Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03838/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 20 January 2017
On 25 January 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

SUTHAKAR RAJANAYAGAM
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr N Ruddy, of Jain, Neil & Ruddy, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals against a determination by First-tier Tribunal Judge Malcolm, promulgated on 7 November 2016, dismissing his appeal against refusal of recognition as a refugee from Sri Lanka.
2. I condense the key points from the rather lengthy grounds as follows.
i. The judge said at paragraph 63 that the appellant claimed to have been released from detention on payment of a bribe, which was consistent with an expert report. However, the appellant had not claimed that his release involved bribery.
ii. The judge at paragraph 97 referred to a report by Dr Mitchell, and said that it did not assess the appellant's credibility but appeared simply to accept the information he provided, the only comment by the doctor being, "I believe Suthakar's account to be true". However, the report also said, "Injuries consistent with having been beaten as described" and, "History given in a clear and credible manner and injuries consistent with claim of having been tortured". The judge erred in considering that the report did not include an assessment of credibility.
iii. The error in assessing the report of Dr Mitchell led the judge into further error when assessing a report by Dr Dignon and when considering credibility in relation to the adverse findings of a judge in a previous appeal.
iv. The judge at paragraph 106 referred to the Sri Lankan authorities having gone to his family home in August 2014 and October 2014, saying that they had evidence of his attendance at demonstrations in Glasgow, when his evidence had been of a visit also in May 2015.
v. The judge at paragraph 111 described the evidence of the appellant regarding visits to his mother's house as convenient, but failed to demonstrate that she considered the claimed visit in May 2015, and placed too much emphasis on absence of supporting evidence.
vi. The judge accepted that the Sri Lankan government engaged in sophisticated intelligence-regarding activities in the Tamil diasporas, but erred in her assessment of the appellant's claim to have come to the attention of the government.
vii. The judge found that the appellant's involvement in diasporas activities in the UK was limited to attendance at demonstrations, but failed to consider adequately evidence of the perception of the Sri Lankan authorities of the appellant, including what was reportedly said to his mother about his working with LTTE elements in the UK and being a security risk. The judge failed to assess the evidence before her.
3. The gist of the points I have noted from the submissions by Mr Ruddy is as follows. Judge Malcolm was entitled to apply Devaseelan and to take the previous decision of Judge Edwards, who dismissed an appeal in 2011, as a starting point. However, when dealing with the evidence which had since emerged, she fell into a series of errors, cumulatively enough to require her decision to be set aside. She was entitled to find that a letter from the Bishop of Batticaloa added little, because it only repeated what he had been told. She went wrong in thinking that the appellant said he had been released on a bribe, when he had said that he been released simply on conditions. The decision at paragraph 97 went wrong in thinking that Dr Mitchell made no assessment of credibility and about what was lacking in that report. This led the judge further astray, giving less weight to the findings of Dr Dignon than she otherwise might have done. Properly examined, the information from both doctors added up to more than the judge thought, once seen in the correct light, so that was a material error. That was the most important point. If not sufficient on its own, it became so once taken with the other grounds. The judge went wrong in thinking that the evidence showed only 2 visits to the appellant's home in Sri Lanka, when he clearly said there were 3. That might not be a major slip by itself, but the visit left out of account was the most recent. The perception of the authorities of the appellant was important, and this emerged from his evidence of what was said to his mother: the authorities saw him as a security threat. The judge in total underplayed the fresh evidence, and fell into errors, but for which there might have been another conclusion.
4. The submissions by Mr Matthews were along the following lines. The judge made a slip on whether the appellant said that his release involved a bribe, but she drew no adverse conclusion from that. The report by Dr Mitchell had some evidential value, but it had to be placed in context. It is a report obtained by the respondent for purposes of considering whether the appellant should continue to be kept in immigration detention. It is not an expert report instructed by solicitors, providing the doctor with full information, including prior assessments, and seeking an opinion for purposes of a hearing. Paragraph 97 might by itself sound a little unclear, but read along with paragraph 98 what the judge plainly meant was that Dr Mitchell made no reasoned assessment of credibility, by way of contrast with the FtT judge in the previous appeal, whose function it was to make such an assessment. The judge gave the assessment of Dr Mitchell such weight as it deserved. Whether the authorities were alleged to have made 2 or 3 visits to the appellant's family home made no difference. It was for the judge to resolve whether such visits took place at all, and she gave good reasons for not accepting that the Sri Lankan government is aware of the appellant going to demonstrations in the UK. Grounds vi and vii were based on the credibility of the appellant being established, and on their own did not lead anywhere. On the sustainable finding that the appellant's attendance at demonstrations in the UK was not known to the Sri Lankan authorities, that was the end of his argument. The judge might have made one or two minor slips in noting the facts, which emerged on a very close scrutiny of her decision, but nothing amounting to error of law in reaching her essential conclusions.
5. I reserved my decision.
6. The relevant paragraphs about Dr Mitchell's decision are these.
[97] The report from Dr Mitchell? is in respect of the examination of the appellant following his detention at Dungavel on 9 June 2015. Dr Mitchell has narrated the information provided by the appellant and has confirmed the appellant's scars and has further stated "these injuries are consistent with having been beaten as described". The report however does not make any assessment of the appellant's credibility but appears to simply accept the information provided by the appellant. The only comment on credibility is the statement by Dr Mitchell "I believe Suthakar's account to be true".
[98] I have to contrast this with the findings of the first-tier tribunal judge who did not accept the credibility of the appellant.
7. At paragraphs 99 to 102 the judgement goes on to consider the report by Dr Dignon, and the extent to which it disclosed that the appellant's scarring was consistent with his account. It has not been said that the judge fell into any error in that respect. She did not find the report "persuasive that the injury has been sustained in the manner described by the appellant" (paragraph 103).
8. The two medical reports, one prepared for the respondent's purposes relating to immigration detention, and the other as an expert report instructed by the appellant's representatives, are both broadly to the same effect: the appellant is scarred in a manner consistent with but not necessarily probative of his account of ill-treatment while detained in Sri Lanka.
9. The evidence of scarring was accepted by the judge as supporting the appellant's account, as far as it was capable of doing so.
10. In appeals, the assessment of credibility is the function of a judge, not of a doctor or any other witness, although their evidence must be properly taken into account.
11. The wording of paragraph 97 does not quite reflect the full wording of Dr Mitchell's brief report, which says also, "History given in a clear and credible manner".
12. (Dr Dignon correctly did not opine directly on credibility, confining himself to the observations that the appellant "appeared to be a consistent historian", and describing his demeanour.)
13. It may have been a slip to describe the report by Dr Mitchell as containing "no assessment of credibility", but the consistency between scarring and account having been established, the judge's task was to go on to her own judgment of credibility. She was right to observe that a prior judicial decision was a starting point. As to credibility, a doctor's opinion is not such a starting point, so paragraph 98 is accurate. The judge was careful to identify the evidence before her which was not before the previous judge, and to evaluate it.
14. The identification of the slip takes a close reading of the decision and of the evidence. This was no more than a minor misdescription of the terms of report. It played no part in the decisive analysis.
15. There was another slight slip over a bribe being paid for the appellant's release, but nothing at all turned on that.
16. It is unimportant that the judge said that the appellant's mother reported 2 visits by the authorities to her home, when 3 had been alleged.
17. A few minor blemishes have been found, but nothing going to the essential reasons for which the appellant's account was found to be less than credible. Read fairly and as a whole, the decision remains a coherent explanation to the appellant of why his case failed.
18. The determination of the First-tier Tribunal shall stand.
19. No anonymity direction has been requested or made.

23 January 2017
Upper Tribunal Judge Macleman