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

This is a renewed application for permission to appeal, following refusal on paper by Sir Henry Brooke. The applicant is a national of Sri Lanka who arrived in this country on a false French passport in April 2007. She is now aged 28. She did not claim asylum at the airport in order to protect the agent with whom she was travelling, but did so shortly afterwards. Her claim for asylum was refused, leading to an appeal to the Asylum and Immigration Tribunal.

The applicant, who is a Tamil, claimed to be in fear of her life from both the LTTE and the Sri Lankan authorities. Her case was that her two brothers had been active members of the LTTE and that, although she and her parents were not, their activities had attracted the attention of the authorities who accused her and her parents of encouraging them to join the LTTE. As a result, she was arrested in November 2000 and detained for a period of 16 months, during which she was tortured from time to time during interrogation, before finally being released in March 2002 when the ceasefire came into effect. During the period of her detention she was subjected to, among other things, being burnt with cigarettes on her arms and legs, which left scars.

The applicant said that it was a condition of her release that she reported to the police station each week. She said that the first time she reported she was detained for a day. On the second occasion she was detained for three days and was beaten. After that she was too frightened to report again, so she left the area altogether, trained in Jaffna to become a teacher and began teaching in a local school.

The applicant does not appear to have attracted any further attention from the authorities for about three years. However, she said that in late 2005, at a time when the ceasefire was beginning to break down, the LTTE began asking her about the whereabouts of her surviving brother, and put pressure on her to meet them on a regular basis. She said she felt she had to comply with their demands to avoid harm being done to her family. However, word that she had been in contact with the LTTE reached the authorities and they too began to harass and question her and her family. She said that she found the situation intolerable and, in August 2006, decided to leave her home area.

She travelled to Colombo but was unable to obtain a transfer to a local school and after a time decided to return to Jaffna. By that time, however, many of the roads were closed. She said she went to the police in Colombo in December 2006 to find out if she had clearance to travel and was promptly arrested. She said that she was kept in detention until the end of March and that during that period she was ill-treated on a number of occasions. She said that eventually her father had managed to obtain her release by bribing the local police. Shortly afterwards, she left for this country in the company of an agent, posing as his wife. She said that she was in danger of her life, both from the LTTE and the Sri Lankan authorities.

The Immigration Judge who heard the appeal accepted the applicant’s account of events that had befallen her prior to 2005, but he dismissed her appeal because she had not suggested that the LTTE had threatened violence against her when seeking information about her brother’s whereabouts; he made similar findings about the interest shown by the authorities at that time. He rejected her account that she had been detained from December 2006 to March 2007, and concluded that she would not be at risk of harm if she were returned to Colombo. The applicant asked for reconsideration on the grounds the Immigration Judge had made an error of law and in due course an order was made for a such a reconsideration. Although directions were given for the matter to be considered on the basis of up-to-date objective evidence, the immigration judge also directed that the positive credibility findings made at the original hearing in relation to events up to the end of 2005 were to stand. At the second-stage reconsideration, therefore, the only aspect of the applicant’s account that called for further investigation related to events which occurred between late 2005, when the LTTE and the authorities began contacting her, and April 2007, when she arrived in this country. As to that, the most important part was her account of detention and ill-treatment between December 2006 and March 2007.

The tribunal conducting the reconsideration considered the evidence of the applicant and considered what was then the recent decision in the Country Guidance case ofLP (Sri Lanka) CG [2007] UKAIT 00076. Although it accepted the findings of the first Immigration Judge as to events that had occurred prior to the end of 2005, the tribunal rejected her account of events between late 2006 and March 2007 as incredible, and on that basis dismissed the appeal.

The applicant now seeks permission to appeal on the grounds that the tribunal failed to apply the decision in LP with the necessary degree of anxious scrutiny and acted irrationally in dismissing the appeal. The grounds are most fully set out in a document prepared in support of the application to the tribunal for permission to appeal, and break down into a number of separate limbs.

First, the tribunal accepted that the appellant was likely to face a degree of questioning on her return to Colombo and would be on the authorities’ records. The tribunal in LP had identified twelve factors which were liable to give rise to ill-treatment, nine of which the tribunal found to exist in this case. It is said, therefore, that it failed to take adequate account of the existence of those nine factors. However, as Mr Martin, who has appeared for the applicant on this application, accepted, an appeal of this kind cannot be decided simply on the basis of identifying particular factors – what he described as “box-ticking”. What is required is an evaluation of the factors in the context of the particular case and the wider background. That is an evaluation which the tribunal must carry out in each case.

The next point made is that the tribunal went on to find that the applicant did not have “a high or any political profile” and that the authorities’ previous interest in her had been solely in connection with her brother’s links to the LTTE. In that connection the tribunal had found that nothing bad had happened to her since 2002. It is submitted on her behalf that a person does not need to have a high political profile in order to be considered at risk, and that the tribunal was wrong to think otherwise. It is said that it also failed to take account of the fact that the period between 2002 and 2005 was governed by the ceasefire and that the resumption of fighting now means that the authorities are keeping a lookout for Tamils, whose profiles mark them out as potential members or sympathisers of the LTTE.

In my view this submission does not really do justice to the tribunal’s findings. As I read its decision, it did not find that the applicant had a political profile of any kind. On the contrary, it found that she did not; and it took account of her general personal profile in reaching its decision about the likelihood of her being ill-treated on return. The tribunal clearly did not overlook the fact that the applicant’s brothers had been members of the LTTE. It did, however, hold that that was simply one factor to be taken into account along with all the other evidence in the case. In my view, the evaluation of the evidence as a whole in that way was precisely the function of the tribunal, with which this court cannot interfere without holding that its conclusion was perverse.

It is then said that the applicant had a record as a suspected LTTE supporter and would therefore immediately fall under suspicion on her return to Colombo; but that is itself an inference which counsel says the tribunal should have drawn from the fact that she had been detained on an earlier occasion for sixteen months and tortured. The tribunal, which accepted the findings made at the first hearing, was of course well aware of those matters and it was the body which had to decide what inferences should properly be drawn from them. Again, unless it can be said that it acted perversely in reaching its conclusion, this court cannot interfere.

The applicant had said that while she was in detention she was forced to sign a document in Sinhalese, and it is said that that too is likely to make her position worse because, in conjunction with a lengthy period of detention, it is liable to indicate to the authorities that she is a person of sufficient importance to justify particular interest. Again, however, this is but one of a number of factors that have to be taken into account.

Finally, there is the scarring consistent with being burned by cigarettes. In LP the tribunal found that, prior to the ceasefire, scarring, particularly around the elbows and knees, was generally accepted as something the authorities noticed and took into account. However, their interest appears to have been related to the fact that scarring of certain kinds might indicate training for or participation in military operations on behalf of the LTTE. In this case the tribunal found that the applicant’s scarring was minor and, more importantly, was consistent with cigarette burns. That is something that the tribunal had to take into consideration when assessing its likely impact on the authorities, who could be expected to question her on her return.

Mr Martin has drawn our attention to the existence of some evidence before the tribunal which postdates the findings in LP. It is quite true, of course, that the situation in Sri Lanka has continued to deteriorate since that decision, but it cannot be said that the tribunal was unaware of recent developments or of the evidence that was put before them. It refers expressly in its decision to the material contained in what was known as ‘the Black File’, namely a later country of origin information report and also a International Crisis report. It cannot be suggested, therefore, that that was material which the tribunal did not have before it and did not take into account.

The real difficulty, as I see it, for the applicant in this case is that it is essentially the task of the tribunal to assess the importance to be attached to all the various factors established by the evidence, both individually and collectively, and the court cannot interfere unless it is satisfied that the tribunal has acted irrationally or perversely or in some way failed to perform the task which it is required to perform.

Mr Martin drew our attention particularly to paragraphs 38-40 of the tribunal’s reasoning, and submitted that the failure to analyse all the various factors at greater length indicated that it had failed to give this case the degree of anxious scrutiny which it demanded. It is fair to say that the matter is dealt with in a compendious form and that in some cases tribunals extend their reasoning and discussion of the facts to much greater length than the tribunal chose to in this case. But nonetheless, it seems to me that the tribunal clearly had all the factors in mind and that they had considered them in reaching their conclusions.

When refusing permission to appeal, Sir Henry Brooke observed that this was a decision of an expert tribunal acting within the field of its expertise which was not arguably perverse. He also expressed the view that events which preceded its decision, insofar as they were not reflected in its determination, would not arguably have made any difference to its decision. In my view, with respect, he was right in both respects. I would therefore refuse permission to appeal.

I agree.