England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2 Friday, 1 November 2002

1. LORD JUSTICE BUXTON: This is a renewed application for permission to appeal to this court from the determination of the Immigration Appeal Tribunal, permission having been refused on paper by Brooke LJ. The applicant, Mr Mudarikwa, is or was a citizen of Zimbabwe. He arrived in this country on 2 November 2000 and claimed asylum on arrival. It is the essence of his claim that as a practising homosexual he has been denied the right to practise his sexuality in Zimbabwe, because of the very strong hostility in that country towards homosexuals. He also claimed he was a member of the Movement for Democratic Change ("MDC") and was subject to political violence in Zimbabwe for that reason.
2. The applicant did not attend the hearing before the special adjudicator because he was certified to be unfit on medical grounds. The adjudicator, however, pursued the application on the basis of the objective evidence that was before her and she found that the account given by the applicant (the appellant before her) was in large part not credible. She set out eleven reasons why that was so . She then said this:

"I have no reason to doubt that the Appellant is homosexual, but I have grave doubts as to his allegations of ill treatment and the suggestion of him suffering post traumatic stress. His account of his activities for the MDC do not show any reason why the authorities should be particularly interested in him and indeed the Appellant says in his statement he was arrested because he was gay."

She said at the end of the determination:

"As to Article 8, I do not accept that there is a strong and loving relationship between the Appellant and his partner. The letters and the evidence at the initial interviews do not show sufficient evidence of this. If I were to believe the Appellant's story I would expect to have seen references to his alleged illness in the letters. The Appellant does have a wife and child in Zimbabwe and has been able to live with them since his marriage in 1997."

3. Three objections are taken to the way in which the adjudicator and, following her, the Immigration Appeal Tribunal dealt with this matter. The first is that both tribunals were wrong not to accept and act on a report that was before them from Dr Coleman, a highly-qualified psychiatrist who had diagnosed the applicant as suffering from post-traumatic stress disorder and also depression. Miss Harrison rightly says that that evidence was relevant (and only relevant) to the question of the applicant's credibility.
4. Dr Coleman's report largely consists of an account of the applicant's alleged experiences as given to the doctor, but it also describes the applicant suffering flashbacks during the actual interview, in the doctor's view characteristic of post-traumatic stress disorder. The diagnosis was in these terms:

"Mr Mudarikwa suffered the most brutal rapes one can imagine in Zimbabwe. He also suffered from tortures as described above. Since that time he has suffered from intermittent and severe nightmares, also flashbacks and avoidance fears."

5. The tribunal criticised -- one has to put it in these terms -- the diagnosis and the general report, saying that the report itself did little more than recount what the applicant told the doctor and, as the special adjudicator had noted, showed no explanation of how the doctor came to the conclusion that the applicant was suffering from such a disorder. There was no clinical assessment and no reference to clinical tests. The diagnosis appeared to be largely based upon what the doctor had been told. It was also pointed out that Dr Coleman had no medical history or patient notes available to him and did not explain the basis of his diagnosis.
6. Miss Harrison says two things. First, the Immigration Appeal Tribunal was simply wrong about there being no medical history available. There was in fact available to the tribunal a letter from a general practitioner saying that he had referred Mr Mudarika to psychiatric services and that should have been regarded as something that corroborated Dr Coleman. Secondly and more radically, she says it was not open to either tribunal not to accept Dr Coleman's evidence and act on it and, as I understand it, not to accept it as strongly corroborative of Mr Mudarika's story even though on other evidence the adjudicator had not accepted his story.
7. I cannot accept those submissions and I do not think that they are in this case properly arguable. I was referred to the observations of Forbes J in the case of Beqaraj [2002] EWHC 1469, in which the judge said that it was necessary for a tribunal to take into account evidence of doctors that was strongly corroborative of the truth of the account given by the claimant and his wife. It is conspicuous, however, that in that judgment Forbes J first of all stressed that no tribunal was bound to take medical evidence at face value; and, secondly, that in the evidence before Forbes J the doctors concerned had applied a wide variety of psychometric tests and had clearly produced a report very different from that of Dr Coleman.
8. I cannot and do not accept that it was outwith the jurisdiction of these two tribunals to deal with Dr Coleman's evidence in the way that they did. Having looked at it and its form, and having looked at it in the context of all the other evidence, they were entitled to find that it was not of a weight and nature that caused the conclusions that otherwise had been reached about credibility to be displaced.
9. Miss Harrison also argues that the court should take into account in this connection two medical reports demonstrating continued mental ill-health on the part of the applicant that have been obtained since the hearing before the Immigration Appeal Tribunal. She says that these should be taken into account as undermining the attitude of the two tribunals and reinforcing the view of Dr Coleman. For the contention that such evidence is admissible at this stage, even though it was not before the courts below, reliance is placed on the recent decision in this court in the case of Haile [2002] INLR 283.
10. Again I fear that I do not accept that submission and do not, for my part, think it properly arguable. It is very important to note in that case that Simon Brown LJ, giving the judgment of the court at paragraph 3, emphasised that the fresh evidence that he was addressing was not fresh evidence in the conventional sense. All that it was was evidence that demonstrated, or might demonstrate, that there had been a mistake at the actual hearing; that is, as the Lord Justice said, "that the special adjudicator misheard or misnoted, and in the result misunderstood a significant piece of evidence which was before him". That is to say, he misunderstood in that case individual letters and the status of them referred to in a particular statement. That was all that that case decided. It certainly did not, as it were, open the door to the adduction of evidence that had not been before the tribunal below in order to give a ground for appeal. If there is further evidence of the sort relied on here, it does not found any appeal to this court. It may be something that should and could, as Brooke LJ said, be put before the authorities, but it cannot be relied upon for the purpose for which it is sought to be used here.
11. Those are the submissions as to the medical evidence and as to Dr Coleman's report. It is also submitted, on the question of the status of the applicant with regard to the MDC and also his general status as homosexual, that insufficient attention had been paid to the background evidence with regard to the general situation in Zimbabwe. Again I do not accept that submission. The adjudicator did address that point and dealt with it adequately, and certainly in a way that this court cannot interfere with.
12. I come to the third point, which is the position under Article 8 of the Convention on Human Rights. This raises more difficulty. This court has recently had cause to address this matter in the case of Z [2002] EWCA Civ 952. Miss Harrison rightly accepts that the mere fact that homosexuality is legally forbidden in a particular country does not in itself ground any reason for preventing deportations to that country. She does, however, point out that this court made plain that it was necessary in the context of Article 8 for careful consideration to be given to the attitudes of the country authorities to persons who are homosexual.
13. In this case the adjudicator has found that Mr Mudarika was not telling the truth when he said that he had a long-term and stable homosexual relationship that he would wish to pursue on return to Zimbabwe. On the other hand, it was not challenged that he is in fact of homosexual inclination and would, no doubt, therefore, in some way wish to express that inclination in his home country. I have been troubled by this point because it does seem to me, despite the references to Article 8 in the adjudicator's determination that I have already quoted, that no thought was directed (possibly because neither tribunal had the benefit of the view of this court in Z) to the question of whether different considerations should apply to an analysis of whether there would be breach of Article 8, as opposed to what the Immigration Appeal Tribunal appears to have directed itself to: that is to say, whether there would be persecution for the purposes of the Refugee Convention. This is an area that, as it seems to me, is not at the moment settled because it may be the case -- and I put it no higher than that -- that conduct which would not qualify as persecution or potential persecution for the purposes of the Refugee Convention would, or might, give grounds for saying that there would be a breach of Article 8 of the Human Rights Convention if he were to be returned.
14. There are other cases on foot of which I am aware in which that matter is being pursued. I do not think it would be right in these circumstances to deprive this applicant of the opportunity of seeking to persuade this court on fuller and mature consideration of the impact of Z upon the particular form that this determination took, that the tribunal did not adequately consider the Article 8 position. On that ground, and on that ground alone, I am minded to give permission to appeal.
15. I make the following directions. This is an appeal suitable for hearing by two Lords Justices or, alternatively, by a court of three, one of whom may be a Judge of the High Court. I would also suggest that in view of the limited terms in which I have granted permission (of which Miss Harrison will be well aware) it would be appropriate for a further skeleton argument to be prepared for this court which sets out, if I may say so, in more precise detail than the skeleton that I at present have (which of course goes over the whole case) the particular submissions that Miss Harrison has made to me this morning, which I am persuaded deserve a wider consideration.
16. I should also say this. I quite accept that there is evidence in this case that suggests that this gentleman is not well. I have sought to explain why I am not persuaded that that evidence impacts on the question that this court has to consider. But it would, of course, be open to those advising him to draw this state of health to the attention of the Home Secretary, since it may be relevant to a question of whether or not further action should in any event be taken.
ORDER: Application allowed on the ground given. (Order does not form part of the approved judgment)