R v. Secretary of State for the Home Department, Ex parte Sivakumar (FC)

The key considerations can be summarised as:

-    The application of the 1961 Convention in matters of counter-terrorism

-    The sustained, repeated and brutal nature of the torture

-    The causation between race, poltical opinion and social grouping and the maltreatment, with a particular reference to the US State

-    Department Report of 1999 (for the year 1998) on the position in Sri Lanka which included the following passage: Despite legal prohibitions, the security forces continue to torture and mistreat persons. They continue to torture and mistreat detainees (male and female)
particularly during investigation. Most torture victims are Tamils suspected of
being LTTE insurgents or collaborators."

Lord Steyn:

If the case is considered globally, the conclusion is justified that there
was a strong claim to refugee status. The evaluation of the material facts must not be
compartmentalised. It is necessary to consider the cumulative effect of the relevant
factors. First, the applicant was a Tamil from the North of Sri Lanka which was
plagued by the terrorist activities of Tamil Tigers. Secondly, there was evidence of
widespread torture of persons and, in the words of the synopsis of a near
contemporary US State Department Report "most torture victims are Tamils suspected
of being LTTE insurgents or collaborators". Thirdly, and crucially, the Sri Lankan
authorities subjected the applicant to sustained, exceptionally sadistic and humiliating
torture. In combination these factors suggest that if the applicant had been returned to
Sri Lanka, at the time of the special adjudicator's decision, the applicant's stated belief
that he "was in daily fear everywhere in Sri Lanka" was not surprising. On a realistic
view of the facts there was a reasonable likelihood of persecution on the ground of
race (since he was a Tamil), a member of a particular social group (he was a Tamil
from Jaffna) or political opinion (the separatist views predominant among Tamils
from the North). However, the special adjudicator did not consider the matter in these
terms. Indeed he gave no weight or virtually no weight to the predominant feature of
this case, viz the repeated infliction of barbarous acts of torture. On this ground too I
would hold that the decision of the Immigration Appeal Tribunal was in error. (para 18)

There is, however, another feature of this case which requires careful
consideration. Counsel for the Home Secretary submitted that in speaking of inference
at several places in his judgment Dyson LJ conveyed the idea that such "inferences"
imposed a legal duty on the decision-maker to recognise and apply the operative
"inference" which attracts the protection of article 1A. Put differently the argument is
that Dyson LJ created rebuttable presumptions which it would be an error for a
decision-maker to fail to apply. If this is what Dyson LJ meant to say, I would
respectfully agree that it would be a wrong approach. I am, however, satisfied that by
using the word inference Dyson LJ meant to say no more than that on an overall view
of the evidence there was a reasonable likelihood of a well founded fear of
persecution for a Convention reason. The inferences were merely steps in the
reasoning leading to an ultimate conclusion reached on an orthodox application of the
burden of proof. In my view therefore the Home Secretary's fears about the effect of
Dyson LJ's judgment are, on analysis, not justified. The true position is not in doubt.
The correct approach was explained by Sedley LJ in Karanakaran v Secretary of State
for the Home Department [2000] 3 All ER 449. He said, at p 477:
"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 the applicant to survive in a new and strange place? . . ."

He continued, at p 479:
"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 - specialist 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."
In short as Lord Hoffmann observed in R v Immigration Appeal Tribunal, Ex p Shah
[1999] 2 AC 629, 655F each claim to refugee status case must always depend on the
evidence. (para 19)