Nadanasikamani v Secretary of State for the Home Department

LORD JUSTICE AULD: The appellant, by permission of Laws LJ, challenges a determination of an immigration judge upholding a decision of the Secretary of State refusing him asylum and humanitarian relief. He is a Sri Lankan national of Tamil ethnicity who arrived in this country from Sri Lanka in December 2002. Immediately after arrival, he sought asylum and humanitarian protection. He claimed that he feared persecution and ill treatment from Tamil tigers, in particular the group known as Liberation Tamil Tigers Eelam (“LTTE”), and also from the Eelam People’s Democratic Party (“EPDP”), an anti-LTTE Tamil political party, and also from the Sri Lankan authorities.

The appellant on his application to the Secretary of State gave an account of imprisonment and ill treatment by state officials between 1995 and 1997, on the mistaken suspicion that he was a member of the LTTE, and then of coercion by the EPDP over the following five years to work for that movement and against the LTTE in the Jaffna area of Sri Lanka. He claimed that as part of his enforced work for the EPDP he collected funds for the Party’s use and at local level; he arranged meetings; publicised the party in his home area; accompanied senior party officials; and found out where LTTE members were and identified and questioned them for the party.

As I have said, he claimed that he held this job for some five years or more between 1997 and 2002, during which time he moved from EPDP camp to EPDP camp throughout the period, without ever attempting to escape. His claim was that his work in that way for the party put him at risk of being persecuted by the LTTE. His principal and immediate claim of fear of persecution and ill treatment, which is what he said caused him to leave Sri Lanka in December 2002, seemingly emanated not from the LTTE or the EPDP, but from the Sri Lankan authorities.

It arose, he said, from an incident on 10 December 2002 when he threw a grenade into a crowd of demonstrators outside an EPDP office. He said that he did this when under fear of attack from LTTE supporters. He also said that the EPDP had reprimanded him for doing that and they told him that they would report him to the Sri Lankan authorities. It was fear of what those authorities would do to him, he said, that caused him to flee to Colombo and thence to the United Kingdom.

By a decision letter dated 10 February 2003, the Secretary of State rejected his claims giving the following main reasons: first, that in the light of current objective information of conditions in Sri Lanka, even if his account were true, neither the Sri Lankan authorities nor the EPDP would have any further interest in him; secondly, that he was not satisfied as to the appellant’s claimed involvement in and work for the EPDP, or that as an ordinary member of it he would be of any interest to the Sri Lankan authorities, or loyal citizens of that country, if he were returned there; and thirdly, that as to the claim of the grenade throwing incident, it was unlikely that he would be recognised as the perpetrator among a crowd of people and that it was unlikely that it would stand out in their minds, if he were to return.

Following a de novo appeal to an immigration judge in June 2005 on both asylum and humanitarian grounds, the judge by a determination on 20 June dismissed his appeal. Taking his complaints in reverse chronological order, the judge rejected his case of a well-founded fear of persecution by the Sri Lankan authorities as a result of the claimed grenade throwing incident. He was not satisfied on the appellant’s evidence, the only evidence, that he had in fact thrown a grenade, or that if he had, that anyone knew that he was the person who had done so, or that he was wanted by the authorities in respect of it. This is how the immigration judge expressed his findings on that issue in paragraph 15 of his determination:

“As to the claim based on his fear of the State authorities, although I accept that the photographs show scars to the appellant’s body, no medical evidence is before me which associates those scars with torture of the appellant. I accept, however, that there is consistency in his accounts and that on the lower standard of proof he was detained by the army and ill-treated in the years 1995-1997 during which he sustained the scars evidenced by the photographs. The basis of his claim, however, expressed to me was as a result of his use of a grenade thrown to control a crowd and his escape from the EPDP camp and there is evidence in the form of BBC transcripts that there was an incident involving a grenade at the camp at Nellyaddi. The only evidence that the appellant was the person who threw the grenade is in his own statement. There is nothing in any of the reports to suggest that it was the appellant. Nor is there any evidence that the authorities knew it was him. It was put to me that his account of his escape from the camp was implausible. Given that the whole area was under Sri Lankan army control, I am satisfied that guarding arrangements for the EPDP base might well have been minimal. He believes that because of those two factors, he would be wanted by the Sri Lankan authorities. He believes that he would be known to them because his photograph was taken when he was detained by the army and he was registered by the EPDP as one of their workers. Clearly, the appellant was no longer under suspicion as an LTTE sympathiser otherwise he would not have been employed by the EPDP. No evidence was presented that he was wanted by the State authorities because of his act of throwing a grenade. Nor is there any evidence that persons who worked for the EPDP but have left that organisation are wanted by or persecuted by the State.”

As to the appellant’s complaint of fear of persecution and ill treatment from the LTTE, the immigration judge accepted that he had worked for the EPDP and that if returned to the Jaffna area, he would be at risk of retaliation by the LTTE as a result of his work with the EPDP. The judge held, however, that as an ordinary worker for the EPDP, not a high profile activist, he could relocate with reasonable safety to Colombo, where he had family. In so concluding, the immigration judge expressly took into account the tribunal country guidance decision of PS (LTTE Internal Flight Sufficiency of Protection) Sri Lanka CG [2004] UKIAT 00297, in which the tribunal considered that in the context of this case, only those of high profile in the EPDP would be likely to be put at significant risk from the LTTE in the Colombo area.

The immigration judge reasoned and set out his conclusions in his judgment at paragraphs 17 to 19 as follows:

“The case of PS considered in some detail the position of those in Sri Lanka and particularly in Colombo who were seen as hostile by the LTTE. The Tribunal accepted that, despite the ceasefire, attacks by the LTTE continued and they were capable of and in fact did, mount attacks in Colombo. However, examining the statistical evidence they concluded that those ‘attacks are limited to high profile targets’. They went on to say that, ‘Those whom the LTTE has on objective evidence targeted would be seen as renegades or traitors to the LTTE’. They added, ‘Whether it could be successfully argued that even those of high profile would not be provided with a sufficiency of protection in Colombo in the Horvath sense, may be doubted, but what seems quite clear on the background evidence is that there is no arguable basis for saying that the Sri Lankan State does not provide a sufficiency of protection to the generality of Tamils having a localised fear of the LTTE in their home area who do not reach a similar high profile.’ I have accepted that such a localised fear of the LTTE exists in the case of the appellant. I must consider whether, in light of that, does the appellant fall into the small category of those who because of their profile face a real risk of targeting.”

“I have accepted the appellant’s role in Nellyaddi as an EPDP worker. He was, however, by his own evidence, but one of a number of such workers in but one of EPDP’s bases. He gave no estimate of such people, but whatever it may have been, it must be set in the context of the numbers targeted by the LTTE in Colombo out of the 400,000 Tamils estimated to live in the capital. The Tribunal in the case of PS gave that figure as 19. Seen in that context the risk to any individual who was not a prominent official of the EPDP, and it was not argued that the appellant was such, must be very small indeed. I find as a fact that although the appellant worked in the way he described for the EPDP in Nellyaddi, he is not of such high profile as to bring him within the targeted group. I find that if returned to Colombo and relocated there, he would not face a real risk of persecution by the LTTE. ”

“For the reasons which I have set out, I am not satisfied that if now returned to Colombo and relocated in that city, the appellant would face a real risk of persecution by either the Sri Lankan State authorities or the LTTE. The appeal on asylum grounds is dismissed.”

Mr Jonathan Adler, on behalf of the appellant, has sought to argue that the immigration judge went wrong in law, both in relation to the appelant’s claimed fear of the Sri Lankan authorities and of the LTTE. As to fear of the Sri Lankan authorities, Mr Adler has suggested that the judge’s expression of his conclusion against the claim in paragraph 15 of his determination was perverse because he seemingly ignored the appellant’s own assertions that the EPDP superiors, effectively as an arm of the Sri Lankan state, knew that he had thrown the grenade and had told him that they intended to report it to the army. Mr Adler also prayed in aid in this connection what he claimed to be inadequacies of reasoning as to the implications of the appellant’s flight to this country, referred to in paragraph 15, shortly after the alleged incident.

In my view, there is no substance to this complaint. The plain fact is that the only evidence before the immigration judge as to this incident was that of the appellant himself, save to the occurrence of a grenade throwing incident by somebody. Because the appellant’s claim that he it was who had thrown the grenade, and was at risk of report to the Sri Lankan authorities, was unsupported and because of other matters to which the judge referred in paragraph 15, rejecting the complaint under this head, he did not even accept that the appellant had thrown a grenade. Now that was a negative state of mind after the immigration judge’s review of the evidence, and for the reasons that he gave in paragraph 15 it was a negative state of mind that, in my view, he was entitled to have. It was a state of mind that he adequately reasoned in the passage which I have set out.

The immigration judge was entitled to find that there was no, or no sufficient, evidence that the Sri Lankan authorities knew that he had thrown the grenade, even if he did, and it is noteworthy that Laws LJ in granting permission to appeal said that he regarded this aspect of the appeal as “something of a makeweight” and “a weak part of the challenge”.

As to fear of the LTTE, the main thrust of Mr Adler’s submission is that the immigration judge in his reference to, and reliance upon, the country guidance decision of PS, misinterpreted it, causing him to err in law in concluding that the appellant would not be at significant risk if returned to and relocated in Colombo.

Mr Adler maintained that on a proper reading of PS, and of the evidence in this case, the appellant was within one of three at-risk groups set out in paragraph 59 of that decision, one of which was those who, because of their high anti-LTTE profile, were particularly likely to be the object of LTTE reprisals. I set out the passage in PS, the relevant passage first from paragraph 59, in which the tribunal in that case gave guidance to the categories of particular vulnerability in this context:

“1.

We accept that it is physically possible for LTTE members to travel to Colombo although, in times, when they have provoked public concern by their actions there, they would face heightened security measures, albeit not on the scale of the former cordon and search operations, regularly carried out prior to the ceasefire. Nevertheless, it is clear that they do not choose to do so on an indiscriminate basis in order to find all those against whom they may harbour some suspicion. There is simply no evidence to support such a proposition. What the careful analysis made by Ms Richards clearly demonstrates is that those who are reasonably likely to be targeted have a high profile, which makes them particularly likely to be the object of LTTE reprisals.

“2.

The analysis demonstrates that prominent present or past supporters of Tamil political parties who have aligned themselves with the government against the LTTE, LTTE defectors (particularly those who have aligned themselves with the Sri Lankan army military intelligence units) and, more recently,

“3.

Those closely associated with the internal LTTE schism as supporters of Colonel Karuna, are at potential risk of being targeted.”

And at paragraph 61 of the PS decision, the tribunal added:

“It is clear on looking at the totality of the evidence that its [LTTE’s] attacks are limited to high profile targets.”

Mr Adler’s primary submission was, I think, that the type of activity of the appellant on behalf of the EPDP that I have summarised, over a period of years, was such that the immigration judge should have characterised it as that of a high-profile LTTE activist, so as to come within the first of those categories identified in PS. Mr Adler complained that the immigration judge, when considering the PS guidance, which he clearly did in paragraph 16 of his determination, which I have not read, and paragraph 17 of it, which I have, wrongly treated that guidance as though it contained an exhaustive list of those who have been potential targets in Colombo, in particular, in the context of this case, so as to confine it to those with a high or prominent profile in Tamil affairs.

Alternatively, Mr Adler complained that the immigration judge, while referring to the reference in PS to the further category of defectors or, as the judge put it, those who might be perceived as renegades or traitors -- the reference is in paragraph 17 of the judge’s determination -- that he did not consider that category, category 2, in the context of this case, and that he should have done.

Mr Adler maintained that the immigration judge could and should have regarded the appellant as a defector, or renegade or traitor, however you want to put it, to the LTTE, and therefore on that account at significant risk of LTTE attacks in Colombo. He relied in support of this argument on some observations of Mitting J in R (Sinnarasa) v Secretary of State Home Department [2005] EWHC 1126 (Admin), at paragraphs 11 and 12, that in the circumstances of that case, or as the judge put it, “for present purposes”, the Secretary of State should not assume that the tribunal in PS had decided that only those with a high or prominent profile in Tamil affairs were potential targets in Colombo.

Mr Adler argued that in light of the length and nature of the work the appellant undertook for the EPDP between 1997 and 2002 in the Jaffna area, it was and is strongly arguable that the risk to him from the LTTE would extend to Colombo, and that the immigration judge’s failure to take the Mitting J observations in Sinnarasa into account led him wrongly on the facts to confine his consideration to persons of high profile in the EPDP, engaged in anti-LTTE activities.

Miss Jenny Richards, on behalf of the Secretary of State, submitted that there was nothing wrong with the way which the immigration judge approached this issue of the case. On all the facts before the immigration judge the appellant was not, in the ordinary sense of the words, either a defector or a renegade or a traitor to the LTTE. He was an EPDP supporter and to that extent anti-LTTE, and actively so evidently. But that did not make him, Miss Richards submitted, and in ordinary parlance, a defector, or in the immigration judge’s slightly different way of putting it, in paragraph 17 of his determination, a renegade or traitor to the LTTE.

She submitted, therefore, that there was no sound basis for arguing that the immigration judge misrepresented the test in PS, or applied the wrong test in concluding that the appellant was not high profile, and as such would not be at real risk in Colombo. That was clearly the principal category, the only category for practical purposes, which the immigration judge needed to consider on the facts of this case: whether he would be particularly vulnerable to LTTE violence in Colombo.

Miss Richards submitted also that it was clear from the decision in PS, and from the objective evidence considered by the tribunal in that case, that the immigration judge in this case correctly focused on the point whether or not the appellant was high profile. That was plainly the principal material fact, given the terms of the determination in PS, in particular paragraphs 59 and 61 of the decision. And, as she pointed out, that was the basis upon which the appellant’s claim was argued before the immigration judge; namely, that he was of high profile in his work for the EPDP and on that account was an exceptional case.

Miss Richards also submitted that the immigration judge’s approach to this matter on the evidence before her was entirely rational. There was nothing to suggest that he was unaware of or did not take into account the nature of the appellant’s work for the EPDP. She pointed out that in paragraph 11 of the determination, he recorded the appellant’s description of his activities. Paragraphs 14 and 16 accepted that he was an active worker for the EPDP. She also pointed out that the appellant had described himself at one stage of the matter as “an ordinary member” of the party.

As the immigration judge observed, at paragraph 18 of the determination, that was a description which the immigration judge clearly accepted, where he says that on his own evidence he was “one of a number of such workers in one of the EPDP’s bases”. So for all those reasons, Miss Richards submitted that the immigration judge was clearly entitled to conclude that he was not a prominent official of the party; certainly not of such high profile as to be targeted by the LTTE in Colombo in the sense intended by the tribunal on guidance given in PS.

In my judgment, Miss Richards’ submissions on this issue readily prevail. As I read PS, it was not intended to lay down an exhaustive list of categories of vulnerability or even a set of mutually exclusive vulnerabilities. Clearly a common thread in all of those that the tribunal picked out was the question whether the applicant was of high profile anti-LTTE interest, for whatever reason. Whether or not the guidance in PS on the point is exhaustive, it is plain that the primary focus of the appellant’s case as put to the judge was that, by virtue of the length and nature of his work for EPDP, he was someone who would be likely to attract particular attention, so as to be targeted by the LTTE if returned to and relocated in Colombo.

Such reliance as was placed by the appellant on the claimed perception that he was a renegade or traitor was secondary before the immigration judge, and only capable of carrying weight on the facts of this case if given the broadest possible reasoning, which Mr Adler essayed, “as a Tamil in the Jaffna area, who disagreed with the aspirations of Tamil tigers”. It was not, as Miss Richards submitted, his case that he had ever been a member of the LTTE, so that the EPDP activities could, in the ordinary sense of the word, be regarded as traitorous or those of a renegade to that terrorist body.

As to the observations of Mitting J in Sinnarasa, Brooke LJ, in refusing permission to appeal on paper in this case, rightly observed it decided no principle at all. The judge’s observations in that case do not render the immigration judge’s determination on the facts of this case unlawful. I respectfully agree with the submissions of Miss Richards to that effect, where, in her skeleton argument, she took up the Brooke LJ point that Sinnarasa was not a case in which the court made factual findings as to the situation in Sri Lanka; rather, it was a challenge to a certificate under Section 94(2) of the Nationality, Immigration Asylum Act 2002, where the issue for the judge was simply whether, on the assumed facts, the claim was so lacking in substance that it was bound to fail, and the judge hesitantly concluded that there was a possibility that the claim would succeed. She added that Mitting J was not, in any event, concerned in that case with the category, a point which has a relevance in the presence case on the ground raised by the appellant. So it is of no particular value as guidance to how the immigration judge should have approached his task in interpreting and applying PS, on the facts of this case. It was, essentially, a matter of fact for him.

In my view, the judge properly had regard to, and interpreted, the guidance given in PS. Nothing that Mitting J said in Sinnarasa unseated that reasoning and I would reject this ground of appeal.

Thirdly, and finally, Mr Adler referred to the objective evidence of risk, including that of a number of LTTE murders in Colombo, which was before the immigration judge. Mr Adler’s submission was that the immigration judge wrongly failed to take into account that evidence or, at the very least, properly to reason his conclusions in the light of it, thereby constituting a self-contained error of law. The judge dealt with this aspect and the evidence generally in paragraphs 6 and 7 of his determination:

“I have carefully considered all the evidence before me including the reasons for refusal, the grounds of appeal, the oral and documentary evidence put before me and the submissions made on behalf of both parties. I have also reminded myself of the law generally applicable to this matter. In particular, I have reminded myself that the burden of proof falls upon the appellant and that in order to qualify for the status of refugee he must show that if he were now to be returned to Sri Lanka he would face a real risk of persecution for one of the five reasons set out in the 1951 UN Convention on the Status of Refugees. I have also reminded myself that that issue and that which arises under Article 3 of the ECHR must be determined as at the date of hearing.

“In his evidence to me, the appellant relied upon statements made by him on 2 January 2003, 31 January 2003, 9 January 2003 and 15 October 2004 and upon a record of his Home Office interview of 27 January 2003. He told me that he was not in touch with his parents in Sri Lanka. When detained by the authorities between 1995 and 1997 they had taken a photograph of him. Whilst he was at the EPDP camp and Nellyaddi, he was not guarded all the time. He had been told by his leader to interrogate LTTE suspects. Asked why he had not tried to escape before December 2002 he said he would have been shot by the LTTE and in any event the whole of Jaffna was under army control. On 10 December 2002 there had been trouble at the camp and it was he who had thrown a grenade at the local Tamil people. They then demanded he should leave.”

In this context, Mr Adler referred to evidence as to the ease with which, at the material time, LTTE supporters could travel from Jaffna to Colombo. He referred, as I have said, to a number of killings which, although before the immigration judge, he suggested showed a somewhat different picture from that considered by the tribunal in PS when giving its guidance. He maintains the judge made no specific reference in his determination to this particular evidence, with the result that his decision on the evidence as to where in the scheme of seriousness the appellant’s vulnerability should be placed on the PS scale is unclear. Mr Adler submitted that his want of reasoning vitiates his conclusion as to relocation in Colombo for the appellant.

Miss Richards, in her response in her skeleton argument to this part of Mr Adler’s arguments was to refer the court to paragraph 6 of his determination indicating, she submitted, that he had considered all the evidence, including the documentary evidence before him, which of course included all or most of the particular killings to which Mr Adler gave prominence in his oral submissions to the court today. She maintained that there was nothing in the objective evidence before the immigration judge and to which he referred that could have prevented him, or a reasonable judge, from reaching the conclusion that he did.

It appears from our own examination of the bundles and submissions of counsel that most of the objective material on which Mr Adler relies in suggesting that the judge irrationally did not put the vulnerability here in the high profile category in PS was considered by the tribunal in that case. So, there was no material factual difference between the circumstances of danger considered there by the tribunal in giving the guidance it did and those here to which that guidance was applied by the immigration judge.

That is important because it is clear, certainly in my view, that there was a similar factual picture in this case to that before the tribunal in PS. I, therefore, agree with Miss Richards there is no case for watering down in any way or varying in any way the applicable guidance from PS on account of any claimed variance between the objective evidence available to it and to the immigration judge here as to level of vulnerability to somebody who was anti-LTTE when he or she transferred from Jaffna to Colombo.

The judge clearly had regard to the subjective and objective evidence, as the references in paragraphs 6 and 7 of his determination make plain. In my view, he was entitled to reach the conclusion he did on the basis of that evidence. There is no basis for the argument of Mr Adler that, in doing so, he overlooked some piece of evidence, or gave it too little weight, so as to render his overall conclusion irrational or otherwise unlawful.

Indeed it is plain in paragraph 11 of the immigration judge’s reasons that the objective evidence to which Mr Adler refers was expressly drawn to his attention and that he had it clearly in mind. Accordingly I reject this third ground of the appeal. I would therefore dismiss the appeal.

LORD JUSTICE CARNWATH: I agree. I would add one point. The transcript of the proceedings before Laws LJ, which resulted in the grant of permission to appeal, shows that the point in the matter was put on a very narrow basis by Mr Adler. He had argued that the PS case had been misinterpreted by the immigration judge, in that in dealing with the three categories who were at risk, to which my Lord has referred, he failed to have regard to the category of “renegades or traitors”. Laws LJ concluded:

“I think, with some considerable diffidence, that it is arguable that the immigration judge has not reasoned out the case so as to reflect what was truly being put to him in relation to this applicant’s activities in EPDP and in the context of the PS case.”

Following the more detailed analysis that we have been able to undertake in this court, is I am very doubtful whether the distinction there relied on by Mr Adler was in fact made in any clear terms to the immigration judge. It is incumbent upon an appellant who seeks to suggest that some important aspect of his case has been left out of account to put that point clearly and to produce some evidence to support it. The particular point about renegades or traitors is only very briefly alluded to in paragraph 8 of the 13paragraphs in the Grounds of Appeal and is not mentioned at all in Mr Adler’s brief skeleton argument. The carefully reasoned determination of the immigration judge, which summarised the arguments, did not refer to it, and there appears to have been no skeleton argument before the immigration judge which mentioned it. All we have to go on is Mr Adler’s assertion that it was mentioned. For my part, if someone is seeking to rely on such a ground, I would need something more than the assertion of counsel to make it good.

LORD JUSTICE RICHARDS: I agree with both judgments.