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Demir v. Secretary Of State for Home Department [2005] ScotCS CSOH_150 (10 November 2005)
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OUTER HOUSE, COURT OF SESSION |
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P1705/04
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OPINION OF R F MACDONALD QC (Sitting as a Temporary Judge) in the petition MRS FATMA DEMIR Petitioner against SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent
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Petitioner: Frain-Bell; Drummond Miller WS
Respondent: Miss A J Carmichael; Solicitor to the Advocate General
10 November 2005
Introduction
The petitioner is a Turkish national who was born on 1 January 1964. She claimed asylum on her arrival in the United Kingdom on 29 December 2001. She claimed to fear persecution from members of the Turkish authorities because of her husband's political activities and her own support for the Halkin Demokrasi Partisi (HADEP) and that she would be arrested or killed if returned to Turkey. She provided a written statement dated 17 January 2002 in which she spoke of having been arrested at the end of December 2002 and beaten by the police during her subsequent detention, as a result of which she hurt her back and had continuing symptoms. She also claimed to have been arrested again on 3 December 2001 in Istanbul and detained for four days during which she was subjected to ill-treatment and torture. She was also interviewed by an official of the Home Office on 25 April 2002. By letter dated 25 April 2002 the respondent refused her claim for asylum on the ground that, for the reasons given by him, he did not believe that she was arrested as claimed and he was of the view that she had made the allegations merely to secure her stay in the United Kingdom. The petitioner than appealed against the respondent's decision to an adjudicator (Mr R G Hanley) and gave evidence before him at an oral hearing on 7 May 2003. By determination dated 22 May 2003, promulgated on 3 June 2003, the adjudicator dismissed the petitioner's appeal on the ground that her account of events was implausible and incredible. The petitioner then applied to the Immigration Appeal Tribunal (IAT) for leave to appeal against the determination of the adjudicator and lodged grounds of appeal dated 12 June 2003 which were signed by an English barrister. By determination dated 13 September 2003 the IAT refused her application for leave to appeal. In this petition for judicial review the petitioner seeks declarators that the determinations of the adjudicator and IAT were unreasonable and unlawful and reduction of those determinations.
The ground of challenge
In order to understand the ground of challenge in the petition it is necessary to know something about the contents of a medical report on the petitioner dated 28 April 2003 by Dr Philip Steadman, Consultant Psychiatrist, London which was lodged at the hearing of the appeal before the adjudicator. At pages 15 and 16 of his report Dr Steadman quoted from an article "Discrepancies in autobiographical memories - implications for the assessment of asylum seekers: repeated interviews study" published in the British Medical Journal of 9 February 2002 at pages 324 to 327. The passage quoted by him reads as follows:
"Discrepancies therefore cannot be taken as automatically implying fabrication.
Our findings cause us to question why such discrepancies might exist. Our research cannot provide a causal explanation but it can point to some possibilities. A common difficulty reporting what is related to the experience of repeated events that are similar (sic).
This may have led to the recall of an event similar in type but different in detail at the second interview, or to the mixing-up of two or more events.
The emotional state of the refugee at the time of the interview may have affected his or her responses. For example, one participant changed his description of his treatment by military police from 'we were slapped around' to 'we were badly beaten'. He may simply have been in a different mood state in each interview, thus giving different evaluations of his experience. In states of depressed mood, recall is biased towards negative memories.
[Emotionally mediated memory disturbance is the cognitive dysfunction that occurs when someone is presented with physical or psychological difficulties, which are overwhelming.]
An example of this physically is:
a. When someone has been in a serious car accident and although they have suffered no loss of consciousness, that person often cannot give a clear record of what occurred during that time, [it is believed that the brain shuts off in a protective way].
b. A psychological example is where someone is given very bad news for example a diagnosis of cancer. Often what is said is simply not registered and specialists working in this area often have to go over such matters several times before they can get past the cognitive shut-down that occurs with such an experience.
Incidents where people are tortured where there is often both physical pain and a threat to someone's physical integrity or life would lead to an expectation of emotionally mediated memory disturbance and in practice this is what is commonly seen."
At page 17 he quoted the following two sentences from Guidelines for the Examination of Survivors of Torture (2nd Ed, 2000), published by the Medical Foundation for the Care of Victims of Torture:
"Minor variations may occur in the telling, even by normal subjects, and are more likely by confused or forgetful subjects; they do not necessarily detract from and indeed may add to credibility.
It is worth stressing that precise recall of dates and places is impossible where multiple episodes of torture have occurred or where the subject has suffered severe emotionally mediated memory disturbance."
At page 19 Dr Steadman said that the petitioner had some loss of concentration. At pages 20-21 he described her as a 39 year old lady who stated that she had fled her country following persecution and repeated physical and sexual assault, including rape. She had a non-specific area of lightening of skin on her right buttock but no other marks (the petitioner having stated that all other marks from beatings had healed with the passage of time). She described ongoing intermittent back pain which could have been caused by beatings (and in the view of Dr Steadman required further assessment) but said that she had otherwise physically recovered from her injuries. Dr Steadman then stated as follows:
"She describes anxiety in regard to the various assaults upon her in Turkey and describes how she often feared for her life and indeed how her life was often threatened.
She appeared anxious in talking about the above and appeared so throughout my assessment.
She describes significant improvement in coming to the United Kingdom.
She states that since being in this country she has been anxious about being returned to her country for the reasons stated.
She describes some ongoing psychological difficulties, as I have detailed above.
This lady demonstrates some important cognitive dysfunction as described, and it is my view that she does not possess the level of cognitive functioning necessary to properly cope with the process of cross-examination.
It is my view that were such to be attempted, then issues of credibility may be raised against her Case (sic) as a result of such dysfunction.
You may wish to give consideration to approaching the Court (sic) to see whether they would consider some other approach to this lady's Case (sic), which does not demand public examination."
When he came to deal with this report at para 53 of his determination the adjudicator stated as follows:
"I have given careful consideration to the medical report lodged on behalf of the appellant. I noted that the author of the report, whilst noting that the appellant had scarring and marks on her skin, could not be definitive about some of those marks. The author states that the appellant's ongoing back pain could have been caused by beatings, but would require further assessment ... Much of the report appears to be a reiteration of the appellant's account of events and non-specific comments about the emotional state of refugees. It is clear that the appellant suffers from a lack of concentration (page 19) and is anxious (page 21). There appears to be no specific diagnosis of a physiological disorder. I find that the report is of limited value in supporting or corroborating the appellant's claim."
The relevant ground of appeal dealing with the adjudicator's treatment of the petitioner's credibility in the grounds of appeal to the IAT was ground of appeal 2, which is in the following terms:
"In assessing the appellant's credibility, the learned adjudicator failed to give proper consideration to the evidence presented on behalf of the appellant and in particular to the fact that she is illiterate, she suffers from depression, lack of concentration and is anxious. She is consequently on medication. Her ability to present her case is impaired. Furthermore, being subjected to questioning 'brought back memories and was (sic) unable to concentrate and answer the questions put to her' (paragraphs 19-23). It is submitted that the adverse credibility finding is flawed."
In their determination refusing leave to appeal the IAT stated:
"The Adjudicator found that the Claimant (sic) was not a credible witness. On the evidence this conclusion was open to him. It is apparent that he was aware of and took into account the fact that the Claimant (sic) was illiterate (paragraphs 47 and 53) and suffered from lack of concentration and anxiety (paragraphs 47 and 53)."
The ground of challenge in the petition is that the adjudicator erred in his treatment of the medical evidence contained in Dr Steadman's report in two respects. First, it is asserted that he was wrong to dismiss the medical evidence out of hand and that he failed to give either adequate reasons for its rejection or any indication that he had applied the doctrine of anxious scrutiny when considering it. It is said that the report of Dr Steadman corroborates the petitioner's position of past persecution and that the adjudicator failed to give consideration to Dr Steadman's finding of a cognitive dysfunction on the part of the petitioner. Secondly, it is asserted that the adjudicator failed to have regard to the information from the British Medical Journal quoted on pages 15 and 16 of Dr Steadman's report. It is said that responses by the petitioner to questions in cross-examination were vague and showed an inability by her to recollect clearly the events about which she was being asked but, despite the warnings contained throughout the medical report, the adjudicator found the discrepancies to be clear evidence that she was essentially making things up.
Submissions for the petitioner
Mr Frain-Bell began his submission by stating the position of the petitioner to be that there was medical evidence before the adjudicator and the IAT that she had a physiological disorder which impaired her ability to answer questions and give information. The adjudicator had made a negative credibility finding against her following the hearing before him at which she had given oral evidence. That negative credibility finding was largely based on discrepancies between her statement, interview and evidence (paras 47-52 of his determination). Para 53 of his determination referred specifically to Dr Steadman's report. He said that the report contained no specific diagnosis of a physiological disorder and decided not to attach much weight to it as it appeared to consist of a reiteration of her evidence and comments on refugees. That was wrong because there was a diagnosis of a physiological disorder which would have had a material impact on her answers to questions about what had happened to her in Turkey. There was a reasonable prospect that an alternative decision would have been reached had proper weight been attached by the adjudicator to the contents of the medical report, which was part of the petitioner's evidence before him. The report referred to the scarring and marks on her skin and drew attention to the difficulties in communication faced by people in the petitioner's position. It was accepted that adjudicators were not bound by the contents of medical reports, but they were required to demonstrate that they had taken the contents into account and, if rejecting the contents, to give adequate reasons for doing so. There were two salient aspects of Dr Steadman's report: first, his finding of physical injuries consisting of scarring and other marks; and, secondly, his diagnosis of a physiological disorder which would have had an impact on anything she said. There was nothing to suggest that that diagnosis had even been considered by the adjudicator and the way in which he assessed her evidence was therefore flawed. A physiological disorder could include a cognitive dysfunction. The adjudicator ought to have had regard to the effect of her difficulties on her evidence. He had not followed through on her lack of concentration and her anxiety and had missed out a key finding of Dr Steadman, namely, the diagnosis of cognitive dysfunction.
When at this point in his submissions I asked Mr Frain-Bell where I could find in the grounds of appeal to the IAT any mention of the adjudicator having omitted to take account of Dr Steadman's diagnosis of a cognitive dysfunction, he replied by saying that he accepted that the grounds of appeal "could have been worded more tightly". He was forced to concede that the grounds of appeal could have obtained a specific ground that the adjudicator wrongly omitted to take into account Dr Steadman's diagnosis of a physiological disorder, namely, a cognitive dysfunction, but at the same time submitted that, although the grounds of appeal had been drafted by English counsel, the point was in any event so clear that the IAT should of its own accord have noticed the disparity between the diagnosis by Dr Steadman in his report and what the adjudicator had said in para 53 of his determination. Reference was made to the decision of Lord Reed in Mutas Elabas (2 July 2004, unreported) and the decision of the IAT in Ibrahim v Secretary of State for the Home Department [1998] INLR 511. Although the point that the adjudicator's consideration of the evidence was flawed as he had failed to consider a key finding of Dr Steadman was not specifically raised in the grounds of appeal to the IAT, Mr Frain-Bell invited me to sustain his submission to that effect as the point should have been clear and obvious to the IAT.
Submissions for the respondent
In moving me to sustain the two pleas-in-law for the respondent (a general plea to the relevancy and a plea that the determinations not being unreasonable or unlawful, the orders sought should be refused), Miss Carmichael began by reminding me that the present proceedings consisted of a review of the determination of the IAT to refuse leave to appeal. Rule 18(6) of the Immigration and Asylum Appeals (Procedure) Rules 2000 (SI 2000 No 2333), being the rules then applicable, provided that the IAT shall not be required to consider any grounds other than those considered in the application for leave to appeal, but this was subject to an exception where the point was an obvious one: R v Home Secretary ex parte Robinson [1998] QB 929. Rule 18(7) provided that leave to appeal should be granted only where (a) the Tribunal is satisfied that the appeal would have a real prospect of success; or (b) there is some other compelling reason why the appeal should be heard. The submission which Mr Frain-Bell had advanced on behalf of the petitioner was that the adjudicator had failed to take account of the fact that the petitioner had a cognitive dysfunction liable to affect how she could deal with cross-examination. This point did not appear in the grounds of appeal and it was not obvious on the face of the adjudicator's decision. In any event it was also without merit. It was correct (as the adjudicator had said) that Dr Steadman had made no diagnosis of a physiological disorder. He had not even made a diagnosis of a psychological disorder. The finding by Dr Steadman that the petitioner "demonstrates some important cognitive dysfunction as described" did not amount to a diagnosis. Dr Steadman's assessment of the petitioner's cognitive state was to be found at pages 18-20 of his report and the adjudicator had correctly summarised that when he said at para 53 that it was clear that she suffered from a lack of concentration and was anxious.
Miss Carmichael went on to submit that much of what the adjudicator founded on so far as credibility was concerned did not arise from cross-examination at all. The petitioner disclosed for the first time to Dr Steadman that she had been raped. The adjudicator took into account her late allegation of rape at paras 27 and 52 of his determination. Other discrepancies dealt with by him at paras 47-51 related to matters which had not arisen in cross-examination and really amounted to a failure to give convincing detail at an earlier stage of the process. For the petitioner to found on any difficulty in cross-examination was very little to the point. It was clear from para 27 of the adjudicator's determination that in cross-examination the petitioner had had no difficulty in giving an explanation for her late allegation of rape. It appeared from Dr Steadman's suggestion at page 21 of his report that the solicitors might wish to give consideration to approaching the court to see whether the court would consider some other approach to the petitioner's case which did not demand public examination that he might have been under the misapprehension that she would be required to give evidence in a crowded court. The petitioner was not required to give oral evidence before the adjudicator: she could have submitted a written statement. It was a fair inference that she and her solicitor, knowing the contents of Dr Steadman's report, had decided that she should give oral evidence before the adjudicator.
Miss Carmichael concluded her submission by commenting on the decision of the IAT in the case of Ibrahim (supra), upon which Mr Frain-Bell had founded. In that case the IAT quoted with approval the following passage from an earlier unreported IAT decision in the case of Mohamed:
"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 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 as these are matters of expert evidence which cannot be dismissed out of hand."
That passage did not sit easily with what was said by Lord Weir in delivering the Opinion of the Court in Daljit Singh v Secretary of State for the Home Department 2000 SC 219 at pages 222-223. The First Division had there affirmed that the proper and well-established test for assessing the adequacy and sufficiency of reasons given by an administrative tribunal was that summarised by Lord Emslie in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at page 348, namely, that:
"the decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations taken into account in reaching it".
The First Division also expressly stated its agreement with the observations of Lord Penrose in Asif v Secretary of State for the Home Department 1999 SLT 890 at page 894G-H that:
"nothing could be more destructive of the efficient disposal of immigration appeals than the notion that the adjudicator and the tribunal are under an obligation to carry through a mechanical process of narration of the evidence, analysis of it into classes, and explanation factor by factor of the relevance, or irrelevance, credibility and reliability or otherwise of it."
In summary, said Miss Carmichael, I should dismiss the petition as the ground of challenge taken in it did not feature in the grounds of appeal to the IAT, was not an obvious point which the IAT should have noticed of their own accord and in any event was without substance.
Discussion and Conclusion
The first question which has to be considered is whether, in light of the content of ground of appeal 2 in the grounds of appeal to the IAT, it is open to the petitioner to seek to challenge the determinations of the adjudicator and the IAT on the ground set out in the petition. It is now well established that, in general, resort cannot be had to the supervisory jurisdiction of the court if a statutory remedy was available and not pursued. The principle is set out thus in Clyde & Edwards on Judicial Review (2000) at page 409:
"As a general proposition it may be said that judicial review is not available if there is an alternative means of relief open to the applicant. ... One may not neglect the statutory remedy and jump direct to the court of Session."
The principle is also reflected in Rule of Court 58.3(1) and (2), which provides that an application to the supervisory jurisdiction of the court by petition for judicial review may not be made if the application is made or could be made by appeal or review under any other enactment.
I have set out above the terms of ground of appeal 2 in the grounds of appeal to the IAT. While that ground seeks to challenge the adverse credibility finding made by the adjudicator there is no reference anywhere within it to the adjudicator having wrongly dismissed the medical evidence out of hand or having failed to give adequate reasons for his rejection of the medical evidence or any indication that he had applied the doctrine of anxious scrutiny when considering it. Nor is there any suggestion that he failed to have regard to the information contained in pages 15 and 16 of Dr Steadman's report (the quoted passage from the article in the British Medical Journal). In my view the ground of challenge set out in the petition proceeds upon a clearly focused basis which is quite separate and distinct from the basis of ground of appeal 2 and it is therefore materially different from ground of appeal 2. There are no averments in the petition, and it was not submitted on behalf of the petitioner, that there were exceptional circumstances which would justify a departure from the general rule that an application for judicial review cannot be brought where there has been a failure to exhaust alternative remedies.
The second question to be addressed is whether the ground of challenge set out in the petition was so obvious that it should have been apparent to the IAT when considering the grounds of appeal. I refer to what was said by Lord Woolf MR delivering the judgment of the court in R v Home Secretary ex parte Robinson [1998] QB 929 at pages 943-946. I do not think the ground of challenge set out in the petition amounts to a clear and obvious point which would have a strong prospect of success in an appeal to the IAT if leave to appeal were granted. As Lord Woolf pointed out in ex p Robinson (which, it must be noted, dealt with "an obvious point of Convention law") at page 946, the appellate authorities are not required to engage in a search for new points. If the point in this case (which was not a point of Convention law) was so clear and obvious it is difficult to understand why it was not clear and obvious to counsel who drafted the grounds of appeal to the IAT.
The third question which must be addressed is the merits of the ground of challenge set out in the petition (if, contrary to what I have held above, it is open to the petitioner to found upon it). In my opinion there is no justification for the averment in the petition that the adjudicator dismissed the medical evidence out of hand. He did nothing of the sort. It is clear from para 53 of his determination that he properly considered Dr Steadman's medical report but decided to attach little weight to it. It was a matter for the adjudicator to assess the weight to be attached to the report. I can detect no error at para 53 in his approach to the consideration of the medical report. He stated that it was clear that the petitioner suffered from a lack of concentration and was anxious. It follows that he must have taken her lack of concentration and anxiety into account when determining the appeal. He also stated that there appeared to be no specific diagnosis of a physiological disorder, and in my opinion he did not err in so stating. The word "physiological" in this context is a synonym for "physical", in contrast to mental or psychiatric or psychological, and it is correct to say that Dr Steadman made no specific diagnosis of a physical disorder. Indeed, I do not think that he even made any diagnosis of a mental or psychiatric or psychological disorder. All that he said at page 21 of his report was that the petitioner demonstrated "some important cognitive dysfunction as described". What he had described was lack of concentration and anxiety, to which the adjudicator explicitly referred at para 53 of his determination. So far as concerns the averment in the petition that the adjudicator failed to have regard to the information at pages 15 and 16 of Dr Steadman's report about discrepancies in autobiographical memories of asylum seekers, I do not consider that there is any basis in the adjudicator's determination for that averment. At para 53 of his determination he made specific reference to this information, which he described (in my view, correctly) as "non-specific comments about the emotional state of refugees".
I reject any submission, based on the decision of the IAT in the case of Ibrahim, that the adjudicator was obliged to use a specific verbal formula when considering the medical report. What matters is whether the substance of what he has said indicates that he has taken the medical report into account and decided what weight, if any, to attach to it, not that he has used a special form of words to the effect that he has given careful attention to each and every aspect of it. There is an obvious danger in any tribunal or court stating that "careful attention" has been given to a particular piece of evidence or issue for it leaves it open to the accusation that less than careful attention has been given to other pieces of evidence or issues in relation to which it has not been stated that "careful attention" has been given. Moreover, I do not see any proper basis for the statement in Ibrahim that "any medical report deserves careful and specific consideration". A medical report, like all other material evidence, should be given proper judicial consideration. It has no elevated evidential status. Lord Penrose in Asif at page 894H-I made clear that the adjudicator is not obliged to analyse the evidence into classes and that (based on Wordie Property Co Ltd) what is required is:
"a decision which instructs the informed reader and the court of the reasons for the decision and the material factors which instructed it in a way which leaves no real and substantial doubt what those reasons were".
Remedy
Had I been in favour of the petitioner it would have been necessary for me to have decided what remedy he should have been afforded. I dealt with this matter in my opinions in Mahmood v Secretary of State for the Home Department [2005] CSOH 52 at paras 65-75 and Zeghdaou v Secretary of State for the Home Department [2005] CSOH 93 at para 27. Miss Carmichael informed me that in Zeghdaou my attention had not been drawn to para 30 of Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 ("the 2004 Act") and article 9(4) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (Commencement No. 5 and Transitional Provisions) Order 2005 (SI 2005 No 565). She submitted that, by virtue of those provisions, the proper course for the court to take if the petitioner were successful would be to reduce only the decision of the IAT, with the consequence that the petitioner's application would then go to a single member of the Asylum and Immigration Tribunal (AIT) to be treated as an application under section 103A(1) of the 2004 Act. Mr Frain-Bell was in agreement with this proposed course of action in the event of the petitioner being successful. Miss Carmichael drew my attention to the decision of Lord Glennie in Farah Butt, Petitioner [2005] CSOH 107 and submitted that he had erred at para 3 of his opinion by omitting to take account of para 30 of Schedule 2 to the 2004 Act and advised me that his decision was subject to a reclaiming motion. The error which he had made was himself to have treated the petition for judicial review as a paper application under section 103A of the 2004 Act, not having noticed that under para 30 of Schedule 2 to the 2004 Act (to which, it appears, he was not referred) the application under section 103A had to be considered by a member of the IAT, and not by the court itself. Had I been in favour of the petitioner I would have followed the proposed course of action concurred in by both counsel.
Decision
For the reasons given above I am satisfied that the averments in the petition are irrelevant and in any event without merit. I shall therefore sustain both pleas-in-law for the respondent and dismiss the petition.