R (Sivakumar) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE DYSON,MR JUSTICE WRIGHT,LORD JUSTICE THORPE
Judgment Date24 July 2001
Neutral Citation[2001] EWCA Civ 1196
Docket NumberCase No: C/2001/0314 QBAFC

[2001] EWCA Civ 1196

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

Cresswell J.

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Thorpe

Lord Justice Dyson And

Mr. Justice Wright

Case No: C/2001/0314 QBAFC

Sivakumar
Appellant
and
Secretary Of State For The Home Department
Respondent

Mr A. Nicol QC and Miss M. Phelan(instructed by Messrs Nathan and Co for the Appellant)

Mr A. Underwood QC (instructed by the Treasury Solicitor for the Respondent)

LORD JUSTICE DYSON

Introduction

1

The Appellant is a Tamil citizen of Sri Lanka. He was born in 1973. He left Sri Lanka on 7 September 1997, and arrived in the United Kingdom four days later. He sought asylum. On 27 January 1998, he was refused leave to enter, and his asylum claim was refused. On 21 May 1999, his appeal was dismissed by the Special Adjudicator. On 23 June 1999, the Immigration Appeal Tribunal refused leave to appeal. He was granted permission to apply for judicial review of that decision. On 22 January 2001, Cresswell J dismissed his application for judicial review. It will be necessary to examine the facts in some detail. It is sufficient at this stage to say that the Special Adjudicator accepted the account given by the Appellant that he had been detained and maltreated by the authorities in Sri Lanka on the grounds of suspected involvement in the violent terrorist activities of the LTTE or Tamil Tigers. It was the Appellant's case that he was not an LTTE sympathiser or supporter, although during the period 1990–95, he had been taken by the LTTE and forced to dig bunkers for them about twice a week.

2

The reasons given by the Special Adjudicator for his decision were contained in a short concluding paragraph in these terms:

"6. Conclusions. There is no particular reason not to accept the appellant's evidence, except about setting off for a completely unknown destination, rather than stay in Colombo: that is absurd, particularly given the large sum his family had paid for the trip. However, on the appellant's own account he was detained and ill-treated in the past on the various occasions he mentions

10.2 on suspicion of training Tamil Tigers

16.4 on suspicion of being a Tiger

25.2 for being a "black Tiger".

Unpleasant though the consequences were, they were not the result of any political opinions he might have been thought to hold, but of being suspected, however unjustly, of involvement in violent terrorism. That does not in my view come within the protection of the Convention, and there is nothing else in the evidence to show that he in particular would face persecution if returned to Sri Lanka: it was not argued that northern Tamils in general would do so; nor should I accept that, for the reasons given at paragraph 2 above."

3

At paragraph 2, the Special Adjudicator dealt with the safety of Sri Lanka for Tamils generally. Basing himself on material from the UNHCR, he said:

"Statistically speaking, there can be no doubt that the majority of such persons (sc failed asylum seekers) returned to Colombo are Jaffna Tamils, and no reasonable likelihood that they are at risk there merely because of their origins".

4

In refusing leave to appeal, the IAT said that the Special Adjudicator had made clear findings of fact which were fully supported by the evidence: there was no misdirection in law, and read as a whole, the determination was a full, fair and reasoned review of the appellant's case.

5

The issue that arises on this appeal is whether the Special Adjudicator adopted the correct approach to the question whether the appellant had a well-founded fear of persecution within the meaning of the Geneva Convention on the Status of Refugees ("the Convention"). Article 1A of the Convention defines a "refugee" as:

"any person who:

(2) owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …"

6

Article 1F provides:

"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations."

The facts

7

The appellant comes from the Jaffna area of Sri Lanka which has a large Tamil population and where the LTTE are active. He has never been a member of the LTTE himself. He went to Kalmunai in late 1993, and started to help his brother-in-law run a mill there. About one year later, the LTTE took his brother-in-law away. They also took one of the brother-in-law's lorries and used it to mount an attack on an army camp. The Special Task Force, a police unit, attacked the lorry and was later able to trace it to the mill at Kalmunai. In consequence, the appellant was arrested and detained for about a month. Throughout the period of his detention, his hands were tied behind his back, except when he was eating. He was tortured in appalling ways. His naked body was rolled on hot sand; hot sand was rubbed on his genitals; he was stripped and tied to a tree; burning cigarettes were placed on his body; he was hit with an s-lon pipe filled with sand, and kicked and beaten with rifle butts; and he was forced to watch appalling torture performed on other detainees. While in detention, he was interrogated and accused of being a member of the LTTE. After about a month of this treatment, his brother-in-law's father secured his release by paying a bribe.

8

The appellant returned to Jaffna. He lived with his family. In October 1995, the army launched an attack in his home area. The family escaped to Kilinochchi, where he was forced to start helping the LTTE again. In about March 1996, Kilinochchi was captured by the army, and the appellant and his family moved to Malavi. He started to work using a lorry that he had acquired from his family business to transport goods. He was based in Vavuniya.

9

The next arrest and detention occurred in Vavuniya in June 1997. He was driving the lorry when he was stopped at an army checkpoint. He was accused of taking goods for the LTTE. He was detained and tortured by the army authorities for 3 days. He was accused of being a Tiger and asked to "show them the others". He was beaten, a bag dipped in petrol was placed round his neck so that the petrol fumes burnt his nose and eyes; they said that unless he admitted that he was a member of the LTTE and identified other members, they would beat him to death; and the soles of his feet were beaten. Other similar acts of torture were perpetrated. He eventually agreed to identify members of the LTTE, whereupon the intensity of the torture was reduced. He was released on 16 August after his uncle had paid a bribe. He went to Colombo.

10

He was arrested again on 18 August 1997 on the grounds that he had not registered with the police. He was taken to a police station, and kept in a cell with two others. He was beaten again, but the level of torture was not on the same scale as previously. He was released on 1 September 1997, once again after his uncle had paid a bribe. He was told that the authorities were still suspicious of him and were making further enquiries.

11

He left Colombo on 7 September 1997, and, as I have already said, he claimed asylum on his arrival in the UK. The account that I have just summarised is derived from the witness statement that the Appellant made for the purposes of his appeal against the refusal of his claim for asylum. As stated in his Determination, the Special Adjudicator accepted this account with one immaterial exception.

The submissions

For the appellant

12

Mr Nicol QC submits that the Special Adjudicator should have found that, based on his experiences at the hands of the Sri Lankan authorities, the appellant had a well-founded fear of persecution on three Convention grounds, namely imputed political opinion, race (being a Tamil) and membership of a particular social group (a Tamil from the north of the island, the main centre of activities of the LTTE).

13

Mr Nicol argues that the Special Adjudicator set up a "false antithesis" between (a) persecution which was the result of a political opinion (which is protected by the Convention), and (b) persecution because a person is suspected of involvement in violent terrorism (which is not protected). The two propositions are not mutually exclusive. A person suspected of violent terrorism may well have a political opinion imputed to him by his persecutor. Accordingly, a person who is persecuted for suspected involvement in political crime may also be persecuted because a political opinion is imputed to him.

14

Mr Nicol relies on the UNHCR Handbook which, so far as material, states:

"81. While the definition speaks of persecution "for reasons of political opinion" it may not always be possible to establish a causal link between the opinion expressed and the related measures suffered or feared by the applicant. Such measures have only rarely been based expressly on "opinion". More frequently, such measures take the form of sanctions for alleged criminal acts against the ruling power. It will, therefore, be necessary to establish the applicant's political opinion,...

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