Rt (Medical Reports - Causation of Scarring)
| Jurisdiction | England & Wales |
| Judge | Storey,Spencer |
| Judgment Date | 07 December 2007 |
| Neutral Citation | [2008] UKAIT 9 |
| Court | Asylum and Immigration Tribunal |
| Date | 07 December 2007 |
[2008] UKAIT 9
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Senior Immigration Judge Storey
Senior Immigration Judge Spencer
For the appellant: Mr J Martin of Counsel instructed by Nag & Co
For the respondent: Ms Z Kiss, Home Office Presenting Officer
RT (medical reports — causation of scarring) Sri Lanka
Where a medical report is tendered in support of a claim that injuries or scarring were caused by actors of persecution or serious harm, close attention should be paid to the guidance set out by the Court of Appeal in SA (Somalia) [2006] EWCA Civ 1302 . Where the doctor makes findings that there is a degree of consistency between the injuries/scarring and the appellant's claimed causes which admit of there being other possible causes (whether many, few or unusually few), it is of particular importance that the report specifically examines those to gauge how likely they are, bearing in mind what is known about the individual's life history and experiences.
The appellant is a national of Sri Lanka and is a Tamil. This is a reconsideration of a determination by Immigration Judge D J Baker notified following a hearing on 24 July 2007 dismissing the appellant's appeal against a decision dated 21 May 2007 refusing to grant asylum and a decision of the same date refusing leave to enter the United Kingdom. To avoid confusion we should mention that there are two “Martins” referred to in our decision: one Mr J Martin of Counsel; the other, Mr A Martin who is a Consultant in Accident and Emergency medicine. They are not related.
The basis of the appellant's account was that his brother had joined the LTTE after his father had been killed in 1991 and he himself had joined the LTTE in 1995 and had military training. The LTTE sent him to Mullaithivu to gather information on the army, to Vanni to recruit for them and to Jaffna to gather intelligence. In August 2000 he was arrested by the army, detained and tortured. He escaped from the hospital (where he had been transferred) and went back to Vanni. He subsequently left the LTTE and went to Colombo from where he arranged his departure from Sri Lanka with the help of an agent.
Upon this account the immigration judge made mixed credibility findings. She found that the appellant was a Tamil who had (shop) employment in Jaffna, that his father was killed in 1991 during a bombing incident and that his brother had joined the LTTE and had been in the UK since before the appellant's arrival. She also accepted that:
“… the appellant had become involved with the LTTE and assisted them at a low level by providing some information to them and putting up posters whilst working in a shop in Jaffna. Prior to that he helped the movement and was involved in publicity and publicising the movement for school children.”
However she found that his claim to have been arrested by the Sri Lankan army and tortured and to have escaped from hospital was a fabrication. She stated:
“62. I have considered the risk factors to this Appellant on the basis of my findings of fact. I have found that he has not been of previous interest to the authorities and has not been detained so there will be no records held which would place him at risk. He did not escape.
63. He has been a low level member of the LTTE but a significant period of time has elapsed since he was in Sri Lanka. His brother was a member of the LTTE but had come to the UK before the Appellant left Sri Lanka. He is not extensively scarred and the objective evidence suggests the scars would not put him at risk per se. No recent evidence was placed before me as to the likely situation at the airport. Paragraph 32.13 of the May [2007] COIR indicates that most are questioned briefly and are not asked about asylum claims.
64. In the light of the objective evidence, I find as a fact that he would not be at risk of persecution or a breach of his human rights on arrival at the airport.
65. As a Tamil in Colombo he is more likely to attract attention from the authorities than a Sinhalese, as is clear from the objective evidence. However, he is not known by the authorities to have been a member of the LTTE previously and has not been involved in fighting. Clearly the situation has changed since Jeyachandran was decided but there is insufficient evidence before me that the Appellant is more at risk than any other Tamil in Colombo and I find that he has not discharged the burden of proving even to the low standard required that he faces a real risk of persecution or a breach of his human rights under Article 3 if returned to Colombo.
66. As I do not find that he escaped from the LTTE or that he spent time in the custody of the army, I do not find that he would be targeted by the LTTE, in Colombo or elsewhere.”
The grounds for review were twofold. It was submitted first of all that the immigration judge had erred in law in failing to give considerable weight to Mr A Martin's opinion in his medical report on the appellant that one of his scars was “highly consistent with” the account he gave of ill treatment at the hands of the Sri Lankan army: in paragraph 48 of the determination she stated that the report did not preclude the possibility that the injuries were caused by other means. But, the grounds stated, “to establish his case on the reasonable likeliness (sic) test the appellant does not need to go that far.” Given the lower standard of proof, “scars which are consistent are capable of being probative and scars which are highly consistent will be probative unless there is good reason to reject them”. In support of this submission the grounds cited Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367 and SA (Somalia) v Secretary of State for the Home Department [2006] EWCA Civ 1302. In the latter case the Court noted that the difference between findings of “consistent with” and “highly consistent with” was elaborated by the Istanbul Protocol as follows:
“(b) Consistent with: the lesion could have been caused by the trauma described, but it is non-specific and there are many other possible causes;
(c) Highly consistent: the lesion could have been caused by the trauma described, and there are few other possible causes;”
It was significant in the appellant's case, added the grounds, that he had had some LTTE training but following that had been engaged in work where he was not likely to sustain the injuries which he had.
The second ground for review complained that the immigration judge's findings were incomplete and irrational.
The grounds also made reference to the recent Tribunal country guidance case of LP (LTTE Area-Tamils-Colombo) Sri Lanka CG [2007] UKAIT 00076, but as Mr Martin conceded, the guidance in this case would only came into play if we found errors in the immigration judge's findings of fact, in particular in the finding that the appellant had not been detained.
Dealing with the second ground first, we find that its contents amount to no more than a series of disagreements with the immigration judge's findings of fact. We see no flaw in the immigration judge treating as adverse to the appellant the fact that whereas at interview he failed to give dates for when he was detained and when he was transferred to hospital, he was able in subsequent statements to give precise dates for both events. It was also open to her to count against the appellant that the dates for his detention and transfer to hospital which he gave at the hearing (as being 23 August and end of September 2000 respectively) were different from those that he gave in the “history” section of his medical report, where he is recorded as stating that he escaped from hospital on 23 August 2000. The immigration judge considered the appellant's explanation for this discrepancy — that he only gave an approximate date to the doctor who fixed on that particular date — and was quite entitled to find it unsatisfactory. We see nothing wrong with the further findings of implausibility which the immigration judge made in relation to the appellant's account of how he was identified to the army in his shop as an LTTE member. Again the immigration judge did not find plausible that having identified the appellant as an LTTE member and subjected him to torture, the army should transfer him to hospital but not bother to guard him. There is no reason to think in this context that the immigration judge overlooked the appellant's claim at paragraph 14 of his witness statement that there were soldiers at the hospital. The appellant had clearly stated at the hearing that he was unguarded. We also find unexceptionable the immigration judge's assessment that it would have been a remarkable coincidence if there had been someone at the hospital who was, as the appellant had claimed, at once (1) a friend of his father (who had died in 1991), (2) someone able to recognise the appellant and (3) someone prepared to put himself at risk to assist the appellant's escape. The immigration judge also found implausible the appellant's claims not to have had contact with his mother since 1995, not to know that he was travelling to the UK and (despite having accepted that he travelled on two planes and caught a train) not to know which countries he had travelled through before arriving in the UK.
The grounds pointed out, as a criticism of these findings, that the fact that something is highly unlikely or a coincidence does not mean that it is untrue. But there is no basis for considering that the immigration judge was unaware of such distinctions: she simply did not find, viewing the evidence in the round, that key difficulties which had been identified in the appellant's evidence had been adequately explained.
The point made in the grounds...
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