R (Sivakumar) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | THE HON MR. JUSTICE CRESSWELL |
| Judgment Date | 22 January 2001 |
| Neutral Citation | [2001] EWHC 109 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3841/99 |
| Date | 22 January 2001 |
[2001] EWHC 109 (Admin)
IN THE HIGH COURT OF JUSTICE
(ADMINISTRATIVE COURT)
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
Royal Courts of Justice
Strand, London WC2 2LL
The Hon. Mr Justice Cresswell
CO/3841/99
Miss M. Phelan, instructed by Nathan & Co, appeared on behalf of the applicant.
Mr. A. Underwood, instructed by the Treasury Solicitor, appeared on behalf of the Home Secretary.
This is an application for judicial review of a decision of the Immigration Appeal Tribunal promulgated on 23 June 1999 refusing leave to appeal the determination of a Special Adjudicator. The Special Adjudicator dismissed the applicant's appeal against the refusal of the Secretary of State to grant the applicant asylum. Mr. Justice Jackson granted permission to apply for judicial review on 6 September 2000.
The applicant is a Tamil citizen of Sri Lanka. He has never been a Tamil Tiger or a Black Tiger. He appears to have involuntarily assisted the Tigers in the past. He has never been involved in any form of terrorism. He was arrested three times but was not prosecuted. He suffered serious harm.
The determination and reasons of the Special Adjudicator.
In his determination and reasons (“the Determination”) the Special Adjudicator said:-
“…This is an appeal by a Tamil citizen of Sri Lanka, now 25, who arrived here on 11 September 1997 and claimed asylum. Although he was interviewed the same day, it took the Home Office till 27 January 1998 to give him notice of refusal of leave to enter. …
The appellant confirmed that he had been detained twice in mid-1997…the appellant… explained that he had gone to Kalmunai [in the east] in 1993 to escape pressure from the Tamil Tigers; however, that was where his brother-in-law had been shot by them in 1994. He hadn't moved to Colombo at any stage, because he had no friends or relations there, and would be suspected by the authorities of being a “black Tiger” [member of a suicide squad]. During his detentions, he had been considered as a member of the Tamil Tigers; but his uncle had managed to bribe him out on three separate occasions, in which there was nothing unusual. The only person he had ever picked out in the course of his duty as a “masked informer” had not been a Tamil Tiger at all, so far as he knew. Nevertheless, his guards' concern for their commercial reputation had made them let him “escape”, as agreed with his uncle's broker: he didn't know how much his uncle had paid, as he hadn't been in a state of mind to ask. His uncle had been engaged in buying goods in Vavuniya for sale elsewhere; he himself had been earning about £100 a month. As for his trip here, which had cost about £6000, that too had been paid for by his uncle, out of the proceeds of his business. Asked how it had been decided he should come here, the appellant said his uncle had just wanted to send him somewhere safe; the agent had brought him to this country. As for why he should have been prepared to come to a completely unknown country, but not to seek refuge in Colombo, the appellant said he was in daily fear everywhere in Sri Lanka…
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… 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”.
The determination of the Immigration Appeal Tribunal
In its determination the Immigration Appeal Tribunal said:-
“…The adjudicator['s]…conclusions…were that the applicant had not shown any basis for a claim under the Convention. The adjudicator appears to have considered all the evidence before him, properly directing himself as to the proper standard of proof. The adjudicator came to clear findings of fact, after giving to each element in the evidence the weight he considered appropriate.
The Tribunal has studied the papers on file. It considers that the conclusions of the adjudicator are fully supported by the evidence, bearing in mind the adjudicator's assessment of the oral evidence. There is no misdirection in law. Read as a whole the determination is a full, fair and reasoned review of the applicant's case.
In the opinion of the Tribunal this is not a proper case in which to grant leave, and such leave is refused.”
The applicant's case
Miss Phelan on behalf of the applicant submitted as follows.
The final paragraph of the determination of the Special Adjudicator should be read as meaning “…involvement in violent terrorism…does not…come within the protection of the Convention”. The Special Adjudicator misdirected himself in finding that violent terrorism does not come within the Convention, as clearly it may do. Alternatively he was obliged to give reasons as to why violent terrorism did not come within the Convention in the applicant's case.
If the Special Adjudicator meant that the applicant's persecutors had an unalloyed motive of punishing or attempting to dissuade terrorism, the Special Adjudicator (and the IAT) failed to say this, or to cite any primary facts upon which such an inference could be drawn. Where the central finding is ambiguous, the determination is unsafe.
The potential Convention reasons were race, imputed political opinion and social group. The Special Adjudicator considered only imputed political opinion.
The Court of Appeal considered whether the ethnically based arrests and detentions of Tamils in Colombo amounted to persecution in Ravichandran v SSHD [1996] Imm AR 97 —see in particular Simon Brown LJ at 109. See further Paramananthan v Minister for Immigration and Multicultural Affairs [1998] 1693 FCA and Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19.
If the persecution was motivated in order to punish or deter crime or suspected crime or to persuade detainees to inform on their associates, there will be Convention protection if the underlying rationale of the crime was political.
The applicant was suspected of involvement with the LTTE, because he was a Tamil from Jaffna. He was therefore detained and tortured. While some or all of his persecutors may have (also) had a desire to punish or attempt to dissuade terrorism, the applicant was persecuted for his race, social group and/or imputed political opinion. The finding that the applicant was persecuted solely for a non-Convention reason is unsustainable. The applicant was tortured on three separate occasions in different areas of Sri Lanka by several persons. A decision maker would have to find that none of the torturers, while inflicting harm on the applicant, were motivated wholly or partly by his imputed political opinion, race or social group. A decision maker, properly directing himself as to the facts and the law, would have been unable to foreclose reasonable speculation that such motivation was present.
In finding that the applicant was persecuted because of a suspicion of involvement in violent terrorism, the Special Adjudicator failed to consider the credibility or reliability of the persecutor's statements, that they suspected the applicant to be training LTTE, to be a member of LTTE or a Black Tiger. The Special Adjudicator failed to consider that preliminary enquiries would have established that the applicant was employed and not a Tamil Tiger, that he was never prosecuted or taken to court, that he was released on each occasion upon payment of a bribe.
In assessing the future risk, a decision maker would again have to find that if or when the applicant was again suspected of LTTE involvement because of his political opinion, race, or social group, none of his persecutors would be motivated wholly or partly for a Convention Reason, see Karanakaran v SSHD [2000] Imm AR 271.
There was before the Special Adjudicator evidence which established that Tamils suspected of LTTE involvement risked torture.
Neither the Special Adjudicator (nor the IAT) considered the question of lack of state protection.
The submissions of behalf of the Home Secretary
Mr. Underwood on behalf of the Home Secretary submitted as follows.
The Adjudicator
The Adjudicator concerned himself with the motivation of the persecutors. The references given by the Adjudicator make it clear that the applicant was singled out among other Tamils for persecution because he was believed to have assisted in terrorism. The Adjudicator was plainly alive to the potential for a range of findings as to motivation. He was conscious that in this case the possibilities in play were political opinion or prevention of crime. He came to the clear and firm conclusion that the actual motivation was to do with the prevention of crime, and not political differences.
The IAT
The only ground of appeal that is now material is ground 4. Ground 4 complained about the reasoning in the final paragraph...
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