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
IMMIGRATION APPEAL TRIBUNAL
(MR A R MACKEY)

		Royal Courts of Justice Strand London, WC2
		10 February 2003

1. LORD JUSTICE BROOKE: I will invite Lord Justice Laws to give the first judgment.
2. LORD JUSTICE LAWS: This is an appeal, with permission granted by Schiemann LJ on 4 October 2002, against the decision of the Immigration Appeal Tribunal which was made on 20 June 2002. By that decision the IAT allowed the Secretary of State's appeal against the earlier determination of the adjudicator promulgated on 10 December 2001 who in his turn had allowed the appellant's appeal against the decision of the Secretary of State to refuse him leave to enter the United Kingdom as a refugee and as a potential victim of violations of the Convention on Human Rights.
3. The outline facts were described by the IAT. By reference to the adjudicator's findings, I quote from the IAT's determination at paragraphs 2 and 3:

"2. The Adjudicator found that the claimant was a Tamil of the Muslim faith, who had been born in Jaffna and lived and worked in the north and east of Sri Lanka. He was married and had owned a textile and a tailoring business, which he had developed over the years. In 1999, he was approached by the LTTE to take bulk orders for uniforms. Initially, he refused but when he was made aware of the consequences by being threatened at gunpoint, he undertook the orders. He initiated secret arrangements amongst his staff in respect of this work.

3. When two members of staff were delivering uniforms on 10th April 2000, they encountered the Sri Lankan Army who examined the parcels and confiscated the stock and shot the two staff members on the spot. The claimant was given the news by friends and warned to go into hiding immediately, which he did. The Army then visited his home and searched for him, leaving a message that he should surrender on return. As a result, he made arrangements to leave the country. He went to Colombo and then, with the aid of an agent, flew to Moscow and then made his way to the United Kingdom. He apparently arrived in May 2000 and claimed asylum on 16th June 2000."

4. The adjudicator found the appellant to be a credible witness (see paragraph 22 of his determination). He believed the whole of the appellant's account, effectively, which had been consistent throughout. He proceeded nonetheless to reject the claim that the appellant would be at risk from the LTTE (see paragraphs 24, 25) and (paragraph 26) the further claim that he might be persecuted on account of his religion as a Muslim. He also found (paragraph 27) that the appellant would not be likely to be detained at the airport:

"...unless he were to encounter a check point whilst

he remained undocumented."

Paragraphs 28 and 29 of the adjudicator's determination which are critical for the purposes of this appeal are in these terms:

"Nonetheless, there is a real danger that this appellant, notwithstanding his age and religion, is at risk because of what he might encounter at the airport on his return. It is a fact that many Hindu Tamils adopt the guise of a Muslim to enable them to travel within Sri Lanka and out of it. Thus it cannot be assumed that because the appellant will assert his identity and religion that it will be accepted without checking. The appellant will be questioned about this and how he left Sri Lanka, because of the requirements of the Immigrants and Emigrants Act. If a background check is carried out, and this may well be the case, then there may be some record of his being wanted for questioning. This will result in further delay in trying to establish why that is the case.

I have no doubt that if, eventually, the appellant convinces the authorities that he was made to produce uniforms under duress it is not likely that he would suffer adversely as a result. However, the question arises as to what might happen in the interim whilst he is detained. It seems that there is, at the very least, a reasonable likelihood that he will be detained for a lengthy period and may well be interrogated, and probably interrogated intensively to ascertain whether in fact he was involved with the LTTE, on what basis he was involved and whether he had any information about them. That process will be lengthy and is more likely than not to involve torture. The background evidence makes this very clear. As a consequence it will amount to persecution and the reason for it will be the appellant's imputed political opinion. That torture is inevitably going to meet the test of minimum severity under the Human Rights Convention and thus returning the appellant will be in breach both of the Refugee Convention and Article 3 of the Human Rights Convention. Internal flight, incidentally, does not arise because it will occur on the appellant's return without the option for him to go anywhere else."

5. The IAT, which (as is usual but not universal) heard no oral evidence, departed from these findings. They said at paragraphs 24 and 25 of their determination:

"24. The findings, however, particularly at paragraphs 28 and 29 are, in our view, flawed and speculative. The Adjudicator clearly found that this was a middle aged Muslim man but stated, notwithstanding his age and religion, there might be a risk that he would be somehow treated as a Hindu Tamil attempting to disguise himself as a Muslim and then beyond that, if a background check was then carried out this 'may' indicate that there was some record of him being wanted for questioning. It is from that highly speculative set of assumptions that the Adjudicator then goes on at paragraph 29, firstly to dismiss a risk of harm to the claimant if he was able to convince the authorities that he had acted under duress, but then to find that during theperiod of detention and questioning he would be subjected to persecution. He then, we agree, somewhat confusingly, reaches the conclusion that the persecution would be for an imputed political opinion. Having found that the claimant was not likely to be at risk if he could convince the authorities he had acted under duress, it is a somewhat tortuous logic to conclude that he is an imputed supporter of the LTTE if he was able to convince the authorities that he had acted under duress. If the Sri Lankan authorities conceded he had acted under duress, they could hardly impute a political opinion to him. Thus, the only basis for accepting that the Adjudicator's determination had some validity would be during the brief period of questioning when his political affiliations may be possibly seen as undetermined.

25. From this analysis, we find that the Adjudicator did not give sufficient reasoning for his determination and conclusions and even if they were accepted to the very limited degree surmised above, a consideration of the personal circumstances of this claimant set against the existing evidence of treatment on return, does not indicate a real risk of the claimant being detained at the airport, questioned or beyond that, persecuted during questioning."

6. The essence of the appeal, as it has been presented by Miss Jegarajah for the appellant, is that the IAT did not engage with the adjudicator's reasoning at paragraph 28, which it is said is well sustainable when one looks at the background factual material which was before the appellate authorities.
7. In his skeleton argument Mr Sharland, for the Secretary of State, submits first that there was no evidence for the proposition that "many Hindu Tamils adopt the guise of a Muslim" in order to travel in or out of Sri Lanka. This as a proposition was not asserted in the appellant's skeleton argument before the adjudicator, nor is it to be found in the facts referred to in the CIPU report of April 2001 which was a Home Office document.
8. Secondly, it is submitted by Mr Sharland that there is in truth no risk arising out of the Immigrants and Emigrants Act in the case of a returned asylum seeker such as this appellant. Counsel cites the decision of the IAT in Pathmanathan v Secretary of State for the Home Department promulgated on 4 September 2001. In that case the tribunal, presided over by the Deputy President Mr Ockelton, quoted with approval what had been said by the appellant's counsel before them:

"The evidence before the tribunal in relation to the prosecution of returned asylum seekers is unequivocal. The objective information indicates quite clearly that only those returnees who are found to be in possession of their 'illegal travel documents' on return to Sri Lanka, or those who admit to have left the country illegally, are at risk of prosecution under the IEA Act 1998. In the circumstances, and as a matter of commonsense, it cannot be argued that as a general rule, returnees to Sri Lanka are at risk of prosecution under the Act, when it is clear that they are all issued with proper travel documentation by the Sri Lankan High Commission prior to being returned to Sri Lanka."

9. It is an uncontentious feature of this case that the appellant had left Sri Lanka on a forged passport or travel document, or a travel document which had belonged to someone else. It is convenient for that reason to mention also a further passage from Pathmanathan in the decision of the tribunal in that case. Just above the passage which I have cited, this further passage appears:

"In an open letter, dated the 14th September 2000, the SSHD categorically states that the British High Commission has been informed that the Act is not enforced on failed asylum seekers, because returnees are issued with genuine travel documents by the Sri Lankan High Commission in London."

10. Turning to Miss Jegarajah's submissions, it is accepted by her without cavil that the adjudicator's statement that "many Hindu Tamils adopt a guise of a Muslim to enable them to travel within Sri Lanka" is not supported by any evidence whatsoever. Nonetheless she submits that the adjudicator was entitled to find that it could not "be assumed that because the appellant will assert his identity of religion it will be accepted without checking". She submits, basing herself on material to be found in the CIPU report of April 2001, that there was a substantial case to be made to the effect that this appellant would be stopped at the airport and, if stopped, he would be likely to be tortured.
11. I should point out (as Mr Sharland submitted) that this was not the basis of the adjudicator's reasoning in the critical paragraph 28. It seems to me entirely clear that the adjudicator is basing himself on the groundless proposition about Hindu Tamils pretending to be Muslims. Nevertheless, it may be that if Miss Jegarajah were able to show that there was substantial material within the evidence that had been before the adjudicator that would support his conclusion as to the risk of questioning or torture, albeit on a different basis from that which the adjudicator had himself adopted, then there may be a basis upon which it could properly be said that the IAT's determination was undermined.
12. Miss Jegarajah referred in particular to paragraphs 5.1.33 and 5.1.40 of Home Office Report. The passage in 5.1.33 on which she relied is in these terms:

"A rejected asylum seeker who is returned to Sri Lanka does not always have to fear being prosecuted under the Immigrants and Emigrants Act unless he/she is entering on a false travel document. The immigration authorities can question someone on arrival about their outward journey, but they generally do not have access to sufficient means of proof regarding the emigration..."

13. In paragraph 5.1.40, Miss Jegarajah picks out this sentence:

"Officers from the Criminal Investigation Department sometimes detain Tamils leaving the airport to check their identification; some have been arrested, others have escaped by bribing officers."

She referred also to paragraphs 5.2.39, 5.2.42 and 5.2.46. It is not necessary to set them out.

14. The position in my judgment is that the material contained in the report does not offer a basis on which it may firmly be said that there existed a real possibility that this appellant in his circumstances would be stopped, questioned and thereafter tortured if he were returned t the Sri Lanka and approached immigration control at the airport. I repeat the adjudicator's finding at paragraph 27 of his determination that:

"Were he to pass through the airport and travel within Colombo he his not likely to be detained unless he were to encounter a checkpoint whilst he remained undocumented."

15. Given that the reference to Hindu Tamils pretending to be Muslims is effectively negated, as Miss Jegarajah accepts, there is nothing to undermine that last sentence of paragraph 27 and everything in the factual material which formed the basis of the decision in Pathmanathan to support it. Pathmanathan was not a starred decision but, as I understand it, the parties had prepared for it as if it were going to be. It is quite plain to my mind that it offers powerful material to support the position taken in this case by the IAT, vis a vis paragraph 28 of the adjudicators determination.
16. I conclude that the basis which the adjudicator sets out at paragraph 28 for his later conclusion in paragraph 29 is insubstantial and the tribunal's determination is not to be undermined for their failure to deal in terms with the point relating to Hindu Tamils or the point relating to the Immigrants and Emigrants Act. Accordingly, the principal ground upon which this appeal is launched is in my judgment unsustainable.
17. Miss Jegarajah had another point to the effect that the IAT's treatment of the issue of imputed political opinion (paragraph 24 of the their determination) is faulty, not least in light of the decision of this court in Sivakumar [2000] INLR 310. In view of my conclusion upon the primary issue in this appeal I find it unnecessary to say more than that I would accept that the tribunal's reasoning in relation to imputed political opinion is not satisfactory. However if the adjudicator's conclusions in paragraph 28, and therefore 29, are undermined on the facts, this further point cannot assist the appellant.
18. In all those circumstances I would dismiss the appeal.
19. LORD JUSTICE BROOKE: I Would like to pay tribute to Miss Jegarajah for her admirably clear and forceful submissions. She has said everything that could possibly be said in her efforts to obtain for her client the benefit of the adjudicator's determinations.
20. However, I agree with Lord Justice Laws that the appeal must be dismissed for the reasons which he has given, with which I agree.

Order: Appeal dismissed. Legal Services Commission assessment.