The Queen v. Immigration Appeal Tribunal, Ex parte Ramlingham Vickneswaran

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

(MR JUSTICE OGNALL)

Royal Courts of Justice

London WC2

Friday, 28 February 1997

Before: LORD JUSTICE BUTLER-SLOSS, LORD JUSTICE HENRY, MR JUSTICE MORLAND

The Queen- v -The Immigration Appeal Tribunal ex parte: Ramlingham Vickneswaran

MR I. LEWIS (Instructed by Messrs Sri Kanth & Co, Wembley, Middlesex, HAO 2AF) appeared on behalf of the Applicant

MR M. SHAW (Instructed by Treasury Solicitor, London) appeared on behalf of the Respondent

JUDGMENT

(As approved by the Court)

LORD JUSTICE BUTLER-SLOSS:

I will ask Henry LJ to give the first judgment.

LORD JUSTICE HENRY:

The applicant is a young Tamil who came to this country some three-and-a-half years ago and applied for asylum, claiming persecution both at the hands of the Liberation Tigers of Tamil Eelam (the Tamil Tigers) and at the hands of the Sri Lanka authorities. He was saying that there had been pressure put on him from both sides.

The challenge here is in fact to the decision of the Immigration Appeal Tribunal refusing him leave to appeal, but in reality of course to the special adjudicator's decision, a decision of 23 February 1996, covering some 15 closely typed pages. After the careful and lengthy decision of the adjudicator one half of the applicant's case, namely the pressure imposed on him by the Tamil Tigers, was abandoned and the application for leave to appeal, which was refused by the single Judge and which has been renewed, does concentrate on the pressure by the Sri Lanka authorities and how the adjudicator dealt with it.

The first ground of appeal is when considering the actions of those authorities the adjudicator erred because he considered, so it is alleged, only the willingness of the Sri Lanka authorities to provide the applicant with effective protection from members of the security forces rather than the ability of the Sri Lanka authorities to provide the applicant with that protection. It seems to me that when the decision is examined in detail it will be seen that that is not made out.

The factual background against which the adjudicator reached his conclusions is first, he found that there had been no deterioration in the overall position in Colombo and the risks young Tamils there might run since the decision of this court in Ravichandran which I need not summarise for these purposes. The conclusion reached was that the young Tamils who were at risk were those with a history of involvement with the Tamil Tigers, a history which this applicant did not have; the reason the Tamil Tigers put pressure on him was precisely because of his refusal to co-operate with them. That led the court to make the finding that he was specifically not at risk. The court dealt with the matter at page 24. At the top of that page he makes the point that this appellant has no history of involvement with helping the Tamil Tigers, quite the reverse. Then comes the crucial passage at the bottom of the page:

"Turning to the question of the continuing abuse by the authorities of the human rights situation and the deterioration in the situation since the original determination of Ravichandran I do not accept that this abuse is any longer tolerated by the Sri Lankan authorities."

The adjudicator went on to justify that from citations from various passages from the documents before him. He says in the middle of page 25 that the background information in those matters have led him to:

"...the conclusion that the continued awareness of the Sri Lankan Government of the necessity to observe a human rights situation, an awareness which has grown over the past few years and which has been analysed in the case of Ravichandran has not been halted by the more violent activities of the LTTE following reverses which they have suffered in the north.

On the basis of the reports and for the reasons which I have indicated, I do not consider that the circumstances of the appellant taken in the round against the background and looking to the future gives rise to a reasonable likelihood of persecution for a Convention reason where he to be returned to Sri Lanka."

Therefore he concludes with two findings on the next page. First:

"I can see no reason whatsoever why he should not go to Colombo which has at all material times been under the control of the government and continues to be so."

He continues:

"I have referred to the determination of the Chief Adjudicator with regard to young Tamils in Colombo; whilst I do not necessarily share the Chief Adjudicator's views with regard to young Tamils returning to that area, nevertheless he has emphasised that his determination is made within the context of Tamils who have supported the LTEE. This appellant has never supported them and for the reasons, I have indicated, I do not consider his failure to do so would give rise to fear of persecution were he to return there."

In the light of those findings and that summary of the evidence it is in my opinion clear that when the adjudicator said, in approaching the question of continuing abuse by the authorities of the human rights situation, that such abuse was not any longer tolerated by the Sri Lankan authorities - when he used the word "tolerated" he was, in my judgment, clearly indicating when that is seen in context that he was finding that the authority was both willing and able to protect law-abiding citizens in Colombo. It seems to me in context the meaning of the word "tolerated" is clear and it is unreal in context to suggest that the adjudicator did not consider the authorities' ability to control the security forces in reaching his conclusion that this applicant would be under no risk of persecution by them on his return to Sri Lanka. That deals with the first point.

I will deal next with another factual point, namely the third point that was raised by the applicant. The third ground alleges that the special adjudicator wrongly failed to give "any reasoned consideration to the agreed fact that the Applicant had been beaten [by the security forces] whilst in detention in Sri Lanka." It is said that that so-called error invalidates the adjudicator's approach to the applicant's subjective fears, his consideration of past persecution, and the risk of future persecution as an individual suspected of connections with the Tamil Tigers. This ground requires a close investigation of the evidence. It will be seen that the agreed facts were summarised on page 14 of the bundle in relation to the decision. The facts relating first to the harassment by the Tamil Tigers is dealt with as an agreed fact and then, secondly, pressure from the authorities is dealt with while in Colombo and this would be in the first nine months of 1993. The appellant was arrested and detained on three occasions, for 2½ , 3, and 2 days respectively. The appellant was beaten whilst in detention by the security forces.

The special adjudicator was to investigate the circumstances of this in some detail. He heard evidence from the applicant about it. He heard the applicant cross-examined about it. The effect of that evidence is summarised in the notes. He expressed doubts as to the credibility of certain supporting facts, namely as to whether the applicant was able to get in touch with his uncle who was 150 miles away to secure his release by way of bribes, but essentially on the facts as he found them he found that on material matters the applicant was credible in relation to it. He had submissions made to him as to the significance of these and recorded in relation to submissions from Mr. Lewis for the applicant:

"I should take account of the agreed facts and on that basis the applicant can demonstrate a genuine subjective fear of persecution."

That was the submission made to him and the summary of it given by counsel in that submission was this. He had been badly treated as recently as 1993 and this treatment had been spread over a period of three occasions. On each occasion he was released on payment of a bribe by his uncle. He was at that time clearly being persecuted, so the submission went. That matter was then dealt with further and then came the findings of the adjudicator which go from page 19 downwards. He raised the question:

"... is the appellant able to demonstrate the fear arising out of what has occurred in the past, of a reasonable likelihood of persecution were he to be returned to Sri Lanka."

He made the point that those fears arose both from the Tamil Tiger pressure on him and from the authorities' pressure on him. As to the authorities' pressure, he recited again the three occasions on which he had been arrested. He dealt with the family and personal history at some length. He then came specifically to consider:

"There is then the question of the appellant's treatment in Colombo during the nine months that he was there."

He dealt with the circumstances of those arrests on each occasion. He was arrested with other young Tamils. He said that he was satisfied that these arrests occurred when they did in the light of the circumstances that existed in Colombo at the time. He made the point, as is made clear by the judgment of Simon Brown LJ in Ravichandran, that he must look at matters in the round and having done all of that he came to the conclusion in context that he did not consider that the appellant had a reasonable likelihood of a fear of persecution at that time, i.e. in 1993. He then went on to deal with the current position and said:

"...bearing in mind my finding as to fear that existed at the time the appellant left I am aware of the fact that there has been a change in government since the appellant left the country, that that government has made unsuccessful attempts to establish peace in Sri Lanka and negotiations with the LTTE, and that following the breakdown of those attempts the government launched a major offensive against the north which has been largely successful in that the LTTE has been driven out of all their strongholds in that area..."

Having summarised all of that, he came back to the question of the abuse of human rights, dealt with the present situation and then concluded with the quotations that I have already touched on when dealing with the first ground of appeal, concluding that the appellant had no reasonable grounds for his fear and that he would be safe in returning to Colombo. I need not re-read those citations already made. Again it seems to me that when that evidence is examined in context it cannot be said that the special adjudicator erred in failing to give any reasoned consideration to the agreed facts of the detention and what happened during the detention. It is quite clear that that formed a central part of his thinking. He gave his reasons for reaching the factual conclusion that he did. Therefore, in my judgment, the errors in approach sought to be relied on in this ground of appeal are not made out.

The third and last ground of appeal relates to the decision of the Immigration Appeal Tribunal. When leave on the papers to appeal to that tribunal was sought from the tribunal the tribunal said this:

"The adjudicator heard oral evidence from the applicant whose credibility as to past events he accepted. He concluded however that the applicant could safely return to the Colombo area, an assessment supported incidentally by the latest UNHCR views of 6 March 1996 (a paper not before the adjudicator).

The adjudicator appears to have considered all the evidence before him, properly directing himself as to the a proper standard of proof. The adjudicator came to clear adverse findings of fact, after giving to each element in the evidence the weight he considered appropriate.

The Tribunal has read all 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 final ground of appeal stems from the fact that this expert tribunal looked at and, it is said, relied on a paper, the UNHCR view of 6 March 1996, which was not before the adjudicator; a natural justice exception is taken. In relation to that, this is an expert tribunal which will first be keeping itself up-to-date with the situation in the countries it is dealing with and, secondly, will be kept up-to-date in any event by the cases that it hears in relation to them. It clearly would be wrong for such a tribunal to decide matters adversely to the applicant on the basis of a document that the applicant had not had a chance to deal with. It seems to me to be fair that if the tribunal has in mind a document which they know of at the time they give their decision they should disclose that they have that document in mind. That this tribunal did. By the use of the word "incidentally" it seems to me as a matter of sense and of grammar that they were making clear that they were not relying on that paper which they pointed out was not before the adjudicator as evidence and that they were not relying on it in reaching their decisions given in the passage as I have seen. They specifically referred to the evidence and were dealing with matters before the adjudicator. It seems to me in the sentence that is criticised they were doing nothing more than informing the applicant, first, that they knew of and had in their minds that paper and made the point for the applicant's information that even if that matter were taken into account, and it is clear to me that they were not taking it into account, that it would support the decision they had reached independently of it, namely one to refuse leave.

For those reasons, I would refuse leave to appeal in this case.

MR JUSTICE MORLAND:

I agree.

LORD JUSTICE BUTLER-SLOSS:

I also agree.

Order: renewed application for leave to move for judicial review refused; legal aid taxation.