England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: AA/12727/2007]

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th October 2009

Lord Justice Elias:

1. On 2 November 2007 the Secretary of State refused the appellant's application for asylum. On 21 January 2009 Immigration Judge Price dismissed the appeal against the Secretary of State's decision. For reasons I shall explain more fully in a moment, that was in fact the second time he had had to consider an appeal. She now appeals against that decision.
2. The background is as follows. The appellant lived in a small village three miles from Jaffna town centre in northern Sri Lanka. Her brother was a captain in LTTE and was killed in action in around 2000. She said that neither she nor the parents had any involvement with that organisation. On 22 September 2007 a bomb exploded at the roadside near her home. The Sri Lankan army came in force and rounded up persons in the surrounding village. They required everyone, save the elderly or those unable to walk, to go to a local temple. She was told she had to take an ID card with her. A masked man purported to identify her as someone involved in the explosion and she was arrested and taken away. She was taken to a house, photographed and fingerprinted. She was questioned about the bomb explosion and was badly treated, being held by the hair and kicked. At that stage she was questioned for a couple of hours.
3. The following morning there were further questions from six soldiers. She was told that if she did not tell the truth she would be killed. In all, she was incarcerated for some five days and only received bread and water once a day during that period. On the fifth day she was released and was told that her father had arranged for a bribe to be paid to secure that release. She then came to this country using a false passport provided by an agent.
4. She was interviewed on her claim for asylum on 26 October 2007. As I said, the Secretary of State refused her application in early November. She appealed and produced a witness statement for that appeal. The Secretary of State had cast doubts on her credibility. However, on appeal, Immigration Judge Price accepted her evidence "in its totality". He did so having taken into account all the relevant features of the evidence and the background information. However, even on her own case he did not think the authorities would show any interest in her if she were to be returned. The attempts to cross-examine her when she was detained were, said the judge, somewhat perfunctory. She was interviewed not by the police but only by army personnel of uncertain rank, and he did not think that anyone would seriously consider her to be an LTTE member or one with any useful information. In reaching his conclusion, the judge set out and had regards to the 12 factors identified in LP (LTTE area -- Tamils -- Colombo -- risk?) Sri Lanka CG [2007] UKAIT 0007, which are the considerations which need to be taken into account in Sri Lankan cases of this kind where risk is being assessed.
5. She sought to appeal against the determination, essentially on the grounds that the decision was perverse and there had been an improper weighing of the relevant factors identified in LP. The Senior Immigration Judge refused permission. An appeal was then made to the Administrative Court and the case came before Holman J, who ordered that the Tribunal should reconsider its decision but on one ground only. The basis of that determination was this: in the witness statement made shortly before the hearing before the Immigration Judge, the appellant had stated that since her flight from Sri Lanka, the army had visited her family three times specifically asking about her and had treated her as an escapee and said that she should be produced if she were returned. Although the Immigration Judge had referred to that evidence when setting out the facts in the early stages of his judgment, he made no further reference to that evidence when summarising his findings and conclusions. Holman J observed that there was at least an arguable error of law in his failure to do so.
6. At the first-stage reconsideration hearing, the Secretary of State accepted that it was indeed an error of law for the judge not to have taken into consideration in express fashion that evidence. There was, however, a dispute as to whether Immigration Judge Price had accepted that the visits had taken place in the way in which the appellant had indicated. The Secretary of State was contending that there was no clear finding on the matter and the appellant was contending that, by accepting the totality of the evidence, he must deemed to have accepted that evidence also. Senior Immigration Judge Waumsley did not accept that. He thought that if the evidence had been accepted in its entirety then it was difficult to see how the judge could have concluded that the authorities would have no interest in the appellant, particularly since they had retained her identity card.
7. Accordingly, he ordered the matter should be adjourned back to the Immigration Judge to clarify precisely what findings he had made or would make in respect of that evidence. It went back on a limited issue, namely "whether the appellant has established to the requisite standard that members of the Sri Lankan Army came to her family home looking for her on three occasions after her departure and (if so) whether she would be at real risk of return to Sri Lanka as a consequence."
8. So it was that the matter came back before Immigration Judge Price on the second occasion. The judge heard further evidence from the appellant. She adopted her witness statement and the evidence that she had given on earlier occasions. She accepted that the authorities had not caused problems before the bombing either to her or her family members and that there had been no ill-treatment of them since she had left Sri Lanka. Nor had the family received any documents from the courts or anything of that kind.
9. The judge considered all the evidence and concluded that there had been visits but that they would have been in the nature of round-ups of the kind that had occurred prior to the explosion taking place. He did not accept that she would have been specifically targeted. He said this at paragraph 20:

"Having now taken all the evidence in the round I do not accept that the army has visited her family home since she came to the United Kingdom to target her but no doubt there have been routine searches. I adopt and restate my findings set out in paragraph 35 to 37 of my original determination that the interest or rather lack of the authorities will have in her. I have no hesitation in finding that the authorities would have no interest in her whatsoever given her background and the objective evidence. I accept that the authorities have continued to make random/routine searches in her home village and no doubt regrettably they will continue to do so. The family members have not been ill-treated and I do not accept … the parts of her evidence which refers to specific searches after her arrival in the United Kingdom."

Accordingly he upheld his original determination and concluded that she would not be at risk on return.

10. The ground of appeal now advanced is in truth extremely narrow. It was made very succinctly by Miss Jegarajah. Essentially she says this. It was clear that the judge had accepted her evidence, as he said, "in totality" on the first occasion. If he were then to depart from that when dealing with this particular evidence concerning the visits, there had to be cogent and proper reasons for so doing. She submits that the reasoning here is inadequate. First, the judge has focused upon the fact that the family have not been adversely affected since the flight. She submits that that is entirely relevant. The question is what would happen to this individual appellant. She has never contended that her family had been or would be ill-treated as a result of her actions. I reject this argument; the treatment of family members is not irrelevant to the question how the authorities are likely to treat her.
11. Second, and I think this is the heart of the way she puts the matter, she submits that the judge appears in his reasons to have argued this way, namely:

"I had formerly reached the view that the authorities would show no interest in her and therefore, when looking at this evidence, I assess it in the light of that finding and I conclude that in the circumstances the searches would have been routine rather than specific."

In short, she is saying that the judge did not really look at the evidence in the round on the second occasion but analysed the evidence relating to these visits from the preconceived view that she would be of no interest to the authorities.

12. I do see why she makes that submission. The reasoning on the second occasion is not entirely satisfactory. But in the final analysis, I do not think that it is a fair reading of the analysis of this judgment as a whole. The judge has stated in terms that he has taken all the evidence in the round.. It seems to me that what he has done is to conclude, having regard to the previous findings and having regard too to the evidence in relation to these visits, that taken as a whole the evidence did not shake the very clear conclusion that he had earlier reached that she would be of no interest to the authorities. The reasons he gave as to why the other factors would not lead her to be of interest were set out in his earlier decision. That is a sustainable conclusion particularly when one bears in mind that the oral evidence which the applicant has been able to give is essentially hearsay evidence, because it relates to matters with which she was not directly involved.
13. As I say, the reasoning could have been clearer but I think he has made the point clearly enough that he has looked at the matter again, considered all the evidence including this evidence of subsequent visits, and has still come to the same conclusion as he formerly reached. Accordingly, notwithstanding the brief but attractive way in which Miss Jegarajah put her case, I would dismiss the appeal.

Lord Justice Thomas:

14. I agree.

Mr Justice Coleridge:

15. I also agree.

Order: Appeal dismissed