YM (Sri Lanka) v Secretary of State for the Home Department

This is a renewed application by YM for permission to appeal a decision of the Asylum and Immigration Tribunal who, on a reconsideration, dismissed the applicant’s appeal from the Secretary of State’s refusal to grant him asylum and related humanitarian relief.

The applicant, a 26 year old Sri Lankan Tamil, entered the United Kingdom on 19 April 2005, using a false passport, falsely claiming that he had come here to study. He claimed asylum after he was arrested two days later. The basis for this claim was that he feared persecution or ill-treatment because he had been arrested and charged with bombing the Central Bank in Colombo in early 1996, arrested again on suspicion of being connected with the LTTE in 2001, and suspected of assisting in a suicide bomb attack at a police station in July 2004.

The Immigration Judge rejected the applicant’s account as being without foundation and fabricated in an attempt to make out a claim for asylum. Alternatively, on the assumption that this account was entirely true, the Immigration Judge found that there was no real risk to the applicant if he was returned to Sri Lanka.

In an attempt to establish the credibility of his claim, the applicant had produced two documents: the first purported to be a record of court proceedings in February 1996 in the Mount Lavinia Magistrates Court, involving the applicant and 17 other defendants, who had been taken into custody on 4 February 1996 in connection with Tamil terrorist activities; the second purported to be a warrant for the applicant’s arrest, issued by the Trincomalee High Court on 28 February 2005 (after the applicant had left Sri Lanka) for failure to attend court.

The applicant’s then solicitors had asked a Mr Ganesharajah, an attorney at law in Sri Lanka, to verify the authenticity of these documents by inspecting the relevant court files, taking copies of the relevant documents and exhibiting them to an affidavit or explaining in an affidavit why copies could not be obtained. Mr Ganesharajah’s response to these requests, in a letter written in August 2005, was most unsatisfactory. He said that he had inspected the Mount Lavinia Magistrates Court files, but he did not say whether or not the document relied on by the applicant was on the file, or say whether the case had anything to do with the bank bombing, or explain why the objective evidence showed that only 10 people had been charged with that offence and their trial had not concluded until 2002, whereas the applicant claimed to have been bailed soon after his arrest and acquitted in 2001. Of the arrest warrant, Mr Ganesharajah said that he had spoken to the registrar of the Trincomalee court and could say with conviction that the charge which the applicant faced related to terrorist activities.

Having considered all the evidence, including the letters from Mr Ganesharajah, the Immigration Judge concluded that he doubted the authenticity of the 1996 document, and that he could attach no weight whatsoever to the arrest warrant.

The AIT ordered a reconsideration of the Immigration Judge’s decision on the ground that it was arguable that his rejection of the documentary evidence was irrational or perverse. By the time of the hearing before the Senior Immigration Judge, a further letter had been obtained from Mr Ganesharajah, dated 15 May 2006, saying that he had checked the court file in Mount Lavinia Magistrates Court, by reference to the case number and that the case did not relate to the bank bombing. He could not understand how the two cases appeared to have been treated as one. He repeated that the information he had obtained about the arrest warrant had come from the registrar at Trincomalee, which was 288 kilometres from where he was based and so he had been unable to go there.

Senior Immigration Judge Lane considered this material along with the other material, and concluded that the Immigration Judge was not obliged to take Mr Ganesharajah’s letters at face value, and more importantly that there had been no error of law in the credibility findings which he had made. But, he pointed out that there was then, and had been, no challenge to the alternative ground upon which the Immigration Judge had rejected the applicant’s claims. Counsel, who then appeared for the applicant, mounted some argument to the contrary, but the Senior Immigration Judge concluded that the finding of no real risk on return, made by the Immigration Judge was unassailable on the information he had before him.

On appeal to this court it was again contended that Mr Ganesharajah’s evidence should not have been rejected in the way that it was. By then the applicant had the benefit of being represented by Ms Jegarajah, who has appeared for him today and has put his case clearly and fairly. In rejecting the application for permission on the papers, Sir Henry Brooke said:

“The first immigration judge gave plenty of reasons for his unwillingness to accept the appellant’s evidence, and he went on to give reasons for concluding that even if what the appellant said was true, he would also have dismissed the appeal. Senior Immigration Judge Lane’s decision upholding this alternative finding does not appear to be challenged on this appeal. The first immigration judge was entitled to take cognisance of the fact that Mr Ganesharajah failed signally to do what he had been asked to do, and did not explain his failures in that regard, but in any event because of the alternative finding, I do not consider that any error in that regard would have been material in the result. I therefore consider that there is no real prospect of success.”

This morning, Ms Jegarajah submits that the Immigration Judge had not disbelieved Mr Ganesharajah’s evidence, so the key fact remains his evidence did established that there were court proceedings relating to terrorist activities involving the applicant in 1996 and 2005. The risk to the applicant on return could not properly be assessed until the factual basis of the applicant’s claim had been properly determined.

So far as the renewed criticism of the findings about credibility are concerned, I do not think that they raise any error of law. There are other points to be made, which Miss Jegarajah has made this morning, but those are points which have now been considered by the tribunal on two occasions, and I not think there is any real prospect of this court delving again into that matter. As the Senior Immigration Judge and Sir Henry Brooke observed, the applicant’s difficulty in this case is that the Immigration Judge did assess the risk to the applicant on return, on the basis that all he had said was true. He said he had been acquitted in the trial and therefore faces no further problems from the matters which gave rise to that trial and, as the Immigration Judge said, if the arrest was genuine there was nothing in the case of the applicant to indicate that he would not receive fair treatment while in detention, and a fair trial if there were outstanding charges which were pressed against him.

For these reasons, despite Miss Jegerajah’s attractive submissions, I would refuse permission to appeal in this case.