Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03946/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 February 2017
On 23 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ESHUN

Between

D S M G
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss A Radford, Counsel
For the Respondent: Mr P Armstrong, HOPO

DECISION ON ERROR OF LAW
1. The appellant has been granted permission to appeal against the decision of a First-tier Tribunal panel consisting of Designated Judge of the First-tier Tribunal Peart and First-tier Tribunal Judge Twydell, dismissing her appeal against the respondent’s decision dated 5 April 2016 refusing her protection and human rights claims.
2. The appellant is a citizen of Trinidad and Tobago born on 26 October 1984.
3. The Tribunal said it was clear to them at the outset that the appellant was a vulnerable adult. She had a diagnosis of mental health disorders and a history of attempted suicides. They obtained confirmation from the respondent that the issue of historical familial sexual abuse and domestic violence was accepted and that cross-examination was not necessary on these issues.
4. Prior to the hearing there had been a written request dated 2 August 2016, for an adjournment in order to instruct Dr Abigail Seltzer, a Consultant Psychiatrist. The report required public funding and an urgent application was to be sought and a decision received on 8 August 2016. Further, it was claimed that Dr Seltzer was unable to attend the hearing on 1 September 2016. The appellant had been seriously ill and her case could not be prepared in time for the hearing. That request was refused on 4 August 2016 with a direction the Case Management Review remained listed for 18 August 2016 when directions for this hearing were given.
5. At the hearing before the Tribunal the appellant’s Counsel below, Mr Gilbert, emphasised his concern regarding the age of Dr Cohen’s report, which was dated 15 April 2014. Mr Gilbert sought leave to instruct Dr Seltzer who could provide a clear picture as to the current level of the appellant’s suicidality and whether the appellant was fit to give evidence. The Tribunal said a secondary issue had emerged which was that in the respondent’s refusal letter (paragraph 99), there was a query whether Dr Cohen had the appropriate psychiatric qualifications to make a diagnosis that the appellant has post-traumatic disorder. The panel reassured the appellant on the issue of credibility and expertise of Dr Cohen, namely, she was accepted as an expert who could provide the relevant expertise in this case. The panel noted that it was established that public funding for the instruction of Dr Seltzer had only been made on 11 August 2016 and was not granted. The respondent opposed the adjournment on a general basis. The Tribunal received discharge summaries dated 30 December 2014, 5 February 2015, 26 September 2015, 14 November 2015, 28 December 2015, 5 January 2016, 5 February 2016 and 17 March 2016 relating to suicide attempts by the appellant. The panel decided that the matter should proceed.
6. The appellant’s claim for asylum was based on her real fear that if she returned to Trinidad and Tobago she would be at risk, in light of the historical sexual abuse perpetrated by her drug addicted father and the domestic violence perpetrated by her ex-boyfriend (Joel) whose father is married to the appellant’s mother. In relation to the appellant’s relationship with Joel, she corroborated the physical abuse she received with medical evidence. The historical sexual abuse and domestic violence perpetrated by these men is accepted by the respondent and they stand as credible and consistent claims made by the appellant, she is a victim of such abuse and violence.
7. In reaching their findings, the Tribunal placed weight on the fact that the appellant had not claimed asylum as soon as she could, leaving it until 19 October 2015 some fourteen years after entering the UK and after she had exhausted all other avenues of remaining in the UK.
8. As to the appellant’s claim that she will commit suicide if forced to return to Trinidad and Tobago, the Tribunal noted that the appellant returned to Trinidad on two occasions since entering the UK in 2001. In her oral evidence she stated that when she was in Trinidad in 2002–2004, she went to the police five times regarding the violence perpetrated by her ex-boyfriend Joel. She was told on each occasion it was a domestic incident and to go home and sort it out. They also noted that she had returned to Trinidad and Tobago in 2005 to attend a wedding. The Tribunal found that it is unlikely she would have done so if she feared persecution by her father and/or her ex-boyfriend.
9. The Tribunal considered whether the appellant would have sufficient state protection if she returned to her country of origin. The Tribunal noted that her father and ex-boyfriend whom she fears are non-state actors. The Tribunal considered the case of Horvath [2000] UKHL 37 which states it is the duty of the home state to provide protection against the persecution of its own nationals. The Tribunal noted that in the appellant’s interview she stated that there are no women’s shelters in Trinidad and she checked with the Trinidad Embassy. However, they found that there is legislative protection for victims of sexual and domestic violence and there are non-government organisations and women’s shelters in Trinidad and Tobago that provide support to women who are survivors of abuse.
10. In any event, the Tribunal found that the appellant could relocate within Trinidad and Tobago and that it would not be unduly harsh for her to do so. They found that when the appellant returned to Trinidad she was not subjected to further incidents of sexual or physical violence nor was she threatened either when in Trinidad or subsequently in the UK. She voluntarily returned to Trinidad to attend a wedding in 2005. It is likely her father and/or ex-boyfriend could have located her but they did not. The appellant had stated in her statement that her father and ex-boyfriend would find her by word of mouth. The panel however said there was clear evidence that this did not happen when she returned and it is unlikely to happen if she returned now.
11. Permission to appeal was granted by Upper Tribunal Judge Smith as follows:
“2. I grant permission on ground 1. Although some of the evidence referred to at [4] of the grounds is overstated (see in particular references to the witness statements at AB/93 and AB/103), other of the evidence, particularly Dr Cohen’s report does support the allegations said to have been made about what happened in 2005. Whilst I do not discount the possibility that the difference between what was said to Dr Cohen and what is in the witness statements might itself give rise to a finding that those events did not occur as Dr Cohen recounts, nonetheless there is no finding by the Tribunal that this aspect of the appellant’s case is not credible. As such, there is an arguable error in the finding at [34] of the decision that the appellant suffered no problems during that visit and was not adversely affected as to her mental health during that stay. That in turn arguably impacts on the Tribunal’s overall finding as to risk on return.”
12. UTJ Smith refused permission on grounds 2 and 3.
13. On hearing submissions by the parties, I agreed with Miss Radford that the Tribunal’s decision disclosed errors of law; these errors were material to their decision. I give my reasons below.
14. The Tribunal found at paragraph 36 that when the appellant returned to Trinidad and Tobago in 2005, her father and/or her ex-boyfriend could have located her but they did not. I find that the Tribunal’s finding is contradicted by the appellant’s evidence. At question 170 of her asylum interview the appellant was asked:
“You told us in the written statement that you had a nervous breakdown in September 2005, can you elaborate what happened in Trinidad?”
The appellant answered:
“I saw my dad and Joel and he was abused towards me. My dad wanted to kiss me and it was upsetting. All memories came back.”
Also in her statement of 4 November 2015 at paragraph 21, she said that she saw her father and Joel and she had a nervous breakdown in September 2005. She attempted to commit suicide. Her uncle AG found her and was able to revive her. In her statement dated 17 August 2016 she said at paragraph 22 that when she went back to Trinidad in 2005, Joel told her that no other man can have her, except him. In the report by Dr Cohen it states that on the appellant’s visit to Trinidad in 2005, she saw Joel and he was verbally abusive to her. She saw her father and he kissed her cheek and asked for a cuddle, he said he wanted to remember “old times” and tried to kiss her on the lips. She telephoned her grandmother and said she could not cope being there and her grandmother begged her to just hold on to wait for her arrival. In November 2005 she received a phone call saying her grandmother had died.
15. I find that Dr Cohen’s report supports the appellant’s allegations about what happened in 2005. The evidence contradicts the Tribunal’s finding that the appellant’s father and/or ex-boyfriend did not locate her when she returned to Trinidad and Tobago in 2005. It is apparent from the determination that the Tribunal failed to consider this evidence, which was material to the appellant’s case.
16. The Tribunal found at paragraph 38 that since the appellant has been in the UK she has not received threats to her personal safety from either of those two individuals. Again, this finding is contradicted by the appellant’s evidence to Dr Cohen (paragraph 29). In that paragraph, it is said that in 2005 Joel came to the UK on a visit. He asked to meet the appellant and she reluctantly agreed. He stayed with her and one day came home to find he had the wrong key and was locked out. When she got back and as she got off the bus she could see that he was angry. Once they were inside the flat he kicked her and held a knife to her throat. He accused her of being with someone else and repeatedly hit her. He threatened to mark her face. Her evidence in that paragraph clearly contradicts the panel’s finding. At paragraph 55 of Dr Cohen’s report she says that there is a scar on the appellant’s abdomen attributed to the knife wound which she sustained from Joel in the UK in 2005. Again, the Tribunal failed to consider this evidence.
17. The Tribunal found at paragraph 34 that the appellant claims she will commit suicide if forced to return to Trinidad and Tobago and yet she returned in 2005 to attend a wedding. It is apparent from her witness statement paragraph 21 which has already been referred to that when she saw her father and Joel in 2005 she had a nervous breakdown in September 2005 and attempted to commit suicide. The Tribunal failed to consider this relevant evidence.
18. There is one other particular aspect of this case which the Tribunal failed to consider and it is this: Dr Cohen said at paragraph 74 of her report that child victims of abuse can find it very difficult to free themselves of abusive relationships and often return to either the same or a similar abuser. She also said child victims of abuse have an increased risk of going on to other abusive relationships, and of self harming. Dr Cohen said at paragraph 78 that she had been asked to address the effect of removal to Trinidad on the appellant. In her view this would have an extremely detrimental effect and would significantly raise her risk of suicide. She said that child victims of abuse are unable to escape past relationships and the effect such relationships have upon them. I find that the Tribunal failed to give consideration to this evidence when considering whether the appellant could relocate within Trinidad and Tobago.
19. Miss Radford produced evidence to show that there are an inadequate number of shelters in Trinidad. The bare existence of shelters is not enough to explain how the appellant will be protected if she is returned to Trinidad. Evidence was produced by Mr Armstrong to show that there are some shelters funded by the Trinidadian government and NGOs. Nevertheless, I find that the failure by the Tribunal to take into account relevant evidence material to the appellant’s case led to material flaws.
20. Accordingly, the Tribunal’s decision cannot stand. It is set aside in order to be remade.
21. The appellant’s appeal is remitted to Taylor House for rehearing by a First-tier Judge or Judges other than Designated First-tier Tribunal Judge Peart and First-tier Tribunal Judge Twydell.

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: 22 March 2017

Deputy Upper Tribunal Judge Eshun