QUEEN'S BENCH DIVISION
B e f o r e :
|on the application of|
|- v -|
|IMMIGRATION APPEAL TRIBUNAL|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT|
Smith Bernal, 190 Fleet Street, London EC4
Telephone No: 020 7421 4040
(Official Shorthand Writers to the Court)
MR JOHN-PAUL WAITE (instructed by the Treasury Solicitor) appeared on behalf of THE INTERESTED PARTY
Thursday 27 February 2003
Crown Copyright ©
MR JUSTICE McCOMBE:
"63. I have accepted that the appellant was detained and assaulted whilst in detention. However I have to consider the circumstances of the appellant's release from custody and I find that it is likely that he was released by the payment of a bribe to an army officer as he has claimed. The questions which then arise are whether the security forces are still likely to be interested in or looking for the appellant and whether he still has a record showing he is wanted. In the absence of any objective evidence any conclusions are likely to include a substantial element of informed speculation. It is for the appellant to establish that he was released in circumstances where there is likely to be a record of his arrest and detention and a continuing interest in him. I find that it is unlikely that the appellant would have been released from detention and the authorities continuing interest and suspicion of him. I have accepted that he may well have signed a confession admitting to membership of the LTTE but clearly this does not demonstrate that he was viewed by the authorities as an LTTE member and I do not accept that the release would have taken place had there been a continuing interest in him notwithstanding the existence of the confession. I therefore find that the appellant has failed to establish that he was released in circumstances where there is likely to be a record of his arrest and detention and any continuing interest in him.
64. I also consider the appellant's position in the context of the fact that there was only one period of detention in 1997 over a number of years during which he voluntarily assisted the LTTE. His efforts were directed at caring for the injured and wounded. He does not support the LTTE. This one period of detention does not amount to persecution.
65. I do not consider the appellant's scars to be conspicuous and I have found that they are not likely to arouse suspicion that they had been sustained as a result of combat. The appellant is not likely to be arrested because of the existence of his scars which are not immediately visible. I do not accept that there will be records which identify the appellant as being an escapee or as a member of the LTTE and I have not found that the appellant is likely to be of continuing interest to the Sri Lankan army. Furthermore I consider that the appellant's situation in the context of the passage of time -- he was released from detention in October 1997 in circumstances that show he was no longer of any interest to the security forces and it is not likely therefore that he will be of interest to the Sri Lanka army at the present time some five years later. Even if the appellant were to be arrested, detained and the scars were to be seen by the authorities I do not consider that any further investigation by the authorities would lead to a suspicion of LTTE membership or involvement which would result in ill-treatment amounting to persecution. As stated above I have concluded that the evidence tends to show that the appellant is of little or no continuing interest to the authorities and such links as he had with the LTTE would not place him at risk of torture or ill-treatment amounting to persecution."
(1) The appellant assisted the LTTE from 1990-1995.
(2) The appellant was arrested on 10 August 1997 on suspicion of involvement with the LTTE.
(3) Under interrogation the appellant admitted his involvement with the LTTE.
(4) Under torture the appellant signed a confession that he was a member of the LTTE.
"The applicant, a national of Sri Lanka, has applied to the Tribunal for leave to appeal against the determination of the Adjudicator... dismissing the appeal against the decision of the Secretary of State giving directions for removal having refused to grant asylum.
There were exceptional circumstances justifying the application being accepted as in time.
The grounds allege that the adjudicator was wrong to conclude that, despite having signed a confession saying he was an LTTE member, the authorities might not rely upon that against the appellant in the future. However, having noted that in any event the applicant had only experienced one period of arrest in 1997, the adjudicator viewed the circumstances of his release upon payment of a bribe as a strong indication that he was no longer considered of interest to the authorities and that, accordingly, even if there was a record of him in Colombo, it would not identify him as someone suspected still of LTTE involvement. That was a finding of fact to which the adjudicator was perfectly entitled to come and was not one in conflict with the objective country materials.
Leave to appeal is refused."
"Leave to appeal shall be granted only where --
(a) the Tribunal is satisfied that the appeal would have a real prospect of success, or
(b) there is some other compelling reason why the appeal should be heard."
Mr Husain says that the test actually applied appears to have been akin to that of Wednesbury unreasonableness. He refers to that part of the decision which states that the adjudicator had been "entitled" to come to her conclusion on the evidence before her. He submits that the wording there used indicates that the tribunal did not consider the proper question of whether there was a real prospect of establishing that the adjudicator's conclusion was wrong.
"19. The fact that in truth the activities of the applicant for the LTTE were at a low level some years ago may not be the determinate fact, given that he had signed a form of confession and signed a blank piece of paper. What may have been written on that paper one cannot, of course, know; but on the facts it seems to me plain that there is a substantial risk that the applicant would be a person regarded by the Sri Lankan authorities as of interest through having confessed to have connections with the LTTE.
20. In my judgment the IAT did not give to these particular facts relating to the applicant the importance which they deserved. I do not see how they could properly come to a conclusion differing from that of the adjudicator given those particular facts. The general improvement which happily has occurred in Sri Lanka relating to human rights abuses does not, as it seems to me, detract from the evidence that in the case of those who are of interest to Sri Lankan authorities as being connected with a terrorist organisation there remains a substantial risk."