten days, whereas the clinic record states that the treatment was for five days."
6. I agree with Ms Pascoe that the discrepancy between the appellant's evidence of beating and the Dr's of burning with a heated metal rod can be properly explained by the appellant's further evidence that his head was covered with a sack at the time and the injuries were inflicted to his back. It is entirely possible that he had no idea the item inflicting the scars could have been a heated metal rod and that the pain he felt was from that searing heat rather than a beat with a stick. In those circumstances the adverse credibility finding was unsustainable. I am of course aware of the discrepancy as to the length of hospitalisation (5 days or 10). This was a secondary consideration for the Judge and of far less significance than the flawed primary finding. It is a material error of law and I set the decision aside.
7. If themselves none of the other grounds have any merit as they amount to nothing more than a disagreement with the Judge's decision, and do not amount to a material error of law.
8. The issue in [6] above is of such significance, that I agree with both representatives that the matter will need to remitted for a de novo hearing with no findings being preserved.

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.
The appeal shall be remitted to the First-tier Tribunal for a de novo hearing before a Judge other than Judge Taylor.

Signed:
Deputy Upper Tribunal Judge Saffer
29 November 2016