QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Monday, 17th June 2002
B e f o r e :
Smith Bernal Reporting Limited,
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Mr S Wilken appeared on behalf of the Defendant
Crown Copyright ©
Monday, 17th June 2002
"Any medical or psychiatric report deserves careful and specific consideration, bearing in mind, particularly, that there may be psychological consequences from ill-treatment which may affect the evidence which is given by an applicant. In the Tribunal's view, it is incumbent upon the Adjudicator to indicate in the determination that careful attention had been given to each and every aspect of medical reports, particularly that they are matters of expert evidence which cannot be dismissed out of hand".
"Turning to the case before us, we look at these findings in turn. Mr Jorro submitted that the Adjudicator, when making an adverse finding because of the elapse of time between being granted a visa and actually leaving for the UK, had totally ignored the detailed medical evidence about this appellant. This evidence suggests that he has a trauma to his head which has resulted in weakness of his left side (both arm and leg) as well as slight mental function weakness (letter from a consultant pediatrician). He told the psychiatrist, Dr M Michail, who examined him on 13th December 1997 that, since the age of 17, he started to have strange experiences of having aliens talking to him, and believing that God was talking to him and telling him what to do. Dr Michail's opinion is that 'he has had a miserable childhood starting with his severe head injury with its subsequent organic impairments in the form of mental retardation and undeveloped left side of his body.'
"Mr Jorro submitted that the Adjudicator had totally failed to take account of any of this evidence, and had ignored the important paragraphs 206ff of the UNHCR Handbook which set out appropriate guidelines for cases of this type. He also referred us to the Tribunal decision of Mohammed (12412) with Professor Jackson as Chairman, and the two members of this Tribunal sitting in that case also as members. The Tribunal said in that case:
"'Any medical report or psychiatric report deserves careful and specific consideration, bearing in mind, particularly, that there may be psychological consequences from ill-treatment which may affect the evidence which is given by the applicant. In the Tribunal's view, it is incumbent upon the Adjudicator to indicate in the determination that careful attention has been given to each and every aspect of medical reports, particularly that these are matters of expert evidence which cannot be dismissed out of hand'".
"I find that there is little corroborating evidence from Albania about the appellant's wife's rape. The evidence of both the appellant and his wife was that they went to see the public investigator who was afraid to help them because she feared for her job and for her life and therefore referred them to a gynaecologist. Even if the gynaecologist was not willing to write a report stating that the appellant's wife had been raped they could surely have gone to another doctor and told him that she had been raped without mentioning that the attackers were police officers. I find the appellant and his wife both knew about the importance of medical evidence in this regard. The report produced by the appellant's wife and the gynaecologist only refers to facial injuries. I find that these could have been caused by any incident or even an accident. The medical reports of Dr Rich, Dr George and Dr Varley refer to the clinical depression and post traumatic stress disorder of both applicants resulting from the rape incident. However, these reports were based upon the evidence which the appellant and his wife gave the doctors. I therefore attach little weight to the reports bearing in mind that I have found both the appellant and his wife to be without credibility".
MR WILKEN: My Lord, as far as my learned friend's application for costs, I cannot resist an order for the defendant to pay the claimant's costs. I assume she is legally aided.
MR JUSTICE FORBES: The application succeeded. The defendant is to pay the claimant's costs and I grant the appropriate certificate as to the appropriate assessment.
MISS CHAPMAN: I am grateful, my Lord. Might I raise one matter briefly, and that is the issue of the certificate?
MR JUSTICE FORBES: I think you have to go back and argue the whole lot again.
MISS CHAPMAN: There are authorities. A recent one says once the certificate is quashed, it is quashed rather than having to reargue the certificate again. Of course all certificates will be abolished when the new Act comes into force, but it depends at what stage that happens.
MR JUSTICE FORBES: I have quashed the decision whereby the appeal was dismissed and that is the appeal on the merits. The consequence of that is that the matter should be remitted to be reheard before a fresh Adjudicator.
So far as the claimant has an appeal against the Secretary of State's certificate, that will be open to the claimant to reargue, because having quashed the whole decision, in effect I have quashed the decision with regard to the certificate as well, but I have not specifically quashed the Secretary of State's certificate. So it is up to you to appeal it again. That is my understanding.
MR WILKEN: I agree, my Lord.
MISS CHAPMAN: I can make submissions later on if necessary, lower down. I am grateful.