COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ROBERT WALKER
LORD JUSTICE SEDLEY
| NALLIAH KARANAKARAN
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
Lisa Giovannetti (instructed by Treasury Solicitor for the Respondent)
Crown Copyright ©
LORD JUSTICE BROOKE:
"I acknowledge that the appellant does not speak Sinhalese, and that he has no home or job to which to go in Colombo, but that does not alone indicate that it would be unreasonably harsh for him to be returned there. There are many thousands of Tamils living safely in Colombo. Some are Colombo residents of long standing but many others are refugees from the north. This appellant is now aged 20. There is no evidence to suggest that he would be of any interest to the authorities. There is nothing to single him out, or to sustain a well-founded fear for any Convention reason. I am satisfied that it would not be unduly harsh for him to be returned."
"As we see this case, while the appellant may encounter certain difficulties in finding housing and employment in Colombo and while he may be rounded up and questioned by the police as a young Tamil, he has not shown, in any way, that it would be 'unduly harsh' or 'unreasonable' for him to return to live in Colombo; it is, after all, the capital of his own country, it is populated by a large number of Tamils and Tamil-speaking people, and the authorities there are committed to the suppression of the LTTE."
"Accordingly ... we are of the view that it is not necessary to decide whether the Sivakumaran standard should apply or the 'balance of probabilities' [standard] should apply, as what was held by the Court of Appeal was that the Tribunal, or the Court, having the internal flight alternative issue before it, should decide what is reasonable, in all the circumstances, as the operative words in paragraph 343 [of HC 395] are 'the application may be refused'.
As we see the situation, following Robinson, a common-sense approach rather than a legalistic or formulaic approach, should be adopted, and the Tribunal or the special Adjudicator dealing with the matter, having weighed up all the evidence, should take into account all the appropriate factors, as set out in Robinson, and decide what is reasonable in all the circumstances."
"... owing to well-founded fear of being persecuted [for a Convention reason] is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country." (Emphasis added).
"... the lower standard of proof set out in Sivakumaran applied both to the assessment of accounts of past events and the likelihood of persecution in the future."
(1) evidence they are certain about;
(2) evidence they think is probably true;
(3) evidence to which they are willing to attach some credence, even if they could not go so far as to say it is probably true;
(4) evidence to which they are not willing to attach any credence at all.
"We believe that the burden of proof remains on the appellant to show that a return to Colombo is unreasonable in the sense that it is unduly harsh. Secondly, the standard of proof in our view is the ordinary civil standard of a balance of probabilities. This is the position taken in the Canadian case of Rasaratnam. The lower standard developed in the Tribunal case of Kaja  Imm AR 1 of a reasonable likelihood relates to the fear of persecution and whether that fear is well-founded. It is accepted by all that the appellant in this case will not be persecuted in Colombo. The question is 'would it be unduly harsh?' This is a very different question and we adopt the approach taken in Rasaratnam."
"What should be anathema in an asylum case is the separation of the establishment of past events from the establishment of the risk in the future. The question is a single one of assessment of a serious possibility of persecution or, if relevant, it being 'unduly harsh' for the applicant to be returned. These matters can only be realistically assessed in respect of all aspects of the claim if the evidence of the past is approached in the context of the central issue of refugee status facing the decision-taker."
"As I have said, the fundamental question of fact to be answered in this case related to a point in time before the negligent failure to treat began. It must, therefore, be a matter of past fact. It did not raise any question of what might have been the situation in a hypothetical state of facts. To this problem the words of Lord Diplock in Mallett v McMonagle  AC 166, 176 apply:
'In determining what did happen in the past a court decided on the balance of probabilities. Anything that is more probable than not it treats as certain'."
"Where, however, the question relates to what will happen in the future, it is not possible to apply the same reasoning; it cannot be said that if there is a 51% probability, there is a certainty that something will happen. There are only varying degrees of likelihood ranging from a near certainty, very likely, more likely than not, reasonably likely, a bare possibility to very unlikely. This differentiation is found in many aspects of the civil law."
"Be that as it may, I see no reason to extend the Sivakumaran/Kaja standard of proof to the assessment of historical and existing facts when a decision maker is considering the protection test. [Counsel for the applicant], albeit by implication acknowledged this, hence his submission that the protection test should be embraced in the well-founded fear test."
"The real finding has to be of a fear of persecution which is well-founded. The question then is to what standard and how is that fear to be established. This has not been fully argued before us and so my views are tentative. I agree with Stuart-Smith LJ that there must be a factual basis for all the findings that are necessary. Facts are proved on a balance of probability. Though the fear has to be a current fear presently held, it is actually a fear of events which are prospective and lie in the future. Proof depends upon the reasonable likelihood of the fear coming to pass as has been explained in Sivakumaran. To close the circle, there has to be a reasonable likelihood of the occurrence of acts of such seriousness as to be capable of amounting to the grave offence of persecution. There must be some factual basis from which an assessment of the risk can be made and those facts, importantly the historical facts of what actually happened to the asylum-seeker, are proved on the balance of probability. Once those findings are made, for my part, I see no conceptual difficulty in then assessing whether there is a reasonable degree of likelihood that harm, so serious as to amount to persecution, may befall him."
(1) Whether Kaja was correctly decided;
(2) Whether it would be possible to maintain a regime in which there was one standard of proof in relation to historic or existing facts for the purposes of the first part of the definition of "refugee" in the Convention, and a different standard of proof in relation to such facts for the purpose of considering issues of protection and internal relocation;
(3) The extent to which the assessment of an applicant's personal characteristics (when relevant to internal relocation issues) was inextricably bound up with the findings as to historic and existing facts that were made about him/her.
"Perhaps all that can usefully be said is that a decision-maker should evaluate the mental and emotional state of the applicant and the objective circumstances so far as they are capable of ascertainment, give proper weight to any credible account of those circumstances given by the applicant and reach an honest and reasonable decision by reference to broad principles which are generally accepted within the international community."
"The chance of persecution is not a fact to be inferred solely from facts that are found to have existed; the very uncertainty of what has happened in other cases is itself material to the assessment of the chance of persecution in the instant case. As a matter of ordinary experience, it is fallacious to assume that the weight accorded to information about past facts or the opinion formed about the probability of a fact having occurred is the sole determinant of the chance of something happening in the future: the possibility that the future will not conform to what has previously occurred affects the assessment of the chance of the occurrence of a future event."
"Submissions were made at the hearing of the appeal as to the correct decision-making process which it would have been permissible for the delegates to adopt. These submissions were misguided. They draw too closely upon analogies in the conduct and determination of civil litigation.
Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is of a different nature. A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law. The term 'balance of probabilities' played a major part in those submissions, presumably as a result of the Full Court's decision. As with the term 'evidence' as used to describe the material before the delegates, it seems to be borrowed from the universe of discourse which has civil litigation as its subject. The present context of administrative decision-making is very different and the use of such terms provides little assistance."
"... the term 'balance of probabilities' was apt to mislead in the context of Section 22AA [of the Migration Act 1958, as amended] even if it be used in reference to 'what has already happened'."
"It is true that in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred, or have not occurred for particular reasons in the past, is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining that there is a well-founded fear of future persecution."
"As Guo makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution. The Tribunal 'must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution'."
"Findings of fact based on likelihood will usually be findings made on the balance of probabilities arising from the available information before the decision-maker. However, when dealing with the claims of an asylum-seeker, the available evidence might not imbue findings so made with the degree of confidence that justify the conclusion that an asylum-seeker does not have a well-founded fear of being persecuted. It is for this reason that the civil standard cannot be universally applied to the fact finding process in claims of this kind. It is necessary to recognise the risk of error in adopting such a fact finding process, and to make allowance for it."
"unless the decision-maker can dismiss as unfounded factual assertions made by the applicant, the decision-maker should be alert to the importance of considering whether the accumulation of circumstances, each of which possesses some probative cogency, is enough to show, as a matter of speculation, a real chance of persecution, even though no one circumstance, considered by itself, is sufficient to raise that prospect."
"With respect, Drummond J's observations are helpful because they identify a second class of case in which, although the decision-maker finds that alleged past events have not occurred, the chance that they might have occurred could provide a rational foundation for finding that the applicant has a well-founded fear of persecution. A practical difficulty is that factual assertions made by applicants for refugee status concerning their own experiences can rarely be assessed independently of each other. The findings will usually depend on the decision-maker's assessment of the reliability of the applicant's account and of other factors common to all claims. It may therefore not be easy for the [tribunal] to identify those cases where the findings cannot be made with sufficient confidence to foreclose reasonable speculation. Perhaps that is the reason why Gummow and Hayne JJ in Re Minister for Immigration and Multicultural Affairs ex p Abebe ... described the [tribunal's] inquiry as 'attended by very great difficulties'."
(1) There may be circumstances in which a decision-maker must take into account the possibility that alleged past events occurred even though it finds that these events probably did not occur. The reason for this is that the ultimate question is whether the applicant has a real substantial basis for his fear of future persecution. The decision-maker must not foreclose reasonable speculation about the chances of the future hypothetical event occurring.
(2) Although the civil standard of proof is not irrelevant to the fact-finding process, the decision-maker cannot simply apply that standard to all fact-finding. It frequently has to make its assessment on the basis of fragmented, incomplete and confused information. It has to assess the plausibility of accounts given by people who may be understandably bewildered, frightened and, perhaps, desperate, and who often do not understand either the process or the language spoken by the decision-maker/investigator. Even applicants with a genuine fear of persecution may not present as models of consistency or transparent veracity.
(3) In this context, when the decision-maker is uncertain as to whether an alleged event occurred, or finds that although the probabilities are against it, the event may have occurred, it may be necessary to take into account the possibility that the event took place in deciding the ultimate question (for which see (1) above). Similarly, if the non-occurrence of an event is important to the applicant's case, the possibility that that event did not occur may need to be considered by the decision-maker even though it considers that the disputed event probably did occur.
(4) Although the "What if I am wrong?" terminology has gained currency, it is more accurate to see this requirement as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a Convention reason.
(5) There is no reason in principle to support a general rule that a decision-maker must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that its findings were correct. (In Guo, for instance, the High Court considered that it was enough that the tribunal appeared to have no doubt that the probability of error was insignificant).
(6) If a fair reading of the decision-maker's reasons as a whole shows that it "had no real doubt" that claimed events did not occur, then there is no warrant for holding that it should have considered the possibility that its findings were wrong.
(1) The risk of the applicant's being arrested and returned to his homeland in north-east Sri Lanka because of his lack of appropriate documents;
(2) The risk of his being repeatedly arrested in round-ups;
(3) The risk that he would be subjected to extortion;
(4) The risk of unduly harsh treatment before obtaining access to judicial process;
(5) The risk, if the applicant is detained, of his being subjected to dreadful prison conditions;
(6) The risk of his not being able to find or retain accommodation;
(7) The risk of his not being able to find any employment, due to blatant discrimination in the labour market;
(8) The risk that his inability to speak Sinhalese would place him at a disadvantage in dealing with government officials;
(9) The risk that he would be subjected to a regime where racial discrimination was part of every day life;
(10) The risk that he would have no real contacts or ties in Colombo;
(11) The fact of his previous treatment in Sri Lanka by both the LTTE and the security forces.
"Nevertheless, as we say, none of the matters identified by [counsel] 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 from one another. The factors are cumulative. He will be subject, immediately on arrival in Colombo, to each of the disadvantages [counsel] emphasised. Some of them will arise from his lack of proper Sri Lankan identity and travel documents; others will arise solely from his ethnic background. 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."
"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."
LORD JUSTICE ROBERT WALKER:
LORD JUSTICE SEDLEY:
"... the sufficiency or insufficiency of state protection against the acts of others may be relevant at three points in the argument: if it is sufficient, the applicant's fear of persecution by others will not be 'well-founded'; if it is insufficient, it may turn the acts of others into persecution for a Convention reason...; again if it is insufficient, it may be the reason why the applicant is unable, or if it amounts to persecution unwilling, to avail himself of the protection of the home state."
"It is at this stage that the state's inability to protect should be considered. The test is in part objective: if a state is able to protect the claimant, then his or her fear is not, objectively speaking, well-founded."
This may occasionally be right as a practical means of establishing whether a fear of persecution exists or is well-founded - what Stuart-Smith LJ calls the fear test; but it is not the test which the Convention lays down in relation to protection. The latter has to do not with whether the state can provide protection to the claimant but with whether the claimant can avail himself of it. In some cases this will not matter: it will be possible to take the approach of Hale LJ and deal with the state's capacity to afford protection where it best fits the issues. But this will not be an appropriate approach where the fear of persecution which is asserted is - or is said to be - localised. For reasons set out earlier in this judgment, once an applicant reaches the United Kingdom driven by a well-founded fear of racial persecution in his home area of his home country, the remaining questions will be whether there is nevertheless a part of the home state (a) which is safe from persecution and (b) to which it would not be unduly harsh to return the asylum-seeker.
"25. First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court of law conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for such a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, so long as, in the end, he or she performs the function of speculation about the "real chance" of persecution required by Chan.
26. Secondly, the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question: "What if I am wrong?" [Guo v Minister for Immigration (1996) 135 ALR 421, 441]. Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems "likely" or "entitled to greater weight", the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a "real chance" of persecution."
(It needs to be noted that Australian jurisprudence on the Convention uses "speculation" to describe a legitimate exercise falling short of fact-finding.) The Federal Court considered this passage in Rajalingam (paragraphs 47 to 50), noting that it extended the broad evaluative approach even to the ascertainment of past facts. It adopted an exegesis propounded by Drummond J in Thanh Phat Ma v Billings (1996) 71 FCR 431:
"...unless the decision-maker can dismiss as unfounded factual assertions made by the applicant, the decision-maker should be alert to the importance of considering whether the accumulation of circumstances, each of which possesses some probative cogency, is enough to show, as a matter of speculation, a real chance of persecution, even though no one circumstance, considered by itself, is sufficient to raise that prospect."
Kirby J concluded (paragraph 31):
"Ultimately the question is whether the delegate [i.e. the decision-maker] allowed her mind to consider all the relevant possibilities by looking back at the entirety of the material placed before her and considering it against a test of what the "real", as distinct from fanciful, "chances" would bring if the applicant were returned to China."
Subsequently, in Epeabaka  FCA 1 the Federal Court of Australia has returned to Kirby J's central reasoning and has adopted it.
"In my judgment the issue whether a person or group of people have a "well-founded fear ... of being persecuted for [Convention] reasons" ... raises a single composite question. It is, as it seems to me, unhelpful and potentially misleading to try to reach separate conclusions as to whether certain conduct amounts to persecution, and as to what reasons underlie it. Rather the question whether someone is at risk of persecution for a Convention reason should be looked at in the round and all the relevant circumstances brought into account. I know of no authority inconsistent with such an approach and, to my mind, it clearly accords both with paragraph 51 of the UNHCR Handbook and with the spirit of the Convention."
While, for reasons considered earlier, it may well be necessary to approach the Convention questions themselves in discrete order, how they are approached and evaluated should henceforward be regarded not as an assault course on which hurdles of varying heights are encountered by the asylum seeker with the decision-maker acting as umpire, nor as a forum in which the improbable is magically endowed with the status of certainty, but as a unitary process of evaluation of evidential material of many kinds and qualities against the Convention's criteria of eligibility for asylum.