The Queen v. Immigration Appeal Tribunal, Ex parte Sivapathem Sivanentheran

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

(MR JUSTICE FORBES)

Royal Courts of Justice

The Strand

London

Wednesday 21 May 1997

Before: THE LORD CHIEF JUSTICE OF ENGLAND (Lord Bingham of Cornhill), LORD JUSTICE MILLETT and LORD JUSTICE POTTER

IN THE MATTER OF A RENEWED APPLICATION FOR LEAVE TO MOVE FOR JUDICIAL REVIEW

The Queen- v -Immigration Appeal Tribunal ex parte Sivapathem Sivanentheran

MR IAN MACDONALD QC and MR CHRISTOPHER WILLIAMS (instructed by Rajah Solicitors, Middlesex) appeared on behalf of THE APPLICANT

MR STEVEN KOVATS (instructed by the Treasury Solicitor) appeared on behalf of THE RESPONDENT

JUDGMENT

(As Approved by the Court)

Wednesday 21 May 1997

THE LORD CHIEF JUSTICE:

This is a renewed application for leave to move for judicial review, following refusal of leave by Forbes J. The decision which it is sought to challenge is a decision of the Immigration Appeal Tribunal refusing leave to appeal against the decision of a special adjudicator. The decision of the special adjudicator against which the applicant sought leave to appeal was the dismissal of his appeal against an immigration officer's refusal of leave to enter the United Kingdom on asylum grounds.

The applicant was born on 3 March 1975 and is therefore now aged 22. On a date which is not entirely clear (but which one assumes was at the end of 1994 or early 1995) he arrived in the United Kingdom from Sri Lanka and claimed asylum. On 3 March 1995 he was formally refused leave to enter this country. He appealed against that decision to a special adjudicator and his appeal was dismissed on 23 August 1996. He sought leave to appeal against that decision and the Immigration Appeal Tribunal refused him leave to appeal on 18 September 1996. He then sought leave to move for judicial review and leave was refused by Forbes J on 12 February 1997.

We have had the opportunity of studying the decision of the special adjudicator, which must be read in conjunction with the definition of a refugee which, for the purposes of the 1951 Convention is contained in Article 1A as amended by the Protocol. The familiar definition provides that a refugee is any person who

"....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."

It is noticeable that that definition in terms treats a country as a single entity and makes no express reference to any difference which may exist between conditions in one part of a country and another. That, however, is a matter which has been addressed in rule 343 of the Statement of Changes in Immigration Rules (HC 395), which provides:

"If there a part of the country from which the applicant claims to be a refugee in which he would not have a well-founded fear of persecution, and to which it would be reasonable to expect him to go, the application may be refused."

The special adjudicator set out the facts of the applicant's case at very considerable length and it is not necessary for present purposes to recite those facts fully. It is, however, pertinent to observe that, although the special adjudicator believed much of what the applicant had told him, he did not believe it all. I draw attention to various passages in the facts as found by the special adjudicator and emphasise that these are disjointed extracts which do not represent the coherent narrative which the special adjudicator gave. At page 4 he said:

"In Colombo he was arrested by the police on two occasions and held for one day. In each case he was released following the payment of a bribe. He was not physically ill-treated but the food he was given was of a low standard.

I do not accept that the appellant is correct in saying that the difficulties for young Tamils in Colombo are greater now than at the end of 1993. Nor do I believe that the appellant himself thinks this is the case....

There have, of course, been recent atrocities in Colombo and also in consequence round-ups and detentions, but I am not satisfied from the evidence that the human rights situation has deteriorated from that referred to by the UNHCR.

The appellant referred to a friend who was the son of a human rights lawyer in Sri Lanka who had thought he could live safely in Colombo but had in fact been arrested. He was now in London. In my view that evidence, assuming it is correct, does not show that the situation in Colombo is now as bad as it was in 1993 nor that the human rights situation has deteriorated. There have been very serious acts of terrorism in Colombo. There is a clear need for the police to carry out investigations and to arrest possible suspects. Arrests, in themselves, do not indicate a return to human rights abuses.

....I believe that the appellant is well aware that the dangers of mistreatment of young Tamil males by the authorities in Colombo are now much less than previously. He chose not to admit this in order to enhance his claim to asylum."

The special adjudicator then referred to the advantage enjoyed by Tamils in Colombo who can speak Sinhalese and commented on the failure of the applicant to make any effort to familiarise himself with that language.

The special adjudicator observed:

"In fact he made no attempt to do so. That indicates to me that fear of the authorities in Colombo is not the thing that constantly preys on his mind....

The evidence suggests to me that the appellant wishes to avoid return to Sri Lanka because of all the dangers and serious inconveniences created by the civil war situation there. He has chosen to emphasise problems with the authorities because he is aware that to do so will help his appeal.

I am prepared to accept that the appellant is fearful of the treatment he would receive at the hands of the LTTE if he came to be under their control. I did not however believe that he has the same fear of the authorities....

I now consider the question of whether the appellant would be in danger of persecution if he was returned to Colombo. I note that when the appellant was in Colombo in 1993, although he was arrested on two occasions he was not harmed and on both occasions he was released. As previously stated that indicates to me that he was then of no real interest to the authorities.

I am satisfied that the human rights situation in Colombo is much better now than it was in 1993. The likelihood of the appellant being arrested or detained without reasonable cause is reduced. Of course he might be arrested and held for checking following atrocities in Colombo but following the decision in Ravichandran I do not consider round- ups and checkings by the authorities in order to identify and vet suspects, to be persecution. I do not believe there has been a change in the nature of round-ups and checkings since the date of the decision in Ravichandran, such that, on the basis of the criteria outlined by the Court of Appeal in Ravichandran, the round-ups and checks now amount to persecution.

Regarding the danger of ill-treatment of detainees in Colombo, I am satisfied from the background documentary evidence, particularly the UNHCR Report of March 1996, that the danger of this occurring is much less than it was in 1993 and if the appellant was unharmed in 1993 there is not a reasonable degree of likelihood that he would be harmed if returned now.

....

These factors make persecution by the authorities in the form of lengthy detention or ill-treatment (or otherwise) unlikely. When I add the factors that considerable time has elapsed and the appellant was three times checked by the authorities, including at the strict Vavunyia checkpoint, whilst he was still in Sri Lanka in 1993, persecution by the authorities becomes very unlikely. In my view it is not a serious possibility in this appellant's individual case."

The special adjudicator then made three crucial findings. The first was that the applicant had a well-founded fear of persecution in those parts of Sri Lanka which the LTTE dominated, meaning thereby in particular Jaffna and the northern part of the island. Secondly, the special adjudicator concluded that the applicant did not have a well-founded fear of persecution if returned to Colombo. Thirdly, he concluded that it would be reasonable to expect the applicant to live in Colombo. These findings were contained in the following passages:

"I accept that the appellant would be in some danger if returned to an LTTE controlled area. However, he could live in Colombo without danger of persecution. There is not a serious possibility the LTTE's annoyance with the appellant's conduct could cause them to go to the lengths of trying to harm him in Colombo. He is of very low level interest to them. I note from the Tribunal decision in Ahmed .... that the real criteri[on] concerning the appellant being returned to an area other than his home area is whether he is able to go there as opposed to whether it would be reasonable for him to have to live there. Considering it on that basis I see no reason whatsoever why the appellant would not be able to go to Colombo.

....It has not been established to the standard of a reasonable degree of likelihood that his uncle and his family are no longer in Colombo. In my view it would be reasonable to expect the appellant to live in Colombo. In those circumstances even if a differently constituted Tribunal took a different view to that expressed in Ahmed, the appellant would not qualify for asylum under the Rules."

In presenting this application for leave Mr Macdonald, to whose submissions we are indebted, has not sought to challenge the first two of the crucial findings made by the special adjudicator. In particular he does not seek to challenge the finding that the applicant did not have a well-founded fear of persecution if returned to Colombo. The issue, he submitted, was whether the special adjudicator had properly considered as a discrete question whether or not it was reasonable to expect the applicant to return to Colombo. In criticising the special adjudicator's approach to that question, Mr Macdonald drew attention to a passage which I have not so far quoted, in which the special adjudicator referred to paragraph 343 of HC 395. The special adjudicator said:

"Mr Williams argued that I am not prevented from reviewing the Secretary of State's exercise of discretion under paragraph 343 of the Rules because this being a case where there was refusal of leave to enter there is also an appeal under the 1971 Act. I cannot agree with him. There is no in-country right of appeal against refusal of leave to enter unless an appellant arrives with entry clearance or is named in a current work permit. There is no evidence in this case that the appellant held an entry clearance or a work permit."

That, Mr Macdonald submits, was a misdirection. He submits that paragraph 343 can properly be taken into account in deciding asylum appeals. He refers to the Court of Appeal's recent decision in Secretary of State for the Home Department v Ikhlaq (16.4.97) and submits that paragraph 343 reflects the intention of the 1951 Convention and accords with international practice. He submits that the special adjudicator was wrong to rely on the earlier decision in Ahmed insofar as it discounted the relevance of paragraph 343. Accordingly Mr Macdonald submits that the special adjudicator erred in failing adequately to address the question of reasonableness. He relies in particular on an observation of Latham J in R v Secretary of State for the Home Department, ex parte Vijendran (CO/2503/95, unreported, 15.1.97) in which Latham J, with reference to paragraph 343, said at page 13 G of the transcript:

"The questions which have to be asked are such questions as the extent of the connection of the Applicant to the area which he is expected to return to by reason of the decision of the Special Adjudicator, and whether or not, as a result, he could be expected to have a satisfactory quality of life in that area. Those are all matters which require to be addressed specifically before any conclusion can properly be reached as to whether or not it will be reasonable in terms of the paragraph to expect the Applicant to go to that area."

That is an exercise which Mr Macdonald submits the special adjudicator in this case did not carry out and accordingly the decision (as Mr Macdonald argues) is open to challenge.

For my part I am ready to accept, without deciding, that paragraph 343 can properly be taken into account in deciding asylum appeals, and that the special adjudicator erred in considering otherwise. It does, however, appear to me that, even making that assumption in the applicant's favour, he faces an insuperable problem when confronted with the detail of what the special adjudicator found. Although the special adjudicator regarded paragraph 343 as inapposite, he nonetheless went on to review the evidence which had been called before him about the applicant's family in Colombo and expressed himself unpersuaded by the suggestion that the uncle and his family, with whom the applicant had previously lived, were no longer living in Colombo. It was against that background that the special adjudicator expressly found that it would be reasonable to expect the applicant to live in Colombo.

Mr Macdonald submits that the special adjudicator was not paying attention to the elements of harassment and difficulty which a young Tamil would encounter in Colombo when considering the question of reasonableness, but it seems to me abundantly plain from his reasons as a whole, and from various passages to which I have referred, that the special adjudicator had prominently in mind the element of harassment which the applicant might expect to encounter, and did not consider that that was an unreasonable burden for the applicant to bear.

I would venture, furthermore, with respect, to question the correctness of the observations made by Latham J. It would not seem to me necessary, in considering the application of paragraph 343, for a special adjudicator, an immigration appeal tribunal or a Crown Office judge to conduct a wide-ranging inquiry into the quality of life which a returning applicant for asylum might expect to enjoy in the part of his home country to which it was proposed to return him. It would of course be incumbent on any tribunal to address those features of conditions in the proposed destination which were said to render his return inappropriate or unreasonable. That is what this special adjudicator did. It was plainly argued before him that it was unreasonable to expect this applicant to return to Colombo because he had no family with whom he could live. The special adjudicator was unpersuaded of that and expressly considered that aspect of the matter. He also, as already indicated, had plainly in mind the degree of harassment which the applicant could expect to meet. He did not consider it unreasonable to return the applicant to Colombo and expressly found that it was reasonable to expect him to return.

Although, therefore, I would be willing to accept that the special adjudicator was at fault in discounting the relevance of paragraph 343, in the result he addressed the questions which that paragraph posed and gave his answers. One has to ask oneself: what would be the outcome, if leave to move were granted, the decision were quashed and this issue eventually remitted to a special adjudicator? The inescapable fact is that the special adjudicator would find himself required to answer exactly the question which he has, in fact, already answered. I therefore, in agreement with the judge, feel that there is no issue raised by this application which should properly engage the attention of the court and I would accordingly refuse this renewed application.

LORD JUSTICE MILLETT:

I agree.

LORD JUSTICE POTTER:

I also agree.

ORDER:

Application refused; legal aid taxation of costs.