R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte VIGNA
Queen's Bench Division
 Imm AR 93
Hearing Date: 9 October 1992
9 October 1992
Political asylum -- Tamil -- deportation recommended by court following conviction for importing heroin -- applied for political asylum when deportation order signed -- asylum refused -- Secretary of State concluded applicant had no well-founded fear of persecution -- concluded in any event applicant could be returned to the area of Colombo where no danger of persecution -- whether Secretary of State's decision unreasonable -- whether he had failed to take into account United Nations' guidance on Tamil asylum seekers being returned to Colombo.
Held:The applicant for leave to move for judicial review was a citizen of Sri Lanka, a Tamil. He had left Sri Lanka and had gone to India, whence he came to the United Kingdom. He was convicted in 1988 of importing heroin. The court that sentenced him to six years' imprisonment recommended he be deported. When the deportation order was signed, he claimed political asylum. His claim was rejected: the Secretary of State concluded he did not have a well-founded fear of persecution in Sri Lanka and in any event he could be returned to the area of Colombo where there was no danger of persecution. On application for leave to move for judicial review, counsel argued that the Secretary of State's decision was Wednesbury unreasonable: in particular he had ignored the United Nations' guidelines on the return of Tamil asylum seekers to the area of Colombo. Held 1. The Secretary of State's decision could not be faulted on Wednesbury principles. 2. Albeit the Secretary of State had not given overt consideration to the United Nations' guidance, that was irrelevant because, after considering all the evidence put to him, he had concluded that the applicant did not have a well-founded fear of persecution in Sri Lanka.
Cases referred to in the Judgment:No cases are referred to in the judgment
Counsel:Miss F Webber for the applicant; R Jay for the respondent PANEL: Roch J
Judgment One:ROCH J: This is an application by David Siril Vigna, who is now 31 years of age, for leave to move this court for judicial review of a decision of the Secretary of State to deport him to Sri Lanka. The history of the matter is this. In 1980 or thereabouts, the applicant was a member of a Tamil organisation in Sri Lanka, the name of which is PLOTE, and, as such, he was twice arrested by the security forces. On both occasions he was asked to co-operate with the security forces, by giving information relating to leading members of that organisation. On one occasion he was tortured. On both occasions he undertook to do so but in fact did not do so. Following the second occasion he fled from Sri Lanka to India and remained in India until 1988. Whilst in India he took part in some of the activities of PLOTE but in no activity which involved violence. In 1988 he was arrested in this country for the illegal importation of heroin and on 21 September of that year he was sentenced to six years' imprisonment. The trial judge made a recommendation that he be deported on completion of his sentence. In April 1991 the deportation order was signed by the Secretary of State, the applicant being due for parole on 14 May of that year. The applicant then made an application for political asylum. The interview with regard to that application took place in May of that year. The applicant has remained in custody since that time. The minded to refuse letter was written in July 1991. The letter of refusal was written in March 1992 and a further letter in August 1992. Since that time additional representations have been made, and, as recently as 5 October of this year, the Secretary of State, or those acting on behalf of the Secretary of State, have written a further letter setting out the reasons for the refusal of the application. Broadly, there are two reasons. First, the applicant does not have a well-founded fear of persecution in the judgment of the Secretary of State and, second, even if he had a well-founded fear of persecution, that would relate only to certain parts of Sri Lanka, and it would be reasonable for him to be returned to that part of Sri Lanka, in Colombo or around Colombo, which is a part of Sri Lanka where there is not, as a matter of course, activity between Tamil organisations and those of the Government. Miss Webber attacks the second ground of decision on the basis that even if the test formulated by the Secretary of State is the correct test, namely, whether, in all the circumstances, it would be reasonable to expect the applicant to return to this area, then the Secretary of State has failed to take into account relevant matters, namely, matters referred to in the United Nations' guidance with respect to the return of asylum seekers to Sri Lanka (This guidance was given by UNHCR during 1992 in a confidential memorandum sent to governments), namely, that although the Colombo area is not an area generally affected by armed conflict, a person could not be expected to return there in safety and dignity unless that person had close relatives living there or, alternatively, had lived there himself for some time prior to leaving Sri Lanka or had worked in that area for some time prior to leaving Sri Lanka. What is said is that in the letter of 5 October, there is no indication that the Secretary of State has taken account of those matters and therefore his decision is flawed. Mr Jay in his submissions disputes those submissions. He goes further and says that if the Secretary of State's conclusion that the applicant does not have a well-founded fear of persecution is correct, then leave should not be granted because any application would fail on that point. I accept the logic of that submission by Mr Jay. These matters are always cases of the greatest anxiety, but it is clear that the assessment is a matter for the Secretary of State and the court will only intervene if there is a flaw in the Secretary of State's reasoning. In my judgment, such a flaw cannot be detected in the Secretary of State's reasons or his conclusion that the applicant does not have a well-founded fear of persecution. That decision cannot be said to be perverse or absurd on the material before the Secretary of State. I find that it is quite clear that the Secretary of State has, in relation to that consideration, considered everything that was placed before him by the applicant and has done so on several occasions. In those circumstances, the conclusion that I reach is that the application in this case has no chance of succeeding and I refuse leave.
SOLICITORS:Christian Fisher & Co, London WC1; Treasury Solicitor
Disclaimer: Crown Copyright
This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.