Murugesu Atputharajah v. Secretary of State for the Home Department

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

APPLICATION FOR LEAVE TO APPEAL

3rd December, 1998

Before:

LORD JUSTICE AULD

LORD JUSTICE CHADWICK

SIR CHRISTOPHER STAUGHTON

MURUGESU ATPUTHARAJAH- v -THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

MISS S JEGARAJAH (Instructed by Messrs Markandan & Co. Solicitors, London E12 6BT) appeared on behalf of the Applicant

MR S KOVATS (Instructed by The Treasury Solicitor, London) appeared on behalf of the Respondent

JUDGMENT

LORD JUSTICE AULD:

Sir Christopher Staughton will give the first judgment.

SIR CHRISTOPHER STAUGHTON: Mr Atputharajah arrived in this country in May 1995 and immediately claimed asylum. He was equipped with a counterfeit British passport. He would not have been entitled to a British passport in any event. The Home Office rejected his claim for asylum and refused leave to enter. Two years later a Special Adjudicator, Prof Counter, in 1997, allowed Mr Atputharajah's appeal. He found that in fact the applicant had a genuine fear of persecution on Convention grounds if he was returned to Sri Lanka. It has to be said that the Special Adjudicator's reasoning is hard to follow and seems to betray some confusion. But with the help of counsel today we have been able to understand sufficiently what he was saying and why he said it.

One year later there was an appeal, in June 1998, to the Immigration Appeal Tribunal under section 20 of the Immigration Act 1971. The Tribunal allowed the appeal. They did so on the basis that they did not agree with the findings of fact of the Special Adjudicator. That was a conclusion which they were entitled to reach. I do not pause to enter upon the question in what circumstances they may reach such a conclusion, because that is not determinative today. Now there is an appeal to this court. Of course, under section 9 of the Asylum and Immigration Appeals Act, that appeal can only be on a question of law.

The main ground put forward by Miss Jegarajah, on behalf of the applicant, is that there was unfairness in the procedure of the Immigration Appeal Tribunal. The nature of the unfairness is said to be this: that the Tribunal had regard to a supposed discrepancy in the interview answers of Mr Atputharajah which reflected on his credibility. The particular discrepancy in question was not one which had been relied on by the Home Office, either before the Special Adjudicator or before the Immigration Appeal Tribunal. It is said, with some force, that if the Tribunal were going to rely on that discrepancy they should have at least drawn it to the attention of Miss Jegarajah during the hearing before them and perhaps, if she had been given an opportunity, that might have been further oral evidence to deal with it.

We do not need to lay down any rule as to what should happen in such circumstances. It would perhaps be going too far to say that no Tribunal should ever rely on any point which has not been mentioned at the hearing, unless it first draws the point to the attention of the litigants or their advocates. There may well be circumstances when, even so, the Tribunal is entitled to rely on the point. We do not rule on that today.

Now the primary facts of this case were as follows. Mr Atputharajah is a Tamil. He came from Batticaloa, which is in the North or North-east of Sri Lanka, some way away, I take it, from Colombo. He was born in 1969 and was aged 25 when he arrived in this country. He says that he had at some time in the past been forced to give assistance to the LTTE, a militant Tamil organisation. In March 1995 he was arrested and detained for a few hours. Then again in May he was arrested and detained for three days in a military camp. He was beaten with sticks and tortured, he says, and not given any food. Then he was released, which was achieved by bribery; and he was required to report from time to time on bail. Instead of doing that he left the country.

That is a very brief outline of the facts. The point which was taken by the Appeal Tribunal relating to that account is put as follows in their decision:

"In his full asylum interview the respondent gave a somewhat different account of the events in his birthplace, Batticaloa. He said:

`I had problems from the army: they rounded me up and put me in a camp: I was beaten up: I was tortured: I wasn't given any food: I obtained my release by bribery: having been released I was subjected (sic) to report back to the camp every Sunday: the LTTE movement ... heard of this: when the LTTE harassed me they forbade me to report back to the camp: when I stopped going back to the camp and reporting the Sri Lankan army began searching for me: that's when I went into hiding and ran off to Colombo.'"

The Tribunal comments:

"That account, which was the basis for the claim and the explanation for his flight from his home cannot possibly be true. The respondent is referring to his detention on 21 May 1995: that was a Sunday. He was released on 23 May 1995, on which day by coincidence, he received the passport which it had taken about a month to secure. He left Batticaloa on 25 May 1995: he thus left Batticaloa on the Thursday and before the first Sunday after his release, on which, according to him, he was to report back to the authorities. It is beyond belief that the LTTE would have heard of that condition so soon, or that, before he was due to report back any way, the Sri Lankan army would have begun searching for him. The respondent could not have been in hiding for more than two days - and it seems to me clear that he went to Colombo when he did, because he had secured his passport and he could pursue his earlier plan to leave Sri Lanka for the United Kingdom."

That is the passage which it is said betrays unfairness of the Tribunal, because it was never put to Mr Atputharajah that he cannot have been telling the truth in that respect.

Mr Kovats today, who appears for the Home Office, accepts that it was not put. But he says that the finding was not crucial to the Tribunal's conclusion and is not a ground for remitting the case to be reconsidered by a new Tribunal. What was the basis of the Tribunal's decision was not whether the applicant would face persecution if he were returned to Batticaloa. What they were considering was whether he would face persecution if he was returned to Colombo; and they concluded that he would not. That had, indeed, been the main issue before the Special Adjudicator, as he says at an early stage in his lengthy decision. Miss Cox, who was the presenter for the Home Office, went on to confirm that her only contention in respect of this, or for that matter any other appellant, would be the safety of returning him to Colombo. And again, in a later passage:

"I am therefore left with the question whether the appellant has a Convention fear in Colombo in respect of the authorities. I fear this brings us back to the crucial, if straightforward, question whether someone who has in fact assisted the LTTE can at the present time be safe if he returns to Colombo, and I cannot be satisfied that there is not at least a serious possibility and a reasonable degree of likelihood that he will be at risk of persecution at the hands of the authorities."

That, it has been said, apparently rightly, reverses the burden of proof. But that would seem to have been the basis of the Special Adjudicator's conclusion, that it would not be right to return Mr Atputharajah to Colombo because one could not be satisfied that there was not a serious possibility, a reasonable degree of likelihood, that he would face persecution there.

That was the issue before the Tribunal. If one turns again to their decision:

"The respondent is a citizen of Sri Lanka. He claimed to have been persecuted - and in consequence had a well-founded fear of persecution in Batticaloa, and would also, because of his claimed links with the LTTE, have a well-founded fear in Colombo, to which city it would not in any event be reasonable to return him. The adjudicator found in favour of the respondent on both issues."

Then the Tribunal records the argument for the Secretary of State and, in particular, this passage:

"The Special Adjudicator has failed to take account of, or has failed to explain why he has rejected the evidence put forward by the respondent relating to the situation of Tamils in Colombo. In particular the Special Adjudicator has not taken into account, or has at least not indicated that he did take into account, the Us State Department report of January 1997, and the [United Nations High Commissioner for Refugees'] paper of 1st March 1997."

So that was the major issue before the Tribunal: whether there was a well-founded fear of persecution if Mr Atputharajah was returned to Colombo. The conclusion reached by the Tribunal is at page 33:

"In our view the respondent cannot rely, in the particular circumstances of this case, on [the applicant's] failure to abide by a reporting restriction, to bolster his claim for asylum on return to Colombo. Nothing, in our view occurred between his release from the claimed detention and his running away to Colombo, to justify his decision not to report back. We reject the assertion that the decision was taken because of a fear of the LTTE. In our view he simply elected not to report back because his earlier plans to leave the war zone became complete at that time and it was convenient for him to leave. In our opinion that free election by the respondent cannot found a special claim for the avoidance of return. Moreover, on the facts of this case we think it is most unlikely that after three years there should be any record of the respondent's failure to report back to the camp at Batticaloa: if he had ever been suspected of any serious complicity with the LTTE or thought to have been any real threat, bribe or no bribe we do not believe he would have been released on the third day of his detention.

In our view, the respondent if returned to Colombo would be in no different a position than any other young Tamil. In the circumstances obtaining in Batticaloa in 1998 we do not consider the respondent would have any well-founded fear of persecution any more than he had such a fear in May 1995. If he elected not to return to his home area, then he would be safe in Colombo: in the circumstances it would be reasonable for him so to be returned."

Those findings, so far as they relate to the safety of Mr Atputharajah in Colombo, were findings which the Tribunal were entitled to make. In the light of the equivocal nature of the Special Adjudicator's finding on that point, I do not see that it can be said in any way that they were not entitled to reach that conclusion. That being so, the ground which Miss Jegarajah has put before us for saying that this decision by the Tribunal was unfair, even if made out, would not be material.

I would dismiss this application for leave to appeal.

LORD JUSTICE CHADWICK:

I agree.

LORD JUSTICE AULD:

I also agree.

ORDER:

Application dismissed. Legal aid taxation of the applicant's costs.

(Order not part of approved judgment)

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