AJ (Assessment of medical evidence, examination of scars) Cameroon [2005] UKIAT 00060 (4 March 2005) [2005] UKIAT 00060

UKIAT
AJ (Assessment of medical evidence, examination of scars) Cameroon [2005] UKIAT 00060 (4 March 2005)
[2005] UKIAT 00060 · 2005-03-04
[1]AJ (Assessment of medical evidence –examination of scars) Cameroon [2005] UKIAT 00060 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 19 January 2005 Date Determination notified: 4 March 2005 Before Ms C Jarvis Vice President Mrs G Greenwood Mr A F Sheward Between APPELLANT and Secretary of State for the Home Department RESPONDENT Mr P Jorro of Counsel instructed by Fursdon Knapper Solicitors Ms F Ahmed Home Office Presenting Officer DETERMINATION AND REASONS The Appellant appeals, with permission, which was granted by Vice President Mr R Chalkley, on 25 June 2004, to the Immigration Appeal Tribunal, against the determination of an Adjudicator, Mrs R Goldfarb issued on 24 March 2004, in which she dismisses the Appellant's appeal against the decision of the Respondent made on 3 May 2002 to refuse to grant leave to enter or remain in the United Kingdom (UK), following refusal to recognize him as a refugee, or to grant leave to enter or remain based on human rights grounds. Summary of the Appellant's Case[2]The Appellant, whose date of birth is given as 7 September 1969, is a citizen of Cameroon. His case is that he has a well-founded fear of persecution in the whole of Cameroon, at the hands of the authorities and their agents, by reason of his political opinion as an active member of the student group Auto Defence, a pressure group. The Appellant was a student at the University of Yaounde, and as a member of Auto Defence (AD), he was involved in clashes between student groups as well as in demonstrations and clashes with the police. As a result of the political agitation, the university was closed at the end of 1992 for a period of some three months.[3]The Appellant then became an intelligence gatherer for AD and infiltrated various groups posing as a sympathizer with the opposition. As a result of information he gathered and gave to AD, a number of persons was arrested. His activities caused him problems in 1994, when the authorities came to suspect that he had given information to an opposition group, Southern Cameroon National Council (SCNC). He was detained, tortured and otherwise seriously ill-treated over 8 days, before being released when a high ranking officer intervened.[4]He was again detained by the authorities, tortured and otherwise seriously ill-treated in 1996, and released with a warning about his poor performance.[5]The Appellant's home was then set alight, in, it seems, 1997, he believes by members of SCNC. The government provided him with alternative accommodation.[6]In February 2000 he was again detained by security officers who raided his home, assaulting his wife in the process. He was taken to a detention camp where he was again subjected to torture, being told that there was evidence of his collaboration with the SCNC. He was pressured to confess, and threatened with death if he did not co-operate. He gave a statement, but was told that it was not enough and that he faced death. He enlisted the help of a guard who had been at university with him, through whom, a third party helped him to escape the detention camp and leave the country. He learned that his house had been ransacked after his arrest, his wife had been raped by a security officer and the family had moved away. The Appellant travelled to the UK where he claimed asylum.[7]The Appellant produced an expert medical report from Dr Duncan Forrest of the Medical Foundation. He was examined at the Medical Foundation, by Dr Forrest, on 8 July and 22 July 2003. The credentials of Dr Forrest are at Appendix A and his acknowledgement of his duty to the court is at Appendix B to the report, which is written on Medical Foundation medical report paper. The front page of the report invites any queries to be addressed to the Legal Officer[8]Dr Forrest documented 22 sets of scars to the Appellant's person. He is of the expert opinion that of the scars, all those which the Appellant attributes to torture /mistreatment are consistent or fully consistent with that explanation. He also finds that several of them are indicative (i.e. typical or more than consistent with) of certain forms of violence as claimed by the Appellant. He is of the opinion that the medical evidence gives strong support to his account of severe violence in detention. Dr Forrest refers to a Medical Foundation publication dealing with torture and other ill-treatment in Cameroon, "Every Morning Just Like Coffee", 26 June 2002.[9]The Adjudicator also received a medical report in relation to the Appellant's partner, but her account was not explored at the hearing.[10]The Adjudicator did not believe the Appellant's claim in relation to past events in Cameroon. She noted that there was a date given in the Home Office Country Assessment, for the closure of the university that differed from that given by the Appellant in his account and therefore formed the view that his account was not entirely true. She noted other differences as between dates of various events given by the Appellant in a written statement, and dates given when interviewed by Dr Forrest. She rejected the Appellant's account as an explanation for leaving Cameroon and found that he was not of adverse interest to the authorities there. He was not a refugee nor at real risk of breach of his Article 3 rights.[11]The Adjudicator took the view that the medical report should not be given weight as she doubted that Dr Forrest was connected to the Medical Foundation, doubted his expertise, and doubted that he had been authorized by the Medical Foundation to prepare the report. She took the view that the report relied upon the Appellant's account, which she had found to be wanting because of the differences in dates as mentioned, and was therefore wanting itself. She notes that the Appellant's representative sought to persuade her that a report from Medical Foundation, in itself, goes to the bona fides of the Appellant's account of ill-treatment. However, she was plainly not persuaded. Instead she undertook herself, an examination of the scars and conducted an assessment of her own. She then held against the Appellant that he had not adduced medical evidence from Manchester Hospital, where he had attended the Accident and Emergency Department shortly after arrival in the UK, or from a hospital in Bedfordshire where he had also been a patient.[12]The Adjudicator decided that the medical evidence should, in the light of the above, be given only little weight (paragraph 39). The Grounds of Appeal[13]The grounds of appeal in respect of which permission was granted (paragraphs 4-10), are, in summary, that the Adjudicator's approach to the expert medical evidence was fatally flawed. She should have resolved any doubts as to the provenance of the report and the credentials of Dr Forrest by causing the Appellant's representatives to clarify the position, or instructing her clerk to take up the invitation in the report to contact the Legal Officer of Medical Foundation. In the circumstances it was irrational for the Adjudicator to apparently reject the validity of the medical report, so as to be Wednesbury unreasonable and in error of law. Documentation[14]We had before us the Tribunal bundle, the documents that were before the Adjudicator, together with a Tribunal Bundle for the Appellant, skeleton argument, and the February 2004 US State Department Report (USSDR) from the Respondent. Mr Jorro also lodged copies of the following cases: Virjon B v Special Adjudicator CO/3829/2001 (17 June 2002) HE(DRC-credibility and psychiatric reports) DRC CG [2004] UKIAT 00321 Reported R v SSHD ex parte Khaira QBD [1998} INLR Submissions[15]As we were uncertain as to whether it would be of any relevance to the appeal, at the outset of the hearing we informed Mr Jorro and Ms Ahmed that we were, sadly, aware of the death of Dr Forrest in early December 2004, one of us having read his obituary in the national press. Mr Jorro indicated that this loss should not affect his ability to present the case nor ours in determining the appeal.[16]Mr Jorro relied upon the grounds of appeal and upon his skeleton argument. He submitted that the Adjudicator had had the original medical report before her at the hearing and had not raised any queries or doubts about it at all in the course of the hearing. We have no way of knowing when it was that concerns arose in her mind. If it was after the hearing, the proper course was to reconvene the hearing having first given directions to the parties as to the issue on which she wished to receive evidence and submissions. Alternatively she could have instructed her clerk to write to the Legal Officer at Medical Foundation to check Dr Forrest's credentials and his connection to the Medical Foundation. Her apparent rejection of the validity of the report at paragraph 37 was Wednesbury unreasonable.[17]At paragraph 39 the Adjudicator appeared to conduct her own medical examination and to second guess the doctor. She had no business to do so. He relied upon the judgment in Khaira at page 736, where

the judge noted that where there is a medical issue:

" there may be two views about it, but I do not see on what basis the lay person is able to express this view without the benefit of some medical advice."
[18]Mr Jorro submitted that he did not know whether the Adjudicator was also a doctor, but if so, she ought to have disclosed that fact to the parties at the hearing.[19]Had the Adjudicator raised her concerns at the hearing, the Presenting Officer would also have been in a position to produce the Home Office Asylum Directorate Instructions (ADIs) in relation to Medical Foundation. At 2.3 of that guidance, it is to be noted that it is important that reports prepared on behalf of the Foundation are understood fully and given proper weight in the consideration process. It is important to stress that caseworkers must avoid making clinical judgments about medical evidence. If they have any concerns, they should discuss them with a senior caseworker, who may refer the matter to the Foundation by writing to the Legal Officer.[20]Mr Jorro submitted that the medical evidence was strongly corroborative of the Appellant's claim to have experienced persecution, not just that he had suffered injuries. The injuries were consistent with the account, some were typical of the type of torture claimed such as tearing of the skin with cordelettes and beatings to the soles of the feet. The medical evidence gives strong support to the Appellant's account of severe violence in detention, according to Dr Forrest who was a specialist with much experience in dealing with scarring, methods of torture and torture victims, as per his credentials, which experience he had built upon following his retirement as a consultant paediatrician, although he continued to work often with children, documenting their injuries.[21]Mr Jorro drew attention briefly to the background evidence and submitted that it supported the Appellant's claim to ill-treatment and showed that such problems continued within Cameroon.[22]It was a material error of law on the part of the Adjudicator to have given no more than little weight to this strong evidence in favour of the Appellant. In the circumstances the appeal should be remitted for a fresh hearing before another Adjudicator.[23]Ms Ahmed in her submission agreed that the Adjudicator should have raised any concerns that she had about the report at the hearing. She may have had these questions in her mind only after the hearing. Ms Ahmed did not seek to challenge the credentials of Dr Forrest. She submitted that the Adjudicator had looked at the scars herself and noted that evidence of bruising was not before her. This evidence could have been provided by the Appellant. Ms Ahmed accepted that the Adjudicator had not made findings arising from the facts in the medical report. She had merely made points relating to differences in dates. All she did was to highlight the differences between dates in the medical report and dates elsewhere. She made no findings. Ms Ahmed also completely accepted that the Adjudicator had not made findings of credibility and fact in relation to the Appellant's account. Rather she had merely stated at paragraph 36 that the account was not entirely true and that she was not satisfied that it was a full and frank account at 44.[24]Mr Jorro, in reply, submitted that the Adjudicator's error of law in relation to the assessment of the medical evidence vitiated her credibility findings. She did not accept that he had been ill-treated, and that finding could not stand in the light of her approach to and assessment of the medical evidence (see Virjon B). She had failed to properly consider, assess and give proper weight to the medical evidence, and in turn that infected her findings of credibility and fact, the matter should go back to another adjudicator and then all the up to date evidence could be considered.[25]At the conclusion of the hearing we indicated to the parties that we proposed to allow the appeal to the extent that it would be remitted for a fresh hearing before another Adjudicator and we now give our reasons for that decision. Consideration and Findings[26]We remind ourselves that by the provisions of the Nationality, Immigration and Asylum Act 2002 (Commencement No 4) (Amendment) (No 2) Order 2003, any Adjudicator's determination promulgated after 9 June 2003 may be appealed to the Tribunal only pursuant to Section 101(1) of the Nationality, Immigration and Asylum Act 2002 ( the 2002 Act). Section 101(1) provides:
"(1) A party to an appeal to an Adjudicator under Section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the Adjudicator's determination on a point of law."
[27]Following the judgment of the Court of Appeal in CA [2004] EWCA Civ 1165 20 July 2004 , it is clear that when hearing an appeal in respect of a determination of an Adjudicator that was promulgated after 9 June 2003, the Tribunal must first decide whether or not that determination discloses a material error of law. It is only where that question is answered in the affirmative that it is open to the Tribunal to go on to consider what relief, if any, should be granted, and whether or not fresh evidence, if any, should be admitted.[28]We also remind ourselves of the provisions of Section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (the 2004 Act), which was brought into force on 1 January 2005. The section is headed 'Claimant's credibility'. It requires 'a deciding authority' to 'take account, as damaging credibility, of any behaviour to which this section applies'. 'Deciding authority' is defined in subsections (7) and (13). It includes the Secretary of State, Immigration Officers, the AIT, and Adjudicators and the IAT. The section is drafted in such a way as to apply to all assessments of credibility by 'deciding authorities', even if they are hearing appeals from decisions based on such assessments before the commencement of the section. In other words, even if hearing an appeal against a pre-1 January 2005 decision, nevertheless, there is a need to apply the section. 'Behaviour to which this section applies' is set out in subsections (2), (3), (4), (5), (6) and (9). (The regulations required before subsection (5) can have any practical effect (see the definition of 'notified' in subsection (7)) have been made as SI 2004 No 3263). The section is mandatory. It does not require disbelief, but it does require the conduct to be taken into account.[29]We note that there is a challenge to the findings as to credibility by the Appellant before us. As we are to remit this appeal for a fresh hearing, it will be for the Tribunal hearing the appeal to consider that aspect of the matter afresh also, as all matters will be at large once more, although we have borne in mind and applied the section here, as required.[30]We find that the Adjudicator did fall into a material error of law in that she materially erred in her approach to, analysis of, and apparent finding in relation to the validity of the medical report from Dr Forrest, which we find to have been irrational. That irrationality has, in turn, infected her approach to the medical evidence in that she appears to have conducted a form of medical examination of her own, at the hearing, and/or afterwards, it is not wholly clear, which it was manifestly not open to her to do. She then failed make any findings in respect of the content of the report, other than that it should be accorded only little weight. It is not clear from an examination of the determination where that weight was actually placed, if anywhere at all. As has been noted, the Adjudicator highlighted some differences in dates as between the history given in the medical report and the history given elsewhere in a statement. She does not say what she made of those differences, nor why. The Adjudicator found the Appellant's account to lack credibility, but failed to make any detailed findings in that regard, so that it is not possible to say what evidence she accepted and what she rejected and why. We have been assisted by the submissions made by both representatives, who as is evident from the summary above, agree with one another, in essence. We agree with them, for the reason they have given.[31]The credentials of Dr Forrest were attached to his report in brief form, and any detail required could have been produced to the Adjudicator. His Curriculum Vitae (CV) was at page 101 of the bundle before us. This could have been faxed to court had the Adjudicator asked. If her doubts did not enter her mind until after the hearing, then she should have acted as was indicated above and resolved her doubts in a public forum, whether in written form or through reconvening the hearing, with all the relevant evidence before her.[32]There was also before us a letter from the Medical Foundation Legal Officer, dated 13 April 2004, which enclosed the CV. It points out that Dr Forrest is the Editor and chief author of the Guidelines for the Examination of Survivors of Torture [2002], (as mentioned in the Home Office ADIs). We find that he was clearly a most valued and distinguished member of the panel of doctors working with Medical Foundation. The Legal Officer expresses surprise, as this is the first time, to his knowledge, that a comment has been made about the relationship between the Medical Foundation and one of its report writers. He notes that the Adjudicator observed that the examinations of the Appellant were carried out at the Medical Foundation, and that the report was written on Medical Foundation paper, with a footnote to address enquiries to the Legal Officer. He is of the view that it is difficult to see what could have aroused the suspicion that the report was not authorized by the Medical Foundation, which he confirms that it indeed was. Dr Forrest had confirmed as much in his declaration to the court at Appendix B to the report, which was before the Adjudicator. The letter from the Legal Officer points out that even had the Appellant obtained a brief report from Manchester Hospital to confirm that he had bruising to his abdomen as claimed, it is doubtful that such a report would have been as cogent as the specialist evidence of Dr Forrest in relation to, for example, injuries cause by blows from a cordellette. We agree with this summary of the letter from the Legal Officer.[33]That it is possible that evidence, for example of bruising and swelling, could have been provided by a report from another source, but was not provided, is not, we find, in itself a sustainable reason for rejecting or diminishing the value of the evidence that has been provided, which the Adjudicator has failed to consider and assess, either properly or at all.[34]In any event, it was not for the Adjudicator to embark upon her own medical examination and diagnosis, whether at the hearing or afterwards. Where an Adjudicator has specific skills, qualifications, knowledge and experience, then he or she should disclose that to the parties and make clear what, if any use it is intended to put them to in the course of the hearing and determination process.[35]Where an Adjudicator has made use of such knowledge, skills, qualifications or experience without disclosing it, then that aspect of the judicial process remains forever closed to the parties, and indeed to other members of the judiciary and the general public. There is a lack of transparency and accountability. For how may a party fully understand the reasons for a judicial decision in such circumstances? And how may a party raise a challenge to a part of the judicial process that is not revealed in the judgment that has been handed down?[36]We remind ourselves of the guidance of the Court of Appeal, in the words of Lord Phillips MR in the case of English v Emery, Court of Appeal 30 April 2002 NLJLR :
' Putting the matter at its simplest, justice would not be done if it was not apparent to the parties why one had won and the other had lost. If the appellate process was to work satisfactorily, the judgment had to enable the appellate court to understand why the judge reached his decisions…the issues the resolution of which were vital to the judge's conclusion had to be identified and the manner in which he had resolved them explained.'
The Examination of Scars at a Hearing[37]It appears that the Adjudicator may have examined the Appellant's scars in the course of the hearing. We would add a note of caution here in that regard. In general, it is not for an Adjudicator to conduct any physical examination of an appellant or witness before him or her, for the reasons highlighted above.[38]It may be appropriate, on a very rare occasion, with the full consent of the Appellant or witness, for an Adjudicator to examine and document a scar or scars in the course of a hearing, for example, strictly to confirm physical presence as claimed, and no more. Such requests are made from time to time by representatives, or even Appellants in person. It is necessary for an Adjudicator to be completely clear as to the reason(s) why such an examination should be conducted, and where it may lead before deciding to proceed.[39]On the very rare occasion where such an examination is being carried out, great care must always be taken in conducting any such exercise, to maintain the utmost sensitivity and propriety, and to maintain the dignity of the Appellant or witness, as well as that of the court. It may be that the exercise should be conducted only after excluding the public. However, an Adjudicator should never be alone with an Appellant or witness when conducting such an exercise. It would not be appropriate for an Appellant or witness to remove clothing other than an outer layer such as shoes, socks or a jacket or jumper/cardigan. The Tribunal has given guidance in the past on the subject and has indicated that scars sited above the knees or on the torso would not be inspected.[40]It is suggested that an Adjudicator read aloud to the parties, the note that has been made in the record of proceedings in respect of the examination of the scar(s), to include a brief description, and that the Adjudicator also notes in the record and in his or her determination, the procedure followed and the explanation and information given to the parties by the Adjudicator, and any responses.[41]However, it is first and foremost necessary to have regard to the evidential purpose for which such an exercise would be conducted. Will such an exercise produce cogent relevant evidence; always bearing in mind that without being an expert, there is no competence to make medical/clinical assessments and judgments? If it will not, then it should not be embarked upon, and it may be that consideration should be given as to whether the production of expert evidence is the appropriate course to take. Decision[42]In all the circumstances, for all the foregoing reasons, the Tribunal allows the appeal to the extent that it is remitted for a fresh hearing before an Adjudicator other than Mrs R Goldfarb. Catriona Jarvis Vice President