Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06380/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 April 2017

On 20 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

RAK
(ANONYMITY DIRECTION made)

Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation

For the Appellant: Mr S. Kelly, Counsel instructed by Howe & Co Solicitors
For the Respondent: Mr P. Nath, Home Office Presenting Officer

Anonymity

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.

DECISION AND REASONS

1. The appellant is a citizen of Ghana born on 27 April 1983 who claims to be homosexual and to face a risk on return to Ghana as a consequence. He claims that he has been the victim of violent attacks in Ghana because of his sexuality.

2. The appellant entered the UK on 18 June 2014 as a visitor and claimed asylum on 10 December 2015, after being served with removal directions.

3. The Secretary of State did not accept that the appellant was homosexual and refused his asylum application.

4. The appellant appealed to the First-tier Tribunal. His appeal was heard by Judge Trevaski who, in a decision promulgated on 7 December 2016, concluded that the appellant was not homosexual and dismissed the appeal.

5. The appellant is now appealing against that decision.

Decision of First-tier Tribunal

6. Judge Trevaski heard oral evidence from the appellant, his younger brother (who is a UK citizen serving in the British army) and his cousin (also a British citizen in the UK army). He also considered a psychiatric report from Dr Hajioff. The judge summarised the report at paragraph 35, where he stated:

“He examined the appellant on 23 November 2016. In his opinion, the appellant is suffering from PTSD and has some symptoms of depression; he also has evidence of injury consistent with his account. He will benefit from antidepressant medication and psychological treatment such as counselling. Considering the present level of his distress, if the support he is receiving is stopped he is likely to become more anxious and depressed.”

7. The judge found that the evidence from the appellant and his witnesses was not clear or detailed. The judge noted that the appellant has mental health issues but stated that

“I was told that he was taking appropriate prescribed medication for his depression, and therefore I consider that, had his claims been true, he should have been able to provide more lucid evidence and substantiate those claims to a greater extent.”

8. The judge did not accept that the appellant was gay. Having found the appellant was not gay, the judge considered whether the severity of the appellant’s medical condition was such that returning him to Ghana would breach Articles 2 and/or 3 ECHR and concluded that it would not.

Grounds of appeal and submissions

9. The first ground of appeal contends that Dr Hajioff’s medical report was relevant to the appellant’s credibility, as it confirmed that the appellant’s injuries were in keeping with someone who had been attacked. It is argued that the judge erred by not stating what weight he attached to the report and not giving it full and proper consideration.

10. The judge stated at paragraph 49 that there was an absence of corroboration that the appellant is gay. The second ground of appeal argues that this is incorrect as the appellant provided statements from his brother, cousin and friend as well as extracts from an online profile and ‘chat records’.

11. The third ground of appeal argues that there was an error in approach to the overall assessment of credibility by focusing on minor discrepancies.

12. Before me, Mr Kelly focused on the first ground, arguing that Dr Hajioff’s evaluation of the appellant’s scarring was not given proper consideration in the credibility assessment. He argued that Dr Hajioff’s assessment is consistent with the appellant’s account of being attacked and this should have been given weight by the judge. He submitted that there needs to be good reason to depart from an expert’s findings and none were given. The judge, in his view, had simply failed to engage or grapple with the expert evidence. In respect of Grounds 2 and 3, Mr Kelly reiterated the submissions in the grounds of appeal.

13. Mr Nath’s response was that the judge had clearly considered the psychiatric report as it is accurately summarised in paragraph 35. The report has been referred to elsewhere and the judge makes clear (at paragraph 48) that he has considered all the evidence before reaching his decision. He also argued that the report is not relevant to the question of sexuality.

Consideration

14. The central issue before Judge Trevaski was whether the appellant was able to establish, to the lower standard applicable in asylum claims, that he is homosexual.

15. The judge, applying the correct standard of proof, concluded that the appellant is not homosexual. His reasons are set out in paragraphs 49 and 50. In summary, they are that:
a. The appellant did not submitted evidence from any gay person with whom he had had a relationship despite claiming to have had several partners in the UK;
b. He is the father of two children in Ghana;
c. The asylum claim was only made after the decision to remove him from the UK;
d. There was a lack of detail in answers given to questions in the asylum interview about his sexual orientation.

16. The judge did not make any reference to Dr Hajioff’s report when evaluating whether or not he accepted the appellant was homosexual.

17. Dr Hajioff is a consultant psychiatrist also qualified in medicine and surgery. His report sets out the appellant’s sexual history as recounted to him by the appellant. The account described in the report is consistent with the account the appellant gave in his witness statement and oral evidence at the First-tier Tribunal Hearing.

18. The report describes the appellant’s scarring. In sum, it states that the appellant has a scar on his forehead which is typical of a “blunt injury”. He has other scars consistent with superficial injuries that could be caused in a number of ways. He has scars on his wrist and shoulder consistent with injuries from blows to those areas. He has scars on his hands and fingers typical of a “defence injury” (ie caused whilst defending himself from an attack.

19. The report does not state that the scarring indicates when the injuries were inflicted.

20. The report also describes the appellant has having PTSD and some symptoms of depression.

21. In my view, the report is of no relevance either to the question of whether the appellant is homosexual or to whether he was attacked, as he claims, in 2008 and 2010. All that the report demonstrates is that at some point in his life the appellant was attacked, or in a fight, and suffered injury to his face, wrist, shoulder and hand as a consequence; and that he has suffered a trauma that has resulted in PTSD. The report does not assist in evaluating when, or why, the appellant was attacked or in a fight or what the nature of the event or events were that triggered mental health problems. Accordingly, the report does not help in evaluating whether the appellant is telling the truth about being attacked in 2008 and 2010 or about his sexuality. As the report is not relevant to the appellant’s credibility or to the question of whether the appellant is homosexual, the judge did not fall into error by failing to refer to it in that context. The appellant is therefore unable to succeed under his first ground of appeal.

22. The second ground of appeal is without merit. The reference at paragraph 49 of the decision to the “absence of any corroborative evidence” is to the absence of evidence from gay partners or people who have any knowledge about the appellant’s activity in the gay community or with other homosexuals. Both witnesses who appeared at the hearing stated that they had not met any of the appellant’s partners.

23. The grounds are correct to note that the judge failed to refer to the extracts from gay web and dating sites submitted by the appellant. However, a judge is not required to refer to every item of evidence and given the paucity of this evidence and that the dating site the appellant adduced evidence of is in the US (and therefore not likely to be an effective way to meet gay men in the UK), there is no error in the judge not attaching weight to it. Any error arising from a failure to make a finding in respect of this evidence is not material.

24. With respect to the third ground of appeal, the judge did not reject the appellant’s claim because of minor discrepancies. Rather, he rejected the claim because, having considered the evidence, including oral evidence from the appellant and two of his relatives, he reached the view that the appellant was not telling the truth about his sexuality. This was a conclusion that the judge was entitled to reach based on the evidence that was before him.

Decision
A. The decision of the First-tier Tribunal did not involve the making of a material error of law and shall stand.
B. The appeal is dismissed.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 18 April 2017