England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		25th February 2004

Wednesday, 25th February 2004

1. MR JUSTICE MOSES: This is an application for judicial review following the grant of permission at an oral hearing by deputy High Court judge Mr Supperstone QC following refusal of permission in writing by Stanley Burnton J.
2. The claimant was born on 6th November 1985. At all material times, therefore, she was a minor, being under 18. Her case was that she was a Burundi national from the Hutu tribe. She alleged that her family was attacked by rebels in the Nyanza-Lac area. Once her claim for asylum had been refused by the Secretary of State, she appealed to the adjudicator. The adjudicator dismissed her appeal and she sought permission to appeal to the Immigration Appeal Tribunal, which refused her permission.
3. The claimant claims that when her village was attacked in Nyanza-Lac in southern Burundi in April 2002 her parents were killed and she was raped. She says she left the village the next day for Tanzania. After walking for a period, she met an unnamed man who offered, for payment, to secure her departure from Africa. She and the unnamed man returned to her village, collected some money that had been hidden and returned by the same route, crossing the border into Tanzania. After a short journey in a light aircraft she and others boarded a scheduled flight from Tanzania and arrived in the United Kingdom on 20th April 2002.
4. She was interviewed in the presence of a legal representative and, because she was a minor, a social worker. The social worker, Mrs Huddy, complained at the tone of the interview and came to the conclusion that the claimant's account was not being properly interpreted. She gave evidence before the adjudicator and said that there was a mistake in identifying the gender of the claimant's general practitioner. The social worker, Mrs Huddy, knew that it was a lady, but the interpretation said that it was a man. She also referred in her statement to two or three other mistakes.
5. The first ground of this application replicates a ground advanced to the adjudicator, namely that the interview suffered from being an incorrect interpretation. When Mrs Huddy sought to correct the matter at the end of the interview, she says she was prevented from doing so by the interviewer who, as it was described in the grounds to the IAT, severely berated her for interrupting.
6. In dealing with that ground, the Immigration Appeal Tribunal concluded that Mrs Huddy, the social worker, had not referred to more significant differences between that which the claimant said in her interview and the account she gave to the adjudicator. It further referred to the fact that the claimant and the legal representatives had signed the interview as being a true record. In those circumstances, the IAT concluded that the adjudicator was entitled to reach the decision that the claimant and her representative had had ample opportunity to correct what the IAT described as the disputed entries about the location of the money and the photograph.
7. In order to explain those discrepancies upon which the IAT placed reliance, it is necessary to look at what the adjudicator identified as discrepancies. The discrepancies did not arise in relation to the attack on the village, which the adjudicator described as being a plausible account, adding the words at paragraph 29 "if it happened to her". But when it came to the escape, the adjudicator referred to the fact that at interview the claimant had said "before we left the village Abwazi we returned to my home and took the money which my father had hidden and gave it to the old man". In her statement she had said: "we went back to the shop in the village ... I gave him all the money and we started walking back towards Tanganyika". She said before the adjudicator that she had not said that the money was hidden outside the shop under some logs, and in her oral evidence she said that the shop was not where she lived. It was built of wood, was a very small shop where water was sold and that her parents had chipped off some wood where they kept the money, she had obtained it, put the bark back and replaced the bit of wood, which was inside the shop.
8. The adjudicator pointed out the fact that, when challenged about this, she had been faced with the prospect of having to explain why a wooden shop in the village or a pile of logs was not destroyed in the fire, "... the appellant has now moved the shop outside the village with the implication that it was not destroyed with its valuable contents in the fire".
9. The adjudicator, therefore, concluded that the story had, in an important respect, changed when faced with that difficulty, and that change could not be ascribed to any mistake in the interview, signed as it was both by the claimant and her legal representative.
10. In my judgment, the adjudicator was perfectly entitled to reach the conclusion that her account had changed in a material respect, namely as to where the money was hidden. In those circumstances, the IAT was perfectly entitled to reach the conclusion it did in the passage I have already cited.
11. But the discrepancies did not stop there. The next question related to a photograph which the claimant had said had been kept on her person, because she had been told by her mother to tie it with a string to her hip, and that it was that photograph she gave to the old man.
12. When she gave evidence she suggested that it was not a photograph that she was carrying but a pendant in the form of a good luck charm, and that that was in fact what she said in interview (see paragraph 45). She said that despite the fact that she had gone on to say in interview that she had handed the photograph to the old man. She then said in front of the adjudicator that what she had handed to the old man was a photograph, but it had been recovered with the money from the shop hiding place. The adjudicator commented at paragraph 46:

"I can understand the credibility difficulties which must face the appellant if she were savagely raped but still retained a photograph on a piece of string on her hip."

The adjudicator concluded that the discrepancies in the interview were not explained by the problems of which Mrs Huddy had spoken.

13. Those two discrepancies, which the adjudicator was entitled to find, were significant discrepancies which were not to be explained by the fact of any mistaken interpretation, bearing in mind that both she and her legal representative had signed the interview.
14. In those circumstances, it seems to me quite impossible to contend that either the adjudicator or the IAT erred in law in concluding that the adjudicator had failed properly to take into account Mrs Huddy's complaints as to the interpretation.
15. The next ground relates to supporting evidence that this claimant did indeed come from Burundi. The claimant had relied upon two features in supporting evidence. Firstly, a report from Dr Curtis. This report was hardly supporting evidence, it merely concluded as follows:

"It is not clear whether or not Ms Minani is, in fact, Burundian. I do not think that an accurate assessment can be made, based on the information available. Nonetheless, there is the possibility that she is, indeed, from Burundi."

That, in my judgment, the adjudicator was perfectly entitled to find did not amount to supporting evidence. As to that piece of evidence, the adjudicator concluded that it was not conclusive (see paragraph 64). That was plainly right.

16. The other piece of supporting evidence which it is said was ignored or not given due weight by the adjudicator related to a birth certificate which was produced to show that she was born on 6th November 1985 in Bujumbura, the capital of Burundi.
17. The adjudicator took the view that no evidence had been produced as to the means by which the birth certificate was acquired and that, although he was prepared to take it into account, he was not prepared to make any findings as to its authenticity.
18. The grounds before the Immigration Appeal Tribunal asserted at (iv) that the appellant, as she then was, "explained in evidence that the document had been obtained by her solicitors from the hospital of her birth in the Burundian capital, Bujumbura". There was clearly a conflict, which the IAT was correct not to resolve, as to whether any evidence had been called as to its source. But, in any event, the adjudicator was perfectly entitled to look at that piece of evidence in the context of the evidence as to credibility as a whole and to reach the conclusion that, even if the document was genuine, it did not establish her asylum claim. That, as the IAT said, seems to me to be self-evident. The real question was whether her account in the material respects was truthful, and the adjudicator had found that it was not.
19. It was not just the question of the location of the money and the photograph; the grounds upon which the adjudicator found that she was not credible are set out at paragraph 68. I have already referred to the problem about the location of the money and the photograph. There was, as it seems to me, an even more significant feature of her evidence, and that was her knowledge of the English language, to which he referred at paragraph 68(c). At paragraph 27 he records that both in interview and in her statement the claimant had said that her parents spoke French, Kirundi and Swahili, but only Swahili at home. The adjudicator said:

"Given her sheltered upbringing, I find it remarkable that the appellant had a sufficient knowledge of English at the time of her interview to correct the interpreter's translation. She was able to speak very competent English soon after her arrival and has undertaken a course in GCSE English. Dr Eastgate in his report [to which I will return later] describes her as speaking fluent English and there is no indication that he required an interpreter for the preparation of his report.

28. I am therefore more concerned at understanding how this appellant from her professed background was able to learn the English language so competently even before her arrival here."

This was a view that the adjudicator was entitled to take, indeed, I would go so far as almost bound to take, and cast great doubt on the credibility of the claimant's account.

20. Further, in relation to her escape from the journey after the rape, she said that she had walked for four or five hours before meeting the old man who had assisted her and to whom she gave the money and the photograph, retraced her steps and then walked 14 to 15 hours to the Tanzanian border. This is, apparently, immediately after a terrible attack when her parents were killed and after she had been raped. She told the consultant obstetrician and gynaecologist that after the attack she bled almost continuously for three weeks. Desperate as the plight of somebody in that position would be, the adjudicator was perfectly entitled to conclude that she would not have been able to make that journey and reach the United Kingdom in that state, if her account was truthful.
21. There were further reasons that he found her account incredible in relation to the behaviour of the agent, who apparently abandoned her in Swindon and had not supported or looked after her after the terrible attack.
22. In those circumstances, it was perfectly open to the adjudicator to find her account lacking in credibility, as the IAT commented, and in that context not to regard the birth certificate as being determinative or outweighing those factors.
23. The third ground advanced relates to the medical evidence. There was before the adjudicator evidence from a Dr Eastgate in a report dated 12th February 2003 that came to the clear conclusion that the claimant suffered from post traumatic stress disorder. He described her symptoms, such as not sleeping, intentionally avoiding sleep because of nightmares, flashbacks and intrusive thoughts. He added that there were compounding factors, including housing difficulties, racial discrimination, the fact that she was seeking asylum and what had happened to her in the past when her family had been mobile and persecuted even before their slaughter. He came to the conclusion: "Bernice describes clear symptoms which lead to the diagnosis of post traumatic stress disorder". He thought that it was clear that these traumatic experiences had a severe effect on her and prescribed treatment that was also prescribed and spoken of in other medical evidence, particularly evidence from one who works for the NSPCC.
24. The adjudicator said of that evidence at paragraph 54:

"The case is put forward in the various reports on behalf of the appellant that she has suffered physical and mental illness because of her experiences of rape in Burundi. It would be highly supportive of her account if that medical evidence corroborated her physical and mental injuries."

Later he said this at paragraph 60:

"It is always difficult to assess the value of such reports of [PTSD]. In the absence of any physical symptoms, the assessment must inevitably turn on the account given by the patient to the doctor and that account must inevitably reflect the same pattern as that given to the immigration authorities. It is not the duty of a doctor or a social worker to disbelieve the account given by their patient."

At paragraph 63 he said:

"I do not find it possible to put great weight on Dr Eastgate's report because he has simply listened to the appellant's account of her experiences, accepted it uncritically and concluded that if the events occurred, it would follow that she would suffer from Post Traumatic Stress Disorder. If I accepted her account, then I would accept that diagnosis."

At paragraph 68(f) he concludes:

"I do not find that there is anything in the medical or psychiatric evidence which establishes that the appellant is suffering from any medical problem over and above those which might be suffered by a woman of her age and isolation."

25. It seems to me that the criticisms of the adjudicator's conclusions as to Dr Eastgate have foundation. It is one thing to say that the truth of the account depends upon the credibility of the claimant; another thing to say that the diagnosis of post traumatic stress disorder is not accepted. It does not seem to me that the adjudicator made that distinction with any clarity. It appears from paragraph 63 that the adjudicator was saying that if the claimant's account was credible then the diagnosis would be correct, but, on the other hand, if it was not credible then the diagnosis was wrong; that seems to be the conclusion the adjudicator reached at paragraph 68(f).
26. I think that the adjudicator did err in reaching the conclusion that she was not suffering from PTSD. It seems that his error stemmed from the belief that the correctness of that diagnosis depended upon the correctness of her account. In reaching that conclusion he seems to have also somewhat unusual, and in my view unsupportable, views of expert psychiatrists, as Dr Eastgate undoubtedly is. In describing his expertise he points out that he is a consultant child and adolescent psychiatrist with considerable training. For all I know, the adjudicator has exactly the same qualifications, but, alas, he does not set them out. But to say that it is not the duty of a doctor to disbelieve the account given by a patient may be correct but takes one absolutely nowhere. It is plain that a psychiatrist does exercise his critical facilities and experience in deciding whether he is being spun a yarn or not, and all of us sitting in these courts in different jurisdictions from time to time have heard psychiatrists saying that they do believe an account or that they do not believe an account. It is, therefore, wrong to suggest, as part of support for his conclusion, that doctors do not look into anything critically; nor would it be fair to Dr Eastgate to say that he accepted uncritically the claimant's account. One does not know, because the doctor does not say, but it certainly should not be assumed against the doctor that he did.
27. The adjudicator erred in adopting that approach, but that is very far from being determinative. As the adjudicator plainly understood, reading his decision as a whole, and as is plain as a pike-staff, the issue for the adjudicator was not whether the claimant was suffering from PTSD, but whether the account that she gave that may or may not have led to that disorder was a truthful account. Whatever Dr Eastgate thought, it was open to the adjudicator to disagree and find her claim incredible. He did so, and he did so for the reasons clearly set out with supporting evidence at paragraph 68, which stems from earlier parts of the adjudication which I have identified.
28. The question of the medical or psychiatric condition of the claimant was but one of numerous factors that led to the conclusion that the claimant's account was untruthful and that she did not come from Burundi. Whether or not she suffered from PTSD did not, for example, explain her remarkable knowledge of English or the discrepancies in her story about where the money was to be found or the photograph tied to her hip apparently while she was being raped, or her remarkable journey after that rape. In other words, the conclusion of the doctor did not help. It was of course a factor in her favour, but did not essentially lead to any conclusion that would require an adjudicator to disregard all those many factors of substance.
29. In those circumstances, the question of placing that medical evidence in the context of the evidence as a whole was entirely a matter of fact for the adjudicator to consider, and in my view he was perfectly entitled to reach that conclusion. That was the conclusion of the IAT in its final two paragraphs in its conclusion, with which I wholly agree.
30. In reality, the problem for this claimant was that her account was not believed in important respects and, difficult though it is for any adjudicator to say why he does not believe a claimant in any particular case, in this case he had ample grounds and ample reasons, which he sets out, for his disbelief.
31. In those circumstances, despite the error I have identified, I do not think that there is any basis upon which it would be right to quash this decision and this application fails.
32. MR AUBURN: I would ask for the usual order, costs not to be enforced without leave of the court.
33. MR JUSTICE MOSES: Yes.
34. MS ROGERS: My Lord, I cannot resist that. The claimant is legally aided and I would ask for assessment.
35. MR JUSTICE MOSES: There is no certificate on file. You have until 1 o'clock tomorrow afternoon to produce the certificate and then you may have legal aid assessment.
36. MS ROGERS: I am grateful, my Lord.
37. MR JUSTICE MOSES: Otherwise costs not to be enforced without further order.