Sunderalingam, R (on the application of) v Immigration Appeal Tribunal

J U D G M E N T

Tuesday, 19 October 2004

1. LORD JUSTICE GAGE: This is an appeal against a decision of the Immigration Appeal Tribunal refusing the appellant permission to appeal against the decision of an adjudicator. The appeal against that refusal to this court is with the leave of the single Lord Justice, Sedley LJ. At the same time he directed that this court heard the appeal as a hearing for judicial review of the Immigration Appeal Tribunal's decision.

2. The background facts are as follows. The appellant is a native of Sri Lanka. He was born on 6 September 1976. He is therefore aged 28. In August 2001 in circumstances which are set out in the adjudicator's decision he fled Sri Lanka, arriving in this country on 4 August 2001. The following day he applied for asylum. His claim for asylum is made on grounds that he has a well-founded fear of persecution if he is returned to Sri Lanka. It is relevant to state now that he is a Tamil.

3. Although the claim was put on a number of grounds it is, in reality, a claim under Article 3 of the 1950 Convention for the Protection of Human Rights.

4. The Secretary of State, having considered his claim, rejected it. His decision is set out in a letter of 4 April 2002. Essentially he refused the claim on the ground that the appellant's version of events was not credible.

5. The appellant appealed to the adjudicator. The adjudicator, by a decision promulgated on 11 October 2002, dismissed the appellant's appeal. It is necessary now to refer in a little more detail to the decision of the adjudicator. He found that the appellant's version of his history in Sri Lanka was credible and in accordance with the objective material. He set out the history as related to him by the appellant in paragraphs 7-13 of the decision. At paragraph 19, he set out his findings of fact:

"Assessing the evidence overall, I make the following findings of fact. I find that the appellant has established to the necessary lower standard that:- He joined the LTTE in 1995 and fought for the LTTE until 2001; in March 2001 he left the LTTE by deserting while on guard duty; in April 2001 he was arrested and detained by PLOTE and handed over to the Sri Lanka army; he was detained by the Sri Lankan army authorities for five weeks and tortured and ill-treated; he was released by the army after a bribe was paid by his uncle; the appellant then left Sri Lanka, using the services of an agent; the appellant's brother-in-law has been held in detention by the Sri Lankan authorities on suspicion of involvement with the LTTE."

He went on to hold that the objective evidence showed that there was a new political situation prevailing in Sri Lanka. He said that there had been a ceasefire between the government forces and the LTTE, and that it was holding. However, he noted that although there had been a substantial easing of violence and tension the human rights violations were still being committed with impunity by the security forces.

6. Of specific relevance to the appeal is the adjudicator's finding in paragraph 25:

"In regard to the appellant's release from detention by the army on payment of a bribe, I would note the observations made by the Immigration Appeal Tribunal in Tharmakulaseelan[2002] UKIAT 03444 at paragraph 25 in particular - 'We agree and conclude, in the light of the UNHCR observations, that bribery related releases, especially from army custody, would not, in the absence of some special and credible reason, be likely to be treated as escapes, and would not result in the inclusion of the individuals involved on a wanted list'. There is, in my view, no special or credible reason why the appellant's release after the payment of a bribe should not fall into the general category described in Tharmakulaseelan. I accordingly do not consider that the appellant has established that the circumstances of his release from detention, establishes a reasonable degree of likelihood that there would be a record of his arrest and detention and a continuing interest in him."

It is in relation to that statement that Sedley LJ found grounds for granting permission to appeal. The paragraph ends with the statement:

"The appellant's legal representative does not contend that the circumstances of the appellant's release from detention would result in any such continuing interest in him."

7. The adjudicator went on to find that the appellant had not established to the requisite degree a reasonable degree of likelihood that he would suffer persecution for a Convention reason if he was returned. His conclusions in respect of that matter are set out at paragraphs 29 and 30 of the decision. It is unnecessary for me to cite the whole of those specifically.

8. Following the decision of the adjudicator, the appellant appealed to the Immigration Appeal Tribunal in a notice of appeal which sets out two grounds. They are both intimately connected. Ground one states that the special adjudicator unlawfully erred in his approach to the assessment of risk on return. Specifically, it is said that he erred because of an assessment that on return the sole factor of his brother-in-law's continued detention was not sufficient to demonstrate that he would be of interest to the authorities. The reference to the sole factor of his brother-in-law's continued detention is a reference to what is set out in paragraph 28, the final sentence of which reads:

"I do not consider that, on the facts of this particular case, the appellant has established a reasonable degree of likelihood that the sole factor of his brother-in-law's detention would result in the Sri Lankan authorities arresting, detaining and ill-treating the appellant on his return to Sri Lanka. This is particularly so in the new situation currently prevailing in Sri Lanka."

9. The second ground of appeal was that the special adjudicator erred in failing to adopt the approach set out in Sivasamy concerning close family members and their association with the LTTE.

10. In essence, the ground of appeal was that the special adjudicator had failed to give weight and significance to the fact that the appellant himself had a history of persecution and torture by the authorities for his Tamil connections and that, connected with his relationship with his brother-in-law who was himself detained, was sufficient to raise the prospect to the requisite standard of him coming to the authority's attention on return and being persecuted.

11. The Immigration Appeal Tribunal, Vice-President Mrs Gleeson, refused permission to appeal. The reasons for the decision are set out shortly:

"The claimant challenges the Adjudicator's assessment of the risk on return, given that he is a former LTTE member, having joined in 1995 and fought with the LTTE until 2001 when he deserted. However, the claimant has been detained and released by the Sri Lankan army on payment of a bribe, and will therefore not now have an adverse record.

The Adjudicator's assessment of the present situation and the case law is meticulous and does not disclose any arguable error of fact or law which would have made a material difference to the outcome of the appeal.

I am not satisfied that this appeal would have a real prospect of success. There is no other compelling reason why the appeal should be heard.

Leave to appeal is refused."

12. Following that decision, the appellant issued judicial review proceedings against the refusal of leave. Permission was refused on paper by the single judge, and again by Owen J on 26 November 2003 following an oral hearing. As I have already indicated, it proceeds in this court by permission of Sedley LJ who, as I have said, directed that this court should hear the judicial review claim as a substantive hearing. In granting leave Sedley LJ said:

"I consider it arguable that the chairman's refusal of leave to appeal to the IAT is based on a non sequitur viz, that because A had been released from detention on payment of a bribe, he would now have no adverse record."

13. In this court our task is carefully to scrutinise the decision of the Immigration Appeal Tribunal, bearing in mind that this is a case involving Convention rights, in order to determine whether the appeal to the Immigration Appeal Tribunal would have a real prospect of success.

14. Mr Henderson, on behalf of the appellant, submits that if we conclude that the decision of the Immigration Appeal Tribunal was wrong in the sense that it was flawed, displayed an error of law or displayed an error in a failure to take into account something which ought to have been taken into account, then it should be quashed by us and the matter remitted for a fresh Immigration Appeal Tribunal decision in relation to the question of permission. He submits that that is the correct approach for us to adopt.

15. Miss Anderson, on behalf of the Secretary of State, submits that the decision was not flawed, but in any event even if we were to conclude that it was, that the remedy in judicial review proceedings is discretionary. If we conclude then, on a consideration of the grounds of appeal, that there is no real prospect of success of any of the grounds, then we should refuse to quash the decision.

16. In my view, we are entitled to ask ourselves even if we are sure that the Vice-President's decision was flawed, whether there is indeed a real prospect of success in the appeal to the Immigration Appeal Tribunal. I do not accept the submission of Mr Henderson that once we are satisfied that the decision of the Immigration Appeal Tribunal was flawed that throws the whole matter open for reconsideration on any further ground put forward by the appellant.

17. In my judgment we must deal with the matter as it stands. If we are satisfied that the decision of the Immigration Appeal Tribunal is a flawed decision then we have to go on to consider the grounds of appeal put forward to that body.

18. I propose, first, to deal with those grounds on the assumption that the decision of the Immigration Appeal Tribunal does display some error, although at this stage I do not propose to announce my conclusions as to whether or not it does display any error.

19. I have already referred to the grounds of appeal. They have been amplified helpfully in a skeleton argument and in oral argument by Mr Henderson. Essentially, so far as ground 1 is concerned, he submits that the adjudicator in his decision considered the position of the appellant's brother-in-law as the sole factor to be taken into account. It was not, he submits, related to the position of the appellant in any way. In support of that submission, he relies on the sentence that appears in paragraph 28 of the decision (to which I have already referred). His submission is that there was evidence before the adjudicator showing that not only had the appellant been subjected to severe torture by the authorities in the five weeks when he was detained in prison before release, but, in addition, there was evidence that the torture was concerned with his connection with his brother-in-law. Thus he submits that the two together indicated that he was someone who was peculiarly of interest to the authorities and therefore likely to have been the subject of their attention on return to Sri Lanka. He submits that that specific fact is not dealt with by the adjudicator and therefore it amounts to an error of law.

20. He further submits that the adjudicator misunderstood a concession made by the legal representative of the appellant at the time of the hearing in relation to the appellant's position. That concession is one recorded in paragraph 26 of the adjudicator's decision, the first sentence of which reads as follows:

"The appellant's legal representative stated in argument that he conceded that the appellant's background and arrest in 2001 would not constitute exceptional circumstance in Jeyachandran terms."

21. Submits Mr Henderson that was not what was conceded. What was submitted to the adjudicator was that it was the link between the appellant and the brother-in-law which was important.

22. So far as his second ground of appeal is concerned, Mr Henderson submits that the adjudicator and the Immigration Appeal Tribunal wrongly asserted that the fact that the appellant had been released by the authorities as a result of a bribe meant that there was no adverse record kept by the authorities of him. It is on this point that Sedley LJ granted permission.

23. Mr Henderson submits that this was based on a misinterpretation of the decision in Tharmakulaseelan. He submits that it is irrational to conclude that there is no evidence to support the proposition that the release through bribery meant that there would be no adverse record of the detention kept by the authorities, and he prays in aid the observation of Sedley LJ when granting leave.

24. For the Secretary of State, Miss Anderson submits that there is in fact no evidence that the concession to which I have referred was actually made. She points to the fact that the sentence which I have just read records the adjudicator's understanding of the concession that was made, and she points to the fact that there was no other evidence of the concession than that, merely an assertion by Mr Henderson, neither he nor her having been present at the hearing before the adjudicator.

25. She submits that the consideration by the adjudicator of the position of the brother-in-law as set out in paragraphs 25-28 of the decision is entirely in accordance with the guidance of the Immigration Appeal Tribunal set out in Tharmakulaseelan and Jeyachandran. She submits that the facts found by the adjudicator are unassailable and that he correctly applied the law. Her submission is that, as appears from the documents that were before the adjudicator, the case which was placed before him on the appeal was rather different from the one that is placed before us today. There was, she submits, no greater emphasis as there is today on the link between the appellant and his brother-in-law. Accordingly, she submits that we should, even if satisfied that there was a flaw in the Immigration Appeal Tribunal's decision, in the exercise of our discretion, dismiss this appeal.

26. Dealing first with those grounds of appeal, in my judgment the appeal must fail. I have concluded, having considered all the information and documents and the arguments of counsel, that there is no real prospect of a successful appeal to the Immigration Appeal Tribunal.

27. Dealing with the individual points as they arise, it seems to me that the adjudicator, as indeed Owen J said, was well aware of the history of the appellant. He set it out at paragraph 18 of his decision. It is clear from his findings that he was well aware that the appellant had been tortured at the hands of the authorities.

28. When it comes to the position so far as his brother-in-law is concerned there is, in my view, some force in the submission made by Miss Anderson that the documentary evidence before the adjudicator did not put the link between the brother-in-law and the appellant as forcefully as is put before this court today. Perhaps the high point of Mr Henderson's submissions in that connection is a paragraph in the witness statement made by the appellant for the purposes of the appeal to the adjudicator. Mr Henderson referred us to paragraph 15 of that statement. In part, it reads as follows:

"At Thekkawathe army camp I underwent severe torture. In the meantime, PLOTE was able to gather more details of my family. My brother-in-law was a member of the LTTE and was arrested by the CID in Colombo. He was still in Kalutara prison. They tortured me to get information about LTTE's targets in Colombo and in Jaffna. As I was in Sea Tiger section I did not know the details of other sections and particularly any activities in the south of the country. I was not able to give the information that they expected from me."

He goes on then to describe his detention and the nature of the torture that he sustained.

29. It is, I think, not reading too much into that witness statement in view of the submissions that are made to this court today, to say that it does not specifically refer to a connection between his torture and the position of his brother-in-law.

30. Mr Henderson submits that it is implicit that the two were connected. But, as we have been shown by Miss Anderson in the interview record sheet, there is no mention of a connection between the torture and his brother-in-law in the question and answer session of the appellant when he was interviewed.

31. In my judgment, on the whole of the evidence, the adjudicator was entitled to find as a fact that the concession made on behalf of the appellant in paragraph 26 was a fair and proper concession to be made. He then went on to consider the ground of appeal relating to the position of the brother-in-law. As to that, he found that the association of the appellant with his brother-in-law was not such as to bring him into a special category of person who would be likely to cause the Sri Lankan authorities to have any continuing interest in the appellant.

32. It is common ground to counsel on both sides that paragraph 25 of the adjudicator's decision accurately sets out the effect of the IAT's decision in Tharmakulaseelan. If that is so, it seems to me that the adjudicator correctly directed himself on the applicable law and, insofar as it was correct for him to to so, on the guidance given by the Immigration Appeal Tribunal in relation to that matter. Accordingly, what at first sight might seem a non sequitur in the decision of the adjudicator and the decision of the Immigration Appeal Tribunal, in my judgment was not a non sequitur. It is clear that the adjudicator was entitled to consider the matter on the basis of what effect the connection of the brother-in-law had to this particular appellant. That he did. He found as a fact that it would not cause the authorities to have a continuing interest in the appellant. In the circumstances, in my judgment, the grounds of appeal are not such as to provide a real prospect of success if they were reconsidered by another Immigration Appeal Tribunal.

33. That is not the end of the matter because in his skeleton argument Mr Henderson raises the question of the objective material before the adjudicator and before the Immigration Appeal Tribunal. So far as the adjudicator is concerned, it is submitted that he failed to take account, or give proper weight to observations in a letter to Mr Henderson from the UNHCR, which is dated 15 April 2002.

34. Mr Henderson relies on the second paragraph on page 1 of that letter, which reads:

"Although steps towards peace have been taken in Sri Lanka recently, it is still premature to advocate that the situation has reached a satisfactory level of safety to warrant the return of all unsuccessful asylum applicants to Sri Lanka. In this regard, UNHCR has been aware that returning Tamils are potentially open to risk of serious harm similar to those generally encountered by young male Tamils in certain circumstances. This risk may be triggered by suspicions (on the part of the security forces) founded on various factual elements relating to the individual concerned, including the lack of identity documents, the lack of proper authorisation for residence and travel, the fact that the individual concerned is a young Tamil male and from an 'uncleared' area or the fact that the person has close family members who are or have been involved with the LTTE."

Mr Henderson submits that that is very relevant to the considerations of the adjudicator, and he did not properly take it into account.

35. In my judgment that criticism also is unfounded. What the adjudicator had before him, as he recites at paragraph 15 under the heading "Objective material", was an array of material provided for him by the appellant and also by the Secretary of State. He refers to the appellant producing a lengthy bundle of objective material. The respondent also produced material, including the CIPU Report, in respect of Sri Lanka, dated April 2002. In my judgment these were documents and evidence for the adjudicator himself to consider and to make his judgment. He did so and I see no error in law in the way in which he dealt with it.

36. Mr Henderson couples that submission with a reference to Selvaratnam a decision of this court in January 2003. Giving the leading judgment, Buxton LJ referred to the facts of the case, which were that the adjudicator had found that the appellant in that case was someone likely to suffer from persecution if returned to Sri Lanka, and that finding had been overturned by the Immigration Appeal Tribunal. As Buxton LJ explains in his judgment, the Immigration Appeal Tribunal was not entitled to overrule the adjudicator in the circumstances of that case. It was a decision where the court was referred to a volume of objective material, and Buxton LJ emphasises towards the end of his judgment the fact that what an adjudicator and an immigration appeal tribunal have to do is to apply their findings in relation to the objective material to the specific facts of the case and the specific appellant whom they are considering. In my judgment, that is precisely what the adjudicator in this case did. He was applying his conclusions on the objective material to the facts as he found them in relation to this appellant. Accordingly that ground, in my judgment, is also not made out.

37. I conclude that there is no real prospect of a success and for that reason I would dismiss the appeal.

38. So far as the Immigration Appeal Tribunal's decision is concerned, it follows from what I have already said that it is unnecessary for me to go any further. But since the Vice-President who made the decision has been criticised, it is, I think, relevant to note that the basis upon which the permission was granted in this case of a non sequitur in respect of her decision has not in my judgment been made out. So far as her written decision is concerned, it is fair to say that it is short and that, apart from the first paragraph, it is in fairly bland terms. However one thing seems clear. So far as the first paragraph is concerned the Vice-President was stating something in relation to the claimant which, in my judgment, was well-founded on the reasons and decision of the adjudicator. In the circumstances, I am far from saying that that decision was in any way flawed. However, as I say, in view of my conclusions about the prospects of success, there is no reason to make an affirmative decision in respect of that decision. Accordingly, for my part I would dismiss this appeal.

39. MR JUSTICE HOLMAN: I agree that the appeal should be dismissed. This is an application for judicial review of the decision of Mrs Gleeson, the Vice-President of the Immigration Appeal Tribunal, dated 30 November 2002. Thus it seems to me logical and appropriate to consider, first, whether there is a proper ground for saying that her decision or reasoning is flawed. As my Lord has said, when Sedley LJ granted permission to appeal to this court, he considered that it was arguable that the reasoning of Mrs Gleeson contained a non sequitur. I can, with respect, well understand how the reasons of Mrs Gleeson struck Sedley LJ in that way. Indeed, when I first read her reasons they struck me in the same way as well. However, in my view, one has to consider her reasons in their proper context. This was, as is permissible, a short and abbreviated description of her essential reasoning when deciding on paper to refuse leave or permission to appeal.

40. The non sequitur is said to occur in the last sentence of the first paragraph of her reasons, where she said:

"However, the claimant has been detained and released by the Sri Lankan army on payment of a bribe, and will therefore not now have an adverse record."

Of course at first blush the use of the word "therefore" within that sentence seems striking and not logically to follow. But this was a brief record of the reasoning of the Vice-President when herself considering the much more detailed reasoning contained within the determination and reasons of the adjudicator below. Paragraph 25 of the adjudicator's reasons, which my Lord has set out verbatim, quoted from the case of Tharmakulaseelan. Both counsel before us today have accepted that the quote from Tharmakulaseelan correctly encapsulates what the Immigration Appeal Tribunal determined in that case. It seems to me that in paragraph 25 of the adjudicator's reasons he, the adjudicator, fully and correctly put side by side what had been held in Tharmakulaseelan, together with his own view of the facts of the present case. It seems to me that there is no non sequitur within paragraph 25 of the adjudicator's reasoning, where he said:

"I accordingly do not consider that the appellant has established that the circumstances of his release from detention, establishes a reasonable degree of likelihood that there would be a record of his arrest and detention and a continuing interest in him." [my emphasis]

41. The adjudicator is not there saying that the circumstances of his release are such that there would not still be a record of his arrest and detention. Rather, the adjudicator is saying cumulatively that there would not be such a record and also a continuing interest in the appellant. It seems to me that that was a conclusion which was open to the adjudicator on the facts as he found them. So, returning to the reasons of the Vice-President in the sentence that has been criticised, it seems to me, first, that the important focus is not on the word "record" alone, but the phrase "adverse record"; second, that the Vice-President was sufficiently indicating that she had considered the treatment of this aspect of the case by the adjudicator and agreed with it; third, that although the sentence is short and the reasoning very compressed, it is important to bear in mind that it is reasoning of a specialist member of a specialist tribunal.

42. For all those reasons, it does not seem to me, on proper analysis, that there was any non sequitur within the reasons or reasoning either of the Immigration Appeal Tribunal or of the adjudicator.

43. However, Mr Henderson makes the separate point that the grounds of appeal to the Immigration Appeal Tribunal focussed, in particular, on the cumulative effect of the history of the arrest, torture and release of the appellant, coupled with the continuing detention of his brother-in-law. He submits that in her reasons the Vice-President simply did not address those proposed grounds at all. It is true that the reasons of the Vice-President do not in terms expressly address those grounds of appeal. Nevertheless, the Vice-President said:

"The adjudicator's assessment of the present situation and the case law is meticulous and does not disclose any arguable error of fact or law which would have made a material difference to the outcome of the appeal."

44. We are entitled to assume, and should assume, that when the Vice-President of the Immigration Appeal Tribunal was considering this case she had at the forefront of her mind and consideration the grounds of appeal that had been identified and put forward in the Grounds. It seems to me that, although compressed, the sentence that I have just read contains within it a conclusion of the Vice-President which was open to her that, in the end, there was nothing of substance in the grounds put forward.

45. For those reasons, I myself am satisfied that the decision and reasons of the Vice-President of the Immigration Appeal Tribunal in this case are not flawed, and I would dismiss this appeal on that short basis.

46. However, we have given consideration to the underlying question whether there was some flaw in the reasons or reasoning of the adjudicator such that the proposed appeal to the Immigration Appeal Tribunal would have any realistic prospect of success. For the reasons fully given and explained by my Lord, I also consider that in any event there would be no realistic prospect of success on an appeal to the Immigration Appeal Tribunal if we now set aside the decision of the Vice-President so such an appeal could take place.

47. Accordingly I, too, would dismiss this appeal.

(Appeal is dismissed; no order for costs).