IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
B e f o r e :
LORD JUSTICE CARNWATH
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Respondent|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR D BEARD (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Defendant
Crown Copyright ©
"... the Tribunal indicated that it was too early to be satisfied that the situation had changed in Sri Lanka to the extent that it could now be said there was no risk to anyone. They noted what [the] UNHCR had said about returning Tamils and especially those involved with the LTTE were still at risk."
He then went on to draw his own conclusions as follows:
"The Appellant had been involved with the LTTE and as such would still be of interest to the authorities who would have his details from the fact that they were recorded when he was required to sign on. For this reason there is a risk to this Appellant of his arrest upon return with interrogation under torture."
"The reality is in our judgment that it is as yet premature to accept that everyone who has claimed asylum in this country would be able to return safely. We certainly are of the view that in the present situation and having regard to the present trends it is only the exceptional cases that will not be able to return in safety. The question is whether this appellant is such an exceptional case."
The Tribunal in our case also referred to another Tribunal decision in Brinston  UK IAT 547, which dealt in detail with the objective evidence that was then in existence. They then went on to consider whether the appellant was an exceptional case. They took into account the medical evidence, but were not satisfied that the scars were likely to make a material difference. They referred to the fact that the matters had to be considered in the round:
"We do not consider that it is reasonably likely that this Appellant would be wanted by the authorities at this point in time. It is true that he has been persecuted in the past, he has been detained and released on two occasions. He was subjected to reporting restrictions but these were discontinued on payment of a bribe. We accept Mr Saunders' [of the Home Office] submission that it is very unlikely that the release from the reporting restrictions would cause the Respondent any difficulties because we consider that the authorities would mark the record so as to indicate that reporting was no longer required in this case. The inference being that he would not be considered of any interest to the authorities when those restrictions were lifted. It could not be said that he would be wanted in a relatively serious fashion."
They repeated the same points later on:
"The objective evidence indicates that there is a reasonable likelihood that he would be a matter of record to the authorities. However, such a record would, at its highest, only indicate arrests, detentions and releases. We do consider that this situation has changed for the better and there is no reasonable likelihood that this Respondent will be persecuted or ill-treated in any way. Suffice it to say that the position has not deteriorated since the case of Jeyachandran was decided. In fact, it appears that the ceasefire continues and we note that senior representatives of the Tamil Tigers are in discussion with the government. We are not aware of any objective evidence which indicates that a former supporter or member of the LTTE being a failed asylum seeker has faced any difficulties at Colombo since March 2002."
They therefore allowed the appeal.
"Thus the 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 finding of primary fact by the Special Adjudicator which is dependent on his assessment of the reliability or credibility of a witness who has appeared before him."
Hirst LJ then considered whether the Tribunal had impermissibly substituted its own view of the facts from that of the adjudicator. The Tribunal had demonstrated by their analysis of the adjudicator's reasoning that it was unsustainable and so they were fully entitled to reverse it.
"The approach of an appellate tribunal able to disturb findings of fact can be found in many cases. ...The principles are well-known and it is enough for me to cite a passage from the speech of the Earl of Halsbury, Lord Chancellor, in Montgomerie & Co Ltd v Wallace-James  AC 73. The passage is at page 75:
'My Lords, I think this appeal should be allowed. It is simply a question of fact, and doubtless, where a question of fact has been decided by a tribunal which has seen and heard the witnesses, the greatest weight ought to be attached to the findings of such a tribunal. It has had the opportunity of observing the demeanour of the witnesses and judging of their veracity and accuracy in a way that no appellate tribunal can have. But where no question arises as to truthfulness, and where the question is as to proper inferences to be drawn from truthful evidence, then the original tribunal is in no better position to decide than the judges of an appellate court.'
The assessment of the documentary material about the state of the country where the reasonable likelihood of persecution is said to exist is also something which the Tribunal is in general in as good a position to perform as the special adjudicator, since it does not depend upon an assessment of oral testimony. This means that the special adjudicator has, in general, no particular advantage over the Tribunal in making the assessment."
"The tribunal's jurisdiction to reverse a special adjudicator's findings of fact is unlimited by statute or rules. Obviously it will be most reluctant to interfere with findings of primary fact dependent upon an assessment of the credibility of witnesses if it has not seen or heard them and the special adjudicator has. But the same inhibition does not apply to the assessment of background material about country conditions. Usually evidence of this kind is not the subject of oral evidence and the weight to be given to it depends upon the assessment of the adjudicator or the tribunal. The tribunal is a specialist tribunal and is as well equipped to make that assessment as the special adjudicator. The outcome of this case depended almost entirely upon that assessment. If the Tribunal thought the special adjudicator's assessment was wrong they were entitled to and indeed bound to say so. ... I think [that] they were really saying is that they recognised that they should give due weight to the special adjudicator's findings and only interfere with them if they had been shown to be wrong. That, I think, is the correct approach."
He goes on to say that this is consistent with the approach in Balendran.
"...the Tribunal should act even-handedly and should only set aside a decision of an adjudicator who has heard the evidence if it is plainly wrong or unsustainable."
But that was in the context of overturning the adjudicator's finding of primary fact as to the authenticity of an arrest warrant. Inference, including those to be drawn from objective country evidence, was not the issue.
"By itself, I do not suggest that the mere fact that the IAT could form a different view from that of an adjudicator, even in the case where one is dealing with documentation, is enough. As has been indicated in authorities to which I have referred, the IAT should be slow to intervene in such matters merely because it takes a different view. But if it does come to the conclusion that the adjudicator was clearly wrong in the conclusion which he reached, then it is entitled and bound to do."
The most recent case is Koci v Secretary of State for Home Department  EWCA Civ 1507. The same point that was made in paragraph 27 of Sabanathan is made again in paragraph 25, though in slightly different language:
"I emphasise the fact that under the regulations, an error of fact has to be asserted if permission to appeal to the IAT is to be granted or else an error of law has to be alleged. Certainly the IAT should be particularly reluctant to intervene when the finding of fact turns wholly or principally on oral evidence heard by the adjudicator. But even when it is dealing with findings of fact based on documentary material, which is regularly the case in respect of evidence about in-country conditions, the IAT does not act and should not act as if it were a tribunal of first instance. The test which it should apply is still the one spelt out in Oleed and other decisions, namely is the finding of fact below plainly wrong or unsustainable:... "
(1) The Immigration Appeal Tribunal is not different from this court or any other court with jurisdiction to hear appeals on fact as well as law. (Of course that position is to change and it will lose its jurisdiction on points of fact.
(2) The Immigration Appeal Tribunal, like this court or any other court, can only interfere if there has been an error: that is, if, on analysis, the adjudicator's decision was wrong. There is a useful analogy here with the Civil Procedure Rules, Rule 52.11(3) which says the same thing. It is not enough that the Tribunal might have reached a different conclusion itself.
(3) I, for my part, do not find adverbs such as "plainly" or "clearly" wrong helpful in the context of a fact-finding exercise. They have sometimes proved useful for appellate courts when reviewing the exercise of a discretion.
(4) The test is the same, whatever the nature of the error alleged, but its application will often depend on the type of evidence on which the finding of fact is based. One can distinguish at least four different types:
(i) There are findings of fact based on oral evidence and the assessment of credibility. These can only very rarely be overturned by an appellate Tribunal.
(ii) There are findings based on documentary evidence specific to the individual case. These can more readily be overturned because the appellate tribunal is in just as good a position to assess it. But even there there may be an important relationship between the assessment of the person involved and the assessment of those documents. If so, great caution once again will be required.
(iii) There are findings as to the general conditions or the backdrop in the country concerned which will be based on the objective country evidence. The Immigration Appeal Tribunal will be at least as well placed to assess this as is the adjudicator. Although in our law the notion of a factual precedent is, as Laws LJ termed it in S and Others v Secretary of State for the Home Department  INLR 416 at paragraph 28, "exotic", in this context he considered it to be "benign and practical". There will be no public interest and no legitimate individual interest in multiple examinations of the state of this backdrop at any particular time once that had been considered in detail and guidance is given by the Tribunal.
(iv) There are findings as to the application of those general country conditions to the facts of the particular case. These will be an inference to be drawn by the adjudicator and then, if appropriate, by the Tribunal. The Tribunal will be entitled to draw its own inferences, just as is the appellate court under the CPR, once it has detected an error in the adjudicator's approach.
(Appeal dismissed; application for permission to appeal to the House of Lords refused; detailed assessment of appellant's publicly-funded costs).