England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR. JUSTICE GAGE)

		Royal Courts of Justice Strand London WC2 Tuesday, 17th July 2001

Tuesday, 17th July 2001

1. LORD JUSTICE PILL: This is an a appeal against a decision of Gage J., given on 27th October 2000. The appellant, Mohamed Hillmede Hussein-Deen, had sought to review judicially a decision of the Immigration Appeal Tribunal refusing the appellant permission to appeal against a decision of a Special Adjudicator notified on 3rd December 1999. The appellant had appealed to the Special Adjudicator from a decision of the Secretary of State on 23rd June 1999 refusing the appellant's application for asylum in the United Kingdom.
2. The appellant was born in Batticaloa in Sri Lanka and claims that his return to Sri Lanka would place him in danger. Article 1 of the 1951 Geneva Convention defines a refugee as some one who, 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 owing to such fear is unwilling to return to it. The burden of proof is upon the appellant. The Special Adjudicator referred to appropriate authority and stated the test in what is not submitted to be other than a proper way. It is sufficient for the appellant to establish that there was a "reasonable chance" or a "serious possibility" of persecution.
3. In summary, the appellant's submission, put before this court on his behalf by Miss Haji of counsel, is that the Special Adjudicator erred in his assessment of the claimant's fear of persecution, first from the Sri Lankan authorities and second from the LTTE, a Tamil organisation in Sri Lanka.
4. The appellant is Muslim and lives in the eastern part of Sri Lanka where there is a mixed population of Tamils, Muslims and Singhalese. In paragraph 13 of the adjudication, the Special Adjudicator found that in the Batticaloa district 60% of the electorate was Tamil, 32% was Muslim, with the remaining 8% being Singhalese.
5. The Special Adjudicator summarised the evidence of the appellant, which was given in Tamil through an interpreter. The appellant claimed that if he returned to Sri Lanka his life would be in danger and so would that of his mother. His father had been taken by the army. If he did not co-operate with the LTTE on his return, he was at risk from them, and so the adjudicator found that he "feared problems from both sides".
6. The appellant did not know what had happened to his father and he had no idea, the Special Adjudicator found, why the authorities had arrested his father. His father used to work for Tamils and had Tamil friends. The army came to the appellant's house three months before his departure but did not come again. They did not ask him where his father was but whether or not his father supported the LTTE. His father, on his return, told the appellant that he should not get involved and should not worry about it. He said that his father had a drinking problem. The appellant told the adjudicator that he knew nothing about the activities of the LTTE. He thought that there were some Muslims in the organisation. Most of the Muslim community hate the LTTE, but not all of them – as, for instance, his father, who mixed with Tamils.
7. The Special Adjudicator heard submissions from counsel and, as is customary, was referred to background material prepared by responsible organisations as to the conditions and state of affairs in Sri Lanka. The Special Adjudicator did not set out or summarise the extracts from the relevant reports, and I am not surprised that he did not do so. He did state, and I have no reason to doubt it, that he was referred to "various pages of the objective bundle of evidence".
8. The Special Adjudicator stated that he found the appellant to be a credible witness. Dealing with the unlikelihood of the LTTE, in the circumstances I have briefly described, seeking to recruit the appellant, the a adjudicator stated at paragraph 12:

"...I can see that the appellant could be of benefit to the LTTE in the manner described by the appellant himself. The appellant's father had dealings with Tamils and in view of his apparent arrest may well have had LTTE leanings. Those leanings may also have been attributed to the appellant."

9. The Special Adjudicator's reference to the mixed population in the Batticaloa district, aware as he must have been of the general situation in Sri Lanka as revealed in the background material and his experience, could only have been to distinguish that area from areas, for example in the north of Sri Lanka, where the Muslims are a small minority and very vulnerable, as the adjudicator found.
10. The adjudicator set out his conclusions at paragraph 14:

"Subjectively I find that the appellant is very frightened to return to Sri Lanka. However, I find as a fact also that the only real problem that he has experienced was with the army some three months prior to his father being taken away. He was questioned about his father's involvement with the LTTE. It was not suggested that the appellant himself was part of the LTTE. He was mistreated but not arrested. He says that he was beaten all over 'with their hands' although in evidence before me it was translated that he was shaken by the army. Fortunately he suffered nothing worse and I do not find that the treatment that he received amounts to torture. He was mistreated and such behaviour is unacceptable but he was not badly hurt, rather he was scared. He did not take steps to leave the country at that stage but only did so on his mother's advice after the army took his father away. He does not know whether his father was involved with the LTTE. He does not know either whether his father has reappeared (the appellant did not stay in Sri Lanka long enough) and he does not know where his mother is either because she sold the property in which they once lived. So far as I can tell, it has never been suggested that the appellant himself has been a member or supporter of the LTTE. It is very unlikely therefore that he would be of any interest to the authorities. What he has suffered at the hands of the army does not in my finding amount to persecution for the purposes of the Convention".

11. On this aspect of the case Miss Haji submits that the finding that the appellant was very unlikely to be of any interest to the authorities was perverse on the basis of the evidence before the adjudicator. He had had no regard to what Miss Haji described as the objective factors -- that is, the background material before him. Moreover, it was a conclusion which could not properly be made upon the findings of fact which the adjudicator had himself made.
12. Before referring to the factors on which Miss Haji relies specifically, I do in this case refer to the background material because of the stress which counsel puts upon it. Counsel refers first to the report of Amnesty International dated June 1999 and headed "Sri Lanka: Torture in custody." Under the heading "Torture of political prisoners" it is stated at 4.1:

"In the north, most of the allegations of torture concern the army, in others the navy is implicated. In the east, members of the army, Special Task Force (STF), police and several armed Tamil groups fighting alongside the security forces against the LTTE have been responsible for torture.

.....

"However, people who are suspected of having links with the LTTE on the basis of the information provided by one or more of the three agencies or on information provided by them during their initial interrogation risk being subjected to torture."

13. Miss Haji also refers to the report of the United Nations High Commissioner for Refugees dated 18th March 1999 and entitled "Background Paper on Sri Lanka". She relies in particular on a paragraph at page 128 of the bundle:

"The conflict between the LTTE and the Muslim community of Sri Lanka had its origins in the East of the island. Muslim communities, particularly in the LTTE-controlled Northern areas and in the East, suffered from violence and displacement as a result of the continuing state of civil war. Consequently, the Muslims who lived with Tamils in the North and the East for generations were forced to flee their homes in those areas. In Batticaloa, there have been several incidents in which Muslim civilians were injured and their houses damaged during armed confrontations between Sri Lanka's Armed Forces and the LTTE. Tensions remained high in the East up to 1997."

14. Reference is also made to a comment in an earlier Amnesty report of 1997 where it was stated that "relatives or LTTE members were arrested to put pressure on the LTTE members themselves". Reference is made to treatments "usually inflicted during interrogation about suspected involvement with the LTTE".
15. Miss Haji invites the court to have regard to that background material and also to the following findings by the adjudicator. First, the adjudicator accepted the credibility of the appellant. Second, the appellant had been detained three months prior to leaving Sri Lanka and had suffered physical violence. Third, his father had been taken away by the army. Fourth, there is evidence that the families of those involved with the LTTE, as it is suggested the father was, are at risk. That should be taken with the adjudicator's finding, to which I have referred, that the father's LTTE leanings "may also have been attributed to the appellant". Fifth, there was evidence of very bad relations between the Muslims and the Tamils.
16. Miss Haji makes the more general submission that in his reasoning the adjudicator has looked to the past rather than to the future. She submits that, on a reading of paragraph 14, the adjudicator has placed too much emphasis on the nature of the violence which the appellant had suffered without relating that to the question of his risk in the future. It is also submitted that the adjudicator has not reasoned correctly when stating that, because the appellant himself had never been a member or supporter of the LTTE, "therefore" it was very unlikely that he would be of any interest to the authorities.
17. The test to be applied in circumstances such as these was stated by Lord Hope in Horvath v. Secretary of State for the Home Department [2000] Imm.A.R. 68. That was a case dealing with the possibilities of persecution by non-state agents, which is the second limb of the present case; but the broad statement appears to me to have a general application in circumstances such as these:

"In assessing the existence of a real risk of the violation of rights occurring anything which may bear on the likelihood of the incidence of the violation will be relevant. It is the applicant's fear which is in issue, and so matters particularly relating to him will be important. For example his prominence in society or political life, or anything else which might make him a particular target of persecution may be relevant. The history of past violations, the extent to which the applicant has personally been directly affected, either by being the victim of violence or the recipient of threats of violence, considerations of geographical location, all the factors which might stimulate or facilitate a violation will be among the circumstances to be taken into account, as also will factors which may discourage or deter or render a violation less likely. The political and legal situation in the country should be taken into account."

18. Before expressing any conclusions, I refer to the second limb of the case which is that there is a serious possibility of risk of persecution by the LTTE who are capable of being agents of persecution under the Convention. Paragraph 15 of the adjudication states:

"I do not find either that the LTTE can be said to be agents of persecution under the Convention. I anticipate that the LTTE did make an approach for him to join the organisation. However, the LTTE were not in effective control in the appellant's area and as a fact he has not been persecuted by that organisation and I do not see that there is a serious possibility that he would be on his return to Sri Lanka."

19. It is submitted that the adjudicator has made an error of fact in saying that the LTTE were not in effective control in the appellant's area, having regard to the contents of the UNHCR report. It is further submitted that the test of effective control is not the correct test. The LTTE could be agents of persecution in an area which they did not control, and that was the case in the area where the appellant had lived.
20. In my judgment, this was not a case where the background information on which Miss Haji heavily relies can be said to be specific to the area concerned; that is, to the Batticaloa area of Sri Lanka. There is only one reference to that area in the documentation, and that does not indicate a state of affairs where someone in the appellant's position, or any position approximating to his, would face a serious possibility of persecution. The Special Adjudicator was not, in my judgment, wrong in fact when he concluded that the LTTE was not in effective control of the area. The statements in the background documents are of a very general kind. Had the LTTE been in control of the area, I would have expected the appellant to give evidence to that effect to the Special Adjudicator, though I accept that evidence might demonstrate persecution in non-controlled areas.
21. I turn to consider the specific factors upon which Miss Haji relies. In my judgment, the adjudicator was entitled not to take a serious view of the arrest and treatment which the appellant had had three months before his father was taken away. To suggest on the basis of that treatment that there was a serious risk of persecution in the future is, in my judgment, a very large jump indeed. The Special Adjudicator was entitled, as the fact-finding tribunal, not to give serious weight to that factor in the judgment he had to make. The circumstances in which the appellant's father was taken away are far from clear. There is material to suggest that he had links with the LTTE, but in my judgment the adjudicator was entirely entitled to find, upon the evidence he heard and including his consideration of the background material, that this would have no impact upon the appellant and that the appellant was not at any real risk. The appellant plainly was vague, as appears from the brief summary I have given of his evidence, as to the circumstances of his father's arrest.
22. It is clear that in Sri Lanka there are serious tensions between Muslims and Tamils. But nothing that has been drawn to the attention of the court, including the background materials specifically relied on, indicates that, in the area concerned and having regard to the activities of the appellant and his blood links with his father, a serious risk of persecution by the army exists.
23. Where an appellant is found to be credible but there is a finding against him on the substance of the matter, a tribunal in the position of this court must consider carefully whether the appellant (where an adjudicator believed him, where he came from a disturbed area and where he had suffered some violence and his father had been arrested by the army) was himself at risk of persecution. In my judgment, the adjudicator, who gave every sign of having considered the evidence carefully, was entitled to reach the conclusion he did on this aspect of the case. Equally, he was entitled to reach the conclusion he did on the second aspect, the possibility of LTTE persecution. This, in my judgment, is the weaker part of the appellant's case. I can find no evidence which must lead to a conclusion that on balance of probability there would be a serious possibility of persecution by this non-state body. The adjudicator was entitled to find, as he did at paragraph 15, that he did not see "that there is a serious possibility that he would be [persecuted by the LTTE] on his return to Sri Lanka".
24. Miss Haji's submissions as to the format and reasoning in the adjudicator's findings are not without force. It is surprising that there is, at the conclusion of paragraph 14, a reference to past conduct. I would have expected that to appear earlier and the conclusion as to the future to form a conclusion at the end of the consideration of the material factors. Moreover, the position of the word "therefore", following as it does a statement that the appellant has never been a member of the LTTE, does attract the submission made by Miss Haji that it was the membership of the LTTE which was the only factor which the adjudicator had in mind.
25. It is, however, important in circumstances such as these for the court to read the adjudication as a whole. On analysis, in my judgment it is clear from a consideration of the facts set out and the reasoning of the adjudicator, first that he was having regard to the future risk of persecution and not merely to the past, and second that his conclusion that it was "very unlikely therefore that he would be of any interest to the authorities" was a conclusion based upon the evidence as a whole.
26. I, like Gage J., am unable to find that there has been any misdirection by the adjudicator, that he has failed to take into account material considerations or that he was not entitled to reach the conclusions he did. That applies to both limbs of the case. I have referred to his specific finding as to the future in relation to the LTTE.
27. The adjudicator concluded his judgment, having considered both limbs of the case, in this way:

"He [the appellant] seems to me very sensitive and somewhat immature. He is afraid of what might happen to him if he is returned to Sri Lanka. I considered the position if he is returned to Colombo. I have considered carefully the objective evidence. I anticipate that he may be detained for a short time but he has as a fact not been involved with the LTTE (although his father may have been). After enquiries have been made I anticipate that he would be able to return to his home district where, for the reasons set out above, I do not find that there is a reasonable chance that he would be persecuted."

28. That general conclusion indicates a correct approach to the whole question. Background material as to affairs in a country often does not bear upon particular areas and is of limited value. Plainly the adjudicator was aware of the state of affairs in Sri Lanka and of the fact that in some respects and in some parts of the country it is a difficult and dangerous one. It is important that the adjudicator consider carefully the evidence called before him as to the particular circumstances of the appellant in relation to the particular area where he lived. Having heard the helpful submissions of counsel, I have come to the conclusion that the adjudicator was entitled to reach the conclusions he did and that the judge was entitled, as he put it, to find that:

"The burden was on the applicant to prove that his fear was well founded. I cannot say that on all the material before him that the Special Adjudicator's finding was irrational or perverse in the Wednesbury sense."

29. I agree that the adjudicator was entitled to reach the conclusion he did. This application for judicial review of the refusal of the Immigration Appeal Tribunal to grant leave to appeal must be refused and the appeal accordingly is dismissed.
30. LORD JUSTICE MAY: I agree that this appeal should be refused for the reasons which my Lord has given.
31. This is an asylum appeal and it requires the court's most anxious scrutiny. I have not found it an easy case. The appellant is a Sri Lankan Muslim who was born in Batticaloa on the eastern coast of Sri Lanka, somewhat to the north of Colombo. He arrived in the United Kingdom on 24th February 1998 and applied for asylum. He arrived without a passport, having travelled via Singapore and an unidentified Arabian country. His explanation for not having a passport was that the agent who helped him had retained it, and the Special Adjudicator concluded that this explanation was truthful. On this basis the Special Adjudicator did not upheld the Secretary of State's certificate.
32. The Special Adjudicator found that the appellant was a credible witness and that he was very frightened to return to Sri Lanka. In the context, I think this was a finding that subjectively he feared persecution for a Convention reason if he returned there. The difficult question in the light of that finding was whether objectively that fear was well founded. It is accepted that the Special Adjudicator correctly directed himself in law as to the burden and standard of proof in asylum cases.
33. As my Lord has explained, the essential particular facts on which a well-founded fear of persecution might objectively be found were in rather small compass. The appellant had not himself had dealings with the LTTE, nor was he a sympathiser. His father was or was believed to be a sympathiser. The appellant was questioned by the Sri Lankan army about his father's involvement with the LTTE. He was mistreated but not arrested. He said that he was beaten all over "with their hands". The Special Adjudicator found that fortunately he suffered nothing worse. He found that the treatment that he received did not amount to torture. The mistreatment was unacceptable, but the appellant was not badly hurt; rather he was scared. He did not take steps to leave the country at that stage but remained there for some three months. He then left with the assistance of the agent upon being told by his mother that the army had taken his father away. He did not know whether his father was involved with the LTTE, although the Special Adjudicator found that he was or probably was. He did not know where his father was, nor did he know where his mother was because she had sold the property in which they had lived. The Special Adjudicator anticipated that the appellant might be detained for a short time if he were to return to Sri Lanka, but since he had not been involved with the LTTE the Special Adjudicator anticipated that he would be able to return to his home district. The Special Adjudicator did not see that there was a serious possibility that he would be persecuted by the LTTE if he did so. Thus, for a combination of those reasons, it was held that his fear of persecution was not well founded.
34. Miss Haji submits, as my Lord has set out, that the Special Adjudicator made his findings of fact on the basis of past particular facts only; that he failed to work through the likely consequences of the appellant's necessary association with his father; that he concluded that it was very unlikely that the appellant would be of any interest to the authorities on the basis only that the appellant had never been a member of the LTTE; that the Special Adjudicator made findings which were perverse in the light of general objective evidence from bodies such as Amnesty International, which was before the Special Adjudicator; and that he wrongly concluded there was no serious possibility that the appellant would be persecuted by the LTTE on the erroneous basis that the LTTE were not in effective control of the appellant's area.
35. I am satisfied, from paragraphs 14, 15 and 16 of the adjudication of the Special Adjudicator, read as a whole, that the Special Adjudicator took all facts into account, including the objective material to which he had been referred. He did not, in my view, overlook the fact of the appellant's association with his father, who had been detained. He did not, in my view, base his finding that the appellant was unlikely to be of interest to the authorities on the fact only that he had not himself been a member of the LTTE.
36. I do not consider that the findings of the Special Adjudicator were perverse. On the contrary, in a difficult case I consider that they were open to him on the evidence taken as a whole. As to the submission that the Special Adjudicator was wrong in law in concluding that the LTTE were not agents of persecution because they were not in effective control of the region, I agree with Miss Giovannetti's submission here that this was not a finding of the law but a factual element on the road to a factual conclusion that there was no serious possibility that the appellant would be persecuted by the LTTE if he returned to Sri Lanka.
37. As I say, I agree that this appeal should be dismissed.
38. MR. JUSTICE RIMER: I agree with both judgments, and I too would dismiss the appeal.
ORDER: Application dismissed; detailed assessment of appellant's costs. (ORDER NOT PART OF APPROVED JUDGMENT)