Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05397/2016

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 7 April 2017
On 11 April 2017

Before

UPPER TRIBUNAL JUDGE KEKIĆ

Between

M N K
(anonymity order made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms E Fitzsimons of Counsel, instructed by Duncan Lewis and Co, Solicitors
For the Respondent: Mr K Norton, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant has been granted permission to appeal against the decision of First-tier Tribunal Judge Nixon to dismiss his appeal for protection on 3 November 2016. He is a 53-year-old Pakistani national who entered the UK as a visitor in 2008, overstayed and claimed asylum in October 2015 after he was arrested. He claimed to be at risk on return because of his political opinion and because he had been tortured in detention. He claimed to be a member of the United Kashmir People’s National Party (UKPNP) and to be in poor health.
2. The judge rejected the credibility of his account and the First-tier Tribunal refused his application for permission to appeal. This was, however, granted by Upper Tribunal Judge Coker on 9 February 2017 on the basis that it was arguable that the judge had failed to have regard to the medical evidence in the context of the Vulnerable Witness guidance and the appellant’s oral and written evidence.
The Hearing
3. The appellant was in attendance at the hearing on 7 April 2017. I heard submissions from the parties.
4. Ms Fitzsimons expanded upon her grounds. She submitted that the judge had failed to have regard to the medical evidence when assessing the inconsistencies in the evidence and that paragraphs 27 onwards of her determination indicated she had taken a preliminary view on credibility before consideration of the medical evidence. She argued that the judge claimed to have treated the appellant as a vulnerable witness yet gave no reasons for why she concluded that his memory recall was not affected by mental health issues. She submitted that the judge did not consider the Rules 35 report at all and that report would have added some weight to the other evidence on ill treatment.
5. Mr Norton submitted that there had been no artificial separation of the medical evidence and the facts of the case. He pointed out that the judge’s starting point was the acceptance of the appellant as a vulnerable witness and that her findings follow from that. The medical evidence would have had no bearing at all on the matters assessed at paragraphs 27-29. She then assessed the claim of torture and simultaneously assessed the facts and the medical evidence at paragraph 31 onwards. She was entitled to make the observations on the reports that she did and to note that Dr Arnold did not offer any other possible causes for the appellant’s injuries although he said there were many and that Dr Thomas relied on a mistaken belief that the appellant’s history was “corroborated”. The Rule 35 report was self-reported and did not demonstrate any acceptance of torture. It simply indicated that based on what the appellant had told the medical practitioner, further investigation was necessary. This report was then assessed by the respondent and the claim of torture by the judge. There was no arguable error of law and the appeal should be dismissed.
6. In response, Ms Fitzsimons submitted that the determination did separate the medical evidence from the facts. Dr Thomas’ report about poor memory was not considered and that whilst the Rule 35 point was not in itself capable of amounting to a material error, it indicated that the overall approach of the judge towards the medical evidence was brief and not methodical.
7. That completed the submissions. At the conclusion of the hearing, I reserved my determination which I now give.
Discussion and Findings
8. In reaching my findings, I have taken careful note of all the submissions and the evidence relied on by the parties, whether or not it is specifically referred to in my determination.
9. Contrary to what is argued, I am of the view that the judge had full regard to the Presidential Guidance on Vulnerable Witnesses and to the medical evidence when she assessed the appellant’s evidence. This is plain from paragraphs 24, 25 and 33 where the judge confirmed that she had taken account of all the evidence when reaching her decision and that she was prepared to treat the appellant as a vulnerable witness, given Dr Thomas’ report. She also confirmed that she kept these factors in mind when assessing the inconsistent evidence highlighted by the respondent and it may be seen from paragraph 26 that the judge specifically found that the memory difficulties referred to in Dr Thomas’ report could not have excused his vague responses at interview when being asked about the aims and background of the party he claimed to be involved with as president of the Naka Unit. At paragraph 31 she noted that the appellant had told Dr Arnold that he had been attacked with a knife, an incident never previously mentioned and which she considered could not be explained away even in the context of being a vulnerable witness. It is, therefore, unfair to maintain that the judge reached an adverse conclusion on credibility before she considered the medical evidence. When criticising the judge’s approach, the grounds focus on paragraph 27 onwards and disregard what was said in the three preceding paragraphs.
10. The complaint that the judge did not give reasons for finding that memory lapses did not explain the inconsistent evidence is not made out. The judge was assessing whether the appellant could be expected to recall the aims of the party he claimed to have been actively involved with since 2004 and in which he held a prominent role. She found the stated forgetfulness could not explain the appellant’s vagueness and she is fortified in that finding by the doctor’s report itself which, in the section on memory issues (at pp. 15-16) refers to the memory lapses manifesting themselves in forgetting appointments, becoming distracted and leaving his keys at home when he goes out. It is noteworthy, however, that he gave a lucid account of his experiences to the doctor and was able to describe all his stated symptoms without apparent problems. He was also able to give a lengthy witness statement to his representatives. In that context, even if no specific reason is given, the judge was fully entitled to conclude that the appellant could still be expected to have been clear about the aims of his party. His vague responses were not given in court where the doctor found it might be more challenging.
11. The final complaint is that the judge failed to refer to the Rule 35 report in her determination. This report set out what the appellant told the doctor and identified scars on his hands and knees. The doctor noted that the appellant may be a victim of torture. The judge noted that Counsel’s submissions made reference to this report (at paragraph 21). As previously stated, she also confirmed that she had considered all the evidence (at 24). Dr Arnold’s report also addressed the appellant’s scars and, indeed, did so in greater detail than the Rule 35 report. Even if the judge did not specifically make findings on the Rule 35 report, I cannot see how this impacts on her decision as it did not contain a medical opinion and merely reported what the appellant had said. Further, the issue of scarring and the alleged torture were matters that the judge fully engaged with.
12. The appellant’s account and documentary evidence contain significant difficulties. Apart from his vague answers about his party, the appellant’s FIR has been found to be a forgery (at 28) which entirely undermines his claim that a warrant for his arrest was issued following on from it and there were serious internal inconsistencies in the documentation from the UKPNP (at 27). The appellant was able to leave Pakistan through the proper channels even though he claimed that there was a warrant out for him (at 29). There were numerous shortcomings with all three medical reports (31-34) and the timing and circumstances of the asylum claim were also relevant matters which undermined the appellant’s claim (at 34). Whilst claiming to have documentary evidence of the threats made against him, this evidence never materialised (at 35). The respondent was unable to locate the mosque from which the threats allegedly emanated and there was no evidence from the appellant to confirm its existence (at 35). His sur place activities were nondescript (at 36). These are additional matters on which the medical evidence has no bearing and which cannot be explained away by a claim of PTSD.
13. The appellant’s claim was rejected for very compelling reasons. I can see no error of law which would require the decision to be set aside. The claim was thoroughly considered and wholly sustainable conclusions were reached.
14. Decision
15. No errors of law have been found. The determination of First-tier Tribunal Judge Nixon stands. The appeal is dismissed on all grounds.

Signed

Upper Tribunal Judge
Date: 7 April 2017