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

This is a renewed application for permission to appeal to this court from a decision of the Upper Tribunal (Immigration and Asylum Chamber) of 10 October 2012. The Upper Tribunal dismissed the applicant’s appeal from the decision of the First-tier Tribunal of 17 April 2012 whereby that tribunal in turn had dismissed the applicant’s appeal from a decision of the Secretary of State to refuse to grant him asylum in the United Kingdom. Permission to appeal to this court was refused by the Upper Tribunal on 6 November 2012 and by Davis LJ, a single judge of this court, on 25 January 2013. The applicant’s claim to asylum was based upon allegations that he had been tortured, in particular in three periods, during his presence in Sri Lanka. The First-tier Tribunal Judge dismissed the account of the applicant, which was supported by his brother and by the three expert witnesses, on the basis that he found the applicant’s account to be wholly incredible, for reasons that he set out in some detail in his decision.

The main criticism of the First-tier Tribunal’s decision, which is the principal ground of proposed appeal, is that that judge failed to have adequate regard to the expert evidence and, in particular, the medical evidence and further, insofar as that evidence was rejected in that tribunal, the judge gave inadequate reasons for so doing. As Ms Hirst put it in her written submissions to the court, the primary issue in the case was an assessment of the risk to the applicant on any potential return to Sri Lanka now or (one might put it) at the time when the judge was considering the case. She argues that the primary issue is not the credibility of the applicant as such, but she argues that the approach of the First-tier Tribunal to the medical evidence was fundamentally flawed and the objective material was not properly considered, thereby rendering questionable and unsupportable the factual decision made by the First-tier Tribunal Judge.

The court’s task in considering the application is defined by paragraph 2 of the Appeals from the Upper Tribunal to the Court of Appeal Order, SI 2008/2834. That test is that the applicant must show that the proposed appeal would raise some important point of principle or practice, or that there is some other compelling reason why the court should hear the appeal. Ms Hirst submits that, on the basis of that test, she satisfies the relevant criteria. But, secondly, she wishes to apply for permission to rely on the further ground that the “second appeals test,” as it has come to be known, is itself incompatible with the requirement for anxious scrutiny of asylum claims under Article 3 of the Convention and in the context of the European Charter on Human Rights, which is directly applicable in this jurisdiction.

I note, of course, in relation to this second point that, so far as the Convention is concerned, the Human Rights Convention, this court has decided, in a Sri Lankan case, that the second appeal test does not contravene the Refugee Convention or Article 3 (see PR (Sri Lanka) [2012] 1 WLR 73). That decision, so far as it goes, is clearly binding upon me. With respect to Ms Hirst, I cannot see that the European Charter dimension adds anything to the point. It is said that the failure to consider that charter is an important matter that needs to be raised. I say that I will refuse permission to raise that additional ground, not only because of the lateness of the application, which Ms Hirst acknowledges, but on its merits.

The judicial process for appeals of this character in this country is, in my judgment, singularly rigorous. It affords the asylum or human rights claimant a full factual assessment by a specialist tribunal and an appeal on matters of law to the Upper Tribunal. In the Upper Tribunal, the case is again considered by experienced specialist judges who are uniquely qualified to assess the legal approach taken in the First-tier Tribunal in the light of vast day-to-day experience in cases of a similar type. Finally, there is the facility of application to this court, where usually the applications also come before judges experienced with cases of this type. Davis LJ, for example, who considered this case on the papers, was a judge of the Administrative Court and is here the Supervising Judge for asylum and immigration cases. The notion that the processes that I have described do not satisfy the requirements of anxious scrutiny of such matters does not, in my judgment, bear any serious examination.

I turn to the substance of the application, where the arguments, with respect, are more forceful. I have summarised the grounds raised. In my judgment, however, for the reasons given by the Upper Tribunal and by Davis LJ, this is not a proper case for the grant of permission to appeal.

I have myself considered with some care the expert reports in this case. The question for the fact-finding tribunal was that which Ms Hirst has identified, in terms that I mentioned: the risk on return to Sri Lanka. That risk has to be assessed on the basis of all the evidence including, of course, the expert evidence. That expert evidence could only go so far. Agreed, the evidence gave some history of reported mental health problems. Its conclusions were not, in my judgment, at the strongest, and dated from some time before the hearing. The First-tier Tribunal Judge gave cogent grounds for assessing the case that was advanced by the applicant in the light of that and in the light of the manner in which the factual case had been presented by him both on paper and orally. Yes, I agree, Dr Arnold did find evidence of scarring and, to some extent, whipping. The judge considered it and for cogent reasons, in my judgment, found it of limited value in the context of the issue that he had to decide, namely present risk. Dates were all-important, and that was something that Dr Arnold could not supply. The First-tier Tribunal Judge also clearly had Professor Good’s evidence in mind.

Objective material of that character is well known in the tribunals and the position of Sri Lanka is, as I put to Ms Hirst in argument, one which is given anxious scrutiny by all tribunals. However, in each individual case, the elements of the evidence before any court will vary in strength and force. The elements of the evidence will play their different roles in each individual case. The judge gave a most extensive and cogent analysis, in my judgment, of the case that was made in the light of all the evidence. Buxton LJ in Mibanga v SSHD[2005] EWCA Civ 367, with respect, put the matter well in paragraph 19 when he said this:

“Where, as in this case, complaint is made of the reasoning of an adjudicator in respect of a question of fact (that is to say credibility), particular care is necessary to ensure that the criticism is as to the fundamental approach of the adjudicator, and does not merely reflect a feeling on the part of the appellate tribunal that it might itself have taken a different view of the matter from that that appealed to the adjudicator.”

I agree of course that Ms Hirst’s point is that there was a fundamental error of approach, but Buxton LJ’s comment is also a reflection of a more general approach of the appellate courts to considering questions of fact. In the well-known case of Piglowska v Piglowski [1999] UKHL 27, Lord Hoffmann said this:

“...the appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge's evaluation of those facts. ...”

Then there is a quotation from his own decision in Biogen Inc v Medeva Ltd [1997] RPC 1:

“The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.”

Ms Hirst submits that the First-tier Tribunal Judge adopted a fundamentally wrong approach, but with respect I disagree. The judge stated his conclusions on the basis of all the evidence, medical and otherwise. That evidence bore down heavily upon whether the applicant was telling the truth. If he was not telling the truth, his claim that he would be at risk on return was faced with insuperable difficulties. This was a man who was claiming before the tribunal that he had left Sri Lanka with recent painful wounds. He arrived on 30 October 2010 on a student visa but did not apply for asylum for over a year later on 2 November 2011. Even if one does not blame him because of his possible mental health condition for not seeking asylum from the Immigration Officer, it is indeed remarkable that with fresh wounds he made no approach, and no approach was made on his behalf, for asylum for such a lengthy period while the evidence on his own case would have been fresh for all to see.

There is a limit to the extent of the credulity that courts must display. The First-tier Tribunal Judge saw this applicant give his account. I accept, as Ms Hirst says, that the testing of it was somewhat limited, but he based his assessment on having seen that witness in the light of the expert evidence. The judge’s findings were, as Lord Hoffmann says in Piglowska, necessarily an incomplete statement of the impression of all the evidence, but that is not to say it is fundamentally inadequate provided the judge does enable the applicant to know why his claim has failed and has in fact assessed the evidence that was before him. It is clear that this judge did precisely that.

Regrettably, there is an increasing tendency in immigration cases, when a First-tier Tribunal Judge has given a judgment explaining why he has reached a particular decision, of seeking to burrow out industriously areas of evidence that have been less fully dealt with than others and then to use this as a basis for saying the judge’s decision is legally flawed because it did not deal with a particular matter more fully. In my judgment, with respect, that is no basis on which to sustain a proper challenge to a judge’s finding of fact. I agree entirely with the Upper Tribunal and with Davis LJ, and their reasons that they gave for refusing permission to appeal. While I have supplemented those reasons, I cannot better them.

In spite of Ms Hirst’s very cogent and ably argued submissions in this case, the renewed application is refused.