England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice The Strand London WC2A 2LL
		27 February 2003

MR JUSTICE McCOMBE:

1. This is an application for judicial review of the refusal of the Immigration Appeal Tribunal to grant permission to appeal against a determination of an immigration adjudicator dismissing the claimant's appeal from the refusal of the Secretary of State to grant asylum to the claimant. The appeal to the adjudicator was based on both asylum and human rights grounds. The adjudicator dismissed the appeal on both grounds.
2. The original notice of refusal of leave to enter on the basis of a refusal of asylum was dated 25 May 2000, but was not for some reason served upon the claimant until 12 April 2001. Notice of appeal against the refusal of leave to enter was served on 26 April 2001. The appeal was heard by the adjudicator on 19 February 2002 and her decision was issued on 11 March 2002. The claimant applied for leave to appeal to the Immigration Appeal Tribunal. That application was refused by a decision made on 16 April 2002 and notified on 29 April 2002. It is that determination which the claimant now challenges.
3. These proceedings were issued on 29 July 2002, but no point is taken as to any delay in issuing proceedings. Permission was refused on the papers on 3 October 2002. The application was renewed and permission was granted by Roderick Evans J on 6 November 2002.
4. The adjudicator found the following facts. The appellant (the claimant in this case) was born on 24 October 1974. He came from the northern part of Sri Lanka on the Jaffna Peninsula. He was born at a hospital that was named. His mother currently lives in Jaffna. His father died in 2000. The adjudicator set out the history of the claimant's education and went on to find that the claimant was not a member of any political party or organisation. However, during his student days he had helped the cadres of the organisation known as the LTTE (the Tamil Tigers) and other civilians who were injured by shelling and bombing. He had worked as a scout and had been taught to help needy people. He believed that the Tamils were oppressed people, oppressed by the Sri Lankan Government, and that the Tamils should have the right of self-determination. From 1990, when the claimant was 16 and the LTTE had effective control of Jaffna, the claimant became involved as a volunteer in helping the injured. He did this in 1995, at which point the LTTE withdraw from the Jaffna Peninsula following an offensive attack by the Sri Lankan armed forces. Following the LTTE withdrawal, the claimant and his family were apparently afraid of the Sri Lankan army and they went to Vanni with the LTTE. The claimant and his family stayed at Kilinotchi until 1997. In that area there was a food shortage and no medical facilities as the government had imposed economic sanctions to the LTTE controlled areas. However, the government had announced that the civilians could return to government controlled areas and would not be harmed. The area of Vavuniya is controlled by the armed forces. The claimant and his family went there as they had an uncle who ran a shop. They stayed at that house for some time. On 10 August 1997, the claimant went to the shop to buy some food items. He was arrested on suspicion of LTTE connections. He was arrested while inside the shop and taken blind-folded to a camp. He was interrogated at the camp and asked about his LTTE involvement. He admitted to assisting the LTTE and having travelled to Vanni as a result of fear of army revenge attacks. He was beaten up and forced to admit being a member of the LTTE. He stated that he had signed a document confirming that he was such a member, following which they stopped beating him. He was injured by heavy beatings and still has scars to his body. On 2 October 1997, an officer came to the claimant's cell and told him he was being taken to another place for further investigation. He was taken out to a vehicle. When the vehicle stopped he saw his uncle was waiting for him. His uncle had organised a bribe at the security office in order to obtain his release. Furthermore, his uncle had arranged for an agent to take him from Sri Lanka as it was no longer safe for him there. He was taken on the same day to Colombo in the back of a lorry. In a house there the uncle introduced the claimant to an agent who took him to the airport. The agent gave him a Sri Lankan passport in a different name. The passport owner was a Muslim. The agent was Muslim. At various checkpoints the agent showed the officials their documents and they were allowed through at each stage. Whilst in the capital the claimant has stayed in the agent's house for some ten hours and did not register with the police. He then travelled through various countries, including Russia, but he was advised by his agent not to claim asylum there. Similarly he did not claim asylum in Hungary. He was then placed in the back of a lorry and did not have the opportunity to claim asylum elsewhere until he arrived in the United Kingdom where the agent told him it would be a safe country for Tamils. He arrived in the United Kingdom on 12 October 1997 and made his claim for asylum on 20 October 1997.
5. The adjudicator drew certain conclusions as follows. She found the claimant not to be an active supporter or member of the LTTE, but that he has assisted them on a voluntary basis for five years, during which he helped by tending the injured and the wounded. The claimant was arrested on 10 August 1997 and had indeed been beaten up during the period of detention. He was forced to sign a confession that he was a member of the LTTE. He was released on 2 October 1997 following the payment of a bribe. He left Sri Lanka the following day. He travelled to the United Kingdom with the assistance of the agent. Although the claimant gave no specific reason why he was arrested in his uncle's shop, the adjudicator accepted that it took place and she accepted that he was beaten. In short, the adjudicator accepted in its entirety the primary factual evidence given by the claimant.
6. It is accepted by both parties in this case that the adjudicator's conclusions leading to the dismissal of the appeal were accordingly based upon inference from the evidential material that she had heard, including the oral evidence of the claimant, and some of the objective material which she had in the form of documents before her. Those conclusions on the facts which led to the resolution of the claimant's appeal are at paragraphs 63 - 65 of the determination as follows:

"63. I have accepted that the appellant was detained and assaulted whilst in detention. However I have to consider the circumstances of the appellant's release from custody and I find that it is likely that he was released by the payment of a bribe to an army officer as he has claimed. The questions which then arise are whether the security forces are still likely to be interested in or looking for the appellant and whether he still has a record showing he is wanted. In the absence of any objective evidence any conclusions are likely to include a substantial element of informed speculation. It is for the appellant to establish that he was released in circumstances where there is likely to be a record of his arrest and detention and a continuing interest in him. I find that it is unlikely that the appellant would have been released from detention and the authorities continuing interest and suspicion of him. I have accepted that he may well have signed a confession admitting to membership of the LTTE but clearly this does not demonstrate that he was viewed by the authorities as an LTTE member and I do not accept that the release would have taken place had there been a continuing interest in him notwithstanding the existence of the confession. I therefore find that the appellant has failed to establish that he was released in circumstances where there is likely to be a record of his arrest and detention and any continuing interest in him.

64. I also consider the appellant's position in the context of the fact that there was only one period of detention in 1997 over a number of years during which he voluntarily assisted the LTTE. His efforts were directed at caring for the injured and wounded. He does not support the LTTE. This one period of detention does not amount to persecution.

65. I do not consider the appellant's scars to be conspicuous and I have found that they are not likely to arouse suspicion that they had been sustained as a result of combat. The appellant is not likely to be arrested because of the existence of his scars which are not immediately visible. I do not accept that there will be records which identify the appellant as being an escapee or as a member of the LTTE and I have not found that the appellant is likely to be of continuing interest to the Sri Lankan army. Furthermore I consider that the appellant's situation in the context of the passage of time -- he was released from detention in October 1997 in circumstances that show he was no longer of any interest to the security forces and it is not likely therefore that he will be of interest to the Sri Lanka army at the present time some five years later. Even if the appellant were to be arrested, detained and the scars were to be seen by the authorities I do not consider that any further investigation by the authorities would lead to a suspicion of LTTE membership or involvement which would result in ill-treatment amounting to persecution. As stated above I have concluded that the evidence tends to show that the appellant is of little or no continuing interest to the authorities and such links as he had with the LTTE would not place him at risk of torture or ill-treatment amounting to persecution."

7. The grounds of appeal to the Immigration Appeal Tribunal raise the following principal points. They identified a number of risk factors which the adjudicator had noted. These were as follows.

(1) The appellant assisted the LTTE from 1990-1995.

(2) The appellant was arrested on 10 August 1997 on suspicion of involvement with the LTTE.

(3) Under interrogation the appellant admitted his involvement with the LTTE.

(4) Under torture the appellant signed a confession that he was a member of the LTTE.

8. It was contended in the grounds that in the light of those factors the conclusion of the adjudicator was unsustainable. It was further submitted that the conclusion based upon an absence of continuing interest of the authorities in the claimant was wrong in the absence of any relevant background evidence and the failure to recognise the possibility that the confession might be relied upon in the future. It was further argued that the finding that the claimant had failed to demonstrate a record of arrest and detention was not explained but merely asserted.
9. In the face of those grounds the tribunal's determination was as follows:

"The applicant, a national of Sri Lanka, has applied to the Tribunal for leave to appeal against the determination of the Adjudicator... dismissing the appeal against the decision of the Secretary of State giving directions for removal having refused to grant asylum.

There were exceptional circumstances justifying the application being accepted as in time.

The grounds allege that the adjudicator was wrong to conclude that, despite having signed a confession saying he was an LTTE member, the authorities might not rely upon that against the appellant in the future. However, having noted that in any event the applicant had only experienced one period of arrest in 1997, the adjudicator viewed the circumstances of his release upon payment of a bribe as a strong indication that he was no longer considered of interest to the authorities and that, accordingly, even if there was a record of him in Colombo, it would not identify him as someone suspected still of LTTE involvement. That was a finding of fact to which the adjudicator was perfectly entitled to come and was not one in conflict with the objective country materials.

Leave to appeal is refused."

10. On the present application Mr Husain for the claimant takes three principal points. First, he submits that the Immigration Appeal Tribunal applied the wrong test in law to the claimant's application for leave. Having done so, the matter ought to be remitted to it. Secondly, he submits that relief on this application should only be refused if the court reaches the view that on application of the proper legal test the tribunal could only have decided that leave still had to be refused. Thirdly, he submits that, applying the proper test, this court cannot be satisfied that leave would inevitably have been refused because the appeal was bound to fail.
11. Mr Husain's first point is that the reasons given by the tribunal show that it applied an over-rigorous test to the application for leave. It is common ground that the proper test to be applied by the tribunal is to be found in Rule 18(7) of the Immigration and Asylum Appeals (Procedure) Rules 2000 which provides as follow:

"Leave to appeal shall be granted only where --

(a) the Tribunal is satisfied that the appeal would have a real prospect of success, or

(b) there is some other compelling reason why the appeal should be heard."

Mr Husain says that the test actually applied appears to have been akin to that of Wednesbury unreasonableness. He refers to that part of the decision which states that the adjudicator had been "entitled" to come to her conclusion on the evidence before her. He submits that the wording there used indicates that the tribunal did not consider the proper question of whether there was a real prospect of establishing that the adjudicator's conclusion was wrong.

12. In my view, while I understand why Mr Husain submits as he does, that is an over-rigorous reading of the tribunal's decision. I think that the tribunal's conclusion was very similar to decisions often made in the Court of Appeal when hearing civil appeals which raise issues of fact. In such cases the court often says that the evidence before the trial judge formed a sufficient and adequate basis for his conclusion on the facts and that it had not been demonstrated to the court that that conclusion was wrong. In my view the determination of the tribunal in this case was of that character. I find it impossible to conclude that the tribunal, however it expressed itself, was not seeking to apply the proper statutory test and was merely trying, in its reasoning, to flesh out why it considered that there was no reasonable prospect of success on the appeal.
13. Having regard to that conclusion, Mr Husain's second submission cannot be advanced as initially formulated because it is based upon the conclusion that the wrong test had indeed been applied by the tribunal. However, he recognised an alternative. He submitted that the adjudicator's conclusion was based not on findings of primary fact, but upon inferences drawn from those primary facts and the written material. He submits that those inferences could not properly be drawn and that the tribunal ought, accordingly, to have acceded to the grounds of appeal and were wrong in law not to recognise the fallacy of the adjudicator's reasoning. The relevant paragraphs of the adjudicator's determination are, as set out above, paragraphs 63-65. In particular, Mr Husain submits that in the light of the signed confession, which it was accepted that the claimant made to the authorities, it was impossible to conclude that the claimant had not established the existence of a record of his detention and arrest and the authorities' continuing interest in him. Further, it is said that the adjudicator was wrong to say, as she did in paragraph 65, that she did not accept that there would be records of the claimant being a member of LTTE. Moreover, it is argued that the adjudicator was wrong to conclude that the authorities' interest such as it was must have waned over the last five years from 1997. The adjudicator's conclusion is further criticised on the grounds that she concluded that the authorities release of the claimant demonstrated an absence of interest in him.
14. In response to all these points Mr Waite for the Secretary of State makes two submissions which he advanced together. First, he submits that the tribunal's decision was rational and in accordance with other tribunal decisions on comparable facts. Secondly, he says, having regard to those decisions any appeal would be bound to fail. (I should note in passing that I accept Mr Husain's parallel submission that the courts always examine with particular care cases which might bar a litigant from access to a court or tribunal. I refer in that regard to the judgment Hale LJ in R v Secretary of State, ex parte Saleem [2001] 1 WLR 443, 457.) Mr Waite submits that now, having regard to the cease-fire between the two warring parties in Sri Lanka and the improvement of conditions there, any appeal is bound to fail. He relies upon the well-known case of Jeyachandran [2002] UKIAT 1869.
15. Mr Husain submitted that, even on the criteria laid down in that case, in particular in paragraph 8 of the President's judgment, it cannot be assumed that any appeal would be bound to fail. Taking on board that paragraph, it is submitted that here the confession of LTTE membership amounts to confession to a criminal offence and, notwithstanding release on payment of a bribe, there must be real risk that a record of that confession and of that membership may survive. Thus, submits Mr Husain, the claimant may effectively have been put on a "wanted list". Further, although the relevant ill-treatment happened five years ago, the claimant fled Sri Lanka on the day following his release. This is not a case where an asylum claimant had lived in a country in which the conduct complained of had happened for many years without it being disturbed.
16. Finally, Mr Husain relied upon the very recent decision of the Court of Appeal in Selvaratnam v Secretary of State [2003] EWCA Civ 121. In that case the appellant had also signed a confession, having been arrested for a second time in November 2000. He had, however, escaped from Sri Lanka using a false passport. Peter Gibson LJ's judgment included the following passages:

"19. The fact that in truth the activities of the applicant for the LTTE were at a low level some years ago may not be the determinate fact, given that he had signed a form of confession and signed a blank piece of paper. What may have been written on that paper one cannot, of course, know; but on the facts it seems to me plain that there is a substantial risk that the applicant would be a person regarded by the Sri Lankan authorities as of interest through having confessed to have connections with the LTTE.

20. In my judgment the IAT did not give to these particular facts relating to the applicant the importance which they deserved. I do not see how they could properly come to a conclusion differing from that of the adjudicator given those particular facts. The general improvement which happily has occurred in Sri Lanka relating to human rights abuses does not, as it seems to me, detract from the evidence that in the case of those who are of interest to Sri Lankan authorities as being connected with a terrorist organisation there remains a substantial risk."

17. Mr Waite submitted that on the facts of the present case the circumstances were much less stark than those considered in the Court of Appeal decision.
18. Having considered all these matters, in the end it seems to me that the decision of the tribunal in this case was indeed flawed. It failed to have sufficient regard to the clear evidence accepted by the adjudicator that the claimant had signed a confession of LTTE membership, and the adjudicator's finding, in the face of that, that there would be no records of the claimant's LTTE membership. The adjudicator failed to make clear how she had come to the conclusion that there would be no such record. It seems to me that such a conclusion, based as it was on inference rather than primary evidence, could not be said to have been unsusceptible to properly arguable challenge in the Immigration Appeal Tribunal. In the light of the credibility findings it seems to me clear that the reasoning in paragraphs 63-65 of the adjudicator's determination gave grounds for thinking that there was a real prospect of success on appeal because it was never explained with reference to available evidence why this claimant would not be of continued interest to the authorities. There is, however, clearly force in Mr Waite's submission that, in the light of other recent decisions in the tribunal, the claimant's application for leave might still have failed. However, this was not the tribunal's reasoning in the decision under challenge. In my view, given the requirement that cases raising asylum issues require anxious scrutiny by the courts, I do not consider that it would be safe to conclude that the claimant would have been refused leave to appeal anyway, even if the deficiencies in the adjudicator's determination had been properly identified by the tribunal. Therefore, I think it is right that this claim for judicial review should succeed. I will hear counsel as to the appropriate form of relief.
19. MR HUSAIN: I am most grateful.
20. MR JUSTICE McCOMBE: Is the right thing to do to quash the determination and send back the matter for reconsideration whether leave should be granted?
21. MR HUSAIN: My Lord could do that, but the effect would be the same.
22. MR JUSTICE McCOMBE: They might not, you see, because it might be open on my judgment for them to say: "We recognise the flaws in the adjudicator's determination, but...." etc, etc.
23. MR HUSAIN: Yes, but your Lordship has himself said that it is not safe to conclude that leave to appeal would have been refused. I see what my Lord says. I would say that the more appropriate order would be a mandatory order.
24. MR JUSTICE McCOMBE: Mr Waite?
25. MR WAITE: My Lord, I would strongly contend the opposite. My Lord, your judgment turns effectively on the reasoning of the IAT and what you say is their failure to engage with one of the points before them and, my Lord, for that reason they must have the opportunity to look again --
26. MR JUSTICE McCOMBE: I agree, Mr Waite. I am going to quash the determination of the IAT and remit it for further consideration in the light of my judgment.
27. MR HUSAIN: My Lord, I would ask you for costs and also a detailed assessment of public funding.
28. MR JUSTICE McCOMBE: You cannot oppose that, Mr Waite, can you?
29. MR WAITE: My Lord, could I ask for permission to appeal to the Court of Appeal?
30. MR JUSTICE McCOMBE: Well, let us deal with the costs point first. You cannot oppose the grant of costs?
31. MR WAITE: I cannot oppose the costs order.
32. MR JUSTICE McCOMBE: No, I do not give you permission. It seems to me that this is one of those cases which is clear when one analyses the reasoning of the adjudicator. Unfortunately, in my view, the IAT took their eye off the ball. You will have to ask the Court of Appeal if you want to go further.