Karanakaran v. Secretary of State for the Home Department

"This argument turns on the correct interpretation of a few words contained in the definition of ?refugee? in Article 1A(2) of the Convention, being any person who ""... owing to well-founded fear of being persecuted [for a Convention reason] 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."" (Emphasis added).
The words I have italicised have not been interpreted literally. In theory it might be possible for someone to return to a desert region of his former country, populated only by camels and nomads, but the rigidity of the words ?is unable to avail himself of the protection of that country? has been tempered by a small amount of humanity. In the leading case of Robinson [1998] QB 929 this court followed an earlier decision of the Federal Court of Canada and suggested that a person should be regarded as unable to avail himself of the protection of his home country if it would be unduly harsh to expect him to live there. Although this is not the language of ?inability?, with its connotation of impossibility, it is still a very rigorous test. It is not sufficient for the applicant to show that it would be unpleasant for him to live there, or indeed harsh to expect him to live there. He must show that it would be unduly harsh. (For an interpretation of the word ?unduly? in the context of the statutory phrase ?unduly lenient? see Attorney-General?s Reference (No 15 of 1990) 92 Cr App R 194 per Lord Lane CJ at pp 198-199).
The issue that has arisen for decision in this case relates to the method of establishing whether it would be unduly harsh to expect an asylum-seeker to live in a different part of his own country. As with the cases which preceded Robinson there have been conflicting decisions at tribunal level. One division of the tribunal, headed by Judge Pearl, its former president, has held that the applicant has to show on the balance of probabilities that it would be unduly harsh to send him back to that part (see Manohoran [1998] Imm AR 455). Another division, headed by Professor Jackson, a vice-president of the tribunal, decided eight months later that the applicant merely has to show that there would be a serious possibility that it would be unduly harsh for him to be returned there (see Sachithananthan [1999] INLR 205). We have been told that different divisions of the tribunal have applied one or other version of these two conflicting tests, and that there are about ten cases in this court awaiting the outcome of this appeal. It is pleasant to record that despite the volume of business in this court and the incidence of the long vacation, we have been able to hear this appeal within five months of the lodging of the notice of appeal in the Civil Appeals Office.
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The English cases show that the courts have recognised that different techniques are required in asylum cases when a decision-maker has to make judgments about future outcomes. The law in this respect is now authoritatively settled in this country by the decision of the House of Lords in Sivakumaran [1988] 1 AC 958. In that case it was held that when deciding whether an applicant?s fear of persecution was well-founded it was sufficient for a decision-maker to be satisfied that there was a reasonable degree of likelihood that the applicant would be persecuted for a Convention reason if returned to his own country (see Lord Keith at p 994F and Lord Goff of Chieveley at p 1000F). Support was afforded by an earlier decision of the House in Fernandez v Government of Singapore [1971] 1 WLR 987, an appeal concerned with the proper interpretation of Section 4(1)(c) of the Fugitive Offenders Act 1967 (?if it appears ... that [the appellant] might, if returned, be ... detained or restricted in his personal liberty by reason of his ... political opinions?). Lord Diplock held at p 994 that bearing in mind the relative gravity of the consequences of the court?s expectation being falsified, it was appropriate to adopt a lesser degree of
likelihood than that inherent in the expression ?more likely than not?. He saw no significant difference between such expressions as ?a reasonable chance?, ?substantial grounds for thinking?, and ?a serious possibility? as means of describing the degree of likelihood of the detention or restriction of the fugitive on his return which justified the court in giving effect to the provisions of Section 4(1)(c).
The decision in Sivakumaran did not, however, resolve the different, but related, question as to the standard of proof a decision-maker should apply when considering evidence of past or present facts before he or she goes on to make the necessary assessment of the future. This question surfaced before Nolan J in Jonah [1985] Imm AR 7, a case concerned with a senior trade union official in Ghana who had lost his job and suffered ill-treatment following political changes in Ghana. He had to hide in a remote village before seeking asylum in this country. The adjudicator acknowledged that he would be in jeopardy if he resumed his former activities, but concluded that he would be in no danger if he lived quietly in retirement. The Immigration Tribunal found no reason to interfere with the adjudicator?s finding of fact and dismissed his appeal.
The question Nolan J had to decide was whether the adjudicator had adopted the appropriate standard of proof when he said that he could not be satisfied, even on the balance of probabilities, that Mr Jonah?s declared fears of persecution if he was to return to Ghana were well-founded.
This case was decided before the decision of the House of Lords in Sivakumaran and before the new arrangements for asylum appeals that were introduced in 1993. Nolan J was concerned to apply what was then paragraph 134 of the Immigration Rules, which entitled to Secretary of State to remove an asylumseeker if he was not satisfied that his fear of persecution was well-founded. He drew attention to the distinction made by Lord Diplock in Fernandez at p 993 between establishing the existence of facts and prophesying what can only happen in the future. He suggested that if a court is obliged to make an informed guess as to what might happen in the future, as was the case in relation to paragraph 134 of the Immigration Rules, it could only do so on the basis of the facts proved on the balance of probabilities.
He accepted that the likelihood of persecution contemplated by paragraph 134 was something different from proof on the balance of probabilities that persecution would occur. He did not, however, think that the matter could be usefully carried further than this without the danger of creating purely semantic problems where none existed for a tribunal applying its common sense and judgment to the facts proved before it.
This, then, as Miss Giovannetti correctly submitted, is authority for the proposition at high court level that in asylum cases it is the duty of the decision-maker to find past and present facts proved on the balance of probabilities, even if the assessment of the future calls for somewhat different techniques. We have to consider whether Nolan J?s approach was correct.
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What they decided was that when assessing future risk decision-makers may have to take into account a whole bundle of disparate pieces of evidence:
(1) evidence they are certain about;
(2) evidence they think is probably true;
(3) evidence to which they are willing to attach some credence, even if they could not go so far as to say it is probably true;
(4) evidence to which they are not willing to attach any credence at all.
The effect of Kaja is that the decision-maker is not bound to exclude category (3) evidence as he/she would be if deciding issues that arise in civil litigation.
It appears, however, that whatever the majority of the tribunal actually decided in Kaja, their decision has been generally interpreted as meaning that decision-makers are at liberty to substitute a lower standard of proof than that conventionally used in civil litigation when judges make findings about past and present facts.
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In my judgment, the approach in fact recommended by the majority of the Immigration Appeal Tribunal in Kaja, as much more fully explained in the Australian cases whose effect I have summarised, is the approach which should be adopted at each of the stages of the assessment process with which we are concerned. In so far as the dicta of Stuart-Smith and Ward LJJ in Horvath may suggest that the approach favoured in civil proceedings should be adopted in this context in relation to protection issues, they should not be followed. As I am sure they would be the first to acknowledge, we have had the benefit of very much fuller argument on all these issues than was available to that court.
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This approach does not entail the decision-maker (whether the Secretary of State or an adjudicator or the Immigration Appeal Tribunal itself) purporting to find ?proved? facts, whether past or present, about which it is not satisfied on the balance of probabilities. What it does mean, on the other hand, is that it must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur (or, indeed, that they are not occurring at present). Similarly, if an applicant contends that relevant matters did not happen, the decision-maker should not exclude the possibility that they did not happen (although believing that they probably did) unless it has no real doubt that they did in fact happen.
For the reasons much more fully explained in the Australian cases, when considering whether there is a serious possibility of persecution for a Convention reason if an asylum seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur. Similarly, even if a decision-maker finds that there is no serious possibility of persecution for a Convention reason in the part of the country to which the Secretary of State proposes to send an asylum seeker, it must not exclude relevant matters from its consideration altogether when determining whether it would be unduly harsh to return the asylum seeker to that part, unless it considers that there is no serious possibility that those facts are as the asylum seeker contends.
Needless to say, as the High Court of Australia observed in Wu Shan Liang, when assessing the future, the decision-maker is entitled to place greater weight on one piece of information rather than another. It has to reach a well-rounded decision as to whether, in all the circumstances, there is a serious possibility of persecution for a Convention reason, or whether it would indeed be unduly harsh to return the asylumseeker to the allegedly ?safe? part of his/her country. This balancing exercise may necessarily involve giving greater weight to some considerations than to others, depending variously on the degree of confidence the decision-maker may have about them, or the seriousness of their effect on the asylum-seeker?s welfare if they should, in the event, occur.
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The way the tribunal in Sayandan approached this rather disparate bundle of risks is in my judgment a good example of the way in which fact-finders should approach this issue. It reminded itself that if it found that there was a part of his country in which it would be unduly harsh to expect an applicant to settle, that part must be eliminated as a place to which he might be returned.
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I express no view on the merits of that decision. That is, and must be, a matter for the judgment of the members of that experienced specialist tribunal, and unless they have committed some error of law this court will not interfere with their judgment. What is relevant in the present context is the methodology they adopted. Unless something is so trivial that even on a cumulative assessment it would be bound to carry no weight, or the decision-maker has no real doubt that it is entitled to discard some point from its consideration altogether, it would be wrong to eliminate that point completely. In my judgment, the tribunal?s technique in Sayandan of evaluating both the likelihood of a risk eventuating and the seriousness of the consequences if it were to eventuate demonstrates a correct approach. It was also correct for it to assess the cumulative effect of the matters it was considering, particularly if there was a likelihood that they would all affect the applicant at the same time.
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The fact-finder must be careful, however, to evaluate each of the considerations suggested on behalf of the applicant. In my judgment it was completely wrong for the tribunal in the present case to dismiss considerations put forward by experts of the quality who wrote opinions on this case as ?pure speculation?. It was also quite wrong for it to say that certain matters were ?not considerations which we should take into account? merely because in Robinson this court said that such considerations would not in themselves be enough to satisfy the requisite test. It was also wrong for it to consider each matter in isolation as opposed to considering their potential cumulative effect: see now Gnanam [1999] INLR 219 per Tuckey LJ at p 223F, and his warning at p 224H-225A:
""All that is said emphasises that each case must be decided on its own facts. What may be factors in one case will not necessarily be factors in another. Factors taken individually or cumulatively may tip the balance in one case but will not necessarily do so in another.""
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2. But I agree too that the appeal requires rehearing on a correct foundation of law in relation to the issue of internal relocation. This in turn throws up a larger question which has vexed asylum law for some time: what are the correct mode and standard of proof? Although the question arises for us in relation to internal relocation, for reasons which will be apparent it cannot be treated separately from the general question of proof in asylum cases. It may be helpful first to look at these issues individually and then to see how they dovetail.
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4. Unfortunately both the special adjudicator and the tribunal failed to approach the Convention methodically. They treated the availability of internal flight as a reason for holding that the fear of persecution was not well-founded. There may possibly be countries where a fear of persecution, albeit genuine, can so readily be allayed in a particular case by moving to another part of the country that it can be said that the fear is either non-existent or not well-founded, or that it is not ""owing to"" the fear that the applicant is here. But a clear limit is placed on this means of negating an asylum claim by the subsequent provision of the Article that the asylum-seeker must be, if not unable, then unwilling because of ""such fear"" - ex hypothesi his wellfounded fear of persecution - to avail himself of his home state's protection. If the simple availability of protection in some part of the home state destroyed the foundation of the fear or its causative effect, this provision would never be reached. This is why in most cases, including the present one, it is in relation to the asylumseeker's ability or willingness to avail himself of his home state's protection that the question of internal relocation arises. Because, however, unwillingness is explicitly
related to the driving fear, it predicates a different set of considerations from inability, which may be indicated or contra-indicated by a much wider range of factors.
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7. The question we have now to decide is how a decision-maker, a tribunal or a court is to gauge whether internal relocation is a legitimate alternative to asylum for a person who otherwise ranks as a Convention refugee. Is the want of such an option to be proved by the asylum-seeker (in which case it is common ground that proof would not have to go as high as a balance of probability); disproved by the Home Secretary (in which case it would follow that the standard exceeds a bare balance of probability); or simply gauged on the evidence?
8. It is to be observed that the argument has now moved, for reasons analysed above, from the question of persecution to the broader question of conditions of survival. It is common ground here and throughout the common law jurisdictions whose decisions we have seen that ability to return is not literal or absolute but a question of what it is reasonable to expect of a particular applicant in particular circumstances, and that what is reasonable in this field is best tested by asking whether return for relocation would be unduly harsh. Hence, among other things, the potential importance of the expert evidence in this case.
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15. The issues for a decision-maker under the Convention (whether the decisionmaker is a Home Office official, a special adjudicator or the Immigration Appeal Tribunal) are questions not of hard fact but of evaluation: does the applicant have a well-founded fear of persecution for a Convention reason? is that why he is here? if so, is he nevertheless able to find safety elsewhere in his home country? Into all of these, of course, a mass of factual questions enters: what has happened to the applicant? what happens to others like him or her? is the situation the same as when he or she fled? are there safer parts of the country? is it feasible for the applicant to live there? Inseparable from these are questions of evaluation: did what happened to the applicant amount to persecution? if so, what was the reason for it? does what has been happening to others shed light on the applicant's fear? is the home situation now better or worse? how safe are the safer places? is it unduly harsh to expect this applicant to survive in a new and strange place? What matters throughout is that the applicant's autobiographical account is only part of the picture. People who have not yet suffered actual persecution (one thinks of many Jews who fled Nazi Germany just in time) may have a very well-founded fear of persecution should they remain. People who have suffered appalling persecution may for one reason or another not come within the protection of the Convention.
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18. Like Brooke LJ I find the Australian cases of the greatest assistance. I would put my own view, in summary, as follows. The question whether an applicant for asylum is within the protection of 1951 Convention is not a head-to-head litigation issue. Testing a claim ordinarily involves no choice between two conflicting accounts but an evaluation of the intrinsic and extrinsic credibility, and ultimately the significance, of the applicant's case. It is conducted initially by a departmental officer and then, if challenged, by one or more tribunals which, though empowered by statute and bound to observe the principles of justice, are not courts of law. Their role is best regarded as an extension of the initial decision-making process: see Simon Brown LJ in Ravichandran [1996] Imm AR 97, 112. Such decision-makers, on classic principles of public law, are required to take everything material into account. Their sources of information will frequently go well beyond the testimony of the applicant and include in-country reports, expert testimony and - sometimes - specialised knowledge of their own (which must of course be disclosed). No probabilistic cut-off operates here: everything capable of having a bearing has to be given the weight, great or little, due to it. What the decision-makers ultimately make of the material is a matter for their own conscientious judgment, so long as the procedure by which they approach and entertain it is lawful and fair and provided their decision logically addresses the Convention issues. Finally, and importantly, the Convention issues from first to last
are evaluative, not factual. The facts, so far as they can be established, are signposts on the road to a conclusion on the issues; they are not themselves conclusions. How far this process truly differs from civil or criminal litigation need not detain us now. "