ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No. AS/12635/2004]
Royal Courts of Justice
Strand
London, WC2
B E F O R E:
LORD JUSTICE MUMMERY
LORD JUSTICE JACOB
LORD JUSTICE NEUBERGER
ND (Afghanistan)
CLAIMANT/APPELLANT
- v -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
DEFENDANT/RESPONDENT
(DAR Transcript of
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MR F OMERE (instructed by Paragon Law) appeared on behalf of the Appellant.
MS NEENAN (instructed by Treasury Solicitor) appeared on behalf of the Respondent.
J U D G M E N T
LORD JUSTICE NEUBERGER: This is an appeal brought by Mr N D against a decision of the Asylum and Immigration Tribunal (Miss K Eshun, Senior Immigration Judge, Mr P Aujla, Mr D Bremmer, immigration judges) who, on 9 September 2005, dismissed an appeal from an adjudicator, Mr G W Glossop, who had on 6 October 2004 dismissed Mr D’s appeal against the Secretary of State’s refusal to grant him leave to remain or asylum.
Mr D was born on 1 January 1970 in Afghanistan and came to this country in April 2004, where he almost immediately claimed asylum or permission to remain. His claim was based both on the Refugee Convention and on the European Convention on Human Rights and was posited on the proposition that he had a well-founded fear that he would be mistreated, indeed tortured, if he was returned to Afghanistan. As is common in such cases, his fear was essentially based on his alleged mistreatment while he had been in Afghanistan.
The essence of his case was summarised by the adjudicator in paragraph 9 of his decision in these terms:
“i) The Appellant is a Pashtun from Markala who kept a plumbers shop which had been patronised by the Taliban when they were in power. When the Taliban were overthrown it was believed that the Appellant and his brother remained supporters of the Taliban and kept weapons for them.
“(ii) On 21 January 2004 four soldiers came into the Appellant’s house in his absence and searched for weapons. They blindfolded his brother and took him to the plumbers shop. They demanded that the Appellant show them where the weapons were kept.
“(iii) He said he had nothing but they search[ed] the shop and still they could find nothing. They then tied the Appellant’s hands and blindfolded him and put a gun to his head. He was threatened with being beaten up until he told them where the guns were.
“(iv) Both he and his brother were detained and beaten by the soldiers. On 30 January 2004 the Appellant was released because his cousin paid 1000 Afghani rupees as a bribe.
“(v) On 18 February 2004 soldiers again attacked his house, his mother was injured, and a fight began in which the soldiers’ leader Akhter Jaan had been killed.
“(vi) The Appellant escaped through the back door to a village called Newelykars. There he visited a cousin called Nehmatullahs and requested somebody visit his home to check on the situation. This was how he knew that Akhter Jaan had been killed, [and] he also discovered his mother was injured.
“(vii) He then realised his life was in danger and decided to leave Afghanistan …
“(ix) While he was detained the Appellant was beaten badly on his back and buttocks repeatedly every night. He was released not only on the strength of the bribe but also by promising to disclose where firearms were kept within 25 days. This hastened his idea to depart.
“(x) He had visited a hospital for pain from his injuries which had been exacerbated by hot wax being dropped onto it.”
The adjudicator, it is accepted, expressly directed himself correctly as to the law. But it is said on behalf of the appellant that the adjudicator’s reasons for disbelieving the appellant’s evidence are susceptible to appeal.
The adjudicator explained why he did not believe the appellant’s evidence, particularly with regard to the torture that he said that he had suffered. It was primarily due to various changes or inconsistencies in the evidence originally given by the appellant in his initial statement and interview with the representative of the Secretary of State when he claimed asylum and his subsequent evidence. In paragraph 17 of the adjudicator’s decision, which was a long paragraph, he set out the reasons why he did not believe the appellant. Those reasons can be summarised as follows.
First, a substantial change in the amount of the bribe which the appellant said had been given to secure his release from captivity from the soldiers referred to in paragraph 9(iv) of the decision, which I have quoted. Secondly, a significant change as to the basis upon which the appellant said that he was released from such captivity. Thirdly, a change in the reason for the soldiers attacking his home. Fourthly, a statement that someone his brother had killed, namely Akhter Jaan, was looking for him, the appellant, after the time that he had been killed. Fifthly, in his interview and now I quote from paragraph 17:
“The Appellant was specifically asked … what injuries he had sustained when he was detained by the authorities and mentioned being beaten by a stick, said that wax was dropped on his back and that he was tortured by needles. The later account given to the GP [in a later interview] simply did not emerge in answer to this question i.e. that by day he was hung by the wrists and hung upside down by the ankles for four to five hours a night with a rubber ligature tied around his penis so that he could not pass urine. I find it very surprising that in a claim for asylum that both the initial SEF statement [I interpose to explain that that is a statement given to the Secretary of State in connection with his application for asylum] and answers to questions on interview should fail to disclose this treatment. It must be said that there is some evidence of trauma to the scrotum sac and penis as disclosed by the GP but whether that was caused by the method described or on that occasion or by deliberate assault is not confirmed by the medical evidence.”
Later in the same context, the adjudicator said this:
“From any commonsense standpoint [the appellant] had not told the truth about the alleged torture. That has grown from an unpleasant detention to being hung by his ankles upside down during the night and hung by his wrists during the day, his bladder bursting because his penis and testicles are tied up with rubber. This kind of torture leads to death over a period of days, yet the Appellant failed to mention it until he saw a doctor. But yet I have in mind that the doctor, although not a forensic specialist examiner, has found the scars consistent with the torture and abuse: marks on the ankles, marks on the scrotum and penis, scars to the shoulder and scars to the back and head.”
Sixthly, the adjudicator said that:
“The Appellant’s original story is scarcely plausible that a year’s old association with the Taliban in selling them water pipes would lead to vicious assaults by the authorities.”
A little later he said this in the same context:
“I do not accept that the armed forces would attack the Appellant’s house with gunfire in the middle of the night because he was associated with the Taliban by trading with them in water pipes and he is suspected of hiding their guns, and this two years after the fall of the Taliban.”
The final and seventh ground which was identified by the adjudicator was the suspiciously late production of certain documents which he regarded as resulting from adventitious changes in the evidence of the appellant.
It is also right, before I leave the adjudicator’s decision, to say that he added this at the end of paragraph 17 of his decision:
“I find from the evidence that the Appellant has been caught up in warlike activity which has been so common in Afghanistan. I find however that his credit is seriously impugned and I do not accept that he was tortured in the way he describes or by the people he claims. If he and his brother were attacked during the night with the ferocity claimed and returned fire to the local police killing a local commander it seems to me beyond doubt [that] the Appellant and his brothers were in possession of guns. It may be that the Appellant and his brother are criminals, it may be that they are dissident members of a local gang, I do not make any finding and cannot make any finding as to what the Appellant was up to- when and if he was tortured, by whom or for what purpose- but it is absolutely clear to me that his account of alleged persecution is riddled with half-truths and lies.”
Permission was given to the appellant to appeal to the AIT on various grounds, but, on the appeal, the AIT found that none of the grounds save one was made out, and the only ground which was made out succeeded only to a limited extent, insufficient to allow the appeal. In connection with this ground, in paragraph 19 of their decision, the AIT said this:
“With regard to the medical evidence, the Adjudicator accepted that the Appellant had scars on various parts of his body. However, we find that the Adjudicator failed to take account of Dr Hiley’s conclusions [ie the conclusion of the GP referred to earlier] that the scars in the Appellant’s penile area were highly consistent with the injury described as that of being bound tightly and that the scars were unlikely to have been caused by accidental injury. That was a clear error of law. Whilst the medical evidence supports that part of the Appellant’s story, the decision as to who caused those injuries was a decision that only the Adjudicator could make.”
The AIT then went on to consider the reasons which persuaded the adjudicator that he should not accept the evidence of the appellant as to the attack on his genitals and being hung upside down and being hung by the wrists, and they concluded, despite the error of law they had identified, that:
“In the circumstances, it was perfectly reasonable for the Adjudicator to find that the Appellant’s story had grown hugely with the passage of time and for him to impugn the Appellant’s credibility [and] disbelieve that he was tortured by the people he claimed tortured him.”
The first ground of appeal, and until we received on the day before the hearing of the appeal a further skeleton argument on behalf of the appellant the main ground of appeal, was that the AIT did not go far enough in paragraph 19. Thus it is said that the error of law they identified was indeed an error of law but that the AIT should not have concluded that the error of law did not vitiate the conclusion of the adjudicator. The Secretary of State on the other hand takes the other extreme, through a respondent’s notice, contending that the AIT was wrong to conclude that there was any error of law in the first place.
On this aspect I agree with the Secretary of State. In the passages that I have quoted from paragraph 19 of the decision of the adjudicator in connection with the alleged infliction of torture on the appellant, it seems to me clear that the adjudicator was well aware that the scars on the appellant’s genitals, on his penis and groin, were consistent with the evidence that he gave in that connection to the doctor and to the adjudicator. Indeed, that is what the adjudicator effectively said. His point was that the injuries were not in his view inflicted on the occasion described by the appellant. In any event, it seems to me that the AIT’s criticism misses the point. The adjudicator was deciding that the later addition to the appellant’s evidence of the application of the ligature to his penis on the occasion described in paragraph 9(iv) and 9(ix) of the adjudicator’s decision was supportive of his unreliability as a witness, precisely because it did fit the evidence of this scarring. In other words, the disclosure of the scarring on his penis to Dr Hiley gave rise in the appellant’s mind the idea of saying that that scarring resulted from his torturing while he was held captive in January 2004.
So on what was at any rate originally the primary ground of appeal, it seems to me that the point which the appellant wishes to take does not rise. It seems to me that the AIT was wrong in finding the error of law they purported to identify in paragraph 19 of their decision, so that the question of materiality does not arise.
However there are other grounds of appeal now advanced by Mr Omere on behalf of the appellant. At least one of those grounds, and arguably all of those grounds were not advanced before the adjudicator, or before the AIT or on the application for permission to appeal. However, Miss Neenan on behalf of the Secretary of State has, to my mind very fairly, not taken any point on that.
Two of the three further grounds can, I think, be disposed of shortly. The first is that the adjudicator only considered the medical evidence after he had decided that the appellant was an unreliable witness -- an error committed by the adjudicator in Mibanga v The Secretary of State for the Home Department [2005] EWCA Civ 367 (see paragraph 25). In my view, that criticism is misplaced in the present case. The adjudicator gave the change of evidence, or the addition to the evidence, of the alleged torture as a reason for disbelieving the appellant. However, he did not reject the medical evidence, and he did not consider its reliability only after he had rejected the appellant’s case.
Secondly it is said, prompted I think by the terms upon which permission to appeal to this court was given, that the adjudicator fell into the trap of relying on inherent implausibility of the appellant’s story in relation to facts and circumstances where the adjudicator’s experience could not fairly be a good guide to plausibility; see the discussion in paragraphs 28 to 30 of HK v Secretary of State for the Home Department [2006] EWCA Civ 1037. In this connection in paragraph 5 of his decision to give permission to appeal Sedley LJ expressed surprise at:
“The adjudicator’s dismissal of the possibility that ‘a year long association with the Taliban in selling them water pipes would lead to vicious assaults by the authorities’ as ‘scarcely plausible’.”
On analysis it seems to me that Miss Neenan is right in saying that there was for some reason a slight misquotation there and that the point is not good. The point being made by the adjudicator in the passage which is not entirely accurately quoted there, and in the later passage which I have linked it to in paragraph 8 of this judgment, was that it seemed implausible that, if the appellant and his brother had guns or were accused of helping the Taliban, the military authorities would have waited for one year, or even two years, before doing anything about it. While inherent implausibility as a reason for rejecting a story must be considered very carefully in connection with a case involving wholly different circumstances from that which the fact-finding tribunal is familiar with, it seems to me that the inherent implausibility in the present case was one which the adjudicator was entitled to find. It seems to me that in this case inherent implausibility, as it was relied on and only to the limited extent it was relied on by the adjudicator, was a proper factor for him to have taken into account.
I turn to the final ground of appeal, which involves reverting to the adjudicator’s rejection of the appellant’s evidence in light of his failure to refer in his interview and initial statement to the Secretary of State to the attack on his genital area when he had been beaten in January 2004. It is said by Mr Omere that insufficient attention, indeed no real attention, was paid by the adjudicator to a possible explanation for the appellant’s failure to refer to this aspect of the assault at the time of his interview and his statement when first seeking asylum.
First, there is the evidence of Dr Hiley. In her report on the appellant’s scars and other marks, she recorded the fact that the appellant:
“… became embarrassed and apologised when talking about the genital assault he [had] received.”
And that the appellant would become significantly distressed “… if questioned in a court environment …”, and might become “… unable to give the information required …”. Mr Omere also referred to the fact that there are many reports and guidelines as to the embarrassment and reticence of those who have suffered sexual violence, and that the adjudicator had made no reference to that. He says that the failure of the adjudicator to take those factors into account when deciding to reject the appellant’s evidence as being unreliable because he had not referred to the assault on his genitals before his interview with the doctor is therefore flawed, and susceptible to attack as a matter of law.
I do not accept that argument on the facts of this case. First, the assault in question was described by the appellant in his original interview and statement as extending to his buttocks. While not decisive, it seems to me that that can be said to be indicative of a possible lack of embarrassment even at that stage about describing the assault. Secondly, the alleged assault, while it clearly extended to his genitals, was not sexual in nature. It was effected to prevent urination and/or to inflict pain. The guidance material referred to by Mr Omere is almost exclusively concerned with directly sexual assaults. Again not necessarily decisive, this is in my judgment significant. Thirdly, as Miss Neenan points out, the new and (in the mind of the adjudicator) suspicious evidence given by the appellant did not merely extend to the assault on his genitals. It also, and equally importantly, extended to his being hung up by his wrists for a long period, and hung upside down by his heels for four to five hours at a time, matters which do not as it seems to me fall within the ambit of Dr Hiley’s comments or the reports and guidelines he has been referred to.
Finally, the appellant’s addition to his evidence of his torture as given to the doctor and to the adjudicator were not explained or excused to the adjudicator, or indeed as far as I can see to the AIT, by the appellant’s representative, by reference to embarrassment or reticence or to the passages in Dr Hiley’s report to which I have referred, or by reference to the contents of the guidelines which have been identified by Mr Omere.
While I accept of course that there is an obligation in many circumstances on an adjudicator to take into account factors in favour of an appellant which are not expressed by or on behalf of the appellant to the adjudicator, it seems to me that in light of the first three factors I have mentioned in the present case there can be no criticism of the adjudicator for not having taken into account the sort of explanation now proffered by Mr Omere to us.
As Lord Justice Mummery said in argument this point appears ultimately to be one of complaint about the treatment of the evidence – more a complaint of fact rather than one of law. I accept of course that an issue of fact can amount to an issue of law. In E v The Secretary of State for the Home Department [2004] Queens Bench 1044, Carnwath LJ giving the judgment of this court said at paragraph 66 that:
“A mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law …”
-- albeit subject to certain conditions which do not arise in the present case.
It seems to me that, in light of the fact that no such point was taken before the adjudicator and because there were the three other factors to which I have referred and to which Miss Neenan has drawn to our attention, it cannot possibly be said, however much sympathy one might feel for the appellant, that there was any unfairness in the way the adjudicator dealt with this aspect of the case.
In those circumstances, in my judgment this appeal must be dismissed.
LORD JUSTICE JACOB: I agree
LORD JUSTICE MUMMERY: I agree.
Order: Appeal dismissed.