England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

		Royal Courts of Justice Strand London WC2A 2LL
		17 February 2016

LORD JUSTICE SALES:

1. This is a renewed oral application for permission to appeal in a second appeal case. The test which I have to apply is the second appeals test, which is to the effect that I should not give permission unless I consider that the appeal would raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it.
2. The application for permission to appeal was refused by Treacy LJ on the papers. He said this:

"The Upper Tribunal judge made some factual findings in your favour, but that did not mean that he was bound to accept the whole of your account. Where he rejected your account, and he did so in a number of significant respects, he provided adequate reasons for doing so. There is sufficient reasoning to sustain the findings in relation to the applicant's UK activities, the circumstances underlying his detention and torture in Sri Lanka, and the question of the alleged confession. I do not consider that failure to address involvement with the UN inquiry is material where, on the evidence, there is no more than an arrangement that the applicant will cooperate with or contribute to it. The judge clearly had in mind the case of GJ and I do not consider that it is shown that there was a failure to apply it. This is a second appeal and I do not consider that the test in part 52.13 is satisfied."

3. On the present application, Ms Mallick, who appears for the appellant, was asked by me for her submissions in relation to the application of the second appeals test. I do not consider that she identified any important point of principle or practice to which this case gives rise. It is clear that the Upper Tribunal judge properly directed himself by reference to the relevant country guidance case, GJ and Others (post civil war: returnees) (Sri Lanka) CG [2013] UKUT 00319 (IAC).
4. However, in view of the contention that the appellant would be at risk of torture if returned to Sri Lanka, I have examined in greater detail than would otherwise be the case for a second appeal whether it can be said that there is some other compelling reason for the Court of Appeal to take this appeal.
5. Ms Mallick relies on two principal grounds in the hearing before me today. First, she refers to the account given by the appellant of torture to which he was subjected in 2009, related at paragraph 11 of the decision, and the judge's acceptance and finding that the appellant was tortured during the period that he was detained. In the appellant's account, he says that he was tortured in order to obtain a signed confession of involvement in the LTTE from him. However, the judge found at paragraph 68 that it was unlikely that he had in fact signed a confession letter as claimed. Ms Mallick submits that this was an irrational conclusion by the judge. The judge ought to have accepted that the appellant had indeed signed a confession letter in view of his finding that he was tortured and the appellant's account of why he was tortured.
6. I do not consider that, even applying the ordinary test for a first appeal, this would be a matter giving rise to a real prospect of success upon appeal. The overall picture was that the judge believed some parts of the appellant's account given to him but disbelieved other parts of his account. In particular, the judge found that the appellant had not been a credible witness in relation to the account he gave of the way in which he said he escaped from detention (see paragraph 41 in particular). At paragraph 42, the judge found that the true explanation for this was that the appellant was of no lasting concern to the authorities. The judge, in light of his overall assessment of the evidence of the appellant, was entitled to make the findings which he did at paragraph 42 and at paragraph 68. There is no real prospect of success on an appeal that the appellant could persuade this court that it was irrational for the judge to make those findings, in view of the assessment of the evidence before him.
7. The second matter pressed upon me is that it is said that the judge has failed properly to consider the effect of sur place activities of the appellant in the form of cooperation with the UN inquiry into the behaviour of the Sri Lankan authorities and the prospect that he would give evidence to that inquiry about the circumstances in which he was tortured by the Sri Lankan authorities. The judge was aware of the plan for the appellant to help in this inquiry (see paragraph 18). However, the judge's overall assessment (see paragraph 38) is that it is very unlikely that the appellant would have a political profile which makes him of adverse interest to the Sri Lankan authorities, including by reference to the appellant's activities since his arrival in the United Kingdom.
8. In my view, it is clear that that finding takes into account the information available to the judge about the proposed participation by the appellant in the UN inquiry. In view of the judge's overall assessment of the evidence and situation of the appellant, I do not consider that it can be said that his conclusion in that regard was irrational or that it improperly left out of account the evidence that had been put before the judge regarding the proposed participation of the appellant in the UN inquiry. It may be observed that it is highly unlikely that the UN inquiry would take steps that would expose the appellant to detrimental consequences in Sri Lanka as a result of his participation in it. The overall point made by the judge at paragraph 38 is that the appellant had no strongly held political beliefs and there was no reason why the previous lack of interest of the Sri Lankan authorities, as referred to at paragraph 42, should be displaced by anything that the appellant has done sur place.
9. Accordingly, in relation to this ground as well, I do not consider that there is a real prospect of success for the appellant upon appeal.
10. Since in my view the appellant does not satisfy the ordinary first appeal test for permission to appeal, still less can he satisfy the more stringent second appeal test. For these reasons, and in agreement with the reasons given by Treacy LJ, this application is dismissed.