Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10979/2016

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 29 March 2017
On 12 April 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

J J
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Davies instructed by MAC Solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the Appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.

Background
2. The appellant is a citizen of Bangladesh who was born on 6 April 1976. He arrived in the United Kingdom on 2 January 2004 with entry clearance as a domestic worker and leave valid until 20 June 2004. That leave was subsequently extended until 20 June 2006. On 5 February 2006, the appellant returned to Bangladesh and then returned to the UK on 29 May 2006. His previous leave remained valid but, on its expiry on 20 June 2006, the appellant overstayed.
3. On 1 March 2011, he made an application for leave to remain outside the Rules which was refused on 6 January 2011 with no right of appeal. He subsequently lodged an appeal but that was struck out on 15 February 2011.
4. On 25 April 2013, the appellant submitted an application for leave under the Rules based upon his private and family life. That application was also refused on 4 June 2013 with no right of appeal.
5. On 7 August 2016, the appellant was encountered on an enforcement visit hiding on the roof of a residential home. He was detained.
6. On 17 August 2016, the appellant claimed asylum. He claimed to be a member of the opposition Bangladesh National Party (“BNP”) as were his family. He claimed he had been attacked and beaten by Awami League supporters during his return visit to Bangladesh. He feared that he would be seriously ill-treated or killed by Awami League supporters if he returned to Bangladesh.
7. On 3 October 2016, the Secretary of State refused the appellant’s claims for asylum, humanitarian protection and human rights. The Secretary of State did not accept that the appellant’s claim, in particular to have been attacked by Awami League supporters, was credible.
The Appeal
8. The appellant appealed to the First-tier Tribunal. The appeal was heard on 1 November 2016 by Judge Keith. At the outset of the hearing, an application was made by the appellant’s legal representative to adjourn the hearing in order to allow the appellant to obtain documentation from Bangladesh and also a supporting medical report. That application was refused by Judge Keith.
9. Having heard the appellant give evidence, Judge Keith made an adverse credibility finding. He did not accept that the appellant had been a member or supporter of BNP or had been attacked by Awami League supporters on his return to Bangladesh in 2006. As a consequence, he dismissed the appellant’s appeal on the basis that he was not satisfied that there was a real risk of the appellant being subject to persecution for a Convention reason or serious ill-treatment contrary to Article 3 of the ECHR,
10. The appellant sought permission to appeal on a number of grounds challenging the judge’s adverse credibility finding and arguing that the judge’s failure to grant an adjournment in order to obtain documents from Bangladesh and a supporting medical report relating to his injuries was unfair.
11. On 14 December 2016, the First-tier Tribunal (Judge Keane) granted the appellant permission to appeal on the sole ground that it was arguably unfair not to adjourn the hearing in order to allow the appellant to obtain a medical report in relation to his injuries which he claimed to have suffered at the hands of Awami League supporters.
12. On 5 January 2017, the Secretary of State filed a rule 24 response seeking to uphold the judge’s decision on the basis that it was lawful for the judge to refuse the adjournment as the appellant had had ample time before the appeal to obtain a medical report; the alleged incident occurred a significant period of time ago (around 2007) and that a medical report was now unlikely to “shed sufficient light” on how the appellant’s scars were obtained.
The Submissions
13. Mr Davies, who represented the appellant, relied upon his skeleton argument which he expanded upon in his oral submissions. Mr Davies accepted that permission had been granted only on the issue of whether the judge had acted unfairly in refusing the adjournment in order to allow the appellant an opportunity to obtain an expert report dealing with the causation of his injuries and scarring.
14. Mr Davies submitted that the causation of the appellant’s injuries was a central issue in assessing the credibility of the appellant’s claim. Whilst the judge had before him a rule 35 report (prepared whilst the appellant was in detention) stating that his injuries were consistent with his claim, the appellant had not been given a sufficient opportunity to obtain a more detailed report. Mr Davies relied upon two reports prepared subsequent to the First-tier Tribunal’s hearing, in particular a report from a Consultant Neurosurgeon, Mr A Ameen, dated 10 March 2017 which concluded, on balance, that the appellant’s injuries were caused by external trauma from both blunt and sharp objects and not self-inflicted (see para 1 of the report). Mr Davies acknowledged that in para 5 of the report, Mr Ameen stated that it was very difficult to determine whether the appellant’s injuries were due to the abusive treatment the appellant claimed he had received from a previous employer. Nevertheless, Mr Davies submitted that it was clear that a more detailed report would have had a material effect on the outcome of the appeal. His submission was, he acknowledged, at its highest that such a report would have given “a more rounded view or detailed view” for the judge. He submitted that applying Ladd v Marshal principles the new evidence should be admitted.
15. Mr Mills, who represented the Secretary of State, accepted that the issue was whether the judge’s decision was fair. He referred me to the decision of the President of UTIAC in Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC) and acknowledged that less emphasis was now to be placed on efficiency but rather on the question of whether it was fair to proceed with the hearing. He submitted that the judge had clearly applied the correct principle and given proper reasons at paras 25-31 of his determination why, specifically in relation to the need for further medical evidence, it was fair to proceed with the hearing.
16. Mr Mills submitted that the new evidence was not admissible under Ladd v Marshal principles in particular it failed to meet the first requirement that the failure to produce the earlier evidence was through no lack of due diligence by the appellant or his representatives. The judge had found that there was ample opportunity to obtain such evidence. However, in any event, Mr Mills submitted that a new medical report would not necessarily have taken the issue of causation any further and, indeed, Mr Ameen’s report did not. The report went no further than the rule 35 report before the judge in stating that the appellant’s injuries were consistent with his claim. Mr Ameen’s report itself acknowledged that he could not determine whether the appellant’s injuries were due to another cause, namely his claimed maltreatment by his previous employer. Mr Mills submitted that the judge had properly considered the expert evidence before him in paras 62 and 63 of his determination. In particular, Mr Mills pointed to the fact that the appellant had failed to mention to the examining doctor the ill-treatment that he now claimed to have suffered at the hands of his former employer. Mr Mills submitted that there was nothing to establish that any new report would have been material to the judge’s adverse credibility finding.
Discussion
17. The relevant law is not in issue in this appeal. Rule 4(3)(h) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014/2604) confers a discretion upon the FtT to “adjourn or postpone a hearing”. That discretion must be exercised lawfully and, particularly relevant to this appeal, in accordance with the common law principle of fairness (see Nwaigwe at [9]). The issue is not whether it was Wednesbury unreasonable or irrational to refuse the adjournment, but solely whether that was unfair (see Nwaigwe at [8] applying SH (Afghanistan) v SSHD [2011] EWCA Civ 1284 at [13]).
18. The judge dealt with the application to adjourn the hearing at paras 25-31. He dealt, of course, with both bases upon which the application was made, namely to obtain documents from Bangladesh and a medical report. Only the latter is now reevant and I now set out only the passages relevant to that issue.
19. The judge set out the background at paras 25-26 as follows:
“25. Prior to this hearing, the Appellant’s representatives had applied for a postponement of the hearing because of the Appellant’s inability to obtain documentation, which would take him two months from when he had received the notice of hearing. The application was refused in a decision dated 13th October 2016, which noted that the Appellant had been in the United Kingdom since May 2006 and had had more than enough time to gather evidence.
26. At the beginning of the hearing, the Appellant made a second application to adjourn the hearing. The first basis of his application was that he had been unable to obtain additional evidence. The second basis was that he had been examined by an independent doctor while in detention, who concluded that the Appellant’s scars were consistent with the allegation that he had been a victim of torture and the Appellant wished to obtain additional medical evidence.”
20. At para 30, the judge directed himself on the legal approach to determining the adjournment application, and the need for a fair hearing:
“30. I considered whether, pursuant to Rule 28(b) of the Tribunal Procedure Rules 2014 (“the Rules”), it was in the interests of justice that I should proceed with the hearing. I also considered Rule 2 and the overriding objective, which required me to deal with the case justly and fairly. In that regard, I considered not only whether the Appellant had demonstrated a good reason for postponing the hearing, but also whether the Appellant was deprived of a fair hearing and I was conscious of the cases of SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284 and Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC).”
21. Then at para 31 the judge concluded as follows:
“31. I considered and refused the application for an adjournment. … In terms of the existing medical evidence, the Appellant’s representative fairly said that the content of the existing medical report, while brief, but clear; and that the only purpose of further instruction would be to expand upon that evidence. I concluded that it was possible to assess the medical evidence in the round with the other evidence, and that supplemental evidence would ultimately do no more that reach a conclusion about the consistency of the Appellant’s scarring with his allegations, which was already available to this Tribunal. I concluded that a fair trial was possible and that it was not in accordance with the overriding objective to postpone this hearing.”
22. There is no doubt that the judge correctly directed himself, namely to consider the fairness of proceeding with the hearing as Mr Mills submitted. The essence of the judge’s reasoning was that the existing medical evidence was said to show a consistency between the appellant’s injuries and his claim and that it was not being suggested that any further medical evidence would do anything other than “expand upon that evidence”. Indeed, that was acknowledged by Mr Davies in his submissions before me when he recognised that at its “highest” he was submitting that the further evidence would have allowed the judge a “more rounded view”.
23. The judge dealt with the medical evidence that was before him at paras 62-63 as follows:
“62. I also concluded that the Appellant’s accounts of his attacks when he returned to Bangladesh in 2006 were not truthful. I did not regard the question of dates as material, but I did regard as material that the Appellant had failed to make a single reference to such treatment in any previous correspondence with the Respondent, despite the Appellant specifically referring to ‘torture’ and ‘beating’ by his former employer. The failure was not explicable, other than that the causes of his scarring were in fact his mistreatment by his employer. I considered the medical examination by Dr N Ali on 13th October 2016. I make no criticism of its brevity. It makes clear about the details of the account given to Dr Ali by the Appellant, and then Dr Ali’s assessment of the consistency of that account with the scarring. The account recorded by Dr Ali, in which he/she is required to record the details of the account of torture, makes no reference to any ill-treatment by the Appellant’s former employer. Once again, I make no criticism for Dr Ali failing to do so. The reason for that omission is because the Appellant did not tell him, for the same reason that the Appellant sought to down-play his treatment by the employer in this Tribunal as ‘slaps’; or denied any physical ill-treatment by his employer at all during his asylum interview; namely that this would provide an alternative explanation for the scarring. He sought to omit this, just as he had claimed that his parents had died in an earlier application.
63. In summary, I was able to place little weight on Dr Ali’s report, as the conclusion of consistency of reasons for scarring had not (and could not) address an alternative and compelling explanation. For the purposes of Paragraph 339K of the Immigration Rules, I concluded that the Appellant had not been the subject of persecution or serious harm in Bangladesh because of his imputed political opinion or for any other reason, so that while he may have suffered harm by his previous employer, there were good reasons to consider that such harm would not be repeated. The Appellant had left his former employer’s employment more than ten years ago and there was no evidence that as a result of his return to Bangladesh, he would be at further risk of ill-treatment by that employer. While the relationship with his employer was an unhappy one, he had joined that employment willingly and had been able to leave that employment when he wished to do so. On the Appellant’s own evidence, the ill-treatment had occurred in Dubai and the United Kingdom and was not facilitated or condoned by the Bangladeshi authorities. There was no suggestion that there was any continuing contact between the former employer and the Appellant, and the Appellant did not seek asylum on the basis of any harm suffered by his former employer. He had a family network in Bangladesh, with whom he remained in contact, to provide him with a support network on his return there.”
24. The judge’s reasoning, in relation to Dr Ali’s rule 35 report, is not subject to any challenge given the limited grant of permission. The point made by the judge is that Dr Ali’s view on “consistency” took no cognisance of a potential alternative cause of those injuries, namely the appellant’s evidence that he had suffered ill-treatment by a former employer. The judge set this out at para 45 of his determination derived from a letter sent by the appellant to the Secretary of State in relation to one of his earlier applications as follows:
“45. In his letter dated April 2013, the Appellant referred to his employer ‘often assaulting’ him ‘physically’; ‘brutality’; ‘continuing beating’; ‘years of torture and degrading treatment’; ‘constant abuse’, to the extent that the Appellant’s physical health began to wane.”
25. The failure to mention that to Dr Ali was, of course, a matter of the appellant’s own making.
26. However, even if that had been referred to, it is clear from Mr Ameen’s report that, his expert opinion was, that it was “very difficult” to determine if the appellant’s injuries were due to the maltreatment by his previous employer. Mr Ameen could not, therefore, go any further than Dr Ali in stating that the appellant’s injuries were consistent with his claim and, with the exception of some of his scars, very unlikely to have been self-inflicted (see paras 1-4 of his report).
27. Even though I see considerable merit in Mr Mills’ submission that this report is not admissible on Ladd v Marshal principles as the appellant has been in the United Kingdom since 2006/2007 when his claimed injuries were suffered and so its absence from the evidence available before the First-tier Tribunal Judge may well fall foul of the ‘reasonable diligence’ requirement, I have nevertheless considered it as Mr Davies invited me to do so in the interests of justice. However, it takes the appellant’s case on the causation of his injuries no further than that of Dr Ali. Neither report can exclude an alternative cause. It is quite impossible to see what prejudice or unfairness the appellant has suffered. Before the judge, it was suggested that further medical evidence would “expand” upon Dr Ali’s. The judge took the view that any such report could ultimately do no more than state the “consistency of the appellant’s scarring with his allegations”. That was Dr Ali’s evidence before the judge and, as it is clear from Mr Ameen’s report, the judge was correct in his evaluation of what a further medical report might contain. Neither report, as I have said, can exclude an alternative cause, despite consistency being established with the appellant’s claimed injuries.
28. At paras 56-61, the judge gave a number of telling reasons for disbelieving the appellant’s account including that he had previously given false information about whether his parents had died in his application for leave in 2013 and had failed to mention the basis of his asylum claim in an earlier application despite referring to the serious abuse by his previous employer. There was also no adequate explanation for why the appellant’s brother, who lived in the UK, was “too busy” to even provide a witness statement supporting the appellant’s claim.
29. For these reasons, I am not satisfied that the judge’s decision not to adjourn the hearing was unfair or otherwise unlawful.
Decision
30. Thus, the First-tier Tribunal’s decision to dismiss the appellant’s appeal did not involve the making of an error of law. The First-tier Tribunal’s decision stands.
31. Accordingly, the appellant’s appeal to the Upper Tribunal is dismissed.

Signed

A Grubb
Judge of the Upper Tribunal

Date 10 April 2017