COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
MR JUSTICE AIKENS
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Sean Wilken (instructed by Treasury Solicitors) for the Respondent
Crown Copyright ©
Lord Justice Schiemann :
The factual background
32. I will now deal with the appellant's evidence. … The next difficulty the appellant had with the authorities was on 10 June 1999 when he states whilst travelling to the mosque to pray he was stopped by five or six members of the LTTE who gave him a gun and asked him to walk forward. At this time a military truck arrived and the LTTE members ran away. The army members caught him he was arrested, detained, tortured and beaten, he suffered one broken leg the other leg being dislocated, he passed out and awoke in hospital. Mr Weinegar [the appellant's counsel] submitted that the respondent had not attacked the credibility of his story here. That is correct. I do, however, find his story here somewhat bizarre. The appellant further indicated that when he awoke in hospital, where he remained for two days before discharging himself, no member of the security forces was present. I do find his evidence here somewhat surprising as a suspected member of the LTTE in possession of a firearm I do not believe he would be left unguarded.
35. …although I accept his premises were destroyed by the LTTE I do not accept the evidence in relation to his wife being able to retrieve money. … I cannot accept that the sale of [the] jewellery would fund the significant amount he allegedly paid to fund his journey and subsequent stay in Colombo and then his escape which eventually brought him to the United Kingdom
39. I do not believe the appellant has given a totally truthful account, there are significant parts of his evidence that in my estimation lack credibility. In particular I regard the following evidence as without foundation, his contention that he was not subject to any security during his two day stay in hospital, the sale of his wife's jewellery which I find would not cover the cost of his journey, the detail of his journey and stay in Colombo, and his evidence that he was suspected of LTTE membership prior to the incident in June 1999. I do, however, accept the evidence of the appellant that there was an incident with the army when he was severely beaten receiving the injuries of a broken leg and a dislocated leg. What does in this case tip the balance in favour of the appellant is the warrant issued against him. The warrant alleges "on the 10th day of May 1999 with the terrorist you were jointly in having a clash" (sic). The authenticity of this warrant was not challenged by the respondent, the appellant gave the date of the only incident that had occurred with the army as the 10 June 1999. It may be that the appellant has given a wrong date of this incident for whatever reason, but it is clear to me that there was an incident with the army and a warrant is in existence against the appellant for what appears to be described as a similar incident. If returned to Sri Lanka the appellant will be arrested on the warrant and there is sufficient information available in the objective material to show that persons suspected of LTTE connection or terrorist connection being subjected to ill-treatment whilst detained (sic). …
5. The main and in our view the strongest ground of appeal in this case is that the Adjudicator erred in giving the "warrant" as much weight as he did and that his final conclusion that the respondent has a well founded fear of persecution for a Convention reason if he were returned to Sri Lanka is against the weight of evidence. We heard submissions from Mr Gulvin and Mr Weineger. Mr Gulvin reminded us that the Adjudicator had rejected most of the claims made by the respondent in his evidence. Drawing our particular attention to paragraph 39 of the Adjudicator's determination, Mr Gulvin pointed out that he had specifically rejected the respondent's claim that the army or the police had suspected the respondent of LTTE membership or sympathy prior to the incident in June 1999. The respondent had been sure that the incident with the army had taken place on 10 June and not on any other date. He had not claimed that there had been any other incident with the army or the police on 10 May or any other date before or after 10 June. The contents of the warrant make out that the incident for which the respondent was being sought had happened on 10 May 1999. This was clearly contrary to the evidence of the respondent and the respondent had been unable to provide any explanation for the inconsistency. According to Mr Gulvin, the Adjudicator was wrong in the circumstances to rely on the warrant for his conclusion that the respondent was at risk upon removal to Sri Lanka. Mr Gulvin said that it was not the (sic) question of authenticity or genuineness of the warrant. Bearing in mind that the burden of proof was upon the respondent at all times, it was the (sic) question of what weight should have been attached to this document in the context of all the evidence from the respondent. Mr Gulvin asked us to allow the appeal. Mr Weineger argued that as the only question before the Adjudicator was whether the respondent faced real risk of persecution on return for a Convention reason, it was perfectly reasonable and proper for the Adjudicator to conclude, in the light of the warrant that his fear of persecution was well founded. He reminded us that the warrant had not shown to be bogus by the Secretary of State. He further reminded us that the warrant had been issued by a court and not by the police. He asked us not to interfere with the decision of the Adjudicator.
6. We have given careful consideration to all the evidence in this case. We have reminded ourselves that the oral evidence of the respondent was in the main rejected by the Adjudicator. He had very good reasons to do so. We endorse the reasons that he has given and we agree with his description of some of the evidence as "somewhat bizarre". We accept that in the context of the totality of the evidence in this case, it was unreasonable and indeed perverse of the Adjudicator to conclude on the basis of the warrant document that the respondent had made out his case as a refugee under the Convention. This is, first, because the other evidence before the Adjudicator did not match the contents of the warrant document. Further there were a (sic) numerous other inconsistencies and contradictions in relation to the document and the events surrounding it that (sic) no reasonable person could have given the contents of the document as much weight as did this Adjudicator. It is no doubt true that the Secretary of State has produced no evidence either before the Adjudicator or before the Tribunal to establish that the warrant is not a genuine document. But in the circumstances of this case where the claimant's (respondent's) evidence has not been accepted as credible and also where the claimant's own evidence is inconsistent with the contents of the document, and given that the burden of proof is upon the claimant and not the Secretary of State, the Secretary of State's position that failure to challenge the authenticity of the document does not bar it from arguing that the document should not relied upon or should be given little weight, is perfectly tenable and correct (sic). It is important to note that when the respondent was first interviewed he made no mention of the warrant, and as the Adjudicator noted in his determination (paragraph 37) it "was not part of his case". We find no evidence in this case which establishes that the respondent is reasonably likely to face persecution for a Convention reason in Sri Lanka on removal from here. The Adjudicator had the benefit of seeing the respondent give oral evidence. He did not believe most of what he had been told. The parts that he did believe are intrinsically linked to the warrant and the Adjudicator's belief (in our view erroneous in this case) that in the absence of a challenge to the authenticity of the warrant he had to accept it and give it full weight. In our opinion the Adjudicator should have looked at the warrant with due caution since he had himself taken an adverse view of the veracity of the respondent's evidence. In our view the Adjudicator misdirected himself on the issue of authenticity of the warrant and as a consequence failed to evaluate it properly. This error was material to his final conclusion.
The legal background
22(1) …. Any party to an appeal…to an Adjudicator may, if dissatisfied with his determination, appeal to the Immigration Appeal Tribunal.
(2) The Tribunal may affirm the determination or make any other determination which the Adjudicator could have made.
23(1) If the Immigration Appeal Tribunal has made a final determination of an appeal…any party to the appeal may bring a further appeal to the [Court of Appeal] on a question of law material to that determination.
"Jurisdiction of the Immigration Appeal Tribunal is not limited to questions of law, and it is within the scope of their jurisdiction for them to review, if they see fit to do so, the special adjudicator's conclusions of fact, though no doubt this power will be sparingly exercised, and in any event, in accordance with general principles, the Immigration Appeal Tribunal will naturally be most reluctant to interfere with a primary finding of fact by the special adjudicator which is dependant upon his assessment of the reliability or credibility of a witness who has appeared before him."
"I am somewhat anxious that this case portrays a (no doubt unconscious) lack of even-handedness on the part of the IAT as between an Immigrant's appeal and a Home Office appeal. In the former class of case experience shows that the IAT will not generally go behind findings of fact made by an Adjudicator who has heard the witness (notably the appellant)."
He continued, with reference to the case in front of him,
"It is, I think, fair to notice that the Secretary of State's grounds to the Tribunal while all very properly expressed in the language of legal challenge or Wednesbury irrationality, in some instances are at any rate close to being quarrels with the Secretary of State's [sc. Adjudicator's] findings of fact. Under the legislation, as is well known, the IAT has a jurisdiction to entertain appeals on fact. I certainly, and without qualification, acquit the IAT of anything remotely amounting to bias. I would only say this, which is no more than obvious, that the IAT will desire to ensure that the appearance of its decision is as rigorously even-handed as its substance undoubtedly is."
In the same case Waller LJ stated:
"I share my Lord's views expressed when giving leave and at the conclusion of his judgment that possibly – and he suggests no bad faith and nor do I – the IAT's approached a findings of fact of the Special Adjudicator when the Secretary of State was appealing was not quite consistent with that adopted in cases where the asylum seeker is appealing."
Lady Justice Arden :
"It may be that the appellant has given a wrong date of this incident but for what ever reason, but it is clear to me that there was an incident with the army and a warrant is still in existence against the appellant for what appears to be described as a similar incident. If returned to Sri Lanka the appellant will be arrested on the warrant and there is sufficient information available in the objective material to show that the person suspected of LTTE connection or terrorist connection being subjected to ill-treatment whilst detained."
"We find no evidence in this case, which establishes that the respondent is reasonably likely to face persecution for a Convention reason in Sri Lanka on removal from here. The adjudicator had the benefit of seeing the respondent give oral evidence. He did not believe most of what he had been told. The parts he did believe are intrinsically linked to the warrant and the adjudicator's belief (in our view erroneous in this case) that in the absence of a challenge to the authenticity of the warrant he had to accept it and give it full weight. In our opinion the adjudicator should have looked at the warrant with due caution since he had himself taken an adverse view of the veracity of the evidence. In our view, the adjudicator misdirected himself on the issue of the authenticity of the warrant and as a consequence failed to evaluate it properly. This area was material to his final conclusion."
"it cannot be said this approach is so inherently illogical as to render the determination flawed. In effect, it adopts precisely the approach which is urged on adjudicators, i.e. to weigh up the evidence and indicate which is believed and that which is not.
It is only when an adjudicator, after stating that evidence is believed or disbelieved, reaches a conclusion which has no foundation in the belief or disbelief that a determination cannot stand because of inherent inconsistencies."
Mr Justice Aikens :