COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
Tuesday 24th July 2001
B e f o r e :
LORD JUSTICE DYSON
MR. JUSTICE WRIGHT
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LORD JUSTICE DYSON:
"6. Conclusions. There is no particular reason not to accept the appellant's evidence, except about setting off for a completely unknown destination, rather than stay in Colombo: that is absurd, particularly given the large sum his family had paid for the trip. However, on the appellant's own account he was detained and ill-treated in the past on the various occasions he mentions
10.2 on suspicion of training Tamil Tigers
16.4 on suspicion of being a Tiger
25.2 for being a "black Tiger".
Unpleasant though the consequences were, they were not the result of any political opinions he might have been thought to hold, but of being suspected, however unjustly, of involvement in violent terrorism. That does not in my view come within the protection of the Convention, and there is nothing else in the evidence to show that he in particular would face persecution if returned to Sri Lanka: it was not argued that northern Tamils in general would do so; nor should I accept that, for the reasons given at paragraph 2 above."
"Statistically speaking, there can be no doubt that the majority of such persons (sc failed asylum seekers) returned to Colombo are Jaffna Tamils, and no reasonable likelihood that they are at risk there merely because of their origins".
" any person who:
(2) owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, 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; …"
"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations."
For the appellant
"81. While the definition speaks of persecution "for reasons of political opinion" it may not always be possible to establish a causal link between the opinion expressed and the related measures suffered or feared by the applicant. Such measures have only rarely been based expressly on "opinion". More frequently, such measures take the form of sanctions for alleged criminal acts against the ruling power. It will, therefore, be necessary to establish the applicant's political opinion, which is at the root of his behaviour, and the fact that it has led or may lead to the persecution that he claims to fear.
84. Where a person is subject to prosecution or punishment for a political offence, a distinction may have to be drawn according to whether the prosecution is for political opinion, or for politically motivated acts. If the prosecution pertains to a punishable act committed out of political motives, and if the anticipated punishment is in conformity with the general law of the country concerned, fear of such persecution will not in itself make the applicant a refugee.
85. Whether a political offender can also be considered a refugee will depend on various other factors. Prosecution for an offence may, depending upon the circumstances, be a pretext for punishing the offender for his political opinions or the expression thereof. Again, there may be reason to believe that a political offender would be exposed to excessive or arbitrary punishment for the alleged offence. Such excessive or arbitrary punishment will amount to persecution."
For the Secretary of State
"We too think it inappropriate to characterise indiscriminate bombings which lead to the deaths of innocent people as political crimes. Our reason is not that all terrorist acts fall outside the protection of the Convention. It is that it cannot properly be said that these particular offences qualify as political. In our judgment, the airport bombing in particular was an atrocious act, grossly out of proportion to any genuine political objective. There was simply no sufficiently close or direct causal link between it and T's alleged political purpose."
"If the real purpose of these found-ups was to deprive Tamils of their liberty simply out of hostility towards them (ie with "malignancy"), I cannot think that the loss of freedom involved would properly be held insufficient to constitute persecution. Equally, if there remained a practice of torturing those detained, I very much doubt whether a finding of persecution on Convention grounds would be precluded merely because the torture was intended to discourage terrorism or to persuade detainees to inform on their associates rather than inflicted for purposes for oppression."
The second sentence in this passage lends some support to the approach that I think should be followed in such cases. I do not accept that (as Cresswell J thought) this sentence is conditioned by the need for malignancy or hostility towards the victims, although no doubt arbitrary and excessive punishment, and certainly torture, will often be accompanied by such sentiments.
"But the fact that people have been selected for detention on the basis of their ethnicity or perceived political opinion makes it important for a government to ensure that there is no abuse of the power of detention. The people who are at risk of "indiscriminate cruelty" have been selected on a basis mentioned in the Convention. McHugh J made the point in Applicant A at 258-259:
"Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race.
However, where a racial, religious, national group or the holder of a particular political opinion is the subject of sanctions that do not apply generally in the State, it is more likely than not that the application of the sanction is discriminatory and persecutory. It is therefore inherently suspect and requires close scrutiny. In cases coming within the categories of race, religion and nationality, decision-makers should ordinarily have little difficulty in determining whether a sanction constitutes persecution of persons in the relevant category. Only in exceptional cases is it likely that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving a legitimate government object and not amount to persecution."
For the above reasons, it was legally incorrect for the Tribunal to reject the claims of Mr Paramananthan and Mr Sivarasa on the ground that the mistreatment they had suffered amounted to "indiscriminate cruelty" falling short of "persecution". In each case, the Tribunal should have entered upon the questions whether there was a causal connection between the cruelty the applicants had suffered and their Tamil ethnicity and/or perceived sympathy for the LTTE and, if so, whether the cruelty was something the Sri Lankan government tolerated or was unable to control."
"5. If measures constituting serious violations of human rights are directed, for example, to members of a particular race, that circumstance may be thought to constitute persecution for the purposes of the Convention. As Davies J said in Paramananthan that is because an inference can be drawn from the excess of the measures taken, the inappropriate violence or detriment in what is done, that the measures involve an intent to inflict harm or penalty for reasons of race, political opinion etc."
"The present appeals afford a good example of the difficulties that can arise in relation to the discriminatory criterion. It is true that, in order to protect the public, a number of laws have been enacted by the Government of Sri Lanka which permit the summary arrest and detention of individuals suspected of engaging in terrorist activities. Arrest and detention of individuals, who happen to be of a particular race, in accordance with such laws, is unlikely to be discriminatory and therefore persecutory as the persons are not targeted as persons of that race, rather, they are targeted as persons suspected of terrorism. However, the summary round up, arrest, detention, torture and extortion of young Tamil males from the Jaffna peninsula who are in Colombo or other government controlled areas, is not conducted in accordance with or authorised by such laws. Any mantle of legitimacy is lost in respect of such conduct which is plainly discriminatory and, as was pointed out by Burchett J in Savarasa, will constitute persecution. When the material before the RRT raises such a case, as it clearly did in each of the present matters, the conduct in question will, as was stated by McHugh J in Applicant A (at 259) become "inherently suspect and requires close scrutiny" in order to ascertain if it was engaged in for a Convention reason. As Davies J observed, the excess of the "measures" taken can properly found an inference of an intent to inflict harm for a Convention reason."
"despite legal prohibitions, the security forces continue to torture and mistreat persons. They continue to torture and mistreat detainees (male and female) particularly during investigation. Most torture victims are Tamils suspected of being LTTE insurgents or collaborators"
MR JUSTICE WRIGHT:
LORD JUSTICE THORPE: