QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| R (Gopalakrishnan)
|- v -
|Secretary of State for the Home Department
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss Julie Anderson (instructed by The Treasury Solicitor) for the Interested Party
AS APPROVED BY THE COURT
Crown Copyright ©
Mr Justice Richards:
"(1) This paragraph applies to an appeal under Part IV of this Act by a person who claims that it would be contrary to the Convention for him to be removed from, or to be required to leave, the United Kingdom, if the Secretary of State has certified that, in his opinion, that claim is one to which -
(a) sub-paragraph (3), (4), (5) or (6) applies; and
(b) sub-paragraph (7) does not apply.
(2) If, on an appeal to which this paragraph applies, the adjudicator agrees with the opinion expressed in the Secretary of State's certificate, paragraph 22 does not confer on the appellant any right of appeal to the Immigration Appeal Tribunal.
(4) This sub-paragraph applies to a claim under the Refugee Convention if -
(a) it does not show a fear of persecution by reason of the appellant's race, religion, nationality, membership of a particular social group, or political opinion; or
(b) it shows a fear of such persecution, but the fear is manifestly unfounded or the circumstances which gave rise to the fear no longer subsist.
(7) This sub-paragraph applies to a claim if the evidence adduced in its support establishes a reasonable likelihood that the appellant has been tortured in the country to which he is to be sent."
"You claim that as a Tamil living in Sri Lanka you were persecuted by the Sri Lankan authorities. You state that you have had to move several times because of the expanding of the civil war. In 1998 you claim that you moved to Colombo however, due to the number of visitors you used to receive the authorities were alerted. You claim that between May 1999 and September 1999 you were arrested 3 times by the police and interrogated for between 3-4 hours on each occasion. You claim that this was because you were a Tamil. In September 1999 you came to the United Kingdom to see your family members for 6 months. However, in January 2000 you claim that your husband contacted you to inform you that a Tamil Politician had been killed near where you lived and that the Security Forces had arrested many Tamils. Your son was detained and released and enquiries made as to the whereabouts of the rest of your family. You claim that your husband has been ordered to tell the Security Forces upon your return to Sri Lanka. Your husband told you not to return to Sri Lanka so you decided to claim asylum."
"In the light of all the evidence available to him, the Secretary of State has concluded that you have not established a well-founded fear of persecution and that you do not qualify for asylum. Your application is therefore refused under paragraph 336 of HC 395 (as amended) and has been recorded as determined on 22/6/01. In addition, the Secretary of State certifies that your claim is one to which paragraph 9(4)(b) of Schedule 4 to the 1999 Act applies because your fear of persecution is manifestly unfounded; and that your claim is one to which paragraph 9(7) does not apply because you have adduced no evidence relating to torture. This means that if you exercise your right of appeal it will be subject to the accelerated appeals procedure."
"She has suffered at the hands of the Sri Lankan authorities since 1992. She could not leave Sri Lanka at that time as her children were quite young and it would have been difficult to uproot herself. She was arrested on three occasions between May and September 1999. On the third occasion members of the police attempted to rape her at her home but her husband arrived just in time. She was then taken to the police station. She did not mention this earlier as she was embarrassed to talk about it. She did however mention that there was a threat of rape on the previous occasions but that these threats were verbal whereas on the third occasion there was an actual physical attempt."
"27. The appellant's credibility has been challenged and it is essential that I reach a conclusion as to her credibility. In reaching this conclusion I have taken into account the totality of the evidence before me (including the background documents).
28. I regret to say that I did not find the appellant to be a credible witness at all. The appellant came to this country as a visitor on 20 September 1999 in order to visit her brother who was ill. She claimed that it was not her intention to claim asylum when she arrived here. She intended to stay here for only two to three months. I regret to say that I do not believe her. It seems to me that she used the pretext of visiting her brother in order to come to this country and, having arrived here, concocted a story of ill-treatment in Sri Lanka. There are a number of discrepancies in her evidence which lead me to believe that she is not telling me the truth. She claimed to have been ill-treated by the authorities since 1992. I accept of course that the appellant and her family like many Tamils in the north of Sri Lanka have been affected by the conflict in Sri Lanka. The appellant and her family seem to have moved around in the northern part of Sri Lanka before finally moving to Colombo in June 1998. She had travelled to Thailand in January 1999. She has in my view made up a story of arrest and detention between May and September 1999. She had tried to embellish her account by making allegations of rape. She made no mention of any physical threat to her when she was last arrested in any of her previous statements or interview. I find that the appellant's credibility is damaged to such an extent that I cannot place any reliance on her evidence. I also find that her credibility is damaged by the late application for asylum. She told me that she had not intended to claim asylum when she arrived and only changed her mind following a letter from her husband in November 1999 and telephone calls from him in January 2000. As I have stated I do not believe her. I believe that the application was made in order to prolong her stay in this country and that her application for asylum does not have anything to do with the Convention.
26. I have given careful consideration to the totality of the evidence before me (including that which I have not specifically mentioned). I find that there is nothing in the evidence to show that the appellant is entitled to the protection of the 1951 United Nations Convention on the Status of Refugees. The appeal is wholly without any merit whatsoever. The appellant has failed to demonstrate that she has a well-founded fear of persecution if she is returned to Sri Lanka. There is no evidence before me to establish persecution in the past or the likelihood of threat of persecution in the future.
30. I agree that the respondent was right to certify this appeal because the claim under the Convention is manifestly unfounded. I also find that the evidence has not established a reasonable likelihood that the appellant has been tortured in Sri Lanka."
The claimant's submissions
"They threatened me and bullied me, asking me to tell them the truth whether my family supported the LTTE.
They beat me there at the police station but the beatings were not so severe as to cause any open injuries. I had some pains and aches after that for which I took some home remedies."
"Accordingly, the adjudicator should have appreciated that the letter was wrong, that evidence had been adduced and that, therefore, the certification was invalid. That being so, as it seems to me, even though he was persuaded that he did not believe the appellant and that this evidence adduced by the appellant did not establish that he had been tortured, nonetheless, he should not have upheld the certificate because he should have appreciated that there was nothing to uphold. The certification was bad. As I say it should not, in those circumstances, have subsisted to be upheld by the adjudicator …."
The Secretary of State's submissions
"Nor was there any need for the Secretary of State to explain why in his view paragraph 9(7) did not apply to the claimant's claim. It would have been sufficient for him to state that the claim was one to which paragraph 9(7) did not apply. It is true that the additional words 'because you have adduced no evidence relating to torture in Iran' did not track the language of paragraph 9(7). That might have suggested that the Secretary of State thought that the issue was whether torture occurred in Iran, rather than whether it was reasonably likely that the claimant had been subjected to torture there. Indeed, if the words used by the Secretary of State in the refusal letter showed that the Secretary of State failed to 'address his mind to the critical factors' found in paragraph 9(7), which was the language of the headnote in Salah Ziar, the certificate under paragraph 9(7) could then be set aside. But I do not think for one moment that the additional words which the Secretary of State added show that he did not apply his mind to the critical question posed by paragraph 9(7). In my opinion, the additional words were a form of shorthand designed to inform the claimant - unnecessarily, because the claimant or her advisers could have checked paragraph 9(7) for themselves - of the topics to which paragraph 9(7) related. It would, I think, have been better for the Secretary of State, either to reproduce the statutory language, or not to add any additional words at all, but it is not possible sensibly to argue that the words which the Secretary of State chose to use betrayed a misunderstanding of what paragraph 9(7) was all about."