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

Like many Sri Lankan Tamil cases this is, as I said when dealing with the matter on paper, a troubling case. It has been dealt with in considerable detail and it seems to me with visible care by the AIT. They have turned down the appeal on the dual grounds, in essence, that aspects of the account given by the applicant are inconsistent and, on balance, not persuasive; and that, allowing for that on the one hand and the facts that are established to their satisfaction on the other, there is no sufficient evidence of risk to her safety either from the army or from the LTTE if she is returned.

Because the history of the case and the evidence given are so well and clearly set out in the AIT’s decision, I do not propose to rehearse them here. Mr Martin has sought today, in the light of my reasons given on the paper application for refusing permission to appeal, to demonstrate that there is an arguable case on two principal grounds. One is that, in his submission, the Tribunal has not properly implemented the county guidance decision in LP (LTTE area, Tamils, Colombo, risk) Sri Lanka CG [2007] UKAIT 00076, in particular in failing to look cumulatively at the risk factors. The other is that their adverse credibility findings are themselves flawed and as a result have an unfair impact upon the ultimate conclusion. The ultimate conclusion at paragraph 28 is this:

“We accept that it is likely that the Appellant was detained and ill-treated as described in January 2006 in consequence of her involvement in local demonstrations: she has been consistent in this aspect of her evidence, has provided some corroborative evidence in the form of a medical report relating to her scars, and such an event is plausible when measured against the country information. However, we are doubtful as to the circumstances of her release, and in particular we reject her claim as to the imposition of a reporting restriction. We do not consider that there is any continuing risk by reason of her involvement in the Poongu Tamil Neera: she was, on her own evidence, held for a lengthy period during which she provided what little information she could about such an event. We do not consider that thereafter her involvement in that event would mark her out, in the opinion of the authorities, as somebody with involvement in, or support for, the LTTE significant enough to warrant further enquiry or investigation.”

One is profoundly conscious, sitting in this court, that the sanguine prognostications of a tribunal which dismisses an asylum appeal may well turn out to be false, with consequences for the appellant that one shudders to think of. At the same time it is the AIT and not this court which is the fact-finding tribunal. This court can only consider intervening if there is an arguable error in the fact-finding, either an error of law or an error of logic. It is the latter that Mr Martin has to found upon here, and I regret to say that, having listened to him with the respect that his submissions always deserve, I have not been able to discern any such arguable error here.

It is suggested in relation to the need to look at the risk factors cumulatively that the Tribunal have erred by looking at them in isolation from one another. They deal with this aspect of the case in paragraph 26. One can look directly at sub-paragraph (iv) which reads as follows:

“The Appellant’s facial scars, whilst providing some corroborative evidence of her ill-treatment, are not obvious in size or appearance. The scar on her abdomen is not visible when clothed. We note the observations at paragraph 217 of LP and similarly conclude that the Appellant’s scars will not put her at risk in themselves, and, in circumstances where we do not consider that she is at risk of investigation for any other reason, we do not consider it sufficiently likely that her scars will come to light or be perceived as indicative of involvement with the LTTE.”

It seems to me, with the best will in the world, that Mr Martin cannot make good his argument that this is a separating out of the elements which should be cumulative. On the contrary, what the Tribunal have done is evaluate each of the indicators but, having decided that there are no other indicators of ongoing risk, do not find anything to aggregate with the scarring in considering what risk the scarring may indicate. Mr Martin intelligibly points out that this appellant, like all such appellants, will have to be returned to Colombo and whether she elects to remain there for relative safety or to try to make her way home, is going to run into road blocks where she will be identified as a Tamil and her scarring be found. That is an argument of fact which the Tribunal have entertained and have not considered to be a sufficient indicator of risk, and I am afraid that it is not possible to discern in their view an error of law.

As to the question addressed in paragraph 25(i) of the manner of the appellant’s release: again, if I had been trying this appeal I might very well have come to a different and more benign conclusion about the apparent inconsistencies in the appellant’s case; but the Tribunal, without being -- if I can use the phrase -- gung ho about it, have firm reasons for doubt which have led them not to be sure about the veracity of the appellant’s account of her release. That in turn has knock-on effects which they have gone on to account for in relation to any risk that might face her on return. In relation to paragraph 25(ii), again there is the question of ongoing suspicion. Here too the argument seems to me to be an attempt to re-argue facts which the Tribunal have addressed in detail and for better or for worse have come to a tenable conclusion about.

I will not go though the detail of the case. The reasons that I gave in writing for refusing permission to appeal are reasons which, having heard Mr Martin with care and concern, still seem to me, I regret to say, to be conclusive against the grant of permission to appeal. This decision of designated Immigration Judge Woodcraft and Immigration Judge I A Lewis is a strikingly carefully considered one. It contains no omissions of fact. It contains evaluations which are understandably contested but it makes its evaluations upon a basis of reasoning which it seems to me not possible to fault. For reasons I have indicated I am extremely sorry that this is so. One would like, if possible, to be able to get a fresh look at a case of this kind; but a point comes at which that has been done and at which there is no legal reason for allowing it to be done again. I am afraid this is such a case and with regret I refuse permission to appeal.