Case No: C5/2007/2174
Neutral Citation Number: [2008] EWCA Civ 345
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: AA/10623/2005]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 4th March 2008

Before:

LORD JUSTICE PILL
LORD JUSTICE KEENE
and
LORD JUSTICE MAURICE KAY
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Between:

	ZG (IRAN)
	Appellant	
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	

Respondent	

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Mr N Armstrong and Ms R Kotak (instructed by Messrs Wilson & C) appeared on behalf of the Appellant.

Mr P Patel (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
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Judgment

Lord Justice Pill:

1.	This is an application for permission to appeal.  The applicant is ZG (Iran).  She seeks permission to appeal against a decision of the Asylum and Immigration Tribunal promulgated on 6 June 2007.  The applicant is 47 years old and a citizen of Iran.  

2.	She claimed before the tribunal to have been involved in organisations in Iran, a founder member of the Hasteh group focusing on women’s rights.  She claimed to have been imprisoned and tortured by way of falaka on her feet.  She was released and subject to an undertaking not to carry out further activities.  She claims to have attended at a major protest meeting on 12 June 2005.  The demonstration was attacked by the police and the applicant was able to get away but her friend, G, whom she had been accompanying, was arrested and later executed.  The applicant then left Iran, she claims, illegally.  She left Turkey on 22 August 2005 for the United Kingdom and claimed asylum on arrival.  Her application was refused on 28 September 2005 and an appeal to the tribunal was dismissed on 22 November 2005.  However, on 2 August 2006 a reconsideration was ordered, mainly on the ground that the tribunal had not properly considered medical evidence before it and its approach to fact-finding was thereby in error.

3.	The further hearing before the AIT was on 27 February 2007.  The tribunal took an adverse view of the truthfulness of the applicant.  I should say this application is heard by this court having been adjourned on paper by the single judge so that the medical evidence, together with a supplementary report which has been submitted, could be considered more fully.  In a detailed decision, the tribunal set out the evidence of the applicant and referred to the medical report, which is that of Dr Hughes.  They comment on the evidence, making adverse findings in a number of respects.  At this stage we do not need to consider those in detail.  Reference is made to documents submitted in support of her claim on which, for reasons they gave, the tribunal did not absolutely place reliance.  They refer to inconsistencies in the accounts given by the applicant.  They do not accept her evidence about the demonstration which the applicant says was the immediate cause for her departure.  They deal with that in paragraph 87 of their decision, stating that:

“…the Appellant is doing no more than trying to fit herself within the framework of objective and known material in order to bolster her case.”

The general conclusion at paragraph 91 is:

“In conclusion therefore for the reasons that we have provided above we do not find that the Appellant has presented a credible account.  We are prepared to accept that years ago she may have been a member or supporter of the Tudeh Party but since 1988 has ceased to be a member of that party and has not and is not of any adverse attention to the authorities.  She has relatives in Iran and has the means of earning an independent living and has lived on her own in Iran for many years.  Given our findings on fact and credibility we do not find that there is a risk of persecution for a Convention reason should she be returned to Iran.”

4.	They then go on to reject applications under the Human Rights Act and humanitarian grounds.  The submission forcefully made by Mr Armstrong on the applicant’s behalf is that the tribunal have erred in law in their approach to the medical evidence which was submitted on her behalf, in particular in relation to her complaint that she had been tortured by way of falaka.  I accept that that was an important part of her case and, if there was an error of law in that respect, it does cast substantial doubt on their overall finding on credibility.  It is necessary, as we have done with Mr Armstrong’s help, to consider the medical evidence which was before the tribunal.  I add that there is an application to adduce further evidence which takes the form of a supplementary report by the doctor which followed the decision of the tribunal on the first occasion.

5.	The doctor effectively makes criticisms of the approach of the first tribunal.  Mr Armstrong -- realistically, in my view -- accepts that the further evidence does not materially advance the applicant’s case.  Members of the court have considered it de bene esse and Mr Armstrong has not found it appropriate to refer to the supplementary report in more detail.  The medical report was prepared late in 2005 and comes from Dr John G Hughes who is a well-qualified doctor and he sets out his qualifications and experience as an appendix to his report.  He expresses the general conclusion in the first paragraph under the heading “Conclusions” (paragraph 18):

“It is my professional and clinical opinion that [the applicant] has been subjected to ill treatment and torture in the manner she describes.”

That follows a very long account of the history as related to him by the applicant and includes a reference to falaka while she was in detention (paragraph 5):

“…she was then beaten hard on the soles of her feet with what felt like thick cable; she was given 10 or 12 strokes with this, causing severe pain in her feet.  When she was back in her cell and looked at her feet they were swollen and bleeding from the soles.  

Paragraph 6, first sentence:

“She was beaten in this way on five further occasions during her detention in this place”

The doctor also noted that, following release from prison, the applicant `received medical attention.  Paragraph 8:

“She had investigations after release, which confirmed early menopause; this was felt to be due to the stress in prison.  She had treatment to her feet, including surgery to the left foot in Tehran, and after this treated her feet with ointment and tablets.  Despite these medical problems, she became involved again in political demonstrations and left Iran following a demonstration [in 2005].”

6.	Dr Hughes describes in detail the current state of health of the applicant:

“She has constant pain in her feet and has been advised to wear soft shoes; the pain is particularly bad on trying to walk.  She continues to take tablets for the pain in her feet.”

His examination includes these statements.  First, in relation to the right foot, describing the extreme tenderness to light pressure over certain tendons and bones and tenderness to firm pressure over the heel pad:

“These findings are consistent with deep tendon and ligament inflammation, which is a recognised result of Falaka type beating to the soles of the feet, and indeed is the intended outcome of this type of torture.”

In paragraph 17 there is a description of the condition of the left foot concluding with the statement:

“There was extreme tenderness on even very light pressure to the area of this scar, with tenderness to moderate palpitation over the midfoot and heel area, again consistent with deep tendon and ligament inflammation as would be expected from the history of Falaka beating to the feet.”

Beyond the general statement of opinion at paragraph 18 the only further reference to Falaka is in the first sentence of paragraph 19:

“Falaka is a frequently used torture in many states, as it results in considerable pain and suffering, with long-term injury to the feet, but generally leaves little or no obvious scarring externally; it is only by palpitation of the soles and deeper structural tissues of the feet that the chronic damage with thickening and inflammation of the tendons and ligaments can be detected.”

7.	Dr Hughes goes on to deal with the consequences of that.  He states: “The clinical findings are entirely consistent with this diagnosis;” and he describes other stresses and conditions from which the applicant suffers.  The tribunal plainly had been alerted to the need to consider the medical evidence carefully because that was the principal reason why the case had been referred back to them.  

8.	In my view they did that and made a detailed analysis, at paragraph 85 of their decision, of the medical evidence.  Mr Armstrong submits that, given a firm opinion from Dr Hughes, he does not say that the tribunal are bound to accept her evidence as to the treatment she received in Iran, but it goes a very long way to indicating that conclusion.  They should have given it such further weight as would have overcome their doubts about the credibility of the applicant based upon the evidence she gave.  

9.	I refer to the medical evidence about the medical treatment which the applicant had in Iran.  Dr Hughes did say that there may have been a misdiagnosis in Iran and the tribunal comment on that.  There was no doubt that she had surgery for what was known as Morton’s neuroma and, they say, “the end result has exacerbated the pain”.  In the course of the analysis in paragraph 85, they state:

“The doctor is not able to assist or at least does not comment upon whether the tenderness in the feet and the thickening of the flexor tendons on the right foot are consistent with other causation bearing in mind the surgery used on the left foot such as would be used to remove nerve entrapment can or has in itself led to pain by the creation of a tender surgical scar and left numb regions…

…We have carefully assessed that medical evidence when looking at all the evidence available to us in the round.  We do not find for the reasons given that applying the appropriate standard of proof in these cases we are able to conclude that the Appellant was tortured as she describes.”

10.	Mr Armstrong submits that the strength of the medical opinion before them does not sufficiently emerge from their consideration and he relies on the very general conclusion expressed by Dr Hughes.  I would add that in his supplementary report no detailed reference has been made, but the doctor did accept that there were other possible causes for the condition of the feet -- an aspect he did not deal with at all in the report before the tribunal, though in my view it is a matter of common sense that there could be other possible causes.  The tribunal were entitled to have regard to the failure to deal with those possibilities.  

11.	We have properly been referred to the judgement of Sir Mark Potter in SA (Somalia) v SSHD [2006] EWCA Civ 1302.  Paragraph 28:

“In any case where the medical report relied on by an asylum seeking is not contemporaneous, or nearly contemporaneous, with the injuries said to have been suffered, and thus potentially corroborative for that very reason, but is a report made long after the events relied on as evidence of persecution, then, if such report is to have any corroborative weight at all, it should contain a clear statement of doctor’s opinion as to consistency, directed to the particular injuries said to have occurred as a result of the torture or other ill treatment relied on as evidence of persecution.  It is also desirable that, in the case of marks of injury which are inherently susceptible of a number of alternative or ‘everyday’ explanations, reference should be made to such fact, together with any physical features or ‘pointers’ found which may make the particular explanation for the injury advanced by the complainant more or less likely.”

12.	I respectfully agree with that statement as to how medical evidence should be approached.  Dr Hughes, whose good faith is not of course in doubt, has produced a report favourable to the applicant.  However, he has failed to consider other possibilities.  He -- I say with respect -- may have gone rather far in his advocacy of the claimant’s case and in his general conclusions at paragraph 18.  He is to some extent taking over the fact-finding responsibility which, as Mr Armstrong inevitably accepts, is that of the tribunal and not the doctor.  The tribunal are experienced in considering allegations such as these and in considering the medical evidence submitted to support them.  

13.	The tribunal gave, in my view, persuasive reasons.  Though some of them can be criticised in detail, as to why they found the applicant’s account incredible and unreliable, it appears to me they have sufficiently taken into account the medical evidence.  We have been referred to the Istanbul principles.  I refer to chapter 5 of the Istanbul protocol cited by this court in SA at paragraph 19 and 20.  Dr Hughes does not attempt to say that this was a diagnosis which was inevitable.  He does not say (and I quote the words of the higher category to that of consistency) that it is highly consistent -- that is, the lesion could have been caused by the trauma described -- and there are few other possible causes.  He does not go the further step of stating it is “diagnostic of” -- this appearance could not have been caused in any way other than that described.  

14.	What he found was consistent and there is no dispute about that: “The lesion could have been caused by the trauma described”.  In my judgment his use of the word “entirely” adds nothing to that.  To say it is entirely consistent is not the same as saying that it is highly consistent or diagnostic, in the terms of the protocol.  In my judgment the tribunal -- as the fact-finding tribunal -- have considered the evidence with appropriate care. They have approached the fact-finding function in a way in which they were entitled to approach it.  They have had sufficient regard to the opinion of Dr Hughes.  They were, in spite of that opinion, entitled to reach the conclusion they did.  

15.	Mr Armstrong accepts that his other grounds of appeal (refused on paper but renewed) only arise if -- as I would accept would be the case -- an error of law arose in the approach to the medical report.  For the reasons I have given I would refuse this application for permission to appeal.

Lord Justice Keene:  

16.	I agree.

Lord Justice Maurice Kay:  

17.	I also agree.

Order:  Application refused