ND (Afghanistan) v Secretary of State for the Home Department

In an asylum appeal, medical evidence consistent with an injury does not compel acceptance of the claimant’s account of when, how or by whom it was inflicted. A fact-finder may treat substantial late additions to the account as damaging credibility.

Inherent implausibility must be approached carefully where circumstances differ from ordinary experience, but a limited inference based on timing and surrounding circumstances may be proper. Although relevant factors favouring a claimant may sometimes require consideration even if not raised, failure to address an explanation first advanced on appeal is not necessarily an error of law.

The appellant, an Afghan national, appealed against the refusal of asylum and leave to remain. An adjudicator dismissed his appeal on credibility grounds, relying on inconsistencies, late additions concerning torture, and the implausibility of his account. The Asylum and Immigration Tribunal dismissed his further appeal, although it identified a limited error concerning the treatment of medical evidence.

The appellant challenged the Tribunal’s conclusion and argued that the adjudicator had mishandled the medical evidence, relied impermissibly on inherent implausibility, and failed to consider embarrassment or reticence as an explanation for his late account of genital assault. The central issue was whether those matters disclosed an error of law.

The appeal was unanimously dismissed. Lord Justice Neuburger gave the judgment, and Lord Justices Jacob and Mummery agreed.

1. Medical evidence and credibility. The Tribunal was wrong to identify an error of law in the adjudicator’s treatment of the medical evidence. The adjudicator was aware that the scars were consistent with the account given to the doctor and to him. His conclusion was that the injuries had not been inflicted on the occasion described by the appellant. The later addition of the genital ligature evidence was treated as supporting unreliability precisely because it fitted the medical evidence. The question of materiality therefore did not arise.
2. Sequencing of medical evidence. The challenge based on Mibanga v The Secretary of State for the Home Department [2005] EWCA Civ 367 was misplaced. The adjudicator had not rejected the medical evidence and then considered it only after rejecting the appellant’s case. He used the late additions to the account as part of his credibility assessment.
3. Inherent implausibility. The guidance discussed in HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 required care where the circumstances were unfamiliar to the fact-finder. In this case, however, the adjudicator relied on inherent implausibility only to the limited extent that the authorities were said to have delayed acting for one or two years. That was a factor he was entitled to take into account.
4. Late explanations and unfairness. The proposed explanation based on embarrassment or reticence did not require the adjudicator to reach a different conclusion. The original account referred to assault extending to the buttocks, the alleged assault was not sexual in nature, the later account also included prolonged hanging, and no such explanation had been advanced below. The complaint was principally about the treatment of evidence. Under E v The Secretary of State for the Home Department [2004] Queens Bench 1044, a mistake of fact may amount to an error of law where it causes unfairness, but no unfairness was established here.

Order: appeal dismissed.

• Court of Appeal (Civil Division) On 4 October 2006, the court dismissed the appeal from the Asylum and Immigration Tribunal.
• Asylum and Immigration Tribunal On 9 September 2005, the Tribunal dismissed the appeal from the adjudicator. It identified a limited error concerning the medical evidence but held that the error did not require the appeal to succeed.
• Adjudicator On 6 October 2004, the adjudicator dismissed the appellant’s appeal against the Secretary of State’s refusal of leave to remain or asylum.