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 IMMIGRATION APPEAL TRIBUNAL
(PROFESSOR D B CASSON)

		Royal Courts of Justice Strand London, WC2
		12th October 2004

Tuesday, 12th October 2004
1. LORD JUSTICE DYSON: The appellant was born in Sri Lanka on 16th May 1977. He arrived in the United Kingdom on 30th June 2001 and claimed asylum. His claim was refused by the Secretary of State on 2nd August 2001. On 24th June 2002 the adjudicator dismissed his appeal. His appeal from the adjudicator's decision was heard by the Tribunal on 10th October 2002 and was dismissed on 25th July 2003, a most unfortunate and unexplained delay of more than nine months. He now appeals to this court with the permission of Laws LJ.
2. The primary facts are not now in dispute. Save in one respect, they were as found by the adjudicator. The adjudicator found the appellant to be an essentially credible witness, but he said that he found the appellant's sister to be less credible.
3. The appellant is a Tamil who, until 1996, used to help the LTTE in a number of ways. This activity stopped in 1996. In January 1998 he registered as a student in a technical college. During his time there he was routinely stopped and searched by the army on his way to college. On 7th July 1998 he was stopped and detained in a camp for 7 days. He was beaten. On 14th July the principal of the college was able to secure his release without any charge. He had been detained and ill-treated on the grounds that he was a suspected member or sympathiser of the LTTE.
4. On leaving college he worked in an electrical repair workshop. On 14th December 2000 an LTTE supporter came into the workshop to have a radio repaired. Whilst he was there some soldiers entered the shop. The LTTE sympathiser panicked and he was searched by the soldiers who found a grenade on his person. Thereupon they beat both that young man and the appellant and took them to an army camp. The appellant was ill-treated in the camp.
5. On 17th December, 3 days after his arrival, he suffered a severe attack of asthma. The soldiers took him to a hospital where he was guarded by a young Tamil boy. The appellant's parents bribed the boy who, on 20th December, allowed him to escape.
6. After a short period in hiding, on 31st December, he went by bus to Vavuniya where he stayed with a friend. He worked in the friend's business. He obtained a pass which initially had to be renewed every fortnight. After 3 months he obtained a 3-monthly pass.
7. On 1st June 2001 there was an army round up in Vavuniya and the appellant was arrested. He was purportedly identified as a Tamil Tiger or supporter of the LTTE. He was taken to a camp and beaten. He told his captors that he was not an LTTE supporter or sympathiser. He was released without charge on 3rd June after the intervention of a customer of the friend for whom he had been working. The army retained his identity card and required him to report every day at the camp.
8. It was following this incident that he decided to leave Sri Lanka. He had obtained a passport on which both his name and photograph appeared. He passed through the airport using that passport without any problems.
9. The appellant's sister gave evidence before the adjudicator. In addition to confirming the appellant's account, she said that after the appellant had escaped from the hospital in December 2000, the army had come in search of him at his workshop, and, I think, also where he had been living. She said that they had destroyed his belongings and had tied up his parents and raped another sister. She also said that the army came in search of the appellant a few times.
10. The adjudicator said that he placed little weight on the sister's evidence because it had not been confirmed by the evidence of the appellant himself. In this he was wrong. It was for this reason that the Tribunal approached the appeal on the footing that the army had behaved in the manner alleged by the appellant's sister after he had escaped from hospital in December 2000. The essential reasoning of the Tribunal is to be found at paragraph 9 of its determination, which is in these terms:

"The Tribunal has acknowledged in Brinston [2002] UKIAT01457, which notified on 16 May 2002, that there has been a significant improvement in the security situation in Sri Lanka. Since then and the hearing of this appeal it can be said that the improvement has continued. There is no suggestion that the appellant has a high profile of any kind. He is a young man who was detained on three occasions in the circumstances we have described. The Adjudicator incorrectly rejected evidence that the army were looking for him, and behaved with brutality, in December 2000 after his account of an escape from hospital where they had sent him because he suffered an attack of asthma. He was released after a very short period following his third detention at the beginning of June 2001, and says he decided he must leave Sri Lanka because he feared that checks would disclose the earlier escape. Mr Morgan asked us to place weight on the fact that the army had found him repairing equipment for LTTE. We note that evidence, but it is also common ground that LTTE is no longer a banned organisation. There has been a significant and gratifying improvement in the security and human rights situation in Sri Lanka. The evidence does not persuade us that the appellant would be seen now as a wanted man. We find that he would not be of adverse interest to the authorities on return to Sri Lanka. We agree with the Adjudicator's conclusions as to this appeal."

11. This determination contains no reference to the important decision of the Tribunal presided over by Collins J in Jeyachandran [2002] UKIAT 01869, a decision given on 10th June 2002, or to the decision of this court in Selvaratnam [2003] EWCA Civ 121.
12. In the grounds of appeal which were issued on 4th August 2003, the Tribunal was, amongst other things, requested to remit the case to itself pursuant to Rule 30 of the Immigration and Asylum Appeals (Procedure) Rules 2003 for reconsideration, in particular in the light of the two decisions to which I have referred.
13. It was also submitted that the findings of the Tribunal on future risk were unsustainable. Both the application for permission to appeal and the application for a remission were refused by the Tribunal. The reasons given were that:

"The Tribunal found no basis for any submission that the appellant would be seen as a wanted man or would be of adverse interest to the authorities on return to Sri Lanka. The grounds of appeal seek to re-argue the case, but disclose no error of law material to the Tribunal's determination. The delay in promulgation is regretted but it is not arguable that the appellant has been prejudiced thereby or that the attitude of the authorities towards him will have changed to his disadvantage."

14. Mr O'Callaghan acknowledges that the decision reached by the Tribunal was one which was open to it on the material that was placed before it. That, in my judgment, is a realistic concession to make. His principal complaints are, first, that the Tribunal misdirected itself in taking into account the fact that the appellant did not have a high profile of any kind, and, secondly, that there is an objectionable lack of reasoning to support the conclusion that was reached.
15. In particular he relies on the evidence given by the sister, which the Tribunal accepted, as pointing to the fact that, at any rate in December 2000, the authorities were searching for the appellant and that therefore he was a "wanted man". Mr O'Callaghan submits that the conclusion that the appellant would not now be seen as a wanted man cried out for, but lacked, supporting reasoning, given the fact that there was the countervailing evidence from the sister to which I have just referred.
16. Before I deal with those submissions I need to refer to the two authorities which are relied on by Mr O'Callaghan and which he complains were not properly taken into account by the Tribunal. In the case of Jeyachandran the Tribunal had to consider the effect of the ceasefire and the recent improvements in the situation in Sri Lanka on the risk of persecution facing members or sympathisers of the LTTE. The appellant in that case was on a wanted list.
17. Basing itself on the CIPU report for April 2002, the Tribunal in Jeyachandran said, at paragraph 6:

"Accordingly it seems to us that it is clear that there is every likelihood that on return this appellant would because he was on a wanted list, be investigated. He would be stopped at the airport and would be questioned. That should not of itself mean necessarily that he would be tortured but although the Government has regularly said that it is taking steps to prevent torture by the investigating authorities, that has not been achieved."

18. Then at paragraph 7 they said:

"The situation is still somewhat fluid, although there are reasons to be optimistic. The fact is that this ceasefire has only been in place for a relatively short period and the authorities are still interested so far as we are aware, and it would be surprising if they were not, in those who may have been involved in active assistance of the terrorists in the past."

19. At 8:

"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. In our judgment he is for the reasons that we have indicated, namely that he is someone who is wanted and is someone in our view who must be wanted in a relatively serious fashion, if we may put it that way, because of the attitude in relation to his mother."

20. Finally, at paragraph 9:

"It is still too early to be satisfied that the situation has changed to such an extent that there is now no risk to anyone. Equally we take the view that there are few who now would be at risk, but it is necessary always to consider the circumstances of each individual case. That can only be done by considering the facts of that individual case against the information that exists at the precise date on which the Adjudicator or the Tribunal has to reach a decision. If things are seen to be improving the time may well come and may well come soon when it can be said that all can be returned. Equally it may be unfortunately that things do not turn out quite so well."

21. It is important to emphasise that in that case the appellant was on a wanted list and the Tribunal regarded him as being somebody who would be wanted in a "relatively serious" fashion because of the attitude that the authorities had adopted in relation to the appellant's mother. It was for those reasons that the appellant's case was regarded as, what the Tribunal described as, an "exceptional case", such that, notwithstanding the then improvement in the situation in Sri Lanka, he would nevertheless still be at risk of persecution if returned to that country.
22. In Selvaratnam this court applied the approach formulated by the Tribunal in Jeyachandran. The appellant had been detained and ill-treated twice. On the second occasion he escaped and left Sri Lanka clandestinely. This court allowed the appeal against the dismissal of his appeal by the Tribunal. The leading judgment was given by Buxton LJ who held that the Tribunal had not asked itself the correct question.
23. I would accept the submissions of Miss Richards, that the decision in Selvaratnam is a decision on its own facts applying the approach laid down in Jeyachandran. The particular features which had not been considered by the Tribunal which, in the opinion of this court, meant that the Tribunal's decision was flawed, were that the appellant was a person who had very recently been in detention in Sri Lanka for a reason that had been identified (and was still identified) by the authorities in that country as a ground for taking an interest in its citizens, and that he had unlawfully escaped from custody.
24. Buxton LJ said that in those circumstances it was necessary, in the case of that appellant, to relate the new country material to his specific circumstances. That had not been done by the Tribunal and that was why the appeal was allowed. The factual differences between that case, and indeed the case of Jeyachandran, and the present case are clear.
25. I return then to the points made by Mr O'Callaghan. I would not accept his first criticism that there was a misdirection in relation to the high profile point. If the Tribunal had said that it was only an asylum seeker who was high profile in Sri Lanka who could be said to have a well-founded fear of persecution, then that would have been, indeed, a misdirection, but the Tribunal did not say that.
26. It seems to me that Miss Richards is right when she submits that the fact that a person is not high profile is relevant to the question of whether he has a well-founded fear of persecution if returned. It seems to me impossible to argue otherwise. It is relevant, but clearly not determinative.
27. I turn, therefore, to the other essential complaint which, on analysis, is a reasons challenge. It seems to me that the Tribunal would have been well-advised to have set out, at any rate briefly, the reasons that led it to reach the conclusion expressed at paragraph 9 of its determination. But it is not difficult to see what those reasons must have been. They will have included, not only the fact that the appellant was not high profile, but also the fact that he had been able to escape his second detention with ease; that he had been able to obtain a series of passes from the authorities to entitle him to move freely in Vavuniya after he had escaped from his second period of detention; that he was released after a very short period following his third period of detention; and that he had been able to leave Sri Lanka with no difficulty using a passport which showed his name and had his photograph fixed to it.
28. It seems to me that all of those were factors which, rationally, could lead the Tribunal to conclude that the appellant was not a wanted man. There was no suggestion, and no evidence, that the appellant was on some kind of generally circulated "Wanted" list. It is also of significance that the appellant had accepted that his first two periods of detention had not caused him to consider leaving Sri Lanka.
29. It is true that, set against all those factors, which point strongly to the appellant not being regarded in the new climate as a wanted man, there is the evidence of the sister. But the weight to be given to that evidence, when set against the various factors to which I have drawn attention going the other way, was very much a matter for the Tribunal. Indeed Mr O'Callaghan accepts that it was open to the Tribunal to reach the conclusion that it did.
30. There can be no doubt, in my judgment, that the Tribunal did not lose sight of the evidence of the appellant's sister because it is referred to a little earlier in the Tribunal's determination, and the determination itself is not a long document.
31. As I say, it would have been preferable if the Tribunal had explained briefly how it had reached its conclusion, but I am not persuaded that the failure to give that explanation is sufficient to impugn the conclusion reached by the Tribunal as an error of law. For these reasons I would dismiss this appeal.
32. LORD JUSTICE THOMAS: I agree.
33. LORD JUSTICE BROOKE: I also agree. The appeal is therefore dismissed.

ORDER: appeal dismissed