Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/13802/2018

THE IMMIGRATION ACTS

Heard at Cardiff Civil Justice Centre
Decision & Reasons Promulgated
On 26 July 2019
On 08 August 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE J F W PHILLIPS

Between

MR SPKA
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr N Paramjorthy, Counsel instructed by ABN solicitors
For the Respondent: Mr C Howells, 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.
2. This is an appeal against the decision of First-tier Tribunal Judge Anthony in which she dismissed the appeal of the Appellant, a citizen of Sri Lanka, against the Secretary of State's decision to refuse asylum.
3. The application under appeal was refused on 15 November 2018. The Appellant exercised his right of appeal to the First-tier Tribunal. The appeal came before Judge Anthony on 4 April 2019 and was dismissed. The Appellant applied for permission to appeal to the Upper Tribunal. The application was granted by Designated Judge Shaerf on 14 May 2019 in the following terms
The grounds challenge the Judge's assessment of the psychiatric evidence and of the Appellant's credibility. The expert psychiatric report from Dr Raj Persaud may be open to criticism on a number of grounds as identified by the Judge, save that an expert has in most cases to rely to a greater or lesser extent upon what the subject of the report states. It is not the expert's duty to assess credibility. Nevertheless, it is arguable the Judge's consideration of the report and the Appellant's credibility is flawed in particular because at paragraphs 40 and 46 of her decision the Judge has arguably fallen into the "M'banga" trap by reaching adverse credibility findings before considering the expert report, whatever its technical failings may be.
Background
4. The history of this appeal is detailed above. The Appellant is a citizen of Sri Lanka of the Buddhist faith born on 18 June 1989. He arrived in the United Kingdom in 2011 as a family visitor and subsequently made applications to remain on family and compassionate grounds. These applications were refused and on 16 April 2018 the Appellant made the claim for asylum which is the basis of this appeal. The basis of claim was that firstly his father was involved in a land dispute with Douglas Devananda a politician and leader of the Eelam People's Democratic Party (EPDP) and secondly that he had engaged in sur place activities in the United Kingdom.
5. The Respondent refused the application because it was not accepted that the Appellant was telling the truth either about the land dispute or about his activities in the United Kingdom.
6. At the appeal hearing the Appellant did not give oral evidence and the decision notes that Mr Paramjorthy as the Appellant's representative decided not to call the Appellant in the light of the psychiatric report from Dr Raj Persaud (paragraph 13). In dismissing the protection appeal the Judge rejected the credibility of the Appellant's account of the land dispute and further rejected his claim that he attended a demonstration against the Sri Lankan government whilst in the United Kingdom. In rejecting his account, the Judge found, inter alia, that the provenance of documents from Sri Lanka and a letter submitted in support of his claim had not been established because "It will need the support of the appellant's testimony" (paragraph 22 and 23). Referring to the psychiatric evidence the Judge found (at paragraph 45) "I find that the coherency of the Appellant's account has nothing to do with his poor mental health and everything to do with the lack of credibility of his account".
Submissions

7. For the Appellant Mr Paramjorthy referred to page 154 of the appeal bundle before the First-tier Tribunal. This is a letter from his GP; a letter particularising his mental health issues. Cross referencing paragraph 16 of the decision the Judge, criticising the psychiatric report of Dr Persaud, says the letter of 19 March from the GP referred to in Dr Persaud's report was not before the Tribunal. It was, so the Judge is clearly wrong in this respect. It is clear that the Judge did not think much of the psychiatric evidence. However, her reason for criticising this evidence at the beginning of her decision is misplaced. The Respondent's rule 24 letter is also wrong in this regard.

8. The letter from the GP showed that the Appellant had symptoms of severe depression, that he had been referred to the CRISIS team, that he was under the care of the Community Mental Health Team and that he had been registered for counselling. Despite this the Judge, again criticising Dr Persaud's report, says (at paragraph 18) that referral to the CRISIS team is the usual step. The GP's letter, missed by the Judge, confirms the referral. As the Appellant was not called to give evidence the Judge assesses the psychiatric evidence and finds (at paragraph 46) that she can attach little weight to Dr Persaud's report. That is where it become material.
The Judge finds that the Appellant has depression symptoms and is receiving treatment from his GP but does not find Dr Persaud's conclusions as to deeper mental health problems made out. Assessment of credibility is then made on this basis and the rationale at paragraphs 45 and 46 is troubling. The Judge is concerned that the presentation of Appellant is inconsistent with clinical findings and so attaches no weight to a document from a JP in Sri Lanka referring to the terrorist investigation department.

9. For the Respondent Mr Howells said, on the M'banga point, it is not clear that the psychiatric report was relied on as a factor relating to credibility. M'banga was about considering a scarring report after a credibility assessment. Mr Paramjorthy interjected to agree that this was not a M'banga issue.

10. Mr Howells accepted that the Judge erred in finding that the GP letter was not before her but the Judge proceeded on her acceptance that the Appellant suffered from depression and was receiving treatment from the GP. She also considered suicide risk at paragraphs 53-54 considering risk in UK and on return. The Judge made several criticisms of Dr Persaud's report not all of which are challenged in grounds. Paragraph 16 incorrectly states that the letter was not before her but at end of the paragraph the Judge also assessed risk on return. The Judge reached her adverse credibility finding at paragraph 39. This was not based on the report, so it had no material effect on her assessment of the credibility of the claim. However, Mr Howells agreed that to the extent that the Judge had reached findings on the report before turning to credibility there was an material error.

11. I agreed that the decision would be set aside. My reasons are given below.
Decision
12. As detailed above this is an appellant who claims to fear persecution in Sri Lanka for two reasons the first being a family dispute with a senior politician and the second being his activities in the United Kingdom. The Respondent refused the application on the basis of credibility and this was the only real issue before the First-tier Tribunal. Where credibility is in issue the Tribunal will usually hear oral evidence from an appellant before reaching a decision. In this case the Appellant did not give oral evidence. The decision records that Mr Paramjorthy made a decision not to call the Appellant to give evidence in the light of the report from Dr Raj Persaud.
13. Before making any findings or examining any of the evidence put forward on the Appellant's behalf the Judge deals with the report of Dr Persaud at paragraphs 15 to 20 of her decision. At paragraph 16 the judge notes that Dr Persaud refers to a letter from the Appellant's GP and adds that this letter was not before the Tribunal. This is wrong; the letter appears at page 154 of the Appellant's bundle. Having wrongly noted that the letter was not before the Tribunal the Judge quotes from Dr Persaud's report "I believe that once properly referred the referred agency will regard him as seriously psychiatrically unwell and that this is secondary to the life events I have outlined". The Judge finds that Dr Persaud has attempted to pre-empt a conclusion to the cause of the Appellant's depressive symptoms even before he has received any treatment from secondary mental health services. The Judge therefore places little weight on the statement. In fact the letter from the GP shows a referral to the CRISIS team and a previous treatment by counselling.
14. The Judge goes on to note that Dr Persaud concludes that the Appellant is unfit to give evidence but finds that no mental state examination appears to have been carried out and that the symptoms forming the basis of Dr Persaud's conclusions were based on the Appellant's own reports of symptomology. She notes "I find that the cause of the depressive symptoms were very much dependent on whether I accept the appellant's account regarding the land dispute and the claimed risk from the Sri Lankan authorities".
15. It is clear from the above that the Judge has certain reservations about Dr Persaud's report particularly in so far as his conclusions as to the Appellant's symptoms and condition are dependent upon Dr Persaud's acceptance of the Appellant's credibility. Nevertheless, the Judge does not, overtly at least, take issue with the expert opinion that the Appellant is unfit to give evidence. However, when dealing with the documentary evidence the Judge notes firstly relating to the email documentation and secondly in relation to the JPs letter that their provenance will need the support of the Appellant's testimony. It is not said but it is clear that the Judge means 'oral testimony'. Having then separately examined the credibility of the Appellant's account at pages 25 to 39 and finding this account not capable of belief the Judge returns to the Appellant's mental health and concludes "I find that the coherency of the appellant's account has nothing to do with his poor mental health and everything to do with the lack of credibility of his account". Indeed before reaching this ultimate conclusion the Judge refers back to the report of Dr Persaud finding that the Appellant is mentally capable of making important decisions and that this is wholly inconsistent with Dr Persaud's conclusions.
16. There is in my judgement a significant difficulty in the way that the Judge has dealt with the psychiatric evidence and this amounts to a material error of law. Having noted that the Appellant is not going to give oral evidence the Judge embarks on a critical assessment of Dr Persaud's report and in doing so fails to take account of a document referred to in that report wrongly saying that it was not before the Tribunal. The rest of the decision gives the impression that it is made in the light of the Judge's disagreement with the report's conclusions. In particular in assessing the documentary evidence the Judge makes implicit criticism of the Appellant's failure to give oral evidence. The circle is completed when at paragraph 45 the judge finds, in effect, that Dr Persaud's report is wrong because it is inconsistent with the Appellant's actions. In my judgement the Judge has conflated the clinical assessment with Dr Persaud's seeming acceptance of the Appellant's credibility. She finds in effect that the clinical assessment, that the Appellant is unfit to give evidence, is wrong and holds against the Appellant's credibility his failure to give oral evidence.
17. In my judgement this is an error of law which goes to the root of the adverse credibility finding and in these circumstances the appeal must be allowed and the decision to dismiss the appeal must be set aside to be remade by the First-tier Tribunal.

Summary of Decision
18. The decision of the First-tier Tribunal discloses a material error of law and for that reason the decision of the First-tier Tribunal to dismiss the appeal is set aside.
19. Having regard to the nature and extent of fact-finding required and having regard to para 7.2 of the Senior President's Practice Statement, the proper disposal of this appeal is to remit it to the First-tier Tribunal in order to remake the decision with no findings preserved.

Signed Date: 30 July 2019

J F W Phillips
Deputy Judge of the Upper Tribunal