M.A. AGAINST SECRETARY OF STATE FOR THE HOME DEPARTMENT
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 38
XA98/14
OPINION OF LADY DORRIAN
in the cause
M A
Applicant;
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondents:
Applicant: Byrne; Drummond Miller LLP
Respondents: McIlvride QC; Office of the Advocate General
20 May 2015
[1] The applicant seeks leave to appeal in terms of section 13(4) of the Tribunals, Courts and Enforcement Act 2007, a provision to which RCS 41.57 applies, meaning that the applicant requires to satisfy the “second appeals test”. In the circumstances of the present case, that means that the applicant requires to satisfy the court that there is an arguable error of law on the part of the Upper Tribunal (“the UT”) and that there is some other compelling reason for the court to hear the appeal. That compelling reason is said to lie in the existence of a strongly arguable error in law, coupled with the dire consequences which might follow for the applicant were he to be returned to Sri Lanka (JD (Congo) v SSHD [2012] 1 WLR 3272).
[2] The applicant is a citizen of Sri Lanka. He is a Tamil speaking Muslim, from a village which is primarily Tamil speaking, but located in an area where the population is mainly Sinhalese speaking. He sought asylum on the grounds of religion and on the basis of imputed political opinion. In support of the latter aspect of his claim he explained that despite a lack of political involvement on his part when living in Sri Lanka, in January 2007 he was abducted, taken to a camp in the jungle and there assaulted and accused of political involvement with the LTTE. He was tortured before being removed, a week later, to another camp. He was again tortured. After about 2 weeks, a Tamil speaker within the camp offered to help him escape in exchange for payment. After escaping to a relative’s house, he was introduced to an agent who arranged for him to come to the UK, using his own passport. He entered the UK on a visa valid from 16 March 2007 until 16 September 2007. He did not claim asylum until May 2013, explaining that he was until then unaware that he could do so. The applicant presented the UT with a medical report from Dr Addis of the Medical Foundation (“MF”) which refers to scars and dental injuries which were described as being consistent with the history given by the applicant. In support of his claim that he continued to be of interest to authorities in Sri Lanka, he relied on documentation purporting to vouch a claim from his wife that unidentified men had repeatedly called at the house, threatening the family and looking for the applicant. The judge of the First Tier Tribunal (“FTT”) felt unable to accept this documentation, for reasons which she gives in the determination. The claim was rejected. The FTT concluded that, in any event, even if the applicant’s account were accepted as true he would not be at risk of persecution on return to Sri Lanka.
[3] In summing up her reasons for rejecting the applicant’s claim, the judge of the FTT said this at para 35:
"In coming to these conclusions I accept the appellant’s injuries to his face are not self-inflicted but make no finding as to how they were caused. I do not find the Appellant's evidence credible for the reasons set out above and I do not consider Dr Addis' view of how his scars and dental injuries were caused outweigh my findings particularly taking into account the possibility of their being caused in a traffic accident or deliberately but not because the Appellant was tortured as claimed"
[4] On the basis of this paragraph, the applicant appealed to the UT, arguing that this showed that the FTT had fallen into the error of reaching a conclusion only by reference to the evidence of the applicant, before proceeding to ask whether that conclusion should be shifted in light of the expert evidence. The FTT had thus failed properly to take the medical report into account. The FTT judge had commented that the prescription by the appellant’s GP of a low dosage anti-depressant was difficult to reconcile with the mental state assessment referred to in the MF report. She also said “I can only assume his GP is competent and would be aware of the likely problems suffered by asylum seekers.” It was argued that the reliance by the FTT on this point was not relevant, the diagnosis of PTSD made in the MF report having been made by a suitably qualified individual.
[5] The UT dismissed the appeal, and in this application it is maintained that in doing so the UT erred in law, the grounds being those referred to in the previous paragraph.
[6] In support of the first ground, that the FTT had taken a compartmentalised approach to the evidence counsel cited paragraph 24 from the opinion of in Mibanga v SSHD [2005] INLR 377 that:
“What the fact-finder does at his peril is to reach a conclusion by reference only to the appellant's evidence and then, if it be negative, to ask whether the conclusion should be shifted by the expert evidence.”
Counsel submitted that the wording of paragraph 35 of the determination suggested that the FTT had indeed fallen into this error. Counsel submitted that in earlier paragraphs of the determination the FTT had not addressed the medical report, and that the mere fact that a fair summary of the contents of the report had been included did not mean that it had properly been taken into account. The case of S (Ethiopia) v SSHD [2007] INLR 60, relied upon by the respondent, was the exception, not the rule. Turning to the second ground, the findings in relation to the GP’s prescription involved a significant number of unjustified assumptions relating to the training and awareness of the GP in connection with asylum matters, and whether the dosage might in reality have been higher on the basis of the currently reported symptoms. The Medical Foundation doctor had been aware of the level of anti-depressant prescribed and a low dosage is not inconsistent with a diagnosis of PTSD.
[7] As to the materiality of any error in law, although the FTT appeared to proceed to determine the case on an esto basis, assuming that the applicant’s account were true, it had not really done so: the basis upon which it approached this matter was not separable from the general credibility of the applicant.
[8] Counsel for the respondent submitted that (i) no arguable point of law had been identified; (ii) in any event, any error had no materiality, in light of the unchallenged finding that the applicant is not now at real risk of persecution if returned to Sri Lanka; and (iii) there was no compelling reason to allow the application.
[9] Counsel referred to S (Ethiopia) where the error in law was said to be the same as that advanced in the present case, namely the error of artificially separating consideration of an applicant's credibility from that of the medical evidence relevant to his case. In paragraph 24, Rix, LJ, dealing with a submission based on Mibanga said this:
“It seems to me that the logic of Mibanga does not apply to this case, essentially for two separate reasons. One is that the structure of the immigration judge's reasoning here does not fall foul of that artificial separation and structural failure which were found to exist in Mibanga, and the other is that the medical evidence in Mibanga was so powerful and so extraordinary as to take that case into an exceptional area.”
He went on to say:
“29 That is enough to dispose of this appeal, but I would briefly go on to refer to two other decisions which are not irrelevant to the submissions which we have heard. The first of them is the IAT decision in HE (DRC – Credibility and Psychiatric Reports) [2004] UKIAT 00321 (unreported) 5 November 2004 ( HE ). The tribunal in that case was presided over by Ouseley J. In particular para 17 of that judgment is relevant to our case. The tribunal there said:
‘A particular difficulty arises in a contention that a report should be seen as corroborating the evidence of an applicant for protection. A doctor does not usually assess the credibility of the applicant; it is not usually appropriate for him to do so in respect of a patient or client. That is in any event the task of the fact-finder who will have often more material than the doctor, and will have heard the evidence tested. So for very good and understandable reasons the medical report will nearly always accept at face value what the patient or client says about his history. The report may be able to offer a description of physical conditions and an opinion as to the degree of consistency of what has been observed with what has been said by the applicant. But for those conditions, eg scarring, to be merely consistent with what has been said by the applicant, does no more than state that it is consistent with other causes also. It is not common for the phrases which indicate a higher probative value in the observed conditions to be used. That limits the weight which can be afforded to such a report when judging the credibility of the claim. Rather than offering significant separate support for the claim, a conclusion as to mere consistency generally only has the effect of not negating the claim.’
30 We think that those words are entirely applicable to the circumstances of this case. What the tribunal there said is generally the position. As such, it is of course capable of being subject to exceptions and, for the reasons which I have sought to give, I would regard Mibanga as being a good example of the exceptional situation in which a medical report can have clear corroborative weight which will need to be properly addressed. “
[10] Counsel submitted that the UT were well-founded in taking the view that on a fair reading of the determination as a whole it is quite clear that this was not a case of compartmentalisation. Consideration of what was said in the medical report was an integral part of the consideration of the evidence as a whole relating to credibility.
[11] As to the second ground, the UT made no error in categorising it as an observation, rather than a finding, and one which was reasonably open to the FTT on the evidence before it. In any event, if it constituted an error it was not material as it was more than tolerably clear from the rest of the determination that the same conclusion would have been reached by both tribunals.
[12] The decision on the esto case did not turn on the FTT’s assessment of the applicant’s credibility but on the rejection of the documentary evidence.
[13] Counsel accepted that a strongly arguable point of law, coupled with extreme consequences for an appellant, might constitute “another compelling reason” but submitted that such a reason could not be identified in the present case.
Decision
[14] I do not consider that there is a strongly arguable error of law in this case. In relation to the first ground, the UT were correct to conclude that this is a classic case of taking one paragraph in a decision out of context. Read alone, and out of context, paragraph 35 would be capable of the interpretation suggested on behalf of the applicant. Looked at in context, the position is quite different. Paragraph 35 does not contain the whole of the FTT’s reasoning, for which one must look to the preceding paragraphs. The FTT accepted the conclusions in the MF report that the scars and facial injuries were not self-inflicted. The injuries were clearly injuries which could have been caused in a number of ways. The expert could in reality say no more than that they were consistent, even highly consistent, with the account given by the applicant, and insofar as she went beyond that, as noted by the FTT in para 22, she exceeded her remit. This is a relevant matter for the FTT to consider, especially having regard to the comments in paragraphs 29 and 30 of S (Ethiopia). The findings of the expert, set out in detail at paras 22-26, are referred to again in paras 31 and 32. It was a relevant factor for the FTT to take into account that despite maintaining that his current mental state is attributable to his experiences in Sri Lanka, he did not consult a GP until after making his asylum claim in 2013. The comment about the competency of the applicant’s GP or their experience with asylum seekers made no difference: it was entirely relevant for the FTT to consider that the prescription of a low dose of anti-depressant is hard to square with symptoms of the severity which the applicant now reports. The UT was correct to categorise this as a comment, rather than a finding because in itself it clearly made no difference to the overall conclusions. The paragraphs to which I have referred are all part of the context in which the MF report was considered, as part of whole evidence in the case, and I do not see that there is a strong argument that an error of law was committed by the UT in saying so. In considering whether the FTT in S (Ethiopia) had indeed fallen into the error of compartmentalisation, Rix LJ identified the indications that the FTT had not done so:
“There is the detailed exposition of the appellant's account of her injuries – which as injuries are nowhere doubted …. Secondly, there is the fact that at para 45 the judge expressly referred to the appeal bundle, which we know contained Dr Steadman's report. Thirdly, there are the repeated references to Dr Steadman's report in the judge's account of the parties' submissions, albeit, as I have pointed out, only in the submissions made on behalf of the Secretary of State. Fourthly, there is the opening paragraph to the judge's passage headed ‘Findings’, at para 48, where he said expressly that he had regard to the subjective and objective evidence relied on, that plainly including Dr Steadman's report. Fifthly, there is the fact that at para 59 – that is to say at the end of, as well as, as he had done, at the beginning of the consideration of the appellant's credibility – the judge stated expressly that in reaching his findings, ‘I have taken into account the evidence referred to’”.
One way or another, all of these are present in the determination of this case.
[15] Furthermore, even if the grounds of appeal were well founded, the errors could not in the circumstances be described as material. The FTT had proceeded to consider the position in the event that the findings against the applicant’s credibility were vitiated, and proceeded to consider on an esto basis the claim making the assumption that the applicant’s claims were true. The FTT concluded that even then the applicant would not be at risk, and it did so for reasons which were not based on the assessment of credibility previously referred to but on the basis of the current situation in Sri Lanka and a finding in relation to documentary material placed before the tribunal. When the FTT refers in paragraph 37 to not accepting the appellant’s evidence as to being sought at his home by unidentified men, it is clear that the FTT is referring, not to the appellant’s own evidence, but to the documentary evidence which was advanced on his behalf, and which was rejected for reasons not attacked in this application. The application does not therefore meet the second appeals test and must therefore be refused.