COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BROOKE
VICE PRESIDENT COURT OF APPEAL
LORD JUSTICE MOORE-BICK
| SA (Somalia)
|- and -
|Secretary of State for the Home Department
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Charles Bourne (instructed by The Treasury Solicitor) for the Respondent
Crown Copyright ©
Sir Mark Potter, P :
The decision in Mibanga
"The medical evidence does not assist the appellant. The medical evidence, whilst noting the number and location [and] size of numerous scars on the appellant and his current, assessed to be fragile, mental state, does not consider, or deal with whether the scars could be the result of anything else, for example, childhood illness or skin disease. I conclude that the medical evidence does not assist in establishing the appellant's case and the doubts I have expressed on the credibility of the fundamental aspects of his claim have not been resolved by the medical evidence in any sense."
In a later passage, the adjudicator affirmatively asserted that the scars could "well be" from childhood disease, and not skin disease or illness. (see paras  and  of judgment).
"…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."
Wilson J referred to a statement in a decision in the Immigration Appeal Tribunal in the earlier decision of HE (DRC-Credibility and Psychiatric Reports)  UKIAT 00321 at para 22 that:
"Where the report is specifically relied on as a factor relevant to credibility, the adjudicator should deal with it as an integral part of the findings on credibility rather than just as an add-on, which does not undermine the conclusion to which he would otherwise come."
"She addressed the medical evidence only after articulating conclusions that the central allegations made by the appellant were, in her extremely forceful, if rather unusual phraseology, "wholly not credible". Furthermore, she said that she considered that the evidence did not assist her because of her belief that the scars could well be reflective only of illness or disease. Although I accept that the fact that the appellant had identified only two of the scars as being thus reflective did not establish that the others were inflicted in the course of torture, it does – and here I choose my words with care in the light of what I will be proposing to my Lords as the proper disposal of the appeal – seem at first a little unlikely that, to take one example, the scars underneath the penis were the result of illness or disease rather than of torture of the genitals, with which, by reference to a book on the medical documentation of torture, the doctor had regarded them as consistent. Unusually, the adjudicator's determination had not included the usual express reminder to herself for the requisite standard of proof. Had she had that standard even more in the forefront of her mind; had she in particular considered the scars on the penis and also, perhaps, the multiple linear scars on the back; and above all, if she had conducted her reference to the doctor's evidence at the right forensic times; then it is at least possible that she would have come to a different conclusion."
"The adjudicator's failing was that she artificially separated the medical evidence from the rest of the evidence and reached conclusions as to credibility without reference to that medical evidence; and then, no doubt inevitably on that premise, found that the medical evidence was of no assistance to her. That was a structural failing, not just an error of appreciation, and demonstrated that the adjudicator's method of approaching the evidence diverted from the procedure devised in paragraph 22 of HE set out by [Wilson J]."
The adjudicator's decision.
"The Appellant produced a report from Dr Ashu Madan of Stonehall Lane Surgery, London. The doctor had carried out an examination of the Appellant and had found a scar on his upper chest which the Appellant had explained to him was caused by a bayonet injury in 1992 and two further scars on his knees when he had been kneeling repeatedly to bury bodies. He also had sustained a lesion from being hit with the butt of a gun. He also had scars under his left eyebrow, on the bridge of his nose and left upper lip. The Appellant had explained to the doctor that these had come from being beaten. The doctor also noted that he presented a history of depression and had complained of shoulder pains, inflamed skin lesions, and had disturbed sleep patterns and recurring flashbacks. For these …[he]… had been prescribed medication and was subject to review."
It is worthy of note that at two points in that paragraph the adjudicator made clear that the origin of the scars were explained to Dr Madan by the appellant.
"the medical report that he had produced showed that he had suffered injuries and he had explained the cause of these to the doctor who noted them."
"40. I note what Dr Madan has said in his medical report that the explanation for the marks that he found on the appellant's body came entirely from the appellant. As I have rejected his evidence, I likewise reject the explanation for the injuries he gave the doctor. In respect of the depressions the doctor only prescribed medication."
Dr Madan's letter
"SA tells me that the "Abgal" clan captured him in 1992 and he was subsequently used as a slave to perform daily chores and regularly bury dead bodies for them. During this time, he witnessed numerous murders and he recollects there being "blood and explosions" constantly everywhere.
Fortunately, one other clan was involved in combat with his captors and they managed to release him to escape in 1993.
SA sought and lived with uncle until he too was killed and was forced to flee to save himself.
He ultimately sought refuge in Yemen and gained employment working in a carwash. However, once again, he became the victim of harassment, repeatedly beaten by police officers. He subsequently left to seek safety in the UK." (emphasis added)
I have in that passage italicised only passages that would appear to relate to possible injury to the appellant.
"SA's presenting symptoms to me have been of generalised body pains worse in the back, but he has also repeatedly presented to my colleagues with knee and shoulder pains, inflamed skin lesions, and the most damaging being a very disturbed sleep pattern due to recurring flashbacks and nightmares when he visualises the explosions and bodies.
His mood is very variable, often worse in the evening after he has discussed his experiences with other residents. He admits to ideas of deliberate self-harm, but then he will pray to ease the mental pressure."
"In the midline of his right upper chest there is a 1.5" x 1" scar from a bayonet injury in 1992, and two further scars on his knees from that time when he was kneeling regularly to bury bodies. Also, from that time is a 1" lesion on the occiput from being hit with the butt of a gun.
Examination of his face reveals at least scars: 1.5cm under his left eyebrow, ½cm vertical scar on the bridge of his nose, and a 1.5cm left upper lip scar after repeated beatings and being banged against walls by police in Yemen. There are also 1"-1.5" scars on his right elbow from these incidents.
In view of his presentation, history and depression linked with his repeated assaults I have commenced SA on Fluoxetine 20mg and will keep him under regular review."
The Tribunal decision
"…In relation to the first ground, the application asserted that the adjudicator was wrong to reject the medical evidence which corroborated the fact that the appellant was tortured in both Somalia and in Yemen. However we pointed out to Mr Adewoye that in fact the medical evidence did no such thing."
Having considered the terms of Dr Madan's letter, the Tribunal stated:
"9. Nowhere in that letter does Dr Madan express any opinions at all about the appellant's scars, the cause or likely cause; he merely repeats what he has been told by the appellant, namely that the scar in the middle of his upper chest is from a bayonet injury, that two further scars on his knees are from the time when he was kneeling to bury bodies and the one lesion on "the occiput from being hit with the butt of a gun". He refers to a lesion under the appellant's left eyebrow, a vertical scar on the bridge of the nose and a scar on the left upper lip having been caused by repeated beatings and banging against the walls by police in Yemen. He adds "There are also 1"-1.5" scars on his right elbow from these incidents".
10. Nowhere does the doctor express his opinions at all as to whether it is possible that the scars could have been caused in a way in which the appellant describes."
"186… For each lesion and for the overall pattern of lesions, the physician should indicate the degree of consistency between it and the attribution
(a) Not consistent: the lesion could not have been caused by the trauma described;
(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;
(d) Typical of: this is an appearance that is usually found with this type of trauma, but there are other possible causes;
(e) Diagnostic of: this appearance could not have been caused in anyway other than that described.
187. Ultimately, it is the overall evaluation of all lesions and not the consistency of each lesion with a particular form of torture that is important in assessing the torture story (see Chapter IV.G for a list of torture methods)."
Lord Justice Brooke:
Lord Justice Moore-Bick: