England and Wales Court of Appeal (Civil Division) Decisions

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

LORD JUSTICE WAITE: This is a renewed application, after refusal by Mr Justice Dyson on 13th May 1996, for leave to apply for judicial review of the decision of the Immigration Appeal Tribunal dated 14th August 1995 refusing leave to the applicant, who is a Sri Lankan citizen, to appeal against the determination by a Special Adjudicator dated 31st July 1995 dismissing his appeal against the refusal by the Secretary of State, by letter dated 15th July 1994, of his application for political asylum.

The Secretary of State's refusal letter included these passages:

"The Secretary of State is aware that many young newcomers to the Colombo area have been questioned regarding possible terrorist connections. However, the Secretary of State considers this to be a necessary part of the government's efforts to maintain law and order in Sri Lanka.

Furthermore, the Secretary of State is aware that the Sri Lankan government has publicly accepted the responsibility for investigating alleged excesses committed by the Security Forces. A Human Rights Task Force chaired by a retired senior judge has been established as an independent institution. Detainees can make applications to the Supreme Court to test the legality of their detention, and there have been many instances where such applications have received favourable rulings by the court.

...

In spite of his doubts about the veracity of your account, the Secretary of State has considered all the information available to him about the general situation and conditions in Sri Lanka, but takes the view that there has been a general improvement in the overall situation in the country, since 1989. He understands that a degree of normality has been restored to much of the country, particularly in the areas around Colombo, and the south. He is also satisfied that there is no local evidence to suggest that failed asylum seekers returning to Sri Lanka have faced official harassment or difficulty with the authorities and that they are, in fact, encouraged to return to their normal way of life. He also understands that countries such as Switzerland, Holland. France and Germany are now also considering returning failed asylum seekers to Sri Lanka."

The Special Adjudicator, on appeal from that refusal, did not share the doubts expressed about the applicant's veracity. Accepting in general the credibility of his story, he made these findings. The applicant who was born in 1964 is a Tamil-speaking Sri Lankan of Malay Muslim descent, his parents having gone to Sri Lanka from Malaysia. The Special Adjudicator found that he had spent most of his life in Jaffna, which he regards as his home town. After completing his education in 1981 he worked from 1982 as a farmer in the Jaffna district. His father had been killed by Tamil militants when they attempted to take food from his store in 1983. He and his brother were put under pressure - found by the Special Adjudicator to fall short of persecution - by the LTTE to join or provide support for their forces.

In 1990 the applicant moved to Colombo. He was detained by the government authorities and interrogated about his connections with the Tigers and his reasons for leaving Jaffna. The Special Adjudicator found that there was a serious possibility that he was ill-treated while in detention and was beaten. He then worked in Kuwait from July 1990 to July 1991. On his return to Colombo he was again detained by the police and once more physically ill-treated. He travelled to the United Kingdom on 12th September 1992 and applied for asylum here on 30th September.

The Special Adjudicator went on to consider the documentary information lodged in support of the application. That consisted of four documents which have been shown to us. They are Amnesty reports, a report from the United Nations High Commissioner for Refugees and a newspaper publication, Tamil Nation, all bearing dates in or about October 1993. After referring to those documents the Special Adjudicator said this in his determination:

"I accept that as set out in the Secretary of State's decision letter the Sri Lankan government has responded to concerns expressed as to the treatment of those detained. A Human Rights Task Force chaired by a retired senior judge has been established.... I am satisfied that steps have been taken to protect the innocent against mix-treatment during legitimate enquiries by the Siri Lankan authorities".

On those grounds he held that the applicant was not at risk of persecution if he returned to the parts of Sri Lanka not under the control of the LTTE. At the hearing leading to that determination by the Special Adjudicator the applicant was represented by counsel.

When the applicant came to apply for leave to appeal from that determination to the Immigration Appeal Tribunal he did so on the grounds which are set out on page 33 of the bundle. I need not read them; they have all the appearance of being drafted by a lawyer. The important feature of them is that they were all broadly speaking, grounds based upon a contention that the Special Adjudicator's determination had been against the weight of the evidence that was before him. Such were the circumstances in which the Immigration Appeal Tribunal made the order refusing leave to appeal to them, which is the subject of this application for leave to apply for judicial review.

The application in Form 86A raises grounds which were not advanced to the Immigration Appeal Tribunal. It is only necessary to mention one of them, because that is the sole ground relied on before Mr Justice Dyson and in this court. It is to the effect that between the date of the refusal letter (July 1994) and the date of the hearing before the Special Adjudicator (July 1995) there were substantial changes in the political and military climate in Sri Lanka. Those changes are referred to in an affidavit sworn in support of the application by the applicant's solicitor and are summarised by Miss Henderson in her skeleton argument as follows:

"1.5 ...notably a fourteen week ceasefire was abandoned by the Tamil Tigers in April 1995..., round ups in Colombo were stepped up ... and the mutilated bodies of Tamils were found in and around Colombo between May and July 1995... In addition the Human Rights Task Force, relied on by the Special Adjudicator had apparently lost its powers in September 1994 and had to be re-established in June 1995. This was clear from Amnesty International material available at the date of the S[pecial] A[djudicator]'s determination but not put before the S[pecial] A[djudicator]. This material is exhibited to the second affidavit of [the solicitor]...

1.6 Also available but not placed before the S[pecial] A[djudicator] was the 1995 United States State Department Report on Sri Lanka (relevant extracts also exhibited to [that] affidavit...) which said inter alia:

'... torture remains a serious abuse and is practised both by the government and LTTE forces.

and

Security forces continue to torture and mistreat detainees and other prisoners, particularly during interrogation, although the number of torture reports was somewhat lower than on previous years'".

The argument which Miss Henderson would then, if granted leave, proceed to advance is summarised in her written argument in this way at paragraph 3.3:

"Where the situation in a particular country is volatile, it is submitted that it is not acceptable for a S[pecial] A[djudicator] to proceed to determine issues of fact regarding that background without the benefit of up to date material. In the light of the 'anxious scrutiny' with which asylum decisions must be scrutinised, the shared duty of ascertaining and evaluating the relevant facts as between applicant and examiner and the designation of S[pecial] A[djudicator]s as extensions of the decision making process, it is submitted that the S[pecial] A[djudicator] has an administrative rather than a judicial function in asylum appeals and that it was incumbent on the S[pecial] A[djudicator] to use his powers under the Procedure Rules to require the Secretary of State to provide an up to date refusal letter or otherwise to ensure that relevant materials were before him."

The first difficulty which confronts the applicant in presenting that argument is that the decision sought to be impugned in this application is that of the Immigration Appeal Tribunal in refusing leave to appeal. That body had before it very full and carefully drafted grounds of appeal. The proposition now relied upon does not feature among those grounds. A view might be taken that that was determinative of the matter. If somebody seeks to raise against the rationality of an Appeal Tribunal's refusal of leave a ground which was not presented to the Tribunal itself, there are clearly cogent arguments for taking a strict view and saying that if he has failed to take a point before the Appeal Tribunal, he has only himself to blame, and cannot be heard on judicial review to use that as a means of challenging the reasonableness of the Appeal Tribunal's decision. We understand, however, that this is a subject of some debate which may be dealt with in the courts in due course. We are told that there are decisions on the topic at the High Court and Divisional Court level which are thought by some to be at variance with each other. In those circumstances the proper course today is for this court to assume the point in the applicant's favour. For my part, I would not regard his application as failing in limine upon that technical ground.

The fact, however, that the ground now relied on was not presented to the Appeal Tribunal does not, even given that favourable assumption, disappear from relevance altogether. It is a matter which it is clearly proper for this court to take into account when reviewing the reasonableness generally of the Immigration Appeal Tribunal in refusing leave.

The second difficulty faced by the applicant is that none of the material now relied on was put before the Special Adjudicator. For all we know, he may have been aware of it already. If he was not, it was the duty of the applicant (on whom the burden of proof lay) to bring it to his attention. Miss Henderson in her able argument has sought to overcome these difficulties by reminding the court of judicial statements of high authority to the effect that asylum decisions are of such importance that only the highest standards of fairness will suffice; that the basis for decisions which may put an applicant's life at risk calls for the most anxious scrutiny; and that in asylum cases the appellate structure, as applied by the 1993 Act, is to be regarded as an extension of the decision making process; see Secretarv of State for the Home Department v. Thirukimar [1989] Imm. AR 402 at 414, Bugdaycay v. Secretary of State for the Home Department [1987] AC 514 per Lord Bridge at 531, and Sandralingam and others v. Secretary of State for the Home Department [1996] Imm. AR, CA.

Miss Henderson relies also on statements in the Handbook for Determining Refugee Status at paragraph 196 and the observations of the Wilson Report of the Committee on Immigration Appeals 1967, stating that leave to appeal should be granted if it appears that there is a principle of importance involved or there are other special circumstances justifying leave. In aid of all those considerations Miss Henderson also draws our attention to the recent rule changes in the Asylum Appeals Procedure Rules 1996 which, by rule 23 in particular, provide for a regime which requires the maximum advance disclosure by each side of the material upon which they intend to rely. She has also shown us the pilot scheme which is now being operated, under which it has become a standard direction for the judicial directioris sent to the parties in advance of a hearing to include this statement:

"The index of country background materials and authorities upon which the Adjudicator will rely is annexed where appropriate. If either party intends to rely on other documents or authorities they M1JST be supplied to the IAA and the other party not less than 14 days before the hearing."

When all that is taken into account, as it clearly must be, it does seem to me that the standard which Miss Henderson sets for the Immigration Appeal Tribunal in this case is impossibly high. It requires the Appeal Tribunal to take note of a point which was not only omitted from the grounds presented to its own Tribunal but was also never the subject of any submission the Special Adjudicator. Of course, the appellate structure in asylum cases must be astute at every stage to detect, of its own motion if need be, any instance where the applicant mat have been put at obvious risk of injustice in the presentation of his case through inadvertence or ignorance on the part of the applicant or his advisers. But to elevate that to a duty on the part of the Immigration Appeal Tribunal to comb through the determinations of a Special Adjudicator in search of points which have not been brought to their own attention and which were not raised before the Special Adjudicator, or should or might arguably have been so raised, would place an intolerable burden on the appellate system. It would lead to delays and to a proliferation of hearings, a state of affairs from which the primary sufferers in the end would be the asylum seekers themselves. It should not be forgotten that their best hopes lie in the prompt consideration of their cases by a structure of inquiry which concentrates on the matters which they themselves desire to raise.

I would dismiss the application.

LORD JUSTICE SAVILLE: I agree.

LORD JUSTICE OTTON: I also agree.

Order: Application refused; legal aid taxation for applicant.