England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE IATRF 1998/1571/4

Royal Courts of Justice

Strand

London WC2

Friday, 30 April 1999

B e f o r e:

LORD JUSTICE BELDAM

LORD JUSTICE TUCKEY

MR JUSTICE JONATHAN PARKER

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JESU ANTHONY THASAN GNANAM

APPELLANT

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SECRETARY OF STATE FOR THE HOME DEPARTMENT

RESPONDENT

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR M MURPHY (Instructed by Messrs Markandan & Co, London E12 6BT) appeared on behalf of the Appellant

MR R TAM (Instructed by the Treasury Solicitors) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

Friday, 30 April 1999

J U D G M E N T

LORD JUSTICE TUCKEY: This is an appeal from the decision of the Immigration Appeal Tribunal who dismissed the appellant's appeal from the refusal of the Secretary of State for the Home Department to grant his application for asylum. The point of importance which is said to arise, and the one on which leave to appeal was granted, relates to what was said by this Court in Robinson [1997] Imm AR 94. In deciding whether it would be reasonable to expect the claimant to relocate internally (the so-called "internal flight alternative") can the decision maker consider the cumulative effect of a number of factors?

There are other grounds of appeal also for which leave was not specifically refused.

The appellant, Jesu Anthony Thasan Gnanam, is a Jaffna Tamil who was born in 1968. The facts in outline are that whilst in Jaffna, the appellant claims that he was detained by the Sri Lankan army in 1984 and by the Indian army twice in 1989 and that his house was bombed in 1993. In January 1994 he left Jaffna for Colombo where, a month later, he was arrested by the police. On his release he left Sri Lanka and arrived in the United Kingdom where he claimed asylum at initial interview on 24 March 1994. His application was refused on 30 August 1995. His appeal to a special adjudicator was allowed on 9 May 1997. But on 11 May 1998, the Immigration Appeal Tribunal allowed the Secretary of State's appeal from the adjudicator's decision on the grounds that he had not made essential findings as to the appellant's credibility. They remitted the appeal to themselves for a rehearing, as they were entitled to do. That hearing took place on 28 July 1998, and the decision of the tribunal which is the subject of this appeal was promulgated on 8 September 1998, following which the tribunal refused leave to appeal.

Before the tribunal the appellant gave evidence and was cross-examined at length. He elaborated on what he said had happened to him in Jaffna and said that he had been an acting member of the student organisation of the LTTE (the Tamil Tigers). He believed that this had led to his name being on a wanted list, to his being informed on, and that this had led to his arrest by the police in Colombo in February 1994 when he was detained for 25 days, tortured, and only released because someone he knew used a Minister's influence to achieve that result. On an earlier occasion he had claimed his release followed the payment of a bribe. After his release he had been told by a police inspector that he should get out of Colombo as his life was in danger if he remained.

His counsel, Mr Murphy (who appears for him today) then showed him the decision of the tribunal in Sayandan (Case No 16312) in which an appeal against the Secretary of State's refusal to grant asylum to a Jaffna Tamil had been allowed. Counsel for the appellant in that case had identified eleven factors in support of the contention that it would be unreasonable or unduly harsh for the appellant to be returned to Colombo. The appellant when shown the report of that case said that each of these factors applied to him as well.

Of the appellant's evidence, the tribunal said (page 15 of their decision, page 28 in the bundle) that they were not satisfied that his story was a credible one. On page 17 they said:

"In our considered opinion, the Appellant has not been telling the truth as regards his activities on behalf of the LTTE. We find that we do not accept his evidence that he had been arrested, detained, and tortured for 25 days in Colombo. We do not believe his evidence that he had been released, either by the payment of a bribe ... or by the intervention of a Minister .. and we do not believe his story that his name had been on a list, or that the police or the army had arrested him on account of his having been informed upon by a rival organisation.

We find that the appellant is not a credible witness and that he has not established a well-founded fear of persecution for a Convention reason, if returned to Sri Lanka."

They then went on to consider whether it would be unreasonable or unduly harsh for the appellant to be returned to Colombo and concluded it would not.

It is in the latter part of their reasoning that the main point on this appeal is said to arise, and I shall return to that later. But before doing so it is necessary to consider Robinson to remind oneself of what is involved where the internal flight alternative is under consideration.

Refugee status is accorded to a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality or membership of a particular social group or political opinion is outside the country of his nationality and is unable or, owing to some fear unwilling, to avail himself of the protection of that country. But the international protection afforded to refugees will only come into play when a country cannot afford the claimant protection within its own frontiers. In Robinson (paragraph 17) Brooke LJ said:

"It follows that if the home state can afford what has variously been described as 'a safe haven', 'relocation', 'internal protection', or 'an internal flight alternative' where the claimant would not have a well-founded fear of persecution for a Convention reason, then international protection is not necessary. But it must be reasonable for him to go and stay in that safe haven ... [because]

'If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person's fear of persecution in relation to the country as a whole is well-founded.'"

It is convenient to refer also to the other passages in Robinson which fall for consideration in this appeal. At paragraph 18 Brooke LJ said:

"In determining whether it would not be reasonable to expect the claimant to relocate internally, a decision-maker will have to consider all the circumstances of the case, against the backcloth that the issue is whether the claimant is entitled to the status of refugee. Various tests have been suggested. For example, (a) if as a practical matter (whether for financial, logistical or other good reason) the 'safe' part of the country is not reasonably accessible; (b) if the claimant is required to encounter great physical danger in travelling there or staying there; (c) if he or she is required to undergo undue hardship in travelling there or staying there; (d) if the quality of the internal protection fails to meet basic norms of civil, political and socio-economic human rights."

He went on to refer to the decision of the Federal Court of Canada in Thirunavukkarasu, 109 DLR (4th) 682 and in particular the judgment of Linden JA, who said at page 687:

"'Stated another way for clarity, would it be unduly harsh to expect this person, who is being persecuted in one part of his country, to move to another less hostile part of the country before seeking refugee status abroad?'

He went on to observe that while claimants should not be compelled to cross battle lines or hide out in an isolated region of their country, like a cave in the mountains, a desert or jungle, it will not be enough for them to say that they do not like the weather in a safe area, or that they have no friends or relatives there, or that they may not be able to find suitable work there."

Finally, Brooke LJ said at paragraph 29:

"Where it appears that persecution is confined to a specific part of a country's territory the decision-maker should ask: can the claimant find effective protection in another part of his own territory to which he or she may reasonably be expected to move? We have set out in paragraphs 18 and 19 of this judgment appropriate factors to be taken into account in deciding what is reasonable in this context. We consider the test suggested by Linden JA ... to be a particularly helpful one. The use of the words 'unduly harsh' fairly reflects that what is in issue is whether a person claiming asylum can reasonably be expected to move to a particular part of the country."

In his written skeleton argument Mr Tam, counsel for the Secretary of State, submitted that as the tribunal rejected the appellant's evidence in its entirety, he had failed to establish any subjective fear of persecution. He therefore did not have a well-founded fear of persecution anywhere in Sri Lanka. The tribunal did not therefore have to consider the question of whether it would be unreasonable or unduly harsh to expect the applicant to live in Colombo.

It is fair to say that this argument was not pursued with any vigour, if at all, before us. But the short answer to it is this: the tribunal did consider the question of whether it would be reasonable or unduly harsh to expect the applicant to live in Colombo. They could only have done so on the basis that their findings that the appellant did not have a well-founded fear of persecution related only to Colombo and not to Sri Lanka as a whole. Although the tribunal do not make this entirely clear, they refer to the earlier decision ordering a re-hearing where the issue was defined as "whether or not the appellant would have a well-founded fear of persecution if he were returned Colombo." The evidence which the tribunal specifically rejected related to events in Colombo and, looking at the decision as a whole, I think it is clear that what the tribunal was saying was that the appellant did not have a well-founded fear of persecution in Colombo. In other words, they found that it was safe for him to go there. This meant that they were required to consider whether it would be unreasonable or unduly harsh to expect him to go there. So how did they deal with this question?

They referred firstly to what was said in paragraph 18 of Robinson, which I have already cited. They then referred to another tribunal decision. It is not necessary to refer to that decision except to note that the tribunal in the instant case thought that it was too soft and did not give effect to what was said in paragraph 19 of Robinson about it not being enough just to say that the claimant did not like the weather in the safe area, or that he or she had no friends there and so on. They went on to say:

"Likewise, in Sayandan, the Tribunal, there, differently constituted, in our opinion, did not properly adhere to what had been held in Robinson, as, while it examined the criteria applied by Linden JA, it went too far, as we see it, by finding that the factors to be considered are cumulative. We, respectfully, do not agree, as it is clear from Robinson, that the risk of an occasional detention for questioning, following a terrorist incident in Colombo, and the problems that a Tamil from Jaffna can face in living in Colombo, are not sufficient to render Colombo not to be a safe haven or an internal flight alternative, and, that the question of accumulation of such difficulties or problems, would not alter the conclusion in Robinson."

This, the appellant submits, is where the tribunal went wrong. I have already referred to Sayandan and the eleven factors relied on by the appellant in that case in support of his contention that it would be unduly harsh to expect him to go and live in Colombo. The tribunal in Sayandan said of those factors (page 15):

"... none ... would individually bring us to the view that it would be unreasonable or unduly harsh for the appellant to settle in Colombo. On the other hand, the appellant is not likely to be placed in such a situation that he can isolate these difficulties one from another. The factors are cumulative. ... We think that this is a case where the appellant has established that it would be unduly harsh for him to have to be in Colombo."

They then added a word of caution saying:

"This determination is not a decision that it is unduly harsh for young male Tamils to be in Colombo. It is a decision that, on the particular facts and evidence of this particular case, the appellant has established, in our view, to the requisite standard, that he is a person for whom return to Colombo would be unduly harsh."

Mr Tam concedes that if the tribunal were saying in the passage which I have cited from their decision that they should not consider the factors cumulatively, then they were wrong. I agree with that concession. I do not think such an approach can possibly be justified. To explain why I can do no better than cite from another tribunal decision in Sachithanansan (Case No 16860). Here the tribunal, presided over by Professor Jackson, considered Sayandan and other tribunal decisions, including this case, where it had been held that the cumulative approach was erroneous, and said (page 15 of their decision):

"In our respectful view, the opinion that factors could not cumulatively amount to a conclusion that return would be 'unduly harsh' is unsustainable. The statement that only the matters set out in paragraph 18 of the Robinson judgment are relevant ignores the first sentence of that paragraph i.e. a 'decision maker will have to consider all the circumstances of the case against the backcloth that the issue is whether the claim[ant] is entitled to the status of refugee.' Further, the tests which are then set out by the Court do not on any reading purport to be an exclusive list of matters to be considered. As the Court expressly said, they are 'examples' of suggested tests. So, at most, they reflect general criteria which should be adopted in approaching the question of internal flight. Indeed, having related those tests, the Court then cites Linden JA's criterion of 'unduly harsh' and later approves of that test. This conclusion is underlined by the factors which were advanced in Robinson in support of the appellant's case and are listed in ... the judgment. It is clear ... that, subject to any contrary finding of fact they were all relevant to a consideration of whether return would be 'unduly harsh'.

Some of those factors were seen in Sayandan as relevant, and, as we say, the decision in Robinson seems to have been based as much on the cumulative consideration of 'relevant' factors as that of Sayandan. We see no inconsistency between the 2 cases or extension of Robinson in Sayandan, and in our view the 'cumulative' approach is the only practical one. It seems common sense that a factor which does not of itself make return unduly harsh, may well do so when set alongside other factors. So, for example, discrimination in education or employment or housing conditions may not, when considered independently be sufficient to create the refugee status. They may however cumulatively amount to a conclusion that it would be 'unduly harsh' to return a person to the relevant country. We therefore adopt the approach of Sayandan.

But Professor Jackson went on to say:

"That is not to say however that the factors listed in Sayandan should be considered as other than factors submitted by the appellant in that case in support of his case, and accepted as such. While it may be difficult in like cases regarding Sri Lanka to say that none of the Sayandan factors are relevant, the weight to be given to each will depend on the circumstances of the particular case, and, in particular, any other factor which may go in support of or be adverse to any particular claim."

For my part, I think that passage accurately reflects the correct approach to the question which has to be answered where the internal flight alternative is being considered. I think it encompasses Mr Tam's reservations, which were that the decision-maker must first identify which factors are relevant and should not assume that the Sayandan factors, or any other factors for that matter, will automatically be relevant. It also reflects his further concern that the court is considering whether it will be unduly harsh in the context of a claim by someone for refugee status. He said that things have to be pretty bad before one gets to the stage of saying that it is unduly harsh to expect the claimant to live in some other part of his own country. That was a point which was emphasised in Robinson, and was emphasised in the judgment of the Canadian Supreme Court. Mr Tam referred us to an earlier passage in the judgment of Linden JA at page 687 of the report, and without citing it, it seems to me that, if the decision-maker in any particular case requires guidance as to how harsh is unduly harsh, that passage is useful and may properly be taken into account. All that is said emphasises that each case must be decided on its own facts. What may be factors in one case will not necessarily be factors in another. Factors taken individually or cumulatively may tip the balance in one case but will not necessarily do so in another.

I still have to deal with Mr Tam's two further submissions which are, firstly, that the tribunal did not go wrong in this case. Read properly, he submits that what the tribunal are really saying is that the tribunal in Sayandan identified factors which were relevant which they did not think were relevant in the instant case. Secondly, even if they did go wrong, the tribunal obviously got the right result and so this Court should not interfere.

As to the first point, the passage which I have cited from the decision which is criticised can (just) be read in the way Mr Tam suggests. Equally it could be read as meaning no more than that the tribunal disagreed with the decision in Sayandan on its facts. But the tribunal do say in terms that, considering factors cumulatively "went too far" and did not follow Robinson. Therefore, I think that one must assume that they did not consider the cumulative effect of the factors advanced on behalf of the appellant in reaching the decision they did.

As to Mr Tam's second submission, once one accepts that the tribunal adopted the wrong approach to the question, I think it is not possible to say that they would inevitably have reached the same conclusion had they adopted the right approach. The passage relied upon by Mr Tam does not, in my judgment, support such a conclusion.

It follows that I think this appeal must be allowed. This makes it unnecessary to consider the other grounds of appeal. But like the single Lord Justice who gave permission to appeal in this case, I do not think that there is any substance in them.

MR JUSTICE JONATHAN PARKER: I agree.

LORD JUSTICE BELDAM: I also agree.

ORDER: Appeal allowed with costs; the case to be remitted to a differently constituted tribunal to determine the question whether the Secretary of State can safely return the appellant to Colombo. ( This order does not form part of the approved judgment )