Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06471/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 16 March 2017
on 17 March 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

YOUSEF GANJI
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr D McGlashan, of McGlashan Mackay, Solicitors
For the Respondent: Mrs M O’Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The respondent refused the appellant’s protection claim for reasons explained in her letter dated 13 June 2016.
2. First-tier Tribunal Judge Manchester dismissed the appellant’s appeal for reasons explained in his decision issued on 2 December 2016.
3. The submissions by Mr McGlashan were along the lines of the grounds of appeal to the UT, which assert that the judge erred:
(a) by not establishing a sound basis for an adverse credibility conclusion on one particularly crucial issue, his allegation of involvement in distribution of anti-government material and subsequent arrest and torture; he clearly did not accept aspects about alleged flight from Iran, but left it unclear whether the core was accepted or rejected;
the only bases were (1) the appellant would not have returned to such dangerous work after torture and (2) he signed an undertaking not to become involved again; neither reason is sound; (1) was met by the appellant’s evidence that he was compelled by the justice of his cause; (2) it is an unrealistic expectation that a person will do as he says under extreme conditions such as torture; if it were reasonable, every confession given under duress would be legally admissible;
(b) by making up his mind before dealing with the medical report by Dr Dignon; Mbanga [2005] EWCA Civ 367, such a report should be dealt with as an integral part of the findings on credibility rather than as just an add-on which does not undermine the conclusions to which the judge would otherwise come; the report found that the only way stomach scars could not have been caused by torture is if they were self-inflicted, a powerful piece of evidence plainly in conflict with the judge’s findings.
4. In a rule 24 response the SSHD relies extensively upon the review of Mbanga in S [2006] EWCA Civ 1153.
5. In this respect, Mr McGlashan emphasised that in the present case the finding on medical examination is not merely “consistent” but “highly consistent”, level D, the second highest, of the Istanbul Protocol. He accepted that judge did not have to deal with evidence in a particular order, but insisted that he did not follow the approach required by the case law.
6. Mrs O’Brien submitted that the report corroborated systematic infliction of the injuries, but not necessarily torture under the circumstances claimed by the appellant. There were many difficulties with the appellant as an historian. The decision was careful and thorough. The judge did not say that no-one would run a risk after torture or after giving an undertaking under duress, he declined to find that this appellant had done so, given several other flaws in his account.
7. I reserved my decision.
8. Ground (a) misrepresents part of the judge’s explanation by wrenching it out of context.
9. The judge makes it clear that he does not find the appellant a reliable witness at the core of his account. He gives several sensible reasons, most of which are not asserted to contain any legal error. The points taken at (a) (1) and (2) are only part of that, and are not expressed as general rules (which would have been erroneous). This ground is only selective disagreement on the facts.
10. Ground (b) discloses no error of legal approach to medical evidence. There was no compartmentalisation or prejudgement. The judge said at ¶49, “I have also considered the opinion and clinical findings in the medical report when making my findings”. He said at ¶51, “As part of the exercise of looking at the evidence in the round, I have attached weight to the medical report as being capable of lending support to the appellant’s account … and in particular to his arrest and ill-treatment”. There was no reference to anything in the decision which suggests that the judge should not be taken at his word in those passages. He reaches his overall conclusion only thereafter, at ¶53. That approach is impeccable.
11. The grounds and submissions for the appellant do not show that the making of the decision by the FtT involved the making of an error on a point of law. That decision shall stand.
12. No anonymity direction has been requested or made.

16 March 2017
Upper Tribunal Judge Macleman