Scottish Court of Session Decisions

[2] In his witness statement, and in his evidence before the Adjudicator, the petitioner explained that in Sri Lanka he had been a grocer in a village where he was well known. He was prosperous and owned many paddy fields and a number of vehicles. Other members of his family also lived in the village. The petitioner belongs to the Sinhalese ethnic group. While the petitioner himself had nothing to do with politics his brother was a strong supporter of the People's Alliance Party (PAP). The petitioner, although he did not get involved actively in politics, gave donations to both the PAP and the United National Party (UNP). He claimed that he did this in order to avoid offending either party and to ensure that his business would prosper irrespective of which party was in power. The incident which led to his difficulties occurred in December 1998 when the LTTE (Tamil Tigers), who were active in the vicinity of his village, seized the petitioner's lorry. The petitioner went to the Army to ask for assistance to retrieve his lorry. This was refused and subsequently the Tamil Tigers contacted the petitioner. He was told that his lorry would be returned if he provided food, medicine, batteries and petrol to the Tamil Tigers. He agreed to this under threat of death to himself and his family and the destruction of his business. The petitioner said that he provided the goods to the Tamil Tigers about six times every two months and that a go-between in the village would advise him as to what they required. The petitioner would get the materials ready. The petitioner was not given a time as to when the goods would be collected but was given time to get the goods ready and the Tamil Tigers would come to his house unannounced. The petitioner claimed that he was reluctant to provide supplies to the Tamil Tigers.

[3] The police eventually found out about his activities and on 5 January 2001 the local police and Army units surrounded the petitioner's house. The petitioner's shop was raided and supplies, which the petitioner had been gathering for the Tamil Tigers, were discovered. In the shop, which was adjacent to his house, the police arrested a member of the Tamil Tigers who was carrying batteries and medicines which had been supplied by the petitioner. The petitioner was beaten severely and his wife, who was in the shop, was also beaten and dragged by her hair when she tried to assist the petitioner. The petitioner was taken to Wilachchiya Army Camp where he was beaten and tortured severely. He claimed that he was beaten with rifle butts on his right knee and that his right leg and kneecap were broken. He was interrogated and asked for details of the Tamil Tigers, which he says he did not have. The police thought he was an active member of the Tamil Tigers. The petitioner was released on the fifth day after his arrest, following the payment of a bribe arranged by his wife and father-in-law. The petitioner says on his release he was told not to be seen in Sri Lanka again and he went into hiding in his sister's house until he and his family left Sri Lanka. The petitioner said that his family, with the exception of his mother, had now left and that his father-in-law no longer lives in the village. From Sri Lanka the petitioner flew to Moscow and en route stopped in Dubai. The petitioner arrived in the United Kingdom on 15 August 2001.

[4] The petitioner claimed that he and his family were at risk from three groups: the Sri Lankan authorities as represented by the police, Army and Intelligence Service; the Tamil Tigers; and from members of the UNP who bear a grudge against the petitioner's brother. The petitioner claimed that the authorities see him as a Tamil Tiger supporter and therefore a traitor. The Tamil Tigers knew that he had been arrested and, in the event that any of their members who had contact with the petitioner are subsequently arrested, he will be suspected of being a police informer and that this is how he secured his release. His fears in relation to the UNP Party arise from an incident in December 2001 when UNP members tried to kill his brother who was a prominent local PAP member. The petitioner claimed that his family, with the exception of his mother, have all fled because of UNP pressure and have claimed asylum in Italy.

[5] In order to qualify for asylum under the Immigration Rules, the applicant must have the status of a refugee under Article 1A(2) of the Geneva Convention Relating to the Status of Refugees (Geneva, 28 July 1951; Cmmd. 9171), as amended by the 1967 Protocol (New York, 31 January 1967l; Cmmd. 3906). It is necessary to establish under the Article that the claimant is outside the country of his nationality owing to a well-founded fear of persecution. Article 1A(2) of the Convention and Protocol provides the definition of a refugee:

[6] On the evidence placed before the Adjudicator the petitioner contended that he had a well founded fear of persecution. At paragraph 24 of her determination the Adjudicator concluded that:

At paragraph 26 she concludes:

[7] The petitioner appealed to the Immigration Appeal Tribunal. The framework for leave to appeal to the Immigration Appeal Tribunal is set out in Rule 18 of the Immigration and Asylum Appeals (Procedure) Rules 2000. Rule 18(7) is in the following terms:

[8] The grounds of appeal were directed at the finding of the Adjudicator that while it was alleged that the petitioner would be on a wanted list, the objective evidence suggested that such a sophisticated wanted list was not in operation at the time when the petitioner was detained. In refusing the application for permission to appeal the Immigration Appeal Tribunal accepted that the Adjudicator's use of the term "a sophisticated wanted list" was rather unfortunate. However, in the reason for their decision dated 16 April 2003 the Immigration Appeal Tribunal went on to say:

The reasons conclude:

[9] Mr Melvin-Farr attacked the decision of the Immigration Appeal Tribunal. His criticisms were directed at the decision on the specific grounds of appeal and at a number of other matters which, he submitted, should have been taken into account by the Tribunal. I deal first with the criticisms of the Tribunal's decision with respect to the ground of appeal. The Adjudicator at paragraph 22 said:

Mr Melvin-Farr referred to paragraph 24 of the Petition as amended. There it was suggested that the failure of the Tribunal to realise that the failure of the Adjudicator to consider the objective evidence about the wanted list could have placed the appellant at grave risk if returned to Sri Lanka. Mr Melvin-Farr did not develop this to any great extent and, in particular, he did not identify what objective evidence there was of the existence of a wanted list. Miss Drummond submitted that there had been no evidence before the Adjudicator of the existence of a wanted list. There had simply been an assertion by the petitioner that he was on one. There was no evidence of any outstanding charges against the petitioner. The Tribunal had noted these points and, in any event, concluded that in the light of the changes that had taken place in Sri Lanka the appeal had no prospect of success. It could not be said that the Tribunal had acted irrationally in the Wednesbury sense. In my opinion the submissions of Miss Drummond are well founded. In my opinion, although the language used by the Adjudicator was to some extent criticised by the Tribunal, the Adjudicator was entitled on the evidence before her to conclude that the petitioner was not in danger of arrest on his return or that he was wanted by the authorities at the time of the hearing. She was entitled to have regard to the altered situation in Sri Lanka and to note that failed asylum seekers were not generally under threat on their return. It follows from that that the Tribunal were entitled to conclude that, even if some criticism could be made of the Adjudicator's language, the significant developments in the country since the petitioner's departure created a state of affairs which rendered the appeal lacking any real prospect of success. Accordingly, in my opinion the attack on the determination of the Immigration Appeal Tribunal based on the ground of appeal before them fails.

[10] That, however, is not the end of the matter. Mr Melvin-Farr submitted that the Immigration Appeal Tribunal should have considered as obvious certain failures in the Adjudicator's determination which rendered it flawed. Rule 18(6) is in the following terms:

[14] I had some difficulty in understanding the submission that the Adjudicator had failed to address the question of standard of proof. In paragraph 4 of her determination, the Adjudicator recognised that her task was to determine whether a risk of persecution subsisted at the date of the hearing. She also recognised the burden and standard of proof and the test which the petitioner had to meet. I reject Mr Melvin-Farr's suggestion that this was, as he put it, "simply a pro-forma". In my opinion the Adjudicator clearly demonstrates in paragraph 4 an understanding of her task and a precise identification of the standard of proof to be applied.

[15] On the question of credibility Mr Melvin-Farr suggested that the Adjudicator had failed to make findings as to credibility. There were no findings with respect to the issue of torture. The medical report was referred to only twice and there was no reference to the findings made by the doctor. Paragraph 22 of the Adjudicator's determination was not sufficient to deal with the question of credibility. There were no clear findings as to what evidence was credible and what evidence was not credible. He referred to the opinion of Lord McFadyen in Singh v Secretary of State for the Home Department 1998 SLT 1370 and the cases to which reference is made therein. The petitioner, said Mr Melvin-Farr, was required to evaluate the evidence based on the background information of the country and the evidence provided by the petitioner. He referred to the decision in Kavankavan v Secretary of State for the Home Department [2000] 3 All ER 449 at 477 where guidance is given as to the way in which Tribunals are supposed to address issues of evaluating evidence. Mr Melvin-Farr made particular reference to the medical report and submitted that the Adjudicator had failed to evaluate this piece of evidence, which he submitted indicated that the petitioner had a well-founded fear of persecution.

[16] Miss Drummond submitted that it was clear from paragraph 22 that the Adjudicator had no issue with the question of credibility. If the determination was read as a whole it was clear that she accepted the account given by the petitioner. She did not narrate discrepancies or anything of that sort. Miss Drummond submitted that the determination of the Adjudicator in this case would leave the informed reader in no substantial doubt as to her reasons.

[17] I agree that it is clear from the determination of the Adjudicator read as a whole, and from the terms of paragraph 22 in particular, that the Adjudicator did accept the evidence led on behalf of the petitioner as to what had happened to him. It is clear in this case no issue of credibility arose. The decision was based on the change of circumstances in the country and the lack of current threat to the petitioner. It is not necessary for the Adjudicator to spell out findings on every aspect of the evidence before her. I adopt what was said by Lord Penrose in Asif v Secretary of State 1999 SLT 890 at page 894H-I:

This passage was approved by the Inner House in the case of Singh v Secretary of State for the Home Department 2000 SC 219 at pages 222-223. In this case counsel for the petitioner had founded strongly on the Opinion of Lord Macfadyen in Singh v Secretary of State for the Home Department 1998 SLT 1370. Counsel had submitted that the failure on the part of the Adjudicator in particular to express any assessment of the petitioner's credibility demonstrated the inadequacy in law of his reasons. Lord Weir delivering the Opinion of the Court said:

Applying these principles to the determination of the Adjudicator in the petitioner's case, I conclude that the Adjudicator has adequately set out the basis for her decision. In the absence of any issue of credibility it was not necessary for her to analyse the evidence in order to explain why she accepted certain evidence and rejected other parts. She set out in detail the appellant's account of what had happened, which she clearly accepted. She identified the factors which persuaded her that there was no basis for a current well-founded fear of persecution. Applying the Wordie test I am satisfied that the informed reader is left in no doubt as to the reasons for the determination of the Adjudicator.

[18] In my opinion none of the criticisms of the Adjudicator's determination raised by Mr Melvin-Farr as falling within the net of Robinson could be described as obvious points with a strong prospect of success such as to merit recognition despite not having been focused in grounds of appeal. Far from it, they were in my opinion wholly without merit.