(Immigration and Asylum Chamber) Appeal Number: PA /12405/2018
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 27 March 2019
On 10 April 2019
DEPUTY UPPER TRIBUNAL JUDGE CHANA
(ANONYMITY DIRECTION not made)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Mr B Hawking of Counsel
For the Respondent: Ms N Willocks-Briscoe, Senior Presenting Officer
DECISION AND REASONS
1. The appellant whose date of birth 10 December 1978 and a national of Nigeria appealed against a decision of the respondent 28 October 2018 refusing his claim for asylum and humanitarian protection in the United Kingdom.
2. First-tier Tribunal Judge Swinnerton dismissed the appellant's appeal in a decision dated 6 December 2018. Permission to appeal was at first refused by First-tier Tribunal Judge Leaver but subsequently granted by Upper Tribunal Judge Kamara in a decision dated 1 March 2019. The permission Judge found that it is arguable that the Judge should have adjourned the hearing to enable the appellant to obtain expert evidence to address the respondent's allegation, made for the first time is a letter dated 28 October 2018, that the appellant's injury could have been self-inflicted by proxy.
3. The grounds of appeal state that the appellant should have been granted an adjournment by the Judge in order to bring medical legal report about the injuries sustained during his claimed torture by the Boko Haram in Nigeria. It is asserted that the respondent did not raise the point that the appellant's injuries could be inflicted by self-proxy until in their refusal letter in 2018 and the appellant was entitled to an adjournment in order to obtain a medical legal report of how his injuries were sustained.
4. The Judge noted that the appellant claims that his injuries were sustained in 2011 which is some eight years ago. The Judge referred to the letter of the appellant's legal representatives in 2018 when they requested further time to allow the church pastor to attend the hearing to give evidence for the appellant. The Judge stated that the letter referred to the respondent's bundle not containing the screening interview, or the asylum interview stated that the appellant had lost all documents whilst in detention. Directions were given at the previous hearing on 19 November 2018 for the respondent to provide the relevant documentation and on the day the day of the hearing all requested documents had been provided.
5. However at the hearing Ms Bond requested for an adjournment to obtain a medical legal report because the refusal letter dated 18 October 2018 stated that the rule 35 report did not take into consideration that the scars on the appellant referred to in the report may be as a result of self-infliction by proxy and to suggest that there are other possible causes for the scarring other than those claimed by the appellant. The Judge was entitled to point out that medical legal report had not been requested even though the appellant's legal representatives had represented him for the last 18 months. The Judge refused the application to adjourn and proceeded to hear the case.
6. I find that there is no material error of law in the Judge in refusing the appellant's application for an adjournment. The 2014 Procedure Rules Rule 4(3)(h) empowers the Tribunal to adjourn a hearing. Rule 2 sets out the overriding objectives under the Rules which the Tribunal "must seek to give effect to" when exercising any power under the Rules. It follows that they are the issues to be considered on an adjournment application as well. The overriding objective is deal with cases fairly and justly. This is defined as including "(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal; (b) avoiding unnecessary formality and seeking flexibility in the proceedings; (c) ensuring, so far as is practicable, that the parties are able to participate fully in the proceedings; (d) using any special expertise of the Tribunal effectively; (e) avoiding delay so far as compatible with proper consideration of the issues".
7. It is clear from the reasoning that the Judge gave, that there was no unfairness to the appellant by the refusal to grant a judgement. I considered the reasons for refusal letter of 2018 by the respondent and it is clear that the respondent did not categorically allege that the injuries were due to self-infliction by proxy. The respondent made clear that there could be other explanations for the scars on the appellant other than those claimed by the appellant including not limited to self-infliction by proxy. That is absolutely right because there could be other explanations and a doctor must consider all the possibilities. The respondent was entitled to point out that they may be other reasons for the appellant's injuries including self-infliction. The Judge was entitled to find that there had been no previous attempt to obtain a medical legal report about the appellant's injuries and one did not become necessary in 2018, before the hearing, just because the respondent alluded to self-infliction by proxy as one of many other reasons for injuries to be sustained.
8. The test as to whether there would be any unfairness to the appellant if the adjournment request was not granted. I find that there was no unfairness the appellant and he was given an opportunity to put forward his case.
9. The Judge stated in respect of the rule 35 report which he said was obtained whilst the appellant was in detention and is three pages in length. The report is written based on what the appellant told the doctor of having been captured by Boko Haram and tortured for 23 days before he managed to escape. In the section of the report entitled "injuries", reference is made to the injuries on the appellant and the doctor said that he "raises the concern" that the appellant is a victim of torture.
10. The Judge stated that on the appellant's narrative to the doctor, concern would be raised by him, but the doctor was not aware that the appellant's evidence was not consistent at his asylum interview, his screening interview and in his witness statement. The Judge stated that the appellant's narrative changed in the eight months after the rule 35 report was carried out. The Judge took into account all the evidence in the appeal including the rule 35 report in coming to his decision.
11. The Judge pointed out the appellant had not mentioned at the asylum interview or at his screening interview that he had suffered any injuries at the hands of Boko Haram or that he had been tortured and detained by them and then escaped. At his screening interview the appellant's reasons for why he did not want to return to Nigeria was "because Boko Haram are still looking for me. I gave evidence against them at the police station some of their members were arrested+ they have vowed to take me out they have already tried to kill me up to 3/4 times last time in 2011 December." The Judge was entitled to find that the core of the appellant's claim should have been mentioned at the first available opportunity at his screening interview although it is accepted that the information that is expected at a screening interview is limited. However, the main plank of the appellant's fear is expected to be articulated.
12. The Judge noted that even at his asylum interview the appellant made no reference to his detention and torture by the Boko Haram. The Judge noted that appellant had stated that his problems began in 2011 in Nigeria and gave a very detailed explanation consisting of 7 ½ pages of record in the asylum interview and observed that nowhere in that detailed account did the appellant to say that he had been kidnapped, detained or tortured by the Boko Haram or that he had escaped from their custody. It was further noted by the Judge that the appellant confirmed at his asylum interview that he had nothing else to add at the end of his asylum interview and that his legal representatives were present at his asylum interview who also raised no concerns at the time or thereafter.
13. The Judge did not accept the appellant's explanation for why this aspect of his claim of tortured and escape from Boko Haram was not mentioned in his very detailed asylum interview. His explanation for this was that the interviewer was high-handed and that he was surprised to see that certain aspects of his account were not recorded in the asylum interview, he also said that he had only seen the asylum interview a week before the hearing which had been completed in November 2018 more than three years after.
14. The Judge was entitled not to believe this evidence and gave credible reasons for why. He said that the appellant must have had the screening interview and asylum interview while in detention. He said that legal representatives made no attempts to correct any part of it. The Judge was entitled to find that the appellant's explanation that the interviewer was high-handed was not credible as the appellant's representatives from a reputable firm of solicitors were present at the interview and no complaints had been recorded, they did have the opportunity to comment on the contents and to make notes of the minor and major discrepancies. This is a sustainable conclusion and there is no perversity in it.
15. The Judge was entitled to find that the disparity in the appellant's various accounts at different times seriously damages his credibility and to the credibility of this claim that he was detained, tortured and escaped from the Boko Haram. The grounds of appeal argue That the Judge has not made a clear and sustainable finding about whether the appellant is a victim of torture. The Judge made a clear finding that the appellant was not a victim of torture because he did not mention his torture and the scars that were inflicted on him as a result of this torture, at his screening interview or his asylum interview.
16. The Judge considered the document provided by the appellant line with the case of Tanveer Ahmed. The Judge said that the email which the appellant claims was sent by his wife is a forwarded email with no details as to who sent it on the date when it was sent, and he was entitled to place no reliance on it. The Judge noted that the appellant left Nigeria seven years ago and found that in those seven years despite claimed continuing threats and harassment, his family did not suffer any harm from members of Boko Haram. The Judge conclusion that the appellant's family is living safely in Nigeria despite the threats made to his family shows that there is no fear from the Boko Haram. This was a finding open to the Judge on the evidence.
17. The Judge took into account that the appellant's immigration history which was that he was arrested in 2015 and subsequently sentenced to 6 months imprisonment for possessing false documents. He claimed asylum in April 2015 thereafter which was refused the decision dated 17 August 2015 and certified as unfounded. The appellant made further submissions and made an application for judicial review and the respondent in a new decision dated 18 October 2018 refused his claim.
18. The Judge did not find the appellant credible and did not accept his evidence that he would be at risk from the Boko Haram on his return to Nigeria. The Judge considered all the evidence carefully and, in a decision, came to conclusions open to him on the evidence before him. I find no material error of law in the decision and I uphold it. I also find that the differently constituted Tribunal would not come to a different conclusion on the evidence in this appeal.
Notice of Decision
The appellant's appeal is dismissed
No anonymity direction is made.
Signed by Dated this 7 th day of April 2019
A Deputy Upper Tribunal Judge
Ms S Chana