England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No: AA/09771/2006]

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th January 2008

Lord Justice Buxton:

1. This is a renewed application for permission to appeal from a determination of the Asylum and Immigration Tribunal, which was promulgated, or at least prepared, on 6 July 2007.
2. The applicant is a citizen of Sudan who came to this country in, I think, 2006 and claimed asylum, having passed through France and Italy on his way here. He said that he was concerned that he would encounter serious problems on return to the Sudan, basically for two reasons; one, because of his Tunjur ethnicity and therefore being likely to be harassed as a member of that ethnic group (particularly engaged in crop trading in Darfur); and secondly, he had been the personal driver of a person who held a high position within the JEM, an organisation regarded with hostility by the authorities in the Sudan, and more particularly that he had been, in March 2006, arrested and tortured, having eventually managed to escape in circumstances to which I shall have to return.
3. His application was originally dismissed by an immigration judge, but on reconsideration a senior immigration judge considered that the medical evidence had not been satisfactorily dealt with. There were, in his view, two objections. One, that the credibility of the applicant had been dismissed before the medical evidence was considered and secondly, that what was said about the medical evidence had been itself unsatisfactory. The first of those objections does not now arise, in view of the terms in which the determination under appeal expressed itself. The second of those objections is still pursued.
4. The medical report, which it is accepted now was from a doctor who was qualified and capable of explaining the nature and origins of scarring, set out a series of scars that this gentleman had on his body. The applicant said that they were incurred by being beaten by the Sudanese security forces in the way I have already explained. In particular, he pointed to a scar on one of his arms where he said had been burnt with a hot knife, and he, for the benefit of the doctor, drew the knife, which fitted the shape of the scar. The doctor in his report, as set out by the senior immigration judge who considered the application for reconsideration, said this:

"The appearance of his scar on his left arm is consistent with a burn from an object, very similar to the object he drew for me and told me was the blade of a knife. The smaller relatively leaner and horizontal scar on his left upper arm is also consistent with a cut from a sharp object, very similar to a knife, which was described by Mr Ali. The appearance of the other scars on his lower limb and right upper limb… and the scars on back and left side of his neck… are consistent with trauma from blunt objects of different sizes and shapes. The appearance of these scars also suggest that their original wounds have been infected during the healing process and they finally healed with secondary intention (without the skin edges being opposed during the healing process) and therefore are likely to be consistent with Mr Ali's description."

5. The senior immigration judge drew attention, and Mr Jafar before me this afternoon draws attention, to the first two of those scars. Mr Jafar says (picking up the suggestion of the senior immigration judge that these were different from normal cases of scarring in that a specific origin for them was alleged by the applicant, and that the examining physician agreed that the appearance of the scars was consistent with the aetiology set out by the patient), and this was the ground upon which the matter was remitted, that this was a more detailed and circumstantial investigation of those scars than had been given by the original immigration judge.
6. When the determination under appeal turned to that point, the Tribunal said this. Having said that it would deal first with the medical report, it quoted from the case of SA (Somalia) v SSHD [2006] EWCA Civ 1302, in which this court said:

"It is…desirable that, in the case of marks of injury which are inherently susceptible of a number of alternative or 'everyday' explanations, reference should be made to such fact, together with any physical features or 'pointers' found which may make the particular explanation for the injury advanced by the complainant more or less likely."

The Tribunal then commented:

"Whilst stating the injuries are 'likely to be consistent with Mr A's description' the report does not go into or indicate that there are no other possible causes."

7. It is argued on the applicant's behalf that that was not good enough. Either that was an inadequate consideration of the evidence the doctor had given, or at least the matter should have been gone into in more detail. I do not agree. The most that Dr Taghipour found himself able to say was, in each case, that the scarring was consistent with the account given by the applicant. True it is that in two cases the account was more circumstantial, but the doctor did not go on to exclude other possibilities, which he could have done if he thought that the evidence bore the weight that the applicant wished to put on it. Furthermore, it is not correct that the determination under appeal gave no weight at all to the medical report. What the Tribunal said in paragraph 30 of its determination was:

"We have carefully considered Dr Taghipour's Report in the round and find that the effectiveness of this report only has the effect of not negating the claim."

That was not the conclusion that the applicant wanted from it, but it was not a conclusion that was in itself adverse to him, and in my judgement it was one that the Tribunal was entitled to reach.

8. I was pressed with a case in this court of Mibanga v SSHD [2005] EWCA Civ 367, a case to which I myself was party. Attention was drawn to the leading judgment of Wilson LJ, in which he criticised the adjudicator in that case for saying that the medical evidence did not assist her because it was possible that the scars could well be reflective only of injury, illness and disease. That case differs from this case in at least two ways. One, because the adjudicator gratuitously offered an explanation, which was an explanation that was actively adverse to the medical report, and secondly, because in that case she excluded consideration of the report entirely.
9. That is not what the Tribunal did in this case. That meant, therefore, that since the medical evidence was in the tribunal's assessment neutral, it had then to go on and consider the general question of credibility. In paragraph 34 it gave cogent reasons why it did not find the appellant to be a credible witness. That was not used to criticise the medical evidence. It was determined in the context where the medical evidence itself did not negate the claim, but what did negate the claim was the findings of the Tribunal that the applicant's account was inconsistent with the objective evidence about the practice of detention in Sudan. His explanation of how he got away was entirely incredible and the fact that he was allowed to escape was inconsistent with his claim that he was a prominent member of the JEM.
10. Not surprisingly, none of that was in any way challenged before me or before the court below. What is sought to be said in this case is that the medical evidence is so much in this applicant's favour that it is at least arguable that it offsets those otherwise cogent credibility findings. The Tribunal was entitled to find that the medical evidence does not have that status. I will not grant permission to appeal.

Order: Application refused