England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
(MR JUSTICE OUSELEY)

		Royal Courts of Justice Strand London WC2 Monday, 14th May 2001

Monday, 14th May 2001

1. LORD JUSTICE SCHIEMANN: Before the court is an appeal against the refusal of Ouseley J to grant judicial review of a written determination of the Immigration Appeal Tribunal dated 22nd February 2000 by which a Vice-President, Mr AF Hatt, refused leave to appeal to the appellant from a decision of the Special Adjudicator given on 27th January 2000. By that decision the Special Adjudicator dismissed the appeal of the claimant against the determination of the Secretary of State for the Home Department dated 10th December 1999, giving directions for his removal, and against the refusal of the Secretary of State to grant him political asylum in the United Kingdom.
2. There is no dispute between the parties that the Vice-President on this occasion made a bad mistake. Ouseley J recognised this but held that even had that mistake not been made permission to appeal would inevitably have been refused. It is the correctness of that decision which is in issue before us.
3. I can take nearly all the relevant material from the judgment:

"There is a full decision of the Special Adjudicator and for reasons which I shall come to, the decision of the Special Adjudicator cannot, in my judgment, be sensibly criticised. However, when the IAT reached its conclusions as to whether leave to appeal should be granted or not it said this:

'In the opinion of the Tribunal the Special Adjudicator's conclusions in respect of the Appellant's scars are totally justified. The Special Adjudicator, in his determination, in the final paragraph at page 9, states that he has considered carefully the position of the appellant on return, in the light of the background evidence and the appellant's scars. He considered the medical report of Dr Michael Peel of the Medical Foundation and the position of the appellant on his return to Colombo. He dealt fully with the internal flight concept.'

The Special Adjudicator received oral evidence and the Tribunal will not lightly interfere with findings of fact in such cases.

It is said by Miss Godfrey on behalf of the claimant that that part of the decision of the IAT contains an error of fact of some significance. That error of fact relates to the plain supposition by the IAT that the Special Adjudicator had considered the medical report of Dr Michael Peel and had made his assessment of the significance of the scars of the claimant in the light, not just of what had been shown to the Special Adjudicator at the hearing before him, but in the light of a medical report from Dr Michael Peel which contains more extensive material as to the nature and extent of the scarring that the claimant bears.

However, as a matter of fact, the Special Adjudicator did not have that medical report before him. The position before the Special Adjudicator arose in this way: although at the outset of the hearing before him, the Appellant (now the Claimant here) had initially applied for an adjournment on the grounds that the Medical Foundation had agreed to assess the condition of the Appellant, it was after a discussion that it was agreed that the Special Adjudicator should proceed on the basis that if at the end of the Appellant's evidence he considered the medical report would be likely to be of major significance to the outcome of the appeal, he would then grant an adjournment to enable a report to be submitted.

The Special Adjudicator then inspected scars which the Appellant was happy to show him. These comprised a two inch lateral scar on the Appellant's lower back, and one and a half inch vertical scar on his knee, and a further broad but short scar on his lower thigh. These were attributed by the Appellant to beatings he had received when detained by the Sri Lankan Navy in 1992.

On conclusion of the Appellant's evidence before the Special Adjudicator, it was agreed [by all concerned including the Appellant's counsel] that it would not be necessary to await a Medical Foundation report. However, the Special Adjudicator undertook to make a finding, which he did in his determination dated 4th January 2000, to the effect that the Appellant was detained by the navy, as he claimed in April 1992, and that he was beaten on his back. The Special Adjudicator indicated that he was not persuaded that the scar on the Appellant's knee was necessarily the result of a knife wound inflicted by a sailor at camp as he had claimed. The scars, he says, on knees, are notoriously common and can be sustained in any manner of ways. The Special Adjudicator said he could not therefore make any finding on that particular element of the Appellant's claim.

The Special Adjudicator went on to consider various aspects of the Appellant's evidence and came to the following essential conclusion:

'He accepted the evidence of the Appellant that he had been beaten by the Navy whilst held by them, but he comments that he has already commented on the scars which he showed before the court and whilst commenting that such ill-treatment cannot be condoned said, "I do not regard this isolated instance as amounting to either torture giving the term its usual meaning or persecution.'"

In a number of respects it was perfectly clear that the Special Adjudicator found himself unable to accept things which the Appellant was saying as a matter of credibility although, so far as the scars were concerned, he accepted that the scar on the back had been caused by a beating by the Sri Lankan Navy, but was not able to accept the cause ascribed to the two other scars that he was shown, by the Appellant.

The next important component in what the Special Adjudicator said, was that he was satisfied that:

'... there is at least a reasonable likelihood that the Appellant would suffer persecution by one side or the other', if he were returned to the northern part of Sri Lanka.

He then says this:

'In reality the main question in this appeal is whether it would be safe and not unduly harsh to return the Appellant to Colombo. This in turn depends on how he will be regarded by the Sri Lankan authorities on his arrival and then what would be likely to happen to him. His own claim is that the authorities are already aware of his having escaped from custody and of his earlier support for the LTTE. As I have already made clear, I reject the Appellant's claim that Tamil groups had passed information about him to the authorities. As to his being an escapee from custody, I have serious doubts whether that was so. But even if I am wrong and the Appellant did escape, he had never been openly accused of himself being an LTTE supporter. The assistance that he gave back in 1991 to the wounded was the kind of support which was given by the great majority of young Tamils at this time. There is no reason to believe either that the authorities would today be aware of such help, or even if they were, whether they would seriously hold this against the Appellant. I am firmly of the view that there would neither be any adverse record against the Appellant himself, nor would the authorities have any particular reason today to suspect the Appellant of having been either a threat to security or an active sympathiser for the LTTE cause.'

The Special Adjudicator then proceeded to consider the question of whether the Appellant could be returned to Colombo safely and without it being unduly harsh. He considers a number of factors and, on page 50 in the bundle, says this:

'Both reports [that is a reference to a report from the Danish Embassy and a report from the Netherland's Embassy] refer to a reduction in the number and scale of round-ups of Tamils in Colombo. The policy now appears to be to target those particularly suspected for any reason rather than to check everyone. Paragraph 5.2.10 of the Home Office Paper quotes the 1987 Hague Report as stating that those more likely to be detained for an extended period or to be subjected to an investigation include the younger Tamils who speak little Sinhala, particularly if they are not in possession of identity papers, or if such papers show them as having been born in Jaffina. Also at risk are those who have no valid reason for their presence in Colombo, particularly those recently arrived from the war zones. It also said that those who have a relative known to be an LTTE member and those who are suspected of LTTE membership on the basis of police records may be at special risk, as would those identified by other detainees. Those with visible scars may also be at risk.'

The Special Adjudicator continues:

'I have carefully considered the position of the Appellant in the light of his background evidence. He would arrive with a proven identity and could show that he had not been in the conflict areas since early 1998. Although he does have scars, these are not readily visible and would be unlikely to suggest that he had either seen active service on behalf of the Tigers, or indeed had been persistently beaten or otherwise ill-treated. Indeed, as the result of the fighting which has taken place over many years, lots of Tamils from the operational areas are likely to bear similar marks. As to the Appellant's brother who is a member of the LTTE, it would be well-known to the authorities that most Tamil families come under intense pressure to allow one side to join the movement. Nor, as I have already found, is there any reason why the authority should have any record against the Appellant himself. My conclusion therefore is that he would not today face a reasonable likelihood of being detained for extensive investigations. It follows that it would be almost unlikely that he would be tortured.

The Danish report makes clear that those held by the police for routine inquires – including new arrivals at the airport are not normally subjected to serious ill-treatment. Moreover, the evidence in both reports strongly suggests that the great majority of those held for such purposes are released comparatively quickly. I am entirely satisfied that although his safety cannot be guaranteed, the Appellant would not be reasonably likely to face persecution on his return to Colombo. I further find that it will be open to him either to remain there for an extended period, or to move elsewhere within the country. One again, this would be without facing a serious possibility of ill-treatment. Accordingly, he has failed to show that he has a well-rounded (sic) fear of persecution throughout Sri-Lanka. The final question I have to answer is whether it would be unduly harsh to expect the Appellant to return to Colombo and then to live in some safe part of the country. I have already dealt with the security aspect. Although the Appellant does not speak Sinhala and does not appear to have an established profession, I can find no reason why he would be at any greater risk than the many other young Tamils who are able to live in Colombo at the present time.'

He then makes a number of additional comments which I could not need to read and I can pick up the quotation from the paragraph:

'Even if the Appellant does have a subjective fear that this could lead to his arrest by the authorities, I am wholly satisfied that such fear is not well-founded. I do not accept that the Appellant would be at continuing risk today on account of his LTTE brother (assuming that he is still alive), or his own possible escape from the Navy seven years ago.

Applying the principles set out in Robinson and accepting that the difficulties should be looked at cumulatively, I to not consider it to be unduly harsh and unreasonable for this Appellant to be returned to Colombo and to be expected to live either there or in some other safe part of Sri Lanka.'

In relation to those matters the IAT, in refusing leave to appeal, made the point that the Tribunal would not lightly interfere with the findings of fact by the Special Adjudicator who appeared to have considered all the evidence before him properly directing himself as to the correct standard of proof and his findings were not against the weight of the evidence. The IAT considered that the findings and conclusions of the adjudicator were fully supported, bearing in mind his assessment of the lack of credibility of the Applicant and there was no legal misdirection.

The main ground upon which it is said that the refusal of leave was unlawful is, as I have already indicated, the misapprehension by the IAT as to whether the Special Adjudicator had had before him the medical report of Dr Michael Peel of the Medical Foundation. Because it took the view that that report had been before the Special Adjudicator, albeit that the decision of the Special Adjudicator makes it quite clear that the report had not been before it, its appraisal of the way in which the Special Adjudicator had considered the evidence necessarily proceeds upon a false basis.

In those circumstances, it is accepted, not merely that there was an error by the IAT, but it is also accepted that the approach that had to be adopted by this Court, in considering whether or not to grant relief, is that which was set out in the case of Manzeke v Secretary of State for Home Department [1997] Imm AR 524. At page 531, in dealing with different circumstances, but one in which there had been an error made by the Tribunal as to the basis upon which the Special Adjudicator had reached its decision, Lord Woolf MR, set out what, in my judgment, is the appropriate test to be applied this is: even if the Tribunal had not made the error as to the credibility of the Appellant, would it inevitably have reached the same conclusion? In other words, my task, if I am to refuse relief to the Claimant in this case, is to be satisfied that had the IAT not made the clear error that it did, it would inevitably have reached the same conclusion. That is, of course, a very high hurdle for the defendant to leap over, and it has to be borne in mind that it arises in the context of an asylum case which demands that there be given the most anxious scrutiny to the claim.

There are a number of matters which need to be considered in reaching a conclusion as to whether that very high test is satisfied. The first and general point I make is that one starts with something of a concern as to the appraisal by the IAT of the Special Adjudicator's decision in view of the fact it is clear from the Special Adjudicator's decision and not something concealed within it, that the Special Adjudicator did not have the report of Dr Peel before him.

Also, I do not consider that it can be said that there was any failure of form such as to make it inevitable that the IAT would decline to consider fresh evidence if it was indeed fresh evidence. However it is submitted for the Defendant that this should be seen as an attempt by the Claimant to have a second bite of the cherry, having seen what the Special Adjudicator made of the significance of the scars that were shown. It needs to be remembered that the question of what the scars were and their significance was fully before the Special Adjudicator. The Special Adjudicator was asked to adjourn the hearing so that a medical report could be obtained, but it was agreed that that was not necessary at the outset, and after his consideration of the matter it was agreed that a medical report was unnecessary.

During the course of the hearing, the Special Adjudicator inspected the scars which the Appellant was happy to show him and listened to his account of how he came by them. It is also the case that the Appellant was specifically asked at the hearing by the Special Adjudicator why the Appellant had not at his asylum interview referred to all the injuries that he later referred to and which he supported by reference to the scars that he had shown to the Special Adjudicator. The Appellant said to the Special Adjudicator that he had not shown all those scars at the interview because he had not been specifically asked about them. So there can be not the slightest shred of doubt but that the Appellant and his advisors had the question of the nature, extent and significance of the scarring well in mind and were very fully appraised, in the light of the questions asked by the Special Adjudicator, as to the importance of showing everything that was relied on by way of scarring.

So far as the medical report is concerned, its significance, in my judgment, cannot lie in the cause that is attributed to the scarring because, in essence, the significance of the cause goes only to the way in which the Appellant was treated during his period of detention for some three months or so by the Navy in 1999. It is accepted by the Special Adjudicator that there was ill-treatment, although it was treated as an isolated instance not amounting to torture or persecution, but it is not said that any of the scars which were shown to Dr Peel related to any period other than that period of detention in 1992.

The significance of the medical report cannot lie either in the description which it contains of how the Appellant was treated because he had ample opportunity to give and indeed did give evidence about the way in which he was treated during that period of detention. As I say, in my judgment, the only significance which can be ascribed to that medical report is that it may present a fuller picture of the nature and extent of scarring than was available to the Special Adjudicator.

However, in my judgment, it is impossible to conceive that had the significance of the medical report been presented as truly it is, ie that 'I have some more scars to show, than those which I showed the Special Adjudicator at the hearing', that would have been regarded as a ground upon which leave to appeal would have been granted by the Immigration Appeal Tribunal.

The significance of ill-treatment and the presence of scarring was well before the Special Adjudicator and the Appellant had and took every opportunity to draw attention to those matters which he regarded as significant and which his advisors regarded as being significant before the Special Adjudicator.

My judgment that it is inevitable that the result of the IAT's consideration would have been the same, also reflects my judgment as to the significance which could be attributed to the scarring in any event as set out in the Special Adjudicator's decision. Analysis by the IAT of the doctor's report could not have led to a different conclusion on this crucial issue. The crucial issue before the Special Adjudicator was as to whether a return to the Colombo area would be safe and not unduly harsh. As part of the consideration of whether it would be safe and not unduly harsh, the Special Adjudicator had to appraise the significance of the scars which the Appellant showed him at the hearing.

In my judgment, it is inconceivable in the light of the way the scarring was discussed at the Special Adjudicator's hearing that any significance could be ascribed to such scars as were not shown to the Special Adjudicator and which were not visible to him. Some of the scars that the Appellant showed to Dr Peel are visible without any form of unclothing being necessary.

In my judgment, one can approach the decision of the IAT and what would be its inevitable decision safely on the basis that everything that is of significance had been shown to and discussed by the Special Adjudicator and that there is nothing in relation to the significance of the scars which Dr Peel's report adds.

It needs to be remembered that Dr Peel's report does not deal with the significance of the scars from the point of view of the assessment that might be made of them by the Sri Lankan authorities. The assessment of scarring and its significance to the Sri Lankan authorities was made by the Special Adjudicator on the basis of everything that he was shown by the asylum claimant who was advised, knew the significance of the issue about scarring and knew the significance of revealing everything rather than holding things back.

In the course of her very helpful submissions, Miss Godfrey suggested that the degree of scarring would be potentially significant in light of the fact that as the Special Adjudicator says, those with visible scars may be at risk. However, with the Special Adjudicator having that point well in mind noting that the Appellant had scars which are not readily visible and appraising them as unlikely to suggest that he had either seen active service with the Tigers or indeed had been persistently beaten or otherwise ill-treated and that he was not differently marked from lots of Tamils from the operational areas, and having regard to the fact that there are no particularly extraordinary scars referred to in Dr Peel's report, it is in my judgment that had the IAT properly understood that Dr Peel's report had not been before the Special Adjudicator, it could not have made any difference whatsoever to the question of whether leave to appeal against the Special Adjudicator's decision would be granted."

4. Simon Brown LJ in giving permission to appeal to this court said this:

"The terms of the Vice-President of the Immigration Appeal Tribunal's refusal of leave to appeal here leave me with the uneasy feeling (unworthy suspicion?) that he had not read the Special Adjudicator's Determination (see particularly pages 76 and 77 of the present bundle) or the Grounds of Appeal (see particularly para 1.6) with any sufficient care. This seems to me arguably too basic a flaw in the process by which the IAT reached its decision to be cured by a suggested application of the Manzeke principle - see para 16 of Ouseley J's judgment."

5. The effect of what happened is very clearly set out in Ouseley J's judgment over which he took clearly a considerable degree of care and to which he applied his careful analysis.
6. The matter which concerns me in a case of this kind is one which is less one of careful analysis but rather one of general impression. The scars mentioned in the report of the doctor instructed by the Medical Foundation number, so far as we are presently concerned, twelve. Some of them will be readily visible, perhaps others less so unless the person concerned is unclothed. The doctor sets out twelve relevant scars thus:

"1. There is a 1cm scar to the right of the centre of the forehead.

2. There is an oval scar, 5cm x 1cm, on the right side of the lower back.

4. There is a line of irregular pigmentation, 7cm long, outside the right little finger.

5. There is a similar appearance, although not so well demarcated, outside the right ring and middle fingers.

7. There is an irregular scar 1cm in diameter, above the left elbow.

8. There are three irregular scars, 1cm in diameter, on the front of the left foreman.

9. There are two 3cm scars on the right knee. 10. There is an irregular scar 1.5cm in diameter, on the right shin.

11. There are two linear scars, 5cm and 1.5cm long, inside the right ankle.

12. There are two 2cm scars above the left knee. 13.There is a 3cm linear scar outside the left knee.

14. There is a 1cm scar in front of the left ankle."

7. Dr Peel opines at the end that there is a reasonable degree of likelihood that the scars were caused in the way that Mr Antonjudes describes.
8. The substantial point taken by Miss Godfrey is that if that material had been in front of the Special Adjudicator he might very well have reacted differently from the way that he did in relation to the three scars which were drawn to his attention; similarly, the Immigration Appeal Tribunal might react differently in their assessments of how the Sri Lankan authorities might react to the appearance of the appellant as and when he presents himself at Colombo.
9. I confess that when I read Ouseley J's judgment I came to the instinctive view that it could not be faulted. However, I am persuaded by Miss Godfrey that that instinctive reaction does not give sufficient weight to the impact on a potential decision-maker of such an accumulation of scars. It is a nice point, but where one has a situation where the Immigration Appeal Tribunal, which is the expert tribunal established in cases like this, has made a manifest mistake, then clearly at that juncture the appellant will feel that justice has not been done. Nor had it. Ouseley J in his careful judgment sought to do justice. The reproach which Miss Godfrey makes to him is that he substituted himself for the tribunal although he adopted completely the right test in several paragraphs of his judgment.
10. It is difficult to approach cases like this in at satisfactory conceptual level. I think Miss Godfrey would accept that if the medical report had merely indicated that there was an unnoticed pimple on the appellant then the judge could, applying his own judgment, have said, and indeed must have said, this could not conceivably make any difference. But, she submits, in a case of this kind it is just on the side of the line where it could conceivably make a difference. She of course stops well short of saying that it will inevitably make a difference when the Immigration Appeal Tribunal considers it if it does.
11. As I have indicated my mind has varied in the course of the argument but, bearing in mind that we are dealing here with somebody who fears torture on return (and has already been exposed to ill-treatment) I consider it right that he should have the benefit a full and proper appellate process which the law provides for him. It is a question which will attract different answers on the facts of different cases; the present one is a borderline one I would allow this appeal.
12. LORD JUSTICE ROBERT WALKER: I agree.
13. MR JUSTICE LLOYD: I also agree.
(Appeal allowed with costs, subject to detailed legal aid assessment).