England and Wales High Court (Administrative Court) Decisions

QUEEN v. IMMIGRATION APPEAL TRIBUNAL on the application of PARAMSOTHY SIVAKUMAR [2001] EWHC Admin 109 (22nd January, 2001)

Neutral Citation Number: [2001] EWHC Admin 109

IN THE HIGH COURT OF JUSTICE CO/3841/99

QUEEN'S BENCH DIVISION

(ADMINISTRATIVE COURT)

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

Royal Courts of Justice

Strand,

London WC2 2LL

Monday 22^nd January 2001

Miss M. Phelan, instructed by Nathan & Co, appeared on behalf of the applicant.

Mr. A. Underwood, instructed by the Treasury Solicitor, appeared on behalf of the Home Secretary.

THE HON MR. JUSTICE CRESSWELL:

This is an application for judicial review of a decision of the Immigration Appeal Tribunal promulgated on 23 June 1999 refusing leave to appeal the determination of a Special Adjudicator. The Special Adjudicator dismissed the applicant's appeal against the refusal of the Secretary of State to grant the applicant asylum. Mr. Justice Jackson granted permission to apply for judicial review on 6 September 2000.

The applicant is a Tamil citizen of Sri Lanka. He has never been a Tamil Tiger or a Black Tiger. He appears to have involuntarily assisted the Tigers in the past. He has never been involved in any form of terrorism. He was arrested three times but was not prosecuted. He suffered serious harm.

The determination and reasons of the Special Adjudicator.

In his determination and reasons ("the Determination") the Special Adjudicator said:-

"...This is an appeal by a Tamil citizen of Sri Lanka, now 25, who arrived here on 11 September 1997 and claimed asylum. Although he was interviewed the same day, it took the Home Office till 27 January 1998 to give him notice of refusal of leave to enter. ...

The appellant confirmed that he had been detained twice in mid-1997...the appellant... explained that he had gone to Kalmunai [in the east] in 1993 to escape pressure from the Tamil Tigers; however, that was where his brother-in-law had been shot by them in 1994. He hadn't moved to Colombo at any stage, because he had no friends or relations there, and would be suspected by the authorities of being a "black Tiger" [member of a suicide squad]. During his detentions, he had been considered as a member of the Tamil Tigers; but his uncle had managed to bribe him out on three separate occasions, in which there was nothing unusual. The only person he had ever picked out in the course of his duty as a "masked informer" had not been a Tamil Tiger at all, so far as he knew. Nevertheless, his guards' concern for their commercial reputation had made them let him "escape", as agreed with his uncle's broker: he didn't know how much his uncle had paid, as he hadn't been in a state of mind to ask. His uncle had been engaged in buying goods in Vavuniya for sale elsewhere; he himself had been earning about £100 a month. As for his trip here, which had cost about £6000, that too had been paid for by his uncle, out of the proceeds of his business. Asked how it had been decided he should come here, the appellant said his uncle had just wanted to send him somewhere safe; the agent had brought him to this country. As for why he should have been prepared to come to a completely unknown country, but not to seek refuge in Colombo, the appellant said he was in daily fear everywhere in Sri Lanka...

There is no particular reason not to accept the appellant's evidence, except about setting off for a completely unknown destination, rather than stay in Colombo... However, on the appellant's own account he was detained and ill-treated in the past on the various occasions he mentions

10.2 on suspicion of training Tamil Tigers

16.4 on suspicion of being a Tiger

25.2 for being a "black Tiger".

Unpleasant though the consequences were, they were not the result of any political opinions he might have been thought to hold, but of being suspected, however unjustly, of involvement in violent terrorism. That does not in my view come within the protection of the Convention, and there is nothing else in the evidence to show that he in particular would face persecution if returned to Sri Lanka: it was not argued that northern Tamils in general would do so; nor should I accept that, for the reasons given at paragraph 2 above".

The determination of the Immigration Appeal Tribunal

In its determination the Immigration Appeal Tribunal said:-

"...The adjudicator['s]...conclusions...were that the applicant had not shown any basis for a claim under the Convention. The adjudicator appears to have considered all the evidence before him, properly directing himself as to the proper standard of proof. The adjudicator came to clear findings of fact, after giving to each element in the evidence the weight he considered appropriate.

The Tribunal has studied the papers on file. It considers that the conclusions of the adjudicator are fully supported by the evidence, bearing in mind the adjudicator's assessment of the oral evidence. There is no misdirection in law. Read as a whole the determination is a full, fair and reasoned review of the applicant's case.

In the opinion of the Tribunal this is not a proper case in which to grant leave, and such leave is refused."

The applicant's case

Miss Phelan on behalf of the applicant submitted as follows.

The final paragraph of the determination of the Special Adjudicator should be read as meaning "...involvement in violent terrorism...does not...come within the protection of the Convention". The Special Adjudicator misdirected himself in finding that violent terrorism does not come within the Convention, as clearly it may do. Alternatively he was obliged to give reasons as to why violent terrorism did not come within the Convention in the applicant's case.

If the Special Adjudicator meant that the applicant's persecutors had an unalloyed motive of punishing or attempting to dissuade terrorism, the Special Adjudicator (and the IAT) failed to say this, or to cite any primary facts upon which such an inference could be drawn. Where the central finding is ambiguous, the determination is unsafe.

The potential Convention reasons were race, imputed political opinion and social group. The Special Adjudicator considered only imputed political opinion.

The Court of Appeal considered whether the ethnically based arrests and detentions of Tamils in Colombo amounted to persecution in Ravichandran v SSHD [1996] Imm AR 97 - see in particular Simon Brown LJ at 109. See further Paramananthan v Minister for Immigration and Multicultural Affairs [1998] 1693 FCA and Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19.

If the persecution was motivated in order to punish or deter crime or suspected crime or to persuade detainees to inform on their associates, there will be Convention protection if the underlying rationale of the crime was political.

The applicant was suspected of involvement with the LTTE, because he was a Tamil from Jaffna. He was therefore detained and tortured. While some or all of his persecutors may have (also) had a desire to punish or attempt to dissuade terrorism, the applicant was persecuted for his race, social group and/or imputed political opinion. The finding that the applicant was persecuted solely for a non-Convention reason is unsustainable. The applicant was tortured on three separate occasions in different areas of Sri Lanka by several persons. A decision maker would have to find that none of the torturers, while inflicting harm on the applicant, were motivated wholly or partly by his imputed political opinion, race or social group. A decision maker, properly directing himself as to the facts and the law, would have been unable to foreclose reasonable speculation that such motivation was present.

In finding that the applicant was persecuted because of a suspicion of involvement in violent terrorism, the Special Adjudicator failed to consider the credibility or reliability of the persecutor's statements, that they suspected the applicant to be training LTTE, to be a member of LTTE or a Black Tiger. The Special Adjudicator failed to consider that preliminary enquiries would have established that the applicant was employed and not a Tamil Tiger, that he was never prosecuted or taken to court, that he was released on each occasion upon payment of a bribe.

In assessing the future risk, a decision maker would again have to find that if or when the applicant was again suspected of LTTE involvement because of his political opinion, race, or social group, none of his persecutors would be motivated wholly or partly for a Convention Reason, see Karanakaran v SSHD [2000] Imm AR 271.

There was before the Special Adjudicator evidence which established that Tamils suspected of LTTE involvement risked torture.

Neither the Special Adjudicator (nor the IAT) considered the question of lack of state protection.

The submissions of behalf of the Home Secretary

Mr. Underwood on behalf of the Home Secretary submitted as follows.

The Adjudicator

The Adjudicator concerned himself with the motivation of the persecutors. The references given by the Adjudicator make it clear that the applicant was singled out among other Tamils for persecution because he was believed to have assisted in terrorism. The Adjudicator was plainly alive to the potential for a range of findings as to motivation. He was conscious that in this case the possibilities in play were political opinion or prevention of crime. He came to the clear and firm conclusion that the actual motivation was to do with the prevention of crime, and not political differences.

The IAT

The only ground of appeal that is now material is ground 4. Ground 4 complained about the reasoning in the final paragraph of the Determination of the Special Adjudicator on bases very similar to those being advanced in the hearing of this application for judicial review. The reasoning of the IAT was a transparent piece of reasoning. It has not been suggested that it was inconsistent with any other decisions by the IAT. It can only be impugned if it was outside the range of responses available to the IAT.

The Special Adjudicator acted lawfully as did the IAT.

ANALYSIS AND CONCLUSIONS

Nothing in this judgment should be read as condoning the treatment received by the applicant. But the critical question for decision was whether the applicant was a refugee.

The role of the Administrative Court

The Administrative Court will quash the decision of an Immigration Appeal Tribunal refusing leave to appeal when satisfied that the Tribunal has failed to act rationally and "in a consistent and transparent way, giving clear reasons, which should include the reason why it is refusing leave when unusual points have been put to it": per Lord Woolf MR in R v SSHD ex p. Robinson [1998] QB 929 at 947. When deciding whether it is so satisfied the Court will adopt a "sliding scale of review" (see per Laws LJ in R v SSHD ex p. Mahmood 8.12.2000, CA, paragraph 19). The court must be satisfied that the decision "is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above": per Sir Thomas Bingham MR in ex p. Smith [1996] QB 517 at 554, cited with approval in Mahmood at paragraph 18."

The applicant

The applicant is a Tamil citizen of Sri Lanka. He has never been a Tamil Tiger or a Black Tiger. He appears to have involuntarily assisted the Tigers in the past. He has never been involved in any form of terrorism. He was arrested three times but was not prosecuted. He suffered serious harm.

The relevant legal principles

1. The critical question for decision was whether the applicant was a refugee as defined by article 1A(2) of the Convention:

"For the purposes of the present Convention, the term `refugee' shall apply to any person who... (2) ...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; ...F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations..."

2. It is immaterial whether the well-founded fear of being persecuted is for any single Convention reason or for a combination of two or more Convention reasons.

3. The burden of establishing a claim for asylum is upon the applicant.

4. The concept of discrimination in matters affecting fundamental rights and freedoms is central to an understanding of the Convention. It is concerned not with all cases of persecution, even if they involve denials of human rights, but with persecution which is based on discrimination. Discrimination means making distinctions which principles of fundamental human rights regard as inconsistent with the right of every person to equal treatment and respect... (Lord Hoffman in R v IAT ex parte Shah 1999 2 AC 629 at 651).

5. Some element of conscious discrimination against the victim based on a Convention reason (or reasons) is a necessary ingredient of Convention persecution. Discrimination, at least in the sense that the substantive law or its enforcement in practice bears unequally upon different people or different groups, is essential to the concept of persecution under the Convention. Only those who for one or another Convention reason are singled out, whether malevolently or not, qualify for asylum. (Simon Brown LJ in Omoruyi CA 12.10.2000).

6. A Tamil (in the position of the applicant) who is arrested and detained on suspicion of involvement with the LTTE and who is ill treated whilst so detained, may well be a refugee owing to a well-founded fear of being persecuted for reasons of race and/or membership of a particular social group and/or political opinion.

7. An adjudicator faced with a case such as the present and assessing future risk could find that there was a well-founded fear of being persecuted for a Convention reason (or Convention reasons):-

(1) if the persecution resulted from the persecutors being motivated by one or more Convention reasons; or

(2) if the persecution was purportedly motivated to punish or deter crime or suspected crime but in truth as a pretext for harming the offender for one or more Convention reasons e.g. race and/or membership of a particular social group and/or political opinion; or

(3) if the persecution was motivated to punish or deter crime or suspected crime but also to harm the offender for one or more Convention reasons e.g. race and/or membership of a particular social group and/or political opinion;

BUT NOT

(4) if the persecution was motivated in order to punish or deter crime or suspected crime (in which case there would be no Convention protection, even if the underlying rationale for the crime was political).

8. Where an applicant suffers serious harm and the State does not protect him/her then he/she is entitled to the protection of the Convention if either the State or the person harming him/her is motivated by a Convention reason in singling him out for that treatment.

9. Where there are substantial grounds for believing that an applicant will be at real risk of treatment which will interfere with his/her rights under article 3 of the ECHR, then he/she will be entitled to resist removal from the United Kingdom on that ground.

The determination of the Special Adjudicator

I turn to the determination of the Special Adjudicator.

The applicant contends that the final paragraph of the determination of the Special Adjudicator should be read as meaning "...involvement in violent terrorism...does not...come within the protection of the Convention".

In my opinion it is important to read the passage as a whole. When the Special Adjudicator said "That does not in my view come within the protection of the Convention" he was plainly referring to the whole of the previous sentence i.e. "Unpleasant through the consequences were, they were not the result of any political opinions he might have been thought to hold, but of being suspected, however unjustly, of involvement in violent terrorism." In referring to "any political opinions he might have been thought to hold" the Special Adjudicator was referring to a Convention reason (and not excluding from his consideration other Convention reasons).

It is also important to note the findings that "There is nothing else in the evidence to show that he in particular would face persecution if returned to Sri Lanka: it was not argued that northern Tamils in general would do so; nor should I accept that, for the reasons given at paragraph 2 above."

The critical question for decision was whether the applicant was a refugee as defined by article 1A(2) of the Convention. Whether a person has a well-founded fear/real risk of being persecuted for one or more Convention reasons raises a single composite question. The question whether someone is at risk of persecution for a Convention reason (or Convention reasons) should be looked at in the round and all the relevant circumstances brought into account.

The Special Adjudicator found "...the [unpleasant] consequences were...not the result of any political opinions he might have been thought to hold, but of being suspected, however unjustly, of involvement in violent terrorism."

The Special Adjudicator thus found that the persecution was motivated in order to punish or deter crime or suspected crime (in which case there would be no Convention protection, even if the underlying rationale for the crime was political). This was a conclusion open to him - see paragraph 7(4) above.

The references given by the Special Adjudicator form a basis for the conclusion that the applicant was singled out among other Tamils for persecution because he was suspected, however unjustly, of involvement in violent terrorism. The references were as follows:-

1994 - paragraph 10.2 of the applicant's statement - "They said because I come from Jaffna I must have come to train the LTTE in Batticaloa".

June 1997 - paragraph 16.4 "They told me that I was a Tiger and said that I must show them the others."

August 1997 - paragraph 25.2 "They accused me of being a Black Tiger and asked me how many Black Tigers were with me."

The Special Adjudicator was entitled on the material before him to come to the conclusions which he did. I emphasise that each case turns on its own facts.

The observations of Simon Brown LJ in Ravichandran supra at page 109 ("if there remained a practice of torturing those detained, I very much doubt whether a finding of persecution on Convention grounds would be precluded merely because the torture was intended to discourage terrorism or to persuade detainees to inform on their associates rather than inflicted for purposes of oppression") should be read in their context, including the context of the previous sentence i.e. "round-ups...simply out of hostility towards [Tamils] (i.e. with malignancy)..."

Further I draw attention to the use of the word "remained". The Special Adjudicator made the following findings as to the current situation - "...there is nothing else in the evidence to show that he in particular would face persecution if returned to Sri Lanka: it is not argued that northern Tamils in general would do so; nor should I accept that, for the reasons given at paragraph 2 above". I refer to the whole of paragraph 2 of the Determination (Sri Lanka) and also to paragraph 3 (Colombo). The findings of fact in these paragraphs were findings which were open to the Special Adjudicator on the materials before him.

The Special Adjudicator looked at the question whether the applicant had a well-founded fear of being persecuted for one or more Convention reasons in the round, and brought all the relevant circumstances into account.

The Immigration Appeal Tribunal

The Immigration Appeal Tribunal acted rationally and in a consistent and transparent way giving clear reasons. The decision was not beyond the range of responses open to a reasonable decision maker. In judging whether the IAT exceeded this margin of appreciation I make it clear that I have taken into account the particular importance of the human rights context.

Conclusion

For the reasons set out above this application is dismissed.

MS PHELAN: My Lord, I appear for the claimant and my learned friend, Ms Giovannetti, is here for the defendant this morning.

MR JUSTICE CRESSWELL: I have made some changes to the draft I have provided to you. Those appear at pages 11 and 12.

For reasons set out in the draft judgment, which I hand down, the application is dismissed. I emphasise that this is a judgment in unapproved form as yet.

Yes, Ms Phelan?

MS PHELAN: My Lord, you may recall on the first day that this application was heard, there was some discussion between your Lordship, myself and Mr Underwood as to how many similar cases there were.

MR JUSTICE CRESSWELL: Yes.

MS PHELAN: And it was said there were hundreds, or thousands rather than hundreds, I believe. I appreciate that every case turns on its facts, but the difficulty is the facts are very similar in many of these cases. It is an important case. I think we agreed at the first hearing that it was an important case. It is the first case post-Omoruyi.

My Lord, I ask for permission for those reasons. I would submit this is a case where UNHCR are likely to want to become involved. There are arguable inconsistencies with their guidance. Also, I think the findings go wider than just Tamil cases. It is clear that there would be repercussions in all asylum cases.

For those reasons, I think the claimant should have an opportunity to put his case to the Court of Appeal.

MR JUSTICE CRESSWELL: Thank you very much indeed.

MS GIOVANNETTI: My Lord, we would oppose the application for leave to appeal. We say your Lordship simply applied principles which were very clearly set out by the House of Lords in Shah and Islam(?), and then discussed in more detail in Omoruyi with specific reference to cases such as this. The Court of Appeal could always grant permission if they felt they wanted to consider it again, but it is a very recent decision and we would invite your Lordship to leave it up to that court.

MS PHELAN: Well, my Lord, I would submit it is arguably inconsistent with Shah and Islam because, of course, the reason women are not protected in Pakistan is because the state wants an Islamic state. It is arguably inconsistent with Omoruyi because the law in its enforcement bears unequally against Tamils. I would submit it is clearly inconsistent with Chen Shi Hai, which was the basis for Omoruyi.

MR JUSTICE CRESSWELL: Yes, thank you very much.

I am not prepared to grant permission in this case.

Now, you would like an order that the claimant's costs be subject to assessment by the Legal Services Commission?

MS PHELAN: My Lord, yes.

THE CLERK OF THE COURT: My Lord, there is no certificate on file. Perhaps the claimant's solicitors could send a copy by fax. That would be sufficient.

MR JUSTICE CRESSWELL: Could you see that that is done, Ms Phelan?

MS PHELAN: My Lord, I will.

MR JUSTICE CRESSWELL: I would conclude by expressing my gratitude once again to you, Ms Phelan, for your assistance and to Mr Underwood for his assistance.