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 ASYLUM AND IMMIGRATION TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		22 February 2007

1. LORD JUSTICE LAWS: This is an appeal with permission granted by Sir Henry Brooke on 13 October 2006 against a decision of the Asylum and Immigration Tribunal (the "AIT") notified on 19 July 2006. By that decision the AIT dismissed the appellant's appeal against the Secretary of State's refusal of asylum and his issue of removal directions on 3 May 2002.
2. The appeal was first dismissed by an adjudicator, Mrs Goldfarb, on 24 March 2004. However on 25 June 2004 the Immigration Appeal Tribunal (the "IAT") granted leave to appeal. They held it to be arguable that the adjudicator's treatment of a medical report from Dr Forrest - of which more later - was flawed, and her credibility findings which were adverse to the appellant thereby undermined. On 4 March 2005 the appeal was allowed to the extent that the IAT ordered it to be remitted to be heard by another adjudicator. So it came before Mr Lane who dismissed it on 17 May 2005. By this time the AIT had, by statute, replaced the adjudicators and the IAT so that, as a matter of strict form, Mr Lane was sitting as an immigration judge of the AIT conducting a reconsideration. Appeal from his decision lay under the statute with permission to this court. On 30 June 2005 a senior immigration judge refused permission to appeal.
3. The appellant re-applied directly to this court. The Secretary of State conceded that the appeal was good. On 31 March 2006, by consent, I made an order allowing it and directing that it be remitted to the AIT for a further rehearing. So, at length, it came before the AIT in June 2006; and it their decision of 19 July 2006 that is the subject of this appeal.
4. The appellant is a national of Cameroon, born on 7 September 1969. He entered the United Kingdom illegally in June 2000. His wife and two children had arrived here before him in March 2000. He applied for asylum in March 2001. His family claim to be entitled to enter and remain as his dependants. The essential particulars of the appellant's claim are set out by the AIT in their determination of 19 July 2006 as follows:

"5 The appellant made a claim and statement through solicitors acting for him at the time. The basis of the claim was that he had been a student at the University of Yaounde between 1990 and 1992. He claimed he was a member of the Auto Defence (AD); a student pressure group formed to counterbalance an opposing student group who supported the political opposition in Cameroon. According to the appellant's statement the objectives of the AD were to nullify the impact of the 'Parliament' which was a very disruptive student group which frequently called strikes and often clashed with the police.

6 Because of disruption and widespread rioting, the university was closed for three months at the end of 1992 after which the appellant claimed he was approached by the University Welfare Administrator, Jean Biatcha, to join the research and documentation directorate for a monitoring job, which he accepted. This involved gathering intelligence on members of 'Parliament' and opposition groups in North West (Bamenda), South West Bureau (Buia) and Doula regions. He was also required to report on the activities of opposition politicians, human rights activists and journalist. He was to report matters to the National Intelligence Service headed by Jean Fochiue. He was told that he was best suited to this role because he spoke both French and English.

7 The appellant began to portray himself as a sympathiser with the opposition and to attend Parliament meetings. He reported on the activities of the National Co-ordination Committee of Opposition Parties (NCCOP) as a result of which members of that group were arrested.

8 The appellant began to have problems in 1994. He was detained for eight days, he believed because it was suspected he had passed information which led to the leader of the Southern Cameroon Youth League evading arrest. He was not given any reason for his arrest but he believed that was the only explanation. He claims he was stripped naked, tied upside down with his hands behind his back and beaten on three separate occasions. He was released and told to be much more vigorous in his work. When he returned home he did not tell his wife what had transpired.

9 In 1996 the appellant was again summoned to an assessment meeting because he was unaware of a meeting to be held by the South Cameroon National Council in Mbengui. Again he was kept in a cell, hung upside down, struck with sticks and beaten into unconsciousness. He was instructed to be more alert and released. As a result of this mistreatment he has scars.

10 On returning home the appellant confided in his wife about what had happened and thereafter continued his duties.

11 In 2000 the appellant was again summoned to attend the local police station but before attending he was arrested during a raid on his home. His wife was assaulted when she attempted to intervene. The appellant was again ill-treated and was told that the authorities had hard evidence against him proving his collaboration with the Southern Cameroonian National Council. During his detention the appellant encountered a guard who was a former university colleague who eventually arranged his escape and journey to the United Kingdom."

5. Before the AIT at the June 2006 hearing the report of Dr Forrest, to which I have referred in passing, was again relied on by the appellant. The principal ground of appeal in this case again relates to the AIT's treatment of Dr Forrest's report. The essence of the AIT's conclusion in July 2006 is given in paragraph 59 of their determination:

"Dr Forrest is of the opinion that the medical evidence gives strong support to the appellant's account of severe violence in detention. We have thought long and hard about the nature and extent of scars the appellant has on his body, which according to Dr Forrest is unlikely to have been caused by natural means. We are inclined to accept that the appellant has been a victim of violence. We do not however accept that the scars were inflicted during torture as the appellant has described. We do not accept that he has ever worked for Auto Defence or been recruited as an intelligence officer in Cameroon. We do not accept that there is a warrant in existence for his arrest should he return to Cameroon, indeed we would go so far as to say that the warrant he has produced is manufactured in an attempt to advance a stronger case, his claim having been refused by the Secretary of State. We regard both the appellant and his witness, his wife, as accomplished liars who have fabricated this claim of persecution in Cameroon. We do not accept that the appellant is at any risk of persecution or ill-treatment on his return."

6. The appellant, by Miss Naik of counsel, points out that Dr Forrest made very detailed and numerous findings of scarring; 22 scars or groups of scars (see paragraph 5.2 of the report). In various instances he found the nature of the scarring to be consistent with the appellant's account of its cause. In the case of three scars, which the appellant attributed to being beaten with a weapon called a cordelette, the doctor found the scars typical of injuries so caused. These are his conclusions:

"7.1 Mr [J] has a very large number of scars all over his body. Their number and widespread distribution makes it unlikely that they were all caused by natural means and they fit in with his explanation that they were caused by beating, violent throwing about and suspension.

.....

7.4 In my opinion, the medical evidence gives strong support to his account of severe violence in detention."

7. In those circumstances it is submitted that the AIT's reasoning at paragraph 59 is legally inadequate. In particular it is said there are insufficient reasons for the rejection of the appellant's account of the causation of his scarring. It is said that the AIT should have made findings as to the forms of violence which they found to have been inflicted on the appellant and whether such forms of violence were, in truth, reasonably likely to have been inflicted by the Cameroon authorities. Miss Naik also submitted this morning that the AIT failed to have regard to objective evidence before them as to methods of ill treatment - not least cordelettes - used by the Cameroon authorities.
8. Reference is made to the decisions of this court in Mibanga v Secretary of State for the Home Department [2005] INLR 377 and S v Secretary of State for the Home Department [2006] EWCA Civ 1153, and especially the comment in S that -

"24 ..... the medical evidence in Mibanga was so powerful and so extraordinary as to take that case into an exceptional area."

We have also been referred, on the papers at any rate, to SA (Somalia) v Secretary of State for the Home Department [2006] EWCA Civ 1302.

9. It is to be noted that Mibanga was concerned with a type of legal error plainly not to be found in this case, namely the process of arriving at an adverse credibility finding based on the tribunal's view of the appellant's evidence and then, as it were, as a separate exercise, considering whether that finding might be shifted by the expert evidence. The evidence had to be looked at as a whole. A report said to be relevant to credibility will be integral to the evidence and not an add-on to it. This is a well established nostrum which fact finders should certainly follow. It was the subject matter of Mibanga. In this case however the AIT, warned by Mibanga, made no such mistake. It was said at paragraph 38:

"38 Mr Adewoye [counsel] has referred to the principle in the well known case of Mibanga [2005] EWCA Civ 367. The criticism made in that case was that an adjudicator 'folded the doctor's report into her inquiry only at a point after she had reached her conclusions'. It seemed to the Court of Appeal to be axiomatic that a fact finder must not reach his or her conclusion before surveying all the evidence relevant thereto. Whilst the compiler of a medical report cannot usurp the fact finder's function in assessing credibility he can offer a factual context in which it is necessary for the fact finder to survey the allegations placed before him and may be a crucial aid in deciding whether or not to accept the evidence as true."

10. The AIT proceeded to describe Dr Forrest's findings in some considerable detail. They looked at the accounts given by the appellant, at various stages, of what had happened to him. They pointed to differences between what he said to Dr Forrest (paragraph 2 of the doctor's report gives a full record of the appellant's account to him) and what he said at other times. I read paragraphs 41 to 45 of the AIT's decision:

"41 The history related by the appellant concerning his arrest in 1994, namely of detention for a week and three separate incidents of being handcuffed, blindfolded, kicked and beaten is to some extent consistent with the appellant's initial claim, but there are differences. According to his claim the appellant was tied upside down with his hands behind his back and beaten on his hands and legs with sticks. He was heavily bruised and suffered swellings. He was questioned about his work in connection with opposition groups. According to the history related to Dr Forrest, however, he was not questioned and was beaten with cordelettes (woven belts with metal buckles and with studs along their length) rather than with sticks.

42 There is also a significant difference between the appellant's original claim and the account given to the doctor concerning the second arrest which was said at the time of his medical examination to have taken place in 1998. According to his claim and other evidence the second detention occurred not in 1998, but in 1996. The appellant gave evidence at the hearing that the discrepancy arose because the medical report had not been read back to him by his previous solicitors in order to comment on its accuracy. We do not accept that explanation. The appellant gave his information to Dr Forrest in the English language, a language which he spoke whilst living in Cameroon, and in which he gave his evidence before us. We can see no reason why Dr Forrest would mistake 1996 for 1998. Nor do we see, given that the appellant is proficient in English, why he would expect the medical report to have been read back to him. Be that as it may, the account of the detention given to Dr Forrest was that the appellant was held for two weeks in a cell the floor of which was kept wet with water. He was beaten in his cell and carried to another room where his hands were tied behind his back and ropes cut into his wrists. He was suspended by the ankles to a hook in the ceiling and the soles of his feet were severely beaten. A blow from a cordelette made a deep cut on his abdomen. He suffered electric shocks, was thrown against a wall. On return home his abdominal wound was stitched at a clinic. As we have already said, the appellant has given no evidence about attendance at a clinic or stitching. He merely says in his statement that he returned home to his wife and had to be nursed for a number of days before he was able to get up and about and continue with his duties.

43 In the appellant's original claim he did not refer to cordelettes being used during the 1996 detention. He merely referred to having been hit with sticks. Again whilst there are similarities in the two accounts they are not identical in that respect. Nor did the appellant refer to any electric shock on that occasion, or to the floor being kept wet.

44 Nor did the appellant refer to any electric shocks inflicted in 2000, though this was something he told Dr Forrest about.

45 One of the discrepancies identified by the respondent in the refusal letter is the fact that the appellant said at interview that the scarring to his stomach caused by the needle of a belt occurred in 2000, whereas according to his account to Dr Forrest, it occurred in 1998, and according to his original claim, in 1996. That discrepancy certainly exists in the evidence and we have heard no satisfactory explanation for it. The appellant did not mention the infliction of electric shocks when he attended his interview."

There follows a detailed account of other aspects of the appellant's case which does not directly engage Dr Forrest's report.

11. I do not consider, for my part, that the AIT was bound to make particular findings as to how, in their view, the appellant came by his injuries. The burden of proof was on him. The AIT rejected the case he put forward. They were not obliged to look for some different or modified case that might be in his favour. Such an exercise anyway would necessarily have been speculative, and for that reason inapt and unhelpful. The AIT did not make what may be called the Mibanga mistake, as I have shown. It cannot be said that in the light of Dr Forrest's evidence the only reasonable conclusion on the facts was that the appellant's case was right. In fairness, Miss Naik this morning disavowed that suggestion though it appears in her predecessor's skeleton argument.
12. I do not accept that the AIT paid no attention to the objective material concerning methods of ill treatment in Cameroon. Overall it cannot be said that the reader of paragraph 59, especially of course the unsuccessful appellant, would not know why the AIT concluded as it did. There is, in my judgment, no good reasons challenge in relation to the medical evidence.
13. Accordingly, for my part, I would dismiss the first and principal ground of appeal relating to Dr Forrest's report.
14. There are other points in the case. Miss Naik submits that the AIT generally have approached the evidence selectively, focussing on aspects which were damaging to the appellant's credibility and ignoring others which were not, even though in some instances (at least in one case) the various materials appear in the same document.
15. In my judgment this part of the case is nothing but an assault on the merits of various detailed factual findings made by the AIT. It is an attempt to re-open the facts, and that is an illegitimate exercise. It is elementary that a fact finder does not have to deal with every piece of material or even every point.
16. As regards the specific submission that the AIT approached the evidence in a selective and, for that reason, illegitimate fashion, this seems to me to be a misconceived argument for this short reason. In paragraphs 36 and following the AIT explained the conclusions they reached. They are not summarising the evidence as such. It is inevitable, or almost inevitable, that in performing the exercise of giving their reasons they should concentrate on those aspects of the material before them that have moved their decision.
17. Miss Naik has submitted that amongst the various points that are gathered under this second part of the case, only one stands alone. That is an assault on paragraph 51 of the tribunal's decision:

"51 The appellant claims that he was a member of Auto Defence a student pressure group formed to counterbalance the opposing student group known as the Parliament. According to the appellant's statement Auto Defence was formed on or about 1990 and fully registered in 1996. He has produced a photocopy from a periodical Le Messager dated 6 June 1991 which reports an interview with the leader of Auto Defence a Mr Ngoufack. The interview refers to events crippling the university at Yaounde since 2 April 1991. A further article from the same publication refers to lecturers suspending their activities because of disruption of lectures by some students. A letter from the appellant to the legal officer of Amnesty International dated 7 November 2005 makes reference to an Amnesty International Report according to which Auto Defence was formed in 1996. An exchange of e.mails again refers to the establishment of Auto Defence by the rector of the University of Yaounde in 1996 to counter student unrest. An e.mail from Tene Sop Guillaume former co-ordinator of the Cameroon Students' Parliament refers to the establishment of Auto Defence groups in 1991. We are prepared to accept that Auto Defence may have been formed in 1991 because that is consistent with the newspaper article which does show that it was the events of that year (1991) that crippled the university at Yaounde. The appellant's evidence in his statement at paragraph 3 that Auto Defence was actually formed on or about 1990 does not accord with the latest evidence from Mr Guillaume. It certainly did not conform to the information in the earlier Amnesty International Report that the group was formed in 1996, but that, it appears, may well be erroneous. The fact remains that the appellant's evidence is inaccurate by one year. We think that discrepancy of twelve months is important because we do not accept that a person such as this appellant who claims to have been on the organising committee and to have played a part in policy would, if speaking the truth, have made an error of that kind."

18. It is said that the AIT did not consider all the evidence in respect of the issue whether Auto Defence was formed in 1990 or 1991. It is said that the tribunal's conclusion that the appellant's evidence was inaccurate by a 12-month is irrational or was unavailable to them. It is submitted that the AIT ignored a detailed letter from the appellant to Amnesty International and certain other material, details of which are given in paragraphs 17 to 22 of counsel's skeleton argument.
19. The skeleton argument prepared by Miss Grey, counsel for the Secretary of State, states at paragraph 16:

"The documentary evidence concerning AD ..... says it was formed in 1991; ..... [The appellant's] statement ..... suggested that it was formed 'on or about 1990' or '[in] 1990 as claimed'. (In [2005] his evidence was similar: that is, he first said that he did not know when AD was formed, then said that it had existed in 1990 'in an informal way')."

20. In my judgment, overall the reasoning at paragraph 51 is perfectly coherent. I do not accept that because of the absence of any express reference in that paragraph, the AIT ignored relevant evidence in relation to this part of the case. Their assertion that the appellant's evidence was inaccurate by one year is simply a way of saying that the difference between what the appellant had said about 1990 and the time when AD was likely to have been formed was a significant difference. That was a matter for them. They were entitled to find that there was a discrepancy and they were entitled to attach some significance to it.

21. As regards the other points, as I have foreshadowed, Miss Naik accepted that none of them individually would suffice to undermine the AIT's decision. I do not propose to deal with them in detail. I will identify what they are. There is a point about the significance or otherwise attached by the AIT to the fact that the appellant spoke both French and English. There is a point about the AIT's treatment of certain evidence concerning a newspaper. There is another point about prison conditions and the likelihood that the appellant may have escaped, in light of evidence about people being held incommunicado in the jail. There is also a point concerning that part of his case in which he claimed to have been recruited for intelligence work: the point is concerned with the AIT's treatment of the question whether or not the appellant would have had such a profile as to have made that part of his claim improbable.

22. I have considered all of these points. I am unable to find in any of them a flaw which amounts to a misdirection in law or a self-contradiction or anything of that nature which ought to attract relief at this court. While (I emphasise) Miss Naik is not to be criticised (her client enjoyed permission to appeal) I have concluded that this case is a particularly stark example of what in this field has become an intractable problem: that is the misuse of factual arguments, sometimes amounting to little more than nuance, and often points of small detail, as a basis for assaulting the legality of a decision. This court, as everyone practising in the field knows, is exercising a jurisdiction on law only. Of course public law principles extend to ideals of reasonableness and fairness, and that is elementary. But there must be limits to the extent to which fact can be turned into law and the jurisdiction of this court extended beyond what Parliament has provided or what good sense would contemplate.

21. For all the reasons I have given I would dismiss this appeal.
22. LORD JUSTICE SCOTT BAKER: I agree.
23. SIR IGOR JUDGE, P: This determination is clear, analytical and structurally appropriate in the sense explained in Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367. None of the evidential features of the case was artificially disconnected from any of its other features. In particular, what was described in argument as torture-specific medical evidence was addressed with care and circumspection before the appellant's evidence was rejected as fundamentally dishonest and untruthful. There was ample evidence to justify the AIT concluding that the appellant was not at risk of persecution or ill treatment if he were returned.
24. I therefore agree with my Lord, Lord Justice Laws, that no error of law is shown. I further agree with the last observation in his judgment about the artificial construction of asserted errors of law which are no more than an attempt to re-argue questions of fact which have already been properly determined. The appeal will be dismissed.

Order: Appeal dismissed with detailed assessment of appellant's costs.