|
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord Justice Clerk
Lord Johnston
Lord Marnoch
|
[2007] CSIH 18
XA88/05
OPINION OF THE LORD
JUSTICE CLERK
in
APPLICATION
by
HUSSAIN BARVI
Applicant;
against
THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Respondent:
for leave to appeal
______
|
For the applicant: Pirie; Anderson Strathern
For the respondent:
Lindsay; Solicitor to the
Scottish Executive
13 March 2007
Introduction
[1] In 2000 the
applicant arrived in the United Kingdom from Iran and sought asylum on the ground that
he had a well-founded fear of persecution there on account of his political
principles. He claimed inter alia that his father was a
supporter of the Shah of Iran; that after the revolution his family had been
persecuted; that the Iranian security forces had arrested, beaten and tortured
him several times, and that when they last arrested him, they shot his
father.
[2] On 25
June 2003
the respondent refused his application for asylum on the grounds that he had
not established that he had a well-founded fear of persecution or that his
removal would be contrary to the United Kingdom's obligations under the ECHR (the
Convention).
[3] The applicant
appealed to an adjudicator. On 3
November 2003
the adjudicator refused the appeal.
[4] On 14
January 2004
the Immigration Appeal Tribunal (IAT) granted leave to appeal against that
decision; but only on the ground that the adjudicator had failed to deal in his
determination with the applicant's claim under the Convention.
[5] On 14
March 2005 the
IAT heard the appeal on that restricted ground.
It considered as the only issue whether, in respect of the risk of
suicide, the applicant's return to Iran would violate his rights under articles
3 and 8. On 23 March
2005 the IAT
refused the appeal.
[6] On 14
July 2005
the IAT refused leave to appeal from that decision to this court. The applicant now applies to this court for
leave.
[7] Since the
application for leave raises the questions that would be raised in the appeal,
counsel agreed that we should hear and dispose of the application as if it were
the appeal itself.
The decision of the
adjudicator
[8] The
adjudicator heard evidence from the applicant and from members of his
family. He also had before him reports
from a general practitioner and from Mrs Mary Ross, a clinical
psychologist. Mrs Ross' opinion was that
the applicant was suffering from post-traumatic stress disorder and a major
depressive disorder. She reported that
the applicant had told her that he had tried to kill himself about three months
earlier by drinking three bottles of wine.
She was of the opinion that to return to Iran would almost certainly increase the
applicant's psychological difficulties rendering him unable to cope or
increasing his hopelessness to the extent of increasing his risk of
suicide.
[9] The
applicant's representative invited the adjudicator to find the applicant
credible. She referred on this point to
"the medical evidence which shows that he is suffering from depression which
would dull the memory" (para 10(a)).
[10] The
applicant's credibility was the key issue.
The adjudicator concluded that he was unable to find the applicant's
version of events credible (para 13). He
specified a number of particular inconsistencies arising from certain of the
applicant's answers at his Home Office interview. He also took into account what he considered
to be the substantial discrepancy between the evidence of the applicant and that
of his brother regarding the circumstances in which they escaped from custody
in Iran.
The adjudicator's conclusions on the medical evidence, which he
unfortunately failed to specify or summarise, were as follows:
"15. I have been unable to put much weight on
the medical evidence that was before me one way or the other. I cannot accept the bald assertion from the
Secretary of State as contained in para 7 of the letter of refusal to the
effect that the appellant would not have survived the type of detention and
treatment that he alleges that he received therein. I would not be inclined to accept said
assertion without medical evidence. The
medical reports produced by the appellant does (sic) no more than show that the appellant's condition and that of his
father are consistent with his account."
[11] The
adjudicator also considered what assistance he could obtain from the background
evidence. He was unable to make a
finding that an individual such as the applicant, who was not politically
active but whose family might have been supporters of the Shah, would be likely
to be persecuted. Taking matters in the
round, he did not find that the applicant was persecuted in the past or that he
would be persecuted in the future (para 16).
He therefore concluded (1) that he did not believe that if the applicant
were to be returned to Iran, there would be a breach of any of articles 2, 3,
5, 9 or 10 of the Convention (para 17) and
(2) that the applicant had failed to satisfy him that he had (a) a well-founded
fear of being persecuted if he were to return to Iran for a reason based on
breach of the United Kingdom's obligations under the 1951 Geneva Convention or
(b) that there had been a breach of articles 2, 3, 5, 9 or 10 of the Convention
(para 18). He therefore dismissed the
appeal on both asylum grounds and human rights grounds.
The decision of the IAT
[12] In dealing
with the appeal on the narrow basis to which I have referred, the IAT heard the
evidence of Mrs Ross and of Dr Euan Easton, a consultant psychiatrist. Both of them supported the applicant's
claim. The applicant's credibility was
undermined by Dr Easton, who said that the applicant had not told him of the
alleged attempted suicide incident related by the applicant to Mrs Ross. The IAT said that the adjudicator had failed
to address or consider Mrs Ross' report; but that it had had the benefit of
hearing the evidence of Mrs Ross and Dr Easton and of seeing and hearing them
being cross-examined (paras 8-9).
[13] The Tribunal
concluded that the applicant had not established that there was any serious
likelihood of his committing suicide if he were to be returned to Iran.
These were its reasons.
"28. However, we were concerned about a number
of unsatisfactory
features
in the medical evidence that we will list here.
Firstly, it was evident from the cross-examination of both witnesses [sc Mrs Ross and Dr Easton] that they had
only become aware today of the adverse credibility findings of the
Adjudicator. It follows that, as far as
the witnesses were concerned, they were unaware that the appellant had not told
the truth in the hearing before the Adjudicator. In other words, he had given details to the
two doctors in particular as to his period in detention, which in our view
undoubtedly influenced their opinion.
(See page 2 of the Ross Psychology Report dated 9 September 2003). We accept, however,
that undoubtedly he saw his father shot and that was also a significant factor
in his history described to the doctors.
29. Secondly,
we were concerned that so much of the doctors' opinion had
to be based upon what they were told by the appellant
who had clearly lied before the Adjudicator.
For example, at page 6 of the supplementary psychology report, under
paragraph A headed 'In keeping with DSM/IV classification, the criteria for a
major depressive episode are ... ' (there are then listed the nine criteria).
30. Mr
Blundell elicited in cross-examination of Mary Ross that, although
the appellant would not be asked one leading question,
effectively he was being asked to choose from three leading questions. His answer would then become the basis for
the opinion and criteria. The choice of
the three questions would affect the varying degrees, for example, of
depression.
31. We
agree with the submission of Mr Blundell that if you wish to bluff
or hoodwink a doctor or anybody else investigating
your situation, a box ticking exercise renders that more helpful to you.
32. Thirdly,
at page 2 of the psychology report dated 17 February 2005,
Mary Ross says
'He lives in fear worrying about what is going to
happen to him and convincing himself that he would be captured and
murdered. He has no interest in life or
activities and is actively suicidal.'
33. Mr
Blundell cross-examined Mary Ross as to why she used the
emotive phrase 'actively suicidal'. She was not, in our view, able to give a
satisfactory answer. We had noted
earlier that his attempt at suicide consisted of the consumption of three
bottles of wine and punching himself.
34. Mary
Ross also told us that there was evidence that the appellant had
assaulted members of his family, although this
information was not contained in any of her reports. We found such an omission rather odd.
35. The
appellant arrived in the United Kingdom in March 2000.
The first
psychological report before us is dated 9 September 2003. There were no
details before us of any other visits made by this appellant to doctors before
that date. Dr Easton conceded in
cross-examination that that must be because he had not seen anybody before
then. Mr Blundell submits that it is no
coincidence that the visits to the medical experts occurs at around about the
time of his court hearing. The hearing
before the Adjudicator at Glasgow
was heard on 19 September 2003 and the determination promulgated on 3 November 2003. Mary Ross did not concede that she could have had
the wool pulled over her eyes, but Dr Easton conceded that it was possible that
the appellant had pulled out all the stops to stay in this country.
36. Dr
Easton revealed a further odd and unsatisfactory feature. He
informed us that she [sic] was not aware of the appellant's suicide attempt. He was not aware that the appellant had
attempted his own life by the consumption of three bottles of wine. He had spoken to the appellant and he had
spoken to the appellant's family on two occasions but there had been no
discussion of suicide. The appellant had
told him that he would take his life but not that he had attempted to do so. Dr Easton had not seen the appellant's self-harm
and had not seen any bruises. Such
information came from the appellant's family.
37. The
Secretary of State before us clearly accepted the integrity of the
experts and the qualification of the experts as indeed
so do we. However, the Secretary of
State disputed the factual basis upon which the experts were enabled to reach
their opinions. We were of opinion that
when faced with the above-mentioned difficulties, the two witnesses became less
convincing, particularly under the firm but proper pressure of
cross-examination. Mr Blundell on behalf
of the Secretary of State asked us to be suspicious of the timing of the visits
of the appellant to the doctors. He
submitted that here was a man who was capable of lying, as had been found by
the Adjudicator, and in whose interest it was to lie to the doctors.
38. We
hope that we have carefully listened to all the submissions in this case. The skeleton argument of the appellant was
read and reread before this judgment. We
accept the submissions of the Home Office as to the dispute in the factual
basis for the doctors' opinions. We are
not of opinion that 'a serious risk of suicide' could be demonstrated and that
accordingly the severity threshold for Articles 3 and 8 ECHR would not be
crossed. It follows that this appeal
must be dismissed."
The grounds of appeal
[14] The
applicant's grounds for seeking leave are (1) that the ground of appeal that
was considered by the IAT in effect put before it the findings of the
adjudicator as to the applicant's credibility and in any event that that
question was properly before this court because it concerned an error of law
arising in relation to, or in the context of, the decision of the IAT; (2) that the reasons given by the IAT for
refusal of the appeal were perverse and unreasonable since they involved the
rejection of the undisputed expert evidence for the applicant; and (3) that the
IAT had failed to give intelligible reasons for its decision to refuse the
appeal.
The submissions for the
applicant
Alleged error of law by IAT
[15] Counsel for
the applicant submitted that the IAT erred in law by taking account of the
adjudicator's adverse conclusion as to the applicant's credibility. That conclusion was reached on the basis of
an error of law. The adjudicator had
failed to take into account Mrs Ross' reports which had a significant bearing
on the applicant's credibility. Since the
adjudicator had erred in law in this way, the IAT had erred in law in taking his
conclusion into account in making its own determination.
[16] In my opinion,
this contrived submission is unfounded. In
view of the submission made to him that he should take into account the
"medical evidence which shows that he is suffering from depression ... " (Adjudicator's
Decision, para 13), I see no reason why we should infer that the adjudicator
overlooked Mrs Ross' reports.
[17] In any event,
the adjudicator's conclusion that the applicant was not credible was based on
his having seen and heard him give evidence and having identified the inconsistencies
and discrepancies to which I have referred.
I fail to see how a psychologist's opinion could properly lead the
adjudicator to the opposite conclusion.
In my opinion, the adjudicator's decision cannot be faulted in this
respect.
[18] If there was
any point in this submission, it ceased to matter once the IAT itself heard the
evidence of Mrs Ross and Dr Easton. It
is implicit in its conclusions that their evidence did not cause it to
reconsider the adjudicator's verdict on the applicant's credibility. On the contrary, Dr Easton's evidence cast
further doubt upon it. Moreover, in the
context of an appeal that was restricted to the human rights point concerning
the likelihood of suicide if the applicant were to be returned to Iran, the
issue before the IAT, unlike the asylum question that had been before the
adjudicator, looked only to the future. At
that stage, the adjudicator's conclusion on the applicant's credibility was no
longer the key issue.
Inadequacy of the IAT's reasons
[19] Counsel
submitted that the IAT failed adequately to consider the evidence that the
applicant was at a real risk of committing suicide. It had rejected the evidence of both expert
witnesses on that question because of the adjudicator's conclusion on the applicant's
credibility. It therefore made
irrational findings, and/or materially misdirected itself on law on material
matters, and/or gave weight to immaterial matters. Counsel gave numerous reasons for this
submission. I need not list them in
detail. Each was a variation on the
basic theme that in the absence of any contrary evidence, the IAT was not
entitled to reject the evidence that it heard from the expert witnesses, who had
a better knowledge of the applicant than the adjudicator or the IAT.
[20] In my opinion,
this submission is ill-founded. The IAT
was entitled not to accept the conclusions of either or both of the expert
witnesses. A court or tribunal that
hears uncontradicted evidence of an expert opinion is not bound as a matter of
law to accept that that opinion is sound.
In this case, the opinion evidence, although informed by professional
knowledge and experience, was ultimately based on the self-reported account of
the applicant himself. The IAT was
entitled to take that into account together with the concessions elicited from
both experts in cross-examination. It is
apparent that the IAT was not persuaded that their evidence was sufficient to
establish a genuine likelihood that the applicant would commit suicide if
returned to Iran.
In that part of its decision that I have quoted (paras 28-34), the IAT
gives cogent reasons for not accepting Mrs Ross' conclusions. It also gives cogent reasons, based on Dr
Easton's own evidence, for not accepting Dr Easton's conclusions (paras
35-37). For example, before the
adjudicator the applicant relied on an alleged incident of attempted suicide;
but Dr Easton's evidence was that the applicant had not disclosed this incident
to him. That undermined the credibility
of the applicant. It also undermined the
cogency of Dr Easton's conclusions. Overall,
the IAT was entitled to conclude that the expert opinions were insufficient in
the circumstances to establish a genuine likelihood that the applicant was at a
serious risk of suicide. In my opinion,
that conclusion was justified by the evidence, was understandable and was rational.
Failure of the IAT to give reasons
[21] Counsel for
the applicant submitted that the IAT had failed to leave the informed reader in
no real or substantial doubt as to what the reasons for the decision were and
what the material considerations were that were taken into account in reaching
it (Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT
345, Lord President Emslie at p 348).
Counsel supported that submission on three grounds. He said that it was implicit in the
conclusion of the IAT (para 38, supra)
that Mrs Ross could have pulled the wool over its eyes. The reasons for that conclusion were
inadequate because they did not explain why Mrs Ross' evidence to the contrary
was rejected (para 35). There was no
proper foundation for the finding (para 38) that the factual basis for the
experts' opinions was wrong. It did not
explain the apparent inconsistency that the IAT accepted the adjudicator's
finding that the applicant was not credible but accepted the applicant's
evidence that he saw his father being shot.
Finally, the finding that a serious risk of suicide had not been
demonstrated was inadequate because the IAT did not explain why it rejected a part
of the applicant's history that it considered to be true as being a sufficient
basis to support the expert's conclusions.
[22] The question raised
by counsel in this submission is whether it is clear what the reasons of the
IAT are and on what considerations they are based. That question, I think, is logically prior to
the question that counsel has raised in his second submission. In my opinion, there is no doubt as to what
the Tribunal's reasons are. In the light
of the applicant's own evidence and in the circumstances set out in paragraphs
28 to 38 of its decision (supra), it held
that the expert witnesses had failed to demonstrate that there was a serious
risk of suicide on the part of the applicant and therefore that he had failed
to establish his case under articles 3 and 8 of the Convention.
Conclusion
[23] On the view
that I have taken, I consider that this appeal is irrelevant, and is in any
event without merit. I propose to your
Lordships that we should pronounce an interlocutor treating the application for
leave as being the appeal itself and refusing the appeal.
|
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord Justice Clerk
Lord Johnston
Lord Marnoch
|
[2007] CSIH 18
XA88/05
OPINION OF LORD JOHNSTON
in
APPLICATION
by
HUSSAIN BARVI
Applicant;
against
THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Respondent:
for leave to appeal
______
|
For the applicant: Pirie; Anderson Strathern
For the respondent:
Lindsay; Solicitor to the
Scottish Executive
13 March 2007
[24] I entirely
agree with the Opinion of your Lordship in the chair and have nothing useful to
add.
|
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord Justice Clerk
Lord Johnston
Lord Marnoch
|
[2007] CSIH 18
XA88/05
OPINION OF LORD MARNOCH
in
APPLICATION
by
HUSSAIN BARVI
Applicant;
against
THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Respondent:
for leave to appeal
______
|
For the applicant: Pirie; Anderson Strathern
For the respondent:
Lindsay; Solicitor to the
Scottish Executive
13 March 2007
[25] I also agree
with the Opinion of your Lordship in the chair and have nothing to add.
