OLEED and Secretary of State for the Home DepartmentSecretary of State for the Home Department [CA (Civil), 19/12/2002]
| Jurisdiction | England & Wales |
| Judge | Lord Justice Schiemann,Lady Justice Arden,Mr Justice Aikens |
| Judgment Date | 19 December 2002 |
| Neutral Citation | [2002] EWCA Civ 1906 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 December 2002 |
| Docket Number | Case No: C/2002/0125 |
[2002] EWCA Civ 1906
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL
TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Schiemann
Lady Justice Arden and
Mr Justice Aikens
Case No: C/2002/0125
Manjit Gill QC & Noah Weiniger (instructed by Corbin & Hassan Solicitors) for the Appellant
Sean Wilken (instructed by Treasury Solicitors) for the Respondent
Before the court is an appeal by an asylum seeker, Mohamed Oleed, who came here from Sri Lanka. He arrived on 29 July 1999 and claimed asylum upon arrival. This was refused by the Secretary of State on 17 February 2000. He appealed to an Adjudicator who allowed his appeal, finding that Mr Oleed had proved to the required standard that he had a well-founded fear of persecution for a Convention reason if he were returned to Sri Lanka. The Home Secretary however did not accept this finding and appealed to the Immigration Appeal Tribunal. His main contention there was that the Adjudicator's determination was "against the weight of the evidence" and was internally inconsistent. The Tribunal accepted these contentions and restored the decision of the Secretary of State. Mr Oleed now appeals to us.
The factual background
The background to the situation in Sri Lanka is well known. In a nutshell, at the relevant time the LTTE and the Government were at odds and a bitter civil war was going on. Those suspected by one side of belonging to the other were at risk of ill treatment. Mr Oleed's case was that he was a neutral shopkeeper wrongly suspected by each side of belonging to the other.
Mr Oleed gave evidence with the aid of an interpreter. His case before the Adjudicator contained the following assertions. His brother was a member of the Jihad and had been killed by the LTTE. Mr Oleed was also suspected both by the LTTE and by the police and army of belonging to the Jihad although in fact he did not belong to it. One day in Trincomalee where he was living he was going to the mosque and was detained by the LTTE; they gave him a gun and asked him to go forward; at this time a military truck arrived and the LTTE members ran away chased by the army; he was detained on the spot, questioned and beaten; as result one of his legs was broken, the other was dislocated; he lost consciousness; he assumed that the Army had left him for dead but had subsequently found out that he was alive. Some people took him to hospital where there were no guards around him. His leg was put in plaster there. He remained for two days. Whilst he was there a friend visited him and told him that the LTTE had been looking for him at his house and shop, and when they could not find him they ordered his wife out and set fire to the premises. He discharged himself from hospital and went into hiding for four or five days in Trincomalee. He and his wife then went to Colombo hidden in the back of a fish lorry for 15 hours. Subsequently the army visited the site of his burnt property and were told by neighbours that they had gone to the city. He remained in hiding in Colombo for eight or nine days because he learned that the army were searching for him there. During this time a man was brought to the house who removed his plaster. He was put in contact with an agent who was paid with money which came from his wife. She had managed to take some jewellery when the LTTE burned their house. He then fled from Sri Lanka and came to the UK via Russia and France. After he had arrived in the UK he had heard from his sister that the army had been searching for him in Sri Lanka at his sister's house and left a warrant for him (this 'warrant' appears to be a mistranslation for 'summons' but no one has suggested that anything turns on this). His sister had sent the warrant to him in England by post. He feared that if he were returned he would be arrested by the authorities.
The warrant on its face is dated 10 th May 1999, appears to have been issued by the Registrar of the District Court at Matale and orders him to appear at the Magistrate Court in Matale on 20 th May 1999. The charge is translated as "On the 10 th day of May 1999 with the terrorist you were jointly having a clash". The warrant has a number. It describes him as residing in Matale. Matale was where his sister lived, but he visited her regularly.
Although he had not before the hearing assigned a particular date for the incident with the army, in the course of cross-examination before the adjudicator he stated that the incident with the army had happened on the 10 th June 1999 and that this was the first time he had difficulty with the army or the authorities. This fitted in neatly with the rest of his account but did not square with the allegation in the warrant which related to a day a month earlier.
Medical evidence was given which was consistent with the version of events given by Mr Oleed.
The adjudicator examined the background situation in Sri Lanka with great care and his conclusions were not challenged. In areas affected by the LTTE serious human rights abuses continued to be committed by the security forces. The LTTE had also been responsible for atrocities and reportedly torture on a routine basis. There was a high likelihood of further investigation for those who were suspected of LTTE membership on the basis of police records. If returned to Sri Lanka Mr Oleed would be arrested on the warrant.
The following are the most important parts of the Adjudicator's decision.
32. I will now deal with the appellant's evidence. … The next difficulty the appellant had with the authorities was on 10 June 1999 when he states whilst travelling to the mosque to pray he was stopped by five or six members of the LTTE who gave him a gun and asked him to walk forward. At this time a military truck arrived and the LTTE members ran away. The army members caught him he was arrested, detained, tortured and beaten, he suffered one broken leg the other leg being dislocated, he passed out and awoke in hospital. Mr Weinegar [the appellant's counsel] submitted that the respondent had not attacked the credibility of his story here. That is correct. I do, however, find his story here somewhat bizarre. The appellant further indicated that when he awoke in hospital, where he remained for two days before discharging himself, no member of the security forces was present. I do find his evidence here somewhat surprising as a suspected member of the LTTE in possession of a firearm I do not believe he would be left unguarded.
35. …although I accept his premises were destroyed by the LTTE I do not accept the evidence in relation to his wife being able to retrieve money. … I cannot accept that the sale of [the] jewellery would fund the significant amount he allegedly paid to fund his journey and subsequent stay in Colombo and then his escape which eventually brought him to the United Kingdom
39. I do not believe the appellant has given a totally truthful account, there are significant parts of his evidence that in my estimation lack credibility. In particular I regard the following evidence as without foundation, his contention that he was not subject to any security during his two day stay in hospital, the sale of his wife's jewellery which I find would not cover the cost of his journey, the detail of his journey and stay in Colombo, and his evidence that he was suspected of LTTE membership prior to the incident in June 1999. I do, however, accept the evidence of the appellant that there was an incident with the army when he was severely beaten receiving the injuries of a broken leg and a dislocated leg. What does in this case tip the balance in favour of the appellant is the warrant issued against him. The warrant alleges "on the 10 th day of May 1999 with the terrorist you were jointly in having a clash" (sic). The authenticity of this warrant was not challenged by the respondent, the appellant gave the date of the only incident that had occurred with the army as the 10 June 1999. It may be that the appellant has given a wrong date of this incident for whatever reason, but it is clear to me that there was an incident with the army and a warrant is in existence against the appellant for what appears to be described as a similar incident. If returned to Sri Lanka the appellant will be arrested on the warrant and there is sufficient information available in the objective material to show that persons suspected of LTTE connection or terrorist connection being subjected to ill-treatment whilst detained (sic). …
The case was thus one of those with which adjudicators are familiar. An applicant gives evidence some of which, but not all of which is believed. The Adjudicator clearly believed that Mr Oleed had been beaten up by the army, that awaiting for him should he be returned was a summons dated 10 May 1999 requiring him to answer a charge of being involved on that day jointly with terrorists in a clash, that this would lead to his arrest on return and that there was a reasonable degree of likelihood that he would be persecuted for a Convention reason if he were returned.
We were given to understand that the Adjudicator had been furnished with a copy of the warrant some time before the hearing. Many months elapsed between the hearing before the adjudicator and that before the Immigration Appeal Tribunal. Although in other cases the Home Secretary, following inquiries via the High Commissioner as to the genuineness of warrants, produces evidence which casts doubts on their genuineness, in the present case there was...
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