England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

LORD JUSTICE NEILL: I will ask Lord Justice Hobhouse to give the first judgment.

LORD JUSTICE HOBHOUSE: This is a renewed application for leave to move for judicial review after refusal by Tuckey J, sitting in the Divisional Court, on 13 February of this year. The applicant is a Tamil who was born in Sri Lanka in September 1945. He lived in the northern part of the country and he had, and sti11 has, a family living there.

On 10 April l994, he travelled south to Colombo because he was fearful of being persecuted if he remained in the Jaffna district. However, he did not remain in Colombo. He flew from Colombo to this country, via Peking, arriving at Heathrow on 14 April 1994 where he applied for asylum. He was interviewed over a prolonged period, and on 22 September 1994 in a three-page letter he was informed of the reasons why his application for asylum was being refused.

The applicant appealed, as he was entitled, to the Special Adjudicator. In November 1995 he was represented by solicitor and counsel before the Special Adjudicator and gave evidence. The matter was fully considered. On 15 December of the same year the Special Adjudicator gave his decision and reasons which were to the effect that he upheld the refusal of asylum.

The applicant was not satisfied with the decision and sought leave to appeal to the Immigration Appeal Tribunal. He only has a right of appeal with leave. That leave was refused on 2 January of this year and it is that decision which he seeks judicially to review.

The background to this case is the position of Tamils in the state of Sri Lanka. The Special Adjudicator accepted that in the northern part of the country, which was affected by the conflict between the Tamil separatists and the government, there was a situation which gave rise to a well-founded fear of persecution. If that had been the only factor in the case, there would have been little difficulty in concluding that this applicant was entitled to asylum. The Immigration Officers and Special Adjudicator also had to consider the position in other parts of the territory of Sri Lanka because there is a principle, which is conveniently encapsulated in in paragraph 91 of the UNHCR handbook, which reads as follows:

"The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions persecution of a specific ethnic or national group may occur in any one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so."

The intent of that paragraph is reflected in paragraph 343 of the Immigration Rules which reads:

"If there is a part of the country from which the applicant claims to be a refugee in which he would not have a well-founded fear of persecution and to which it would be reasonable to expect him to go, the application may be refused."

Therefore, both the paragraph in the handbook and the paragraph in the rules use the expression "it would not be reasonable to expect him" to go or to seek refuge. That principle has to be read n the light of the primary principles in the scheme of the rules (which again reflect the Convention) in paragraphs 334 and 335:

"334: An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:

(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; and

(ii) he is a refugee, as defined by the Convention and Protocol; and

(iii) refusing his application would result in his being required to go (whether immediately or after the time limited by an existing leave to enter or remain) in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

336: An application which does not meet the criteria set out in paragraph 334 will be refused."

The principles which are there encapsulated have been recognised in a number of cases, most importantly in the Court of Appeal in . the case of Imad Ali El-Tanoukhi v Secretary of State for the Home Department [1993] Imm AR 71 presided over by Lloyd LJ. There the applicant was a citizen of the Lebanon. He had come from a part of the country under Israeli control. He asserted that if obliged to return there he would be required to join the Israeli forces and would then be under threat from Muslim groups. Earlier cases, to which I will refer, were cited to the court. The main argument advanced in favour of the applicant on a renewed application in the Court of Appeal was that:

" It was said that 'territories' in article 33 and 'country' in article lA(2) are, as it were, indivisible concepts, and if the applicant has a well-founded fear of persecution in any part of the country in question, however small, then he is entitled, as a matter of law, to refugee status, even though he would be perfectly safe in the rest of the country."

The Court of Appeal rejected that submission. They referred in particular to paragraph 9l, which I have read. Lloyd LJ said:

"The implication of that paragraph is clear. If in the Secretary of State's view it is reasonable to expect an applicant to seek refuge in another part of the same country where he would be safe, then the Secretary of State is not obliged to grant refugee status. That was the view on the facts which the Home Secretary took in the present case. It was a view which he was clearly entitled to take."

The Court of Appeal approved an earlier case of R v Secretary of State for the Home Department ex parte Hidir Gunes [1991] Imm AR 278. That case concerned a Turkish Kurd and the question whether he should be returned to Istanbul where he was not at risk, even though he was at risk in his own village in the Kurdish part of the country. Similarly, since the decision in Tanoukhi, the Divisional Court, in a decision of Roch J in the case of R v Secretary of State for the Home Department ex parte David Siril Vigna [1993] Imm Ar 93, has applied a similar principle to a Tamil and the question whether he could properly be returned to Colombo. It was held that he could properly be returned to Colombo.

The case before the Special Adjudicator was fully argued and supported by evidence. The original decision of the Immigration Officer had regard to the position of Tamils in Colombo, among other things, and recorded:

"The Secretary of State also considered the position of Tamils in Colombo where some 300,000 are resident from where you left Sri Lanka. He understood that they, together with the many Tamils who live outside the conflict zone of the north and east, meet with virtually no harassment or hostility from the majority Sinhalese population. He was aware that many young Tamils have been rounded up by the police in the aftermath of the political assassinations. However, given the serious situation of civil war in the north and east of Sri Lanka and the terrorist threat from the Tamil Tigers in and around Colombo, the arrest of those suspected of being involved in terrorist offences must be regarded as a legitimate and lawful action on the part of the security forces. Whilst it may well be uncomfortable for those rounded up and questioned, the evidence is that those who are innocent are released within a short period of time."

Before the adjudicator the case presented on behalf of the applicant, and in his evidence, was that Colombo was in fact not a safe place for him to go. He said in his evidence that his initial intention when leaving Jaffna was to start a new life in Colombo, but after only one day he decided that Colombo was not safe for him and asked the agent to arrange his trip to the United Kingdom for which he paid 3 Lakh. The Adjudicator considered the evidence. He also considered the submission of Mr Rai who then appeared for the applicant. For example, he quoted that Mr Rai also stated that Tamils in Colombo faced the threat of persecution by the Sinhalese majority due to the exacerbation of suspicion of them and simply because of their origin.

The adjudicator did not accept the case made by the applicant in respect of the position in Colombo. He said in his reasons:

"However, what I did not find credible was that within only a day of arriving in Colombo he decided that it was not safe for him, having gone there to set up business, and that he immediately contacted an agent who within four days had arranged his trip out of Sri Lanka knowing that he could not inform his family of his departure. I think the more likely scenario is that he had decided to leave Sri Lanka right from the beginning and if he was successful in gaining legitimate entry to the United Kingdom then he would arrange for his family to join him."

The adjudicator carefully considered and recited his conclusions about the state of affairs as it would affect the applicant in Colombo. He said:

"However, I have already indicated that I did not believe that he went to Colombo for the reason he stated and that his intention was to leave the country in the first place. Consequently, I do not accept that he was put in fear of the authorities because of information he had been given in the lodge on his arrival there. As a result, this is enough to reject his alleged fear of persecution by the Sri Lankan authorities in Colombo and I consider he had no such fear."

He later considered the position about whether he was protected by the authorities in Colombo. He said:

"I am of the opinion that the Sri Lankan authorities are both willing and able to afford protection to the appellant if he were to return to Colombo."

He considered the case of R v ex parte Ravichandran [1988] Imm AR 147, decided in the Court of Appeal. That case too concerned a consideration of the position of Tamils in Colombo and whether it gave rise to Convention grounds for applying for asylum. His conclusion was:

"I consider that Colombo, so far as persecution for a Convention reason is concerned, is safe for Tamils. It is important to reiterate, however, that I have not accepted that the appellant left Colombo because he feared persecution by the authorities for a Convention reason....I find that the appellant has failed to discharge the burden of proof upon him. He has failed to establish a well-founded fear of persecution for a Convention reason. I am, therefore, not satisfied that there is a reasonable degree of likelihood that he will be persecuted for a Convention reason if he were to return to Sri Lanka."

A number of grounds were raised for appealing to the Immigration Appeal Tribunal. Only one is now relied ucon which is expressed in these terms:

"In so deciding the Special Adjudicator erred in that he failed to assess the requirement of 'reasonableness' as laid down in paragraph 343 of the rules in respect of Colombo although brought to his attention."

The Immigration Appeal Tribunal refused leave. They concluded that there was no error of law, that the adjudicator had considered all the points raised before him and that read as a whole the determination formed a reasonable view of the applicant's case. Accordingly, the Tribunal concluded that it was not a proper case in which to grant leave and leave was refused.

Before Tuckey J, another point having been abandoned before him, the only other point that was raised was that to which I have referred. Tuckey J accepted the submission of Mr Jay, who appeared on behalf of the Secretary of State. He said in the concluding paragraph of his of his short judgment:

"Mr Jay on behalf of the Respondent Secretary of State accepts that in an appropriate case, the test is one of reasonableness. The question is how far and wide the concept of reasonableness goes. That may be a matter which these courts have to consider. The Applicant's case was that Colombo was not safe and therefore it was reasonable to return him there. That having been rejected, that is as an end of the matter as far as this case is concerned. I agree in this case. There was no error of law. I therefore dismiss this application for leave to remove for judicial review."

I agree with Tuckey J. In an application for asylum the applicant has to discharge a burden of proof, place before the adjudicator the material upon which he seeks to rely and to advance the arguments which he considers assist his case. In the present matter the only submission of substance which was made to the Special Adjudicator was that Colombo was an unsafe place for the applicant and that it gave rise to a fear on his part that if he stayed there that he would be subjected to persecution of a relevant kind.

The adjudicator did not accept the applicant's evidence on that point and did not accept the only submissionthat was made to him. Under those circumstances, other categories of reasonableness not having heen raised before him, it is not surprising that the Adjudicator did not specifically refer to them. But it is clear that he had well in mind the provisions of the rules, the relevant paragraph and the need to exercise an overall discretion, which he did exercise using words that I have quoted from the conclusion of his reasons.

This is not a case which, on the evidence before the adjudicator, raises any question as to whether it would be improper to send the applicant back to Colombo in accordance with paragraph 334(iii), nor did it raise any separate question of safety as to whether it would have been reasonable to expect the applicant to go to Colombo or, in the language of paragraph 91, to seek refuge in Colombo.

The facts of this case were that the applicant had gone to Colombo and had intended to set up business there. There was no personal reason, or reason connected with his family or of the nature of his need to earn his livelihood, which raised any difficulty in the mind of the applicant in his seeking to start "a new life" in Colombo. The only point he raised was a question of whether or not Colombo was safe. That point having been decided against him cn the evidence before the Special Adjudicator, that was, as the judge found, the end of the case The Immigration Appeal Tribunal were justified in refusing leave to appeal.

Therefore, in my judgment, this is not a case in which it is appropriate to grant leave to move. If such leave was granted it would be a forgone conclusion that the motion would be dismissed.

LORD JUSTICE PETER GIBSON: I agree.

LORD JUSTICE NEILL: I also agree.

Order: Application refused. Legal aid taxation of applicant's costs.