MN (Sri Lanka) v Secretary of State for the Home Department

Medical evidence of scars may strongly corroborate that serious injuries were inflicted, but it need not establish their timing, perpetrator or circumstances. A tribunal may therefore reject an account of state torture where alternative explanations remain and the account is materially unsatisfactory. Whether a person previously detained or tortured remains of interest to the authorities, and consequently faces risk on return, is a fact-sensitive question for the tribunal. The tribunal may reach a negative future-risk finding even if the past account is accepted. An alleged error in rejecting the past account is immaterial where an alternative finding independently determines the appeal.

The appellant, a Sri Lankan national, claimed asylum on the basis that his former involvement with the LTTE had led to detention and torture by the Sri Lankan army, and that he remained at risk on return. The Secretary of State rejected his account. The First-tier Tribunal accepted his identity and nationality and accepted medical evidence concerning extensive scarring, but was not persuaded that the injuries had been inflicted by the authorities in the circumstances alleged. It also found that he would no longer be of interest to the authorities. The Upper Tribunal dismissed his appeal, holding that the First-tier Tribunal had not made a material error of law. The central issues before the Court of Appeal were whether the medical evidence compelled acceptance of the appellant’s account and whether the alternative finding on future risk was lawful.

Moore-Bick LJ delivered the judgment, with Tomlinson LJ and King LJ agreeing.

1. Appeal dismissed. The First-tier Tribunal was entitled to conclude that the medical evidence did not establish the appellant’s account. The medical report strongly supported the conclusion that he had been suspended by his ankles and severely beaten by two people. It could not establish when the injuries were inflicted, who inflicted them, or the circumstances in which they arose.
2. The tribunal was entitled to consider alternative explanations, including an attack by persons with a grudge, detention and torture by the authorities for different reasons, or deliberate infliction of injuries to support an asylum claim. The appellant’s account was unsatisfactory in significant respects. Relevant matters included the absence of apparent interest in his father and other family members, internal discrepancies, his remaining in Sri Lanka for three months after release, and his delay in claiming asylum. The tribunal had not positively found that detention and torture had not occurred; it had simply not been persuaded that they occurred as alleged.
3. Whether a claimant who had previously been detained and tortured remained of interest to the authorities was a question of fact for the tribunal. Applying the country guidance applicable at the time, the tribunal was entitled to find that the appellant’s activities did not indicate that he belonged to a group likely to attract continuing official interest after the suppression of the LTTE.
4. Even if the First-tier Tribunal had erred in rejecting the appellant’s account, that error would have been immaterial because the independent finding that he would no longer be of interest to the authorities was sufficient to determine the outcome. The Upper Tribunal was therefore right to conclude that there was no material error of law.

• First-tier Tribunal (Immigration and Asylum Chamber): accepted the appellant’s identity and Sri Lankan nationality and accepted the medical evidence, but rejected the claimed account of detention and torture and found no continuing risk on return.
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal, holding that the First-tier Tribunal had considered the evidence properly and had not made a material error of law. The determination was promulgated on 4 July 2013.
• Court of Appeal (Civil Division): dismissed the appeal and upheld the Upper Tribunal’s conclusion. Any error in the assessment of the past account would in any event have been immaterial.