Indrakumar v Secretary of State for the Home Department

J U D G M E N T

1. LADY JUSTIICE HALE: The appellant appeals with the permission of Dyson LJ from the decision of the Immigration Appeal Tribunal promulgated on 20 February 2003. The Tribunal allowed the Secretary of State's appeal against the decision of an adjudicator promulgated on 18 June 2002 that the appellant had a well-founded fear of persecution if returned to Sri Lanka. The issue before us is whether the Tribunal was entitled to overturn the adjudicator's decision. This raises first, the question of the proper test to be applied by the Tribunal, and second, how that test should be applied in this case.

2. The facts are these. The appellant's evidence was that he had lived in Jaffna. He had helped the Liberation Tigers of Tamil Eelam ("LTTE") after leaving school in 1989. In 1999 he had moved with his father and older brother to Vavuniya to live with his uncle, who had a shop there. They arrived in January 2000. The rest of his family was displaced to an LTTE area and thereafter their home in Jaffna was destroyed by the army. Pro-government Tamil groups told the army about the appellant's involvement with LTTE. He was arrested on 6 May 2000 when the army came to his home and he was unable to produce a pass allowing him to live in Vavuniya. He was taken into custody but not tortured, and was released after arrangements were made for him to have such a pass. In August, however, he was arrested again, interrogated under torture and released after 25 days through his uncle's efforts. There was initially a reporting condition and he signed on three times; but then money was paid for his release from that condition. His uncle then arranged for him to leave Vavuniya to go to Colombo. From there he travelled with an agent to Russia, then through Europe, arriving here on 10 December 2000.

3. As the Secretary of State was not represented at the hearing before the adjudicator, the appellant was asked about the various discrepancies in his account which had been identified by the Secretary of State in the decision letter and his answers to those are recorded in the adjudicator's determination. The adjudicator also had a medical report that the appellant had marks on both legs below the knee and a mark on his left cheek.

4. The adjudicator appears, although he does not in so many words say so, to have accepted the appellant as a credible witness, and the appellant's evidence as to those facts. So these may be taken to be his findings of primary fact. He went on to mention some of the objective country evidence, referring expressly to the visit of the United Kingdom delegation to Sri Lanka in March 2002 after the ceasefire which concluded that there had been considerable improvements in the human rights situation in that country. He referred to the Immigration Appeal Tribunal's decision in Jeyachandran [2002] UK IAT 1869, which had been heard in May 2002, presided over by Collins J, which had considered the up-to-date country evidence from the Home Office and from the UNHCR. The adjudicator referred to that decision in these terms:

"... the Tribunal indicated that it was too early to be satisfied that the situation had changed in Sri Lanka to the extent that it could now be said there was no risk to anyone. They noted what [the] UNHCR had said about returning Tamils and especially those involved with the LTTE were still at risk."

He then went on to draw his own conclusions as follows:

"The Appellant had been involved with the LTTE and as such would still be of interest to the authorities who would have his details from the fact that they were recorded when he was required to sign on. For this reason there is a risk to this Appellant of his arrest upon return with interrogation under torture."

5. On appeal to the Tribunal, the Tribunal referred to the decision in Jeyachandran , and in particular quoted from paragraph 8 of that decision:

"The reality is in our judgment that it is as yet premature to accept that everyone who has claimed asylum in this country would be able to return safely. We certainly are of the view that in the present situation and having regard to the present trends it is only the exceptional cases that will not be able to return in safety. The question is whether this appellant is such an exceptional case."

The Tribunal in our case also referred to another Tribunal decision in Brinston [2002] UK IAT 547, which dealt in detail with the objective evidence that was then in existence. They then went on to consider whether the appellant was an exceptional case. They took into account the medical evidence, but were not satisfied that the scars were likely to make a material difference. They referred to the fact that the matters had to be considered in the round:

"We do not consider that it is reasonably likely that this Appellant would be wanted by the authorities at this point in time. It is true that he has been persecuted in the past, he has been detained and released on two occasions. He was subjected to reporting restrictions but these were discontinued on payment of a bribe. We accept Mr Saunders' [of the Home Office] submission that it is very unlikely that the release from the reporting restrictions would cause the Respondent any difficulties because we consider that the authorities would mark the record so as to indicate that reporting was no longer required in this case. The inference being that he would not be considered of any interest to the authorities when those restrictions were lifted. It could not be said that he would be wanted in a relatively serious fashion."

They repeated the same points later on:

"The objective evidence indicates that there is a reasonable likelihood that he would be a matter of record to the authorities. However, such a record would, at its highest, only indicate arrests, detentions and releases. We do consider that this situation has changed for the better and there is no reasonable likelihood that this Respondent will be persecuted or ill-treated in any way. Suffice it to say that the position has not deteriorated since the case of Jeyachandran was decided. In fact, it appears that the ceasefire continues and we note that senior representatives of the Tamil Tigers are in discussion with the government. We are not aware of any objective evidence which indicates that a former supporter or member of the LTTE being a failed asylum seeker has faced any difficulties at Colombo since March 2002."

They therefore allowed the appeal.

6. The question for us is whether they were entitled to do that. Miss Jegarajah, for the appellant, contends that both the adjudicator and the Tribunal were considering whether on the primary facts found by the adjudicator, considered in the light of the objective country evidence, there was a risk to this appellant such as to give him a well-founded fear of persecution if returned. The adjudicator held that because his name was on record there was such a risk. The Tribunal held that there was not. Both conclusions, she accepts, were open to the adjudicator and the Tribunal on the evidence, but she argues that that is not enough for the Tribunal to interfere with the adjudicator's conclusion.

7. The test to be applied by the Immigration Appeal Tribunal has been considered in this court many times. Under the legislation and rules that were current at the time in question, an appeal lay to the Tribunal for an error of law or of fact (and also if there was some other compelling reason, but that does not concern us here). Miss Jegarajah accepts that the role of the Tribunal on appeal from an adjudicator is no different in this respect from the role of this court on an appeal from the High Court or a county court. It is important to bear that in mind when considering what is being said in the authorities.

8. They begin with the case of Borissov v Secretary of State for the Home Department [1996] Imm AR 524 at 535. Having rejected a test based on judicial review principles, Hirst LJ said this:

"Thus the jurisdiction of the Immigration Appeal Tribunal is not limited to questions of law, and it is within the scope of their jurisdiction for them to review, if they see fit to do so, the Special Adjudicator's conclusions of fact, though no doubt this power will be sparingly exercised, and in any event in accordance with general principles, the Immigration Appeal Tribunal will naturally be most reluctant to interfere with a finding of primary fact by the Special Adjudicator which is dependent on his assessment of the reliability or credibility of a witness who has appeared before him."

Hirst LJ then considered whether the Tribunal had impermissibly substituted its own view of the facts from that of the adjudicator. The Tribunal had demonstrated by their analysis of the adjudicator's reasoning that it was unsustainable and so they were fully entitled to reverse it.

9. But there is, of course, a well-known distinction between findings of primary fact, especially when they are based on the credibility of witnesses who have given oral evidence, and the inferences to be drawn from those facts; and particularly if those are based in part upon objective country evidence. That distinction came out in the case of R v Immigration Appeal Tribunal ex-parte Balendran [1998] Imm AR 162, where Jowitt J helpfully referred to the general principles:

"The approach of an appellate tribunal able to disturb findings of fact can be found in many cases. ...The principles are well-known and it is enough for me to cite a passage from the speech of the Earl of Halsbury, Lord Chancellor, in Montgomerie & Co Ltd v Wallace-James [1904] AC 73. The passage is at page 75:

'My Lords, I think this appeal should be allowed. It is simply a question of fact, and doubtless, where a question of fact has been decided by a tribunal which has seen and heard the witnesses, the greatest weight ought to be attached to the findings of such a tribunal. It has had the opportunity of observing the demeanour of the witnesses and judging of their veracity and accuracy in a way that no appellate tribunal can have. But where no question arises as to truthfulness, and where the question is as to proper inferences to be drawn from truthful evidence, then the original tribunal is in no better position to decide than the judges of an appellate court.'

The assessment of the documentary material about the state of the country where the reasonable likelihood of persecution is said to exist is also something which the Tribunal is in general in as good a position to perform as the special adjudicator, since it does not depend upon an assessment of oral testimony. This means that the special adjudicator has, in general, no particular advantage over the Tribunal in making the assessment."

10. That approach was expressly approved in this court in the case of Sarker v Secretary of State for the Home Department , 8 November 2000. Counsel had submitted, amongst other things, that the Immigration Appeal Tribunal should only substitute its own view where the adjudicator's conclusion was unsustainable or plainly wrong. In paragraph 16 of the judgment Tuckey LJ rejected those submissions and went on to say:

"The tribunal's jurisdiction to reverse a special adjudicator's findings of fact is unlimited by statute or rules. Obviously it will be most reluctant to interfere with findings of primary fact dependent upon an assessment of the credibility of witnesses if it has not seen or heard them and the special adjudicator has. But the same inhibition does not apply to the assessment of background material about country conditions. Usually evidence of this kind is not the subject of oral evidence and the weight to be given to it depends upon the assessment of the adjudicator or the tribunal. The tribunal is a specialist tribunal and is as well equipped to make that assessment as the special adjudicator. The outcome of this case depended almost entirely upon that assessment. If the Tribunal thought the special adjudicator's assessment was wrong they were entitled to and indeed bound to say so. ... I think [that] they were really saying is that they recognised that they should give due weight to the special adjudicator's findings and only interfere with them if they had been shown to be wrong. That, I think, is the correct approach."

He goes on to say that this is consistent with the approach in Balendran .

11. In Oleed v Secretary of State for Home Department [2002] EWCA Civ 1906, 2003 INLR 179, at paragraph 29 Schiemann LJ records that it was accepted on behalf of the Secretary of State that:

"...the Tribunal should act even-handedly and should only set aside a decision of an adjudicator who has heard the evidence if it is plainly wrong or unsustainable."

But that was in the context of overturning the adjudicator's finding of primary fact as to the authenticity of an arrest warrant. Inference, including those to be drawn from objective country evidence, was not the issue.

12. That brings us to two very recent decisions of this court, both of them judgments of Keene LJ. In Sabanathan v Secretary of State for the Home Department [2003] EWCA 1517, Keene LJ went through the authorities. He pointed out in paragraph 20 that the court in Oleed was not seeking to depart from the approach in Borissov . He went on in paragraph 21 to approve the distinction in Balendran and cite the passage already quoted from Sarker . He concluded at paragraph 27:

"By itself, I do not suggest that the mere fact that the IAT could form a different view from that of an adjudicator, even in the case where one is dealing with documentation, is enough. As has been indicated in authorities to which I have referred, the IAT should be slow to intervene in such matters merely because it takes a different view. But if it does come to the conclusion that the adjudicator was clearly wrong in the conclusion which he reached, then it is entitled and bound to do."

The most recent case is Koci v Secretary of State for Home Department [2003] EWCA Civ 1507. The same point that was made in paragraph 27 of Sabanathan is made again in paragraph 25, though in slightly different language:

"I emphasise the fact that under the regulations, an error of fact has to be asserted if permission to appeal to the IAT is to be granted or else an error of law has to be alleged. Certainly the IAT should be particularly reluctant to intervene when the finding of fact turns wholly or principally on oral evidence heard by the adjudicator. But even when it is dealing with findings of fact based on documentary material, which is regularly the case in respect of evidence about in-country conditions, the IAT does not act and should not act as if it were a tribunal of first instance. The test which it should apply is still the one spelt out in Oleed and other decisions, namely is the finding of fact below plainly wrong or unsustainable:... "

13. There is, therefore, room for some debate about nuances of meaning between terms such as "wrong", "plainly wrong", "clearly wrong", or "unsustainable". But consideration of all of those cases and the principles which they adopt leads me to the following propositions:

(1) The Immigration Appeal Tribunal is not different from this court or any other court with jurisdiction to hear appeals on fact as well as law. (Of course that position is to change and it will lose its jurisdiction on points of fact.

(2) The Immigration Appeal Tribunal, like this court or any other court, can only interfere if there has been an error: that is, if, on analysis, the adjudicator's decision was wrong. There is a useful analogy here with the Civil Procedure Rules, Rule 52.11(3) which says the same thing. It is not enough that the Tribunal might have reached a different conclusion itself.

(3) I, for my part, do not find adverbs such as "plainly" or "clearly" wrong helpful in the context of a fact-finding exercise. They have sometimes proved useful for appellate courts when reviewing the exercise of a discretion.

(4) The test is the same, whatever the nature of the error alleged, but its application will often depend on the type of evidence on which the finding of fact is based. One can distinguish at least four different types:

(i) There are findings of fact based on oral evidence and the assessment of credibility. These can only very rarely be overturned by an appellate Tribunal.

(ii) There are findings based on documentary evidence specific to the individual case. These can more readily be overturned because the appellate tribunal is in just as good a position to assess it. But even there there may be an important relationship between the assessment of the person involved and the assessment of those documents. If so, great caution once again will be required.

(iii) There are findings as to the general conditions or the backdrop in the country concerned which will be based on the objective country evidence. The Immigration Appeal Tribunal will be at least as well placed to assess this as is the adjudicator. Although in our law the notion of a factual precedent is, as Laws LJ termed it in S and Others v Secretary of State for the Home Department [2002] INLR 416 at paragraph 28, "exotic", in this context he considered it to be "benign and practical". There will be no public interest and no legitimate individual interest in multiple examinations of the state of this backdrop at any particular time once that had been considered in detail and guidance is given by the Tribunal.

(iv) There are findings as to the application of those general country conditions to the facts of the particular case. These will be an inference to be drawn by the adjudicator and then, if appropriate, by the Tribunal. The Tribunal will be entitled to draw its own inferences, just as is the appellate court under the CPR, once it has detected an error in the adjudicator's approach.

14. How should those principles be applied to this case? The question, as I have already indicated, is whether the Tribunal was simply taking a different view from the adjudicator. If that were the case that would be an error of law on the part of the Tribunal, with which this court could interfere. On the other hand, was the Tribunal, having found an error in the adjudicator's approach, simply substituting its own inferences for those drawn by the adjudicator? This is something that the Tribunal is entitled to do and this court cannot interfere.

15. The error found by the Tribunal in this case was the adjudicator's consideration of only part of the general country backdrop as described by the Tribunal in Jeyachandran and Brinston . The adjudicator referred to the finding that it could not be said that no one was at risk, but he did not refer to the finding that only a few people were, that therefore in an individual case one had to look for features putting the case into that exceptional or special category. The adjudicator did not, therefore, in this case, address his mind to the whole of the issue before him.

16. To my mind that is the error found by the Tribunal, and having found such an error the Tribunal were entitled to look at the case again in the round. They were entitled to draw their own inference from the history, the evidence which had been accepted by the adjudicator, as to whether such record as the authorities would have would be enough to provoke that renewed interest in the appellant when he arrived back in Sri Lanka, and whether it would lead to his detention or further persecution. The Tribunal concluded, and gave reasons for doing so, that they drew a different inference from the facts from that drawn by the adjudicator, having looked at the matter in the light of the country backdrop which had already been identified. In my view they were entitled to do that.

17. We can only interfere if the Tribunal has made an error of law and I have identified no error of law in their approach. I would dismiss this appeal.

18. LORD JUSTICE CARNWATH: I agree. Without any disrespect to the excellent submissions of Miss Jegarajah, it seems to me that the correct approach of the Tribunal to an appeal on fact is not in doubt. The approach is no different from that explained almost a hundred years ago by the Lord Chancellor in the words which my Lady has read and which were adopted in the present context by Jowitt J in 1998 in Balendran . That approach was approved by this court in Sarker in 2000. Although, as she has said, different terminology has been used in some of the later cases, there is no indication of any intention to depart from the well-established approach and certainly no reasoned basis for doing so.

19. I would only add that in respect of the passage in the judgment of Keene LJ in Koci , which my Lady has read at paragraph 25, I, for my part, would not accept, respectfully, that the test, even where one is dealing with in-country conditions is whether the finding of fact was "plainly wrong or unsustainable". I agree with what my Lady has said about the difficulty of such adverbs. But, taken literally, those words do not seem consistent with the approach which was adopted in Balendran , and approved by this court in Sarker .

20. I should add that the decision of this court in Koci did not depend on that point. The decision to allow the appeal resulted from the fact that the IAT had misinterpreted one of the relevant reports, not that it had adopted the wrong approach to the adjudicator's decision.

(Appeal dismissed; application for permission to appeal to the House of Lords refused; detailed assessment of appellant's publicly-funded costs).