Sabanathan (Manoharan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,Lord Justice Keene,LORD JUSTICE KEENE |
| Judgment Date | 17 October 2003 |
| Neutral Citation | [2003] EWCA Civ 1517 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 October 2003 |
[2003] EWCA Civ 1517
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Ward
Lord Justice Latham
Lord Justice Keene
Miss S Jegarajah (instructed By Mk Sri & Co Solicitors, Middlesex Ha1 2tn) Appeared On Behalf Of The Appellant
Mr M Fordham (instructed By Treasury Solicitors, London Sw1h 9js) Appeared On Behalf Of The Respondent
(Approved by the Crown)
Friday, 17 October 2003
I will ask Lord Justice Keene to give the first judgment.
The appellant in this case is an asylum seeker who appeals against a decision of the Immigration Appeal Tribunal ("IAT"), permission to appeal having been granted by that Tribunal. The IAT allowed an appeal by the Secretary of State against the decision of an adjudicator.
The appellant is a citizen of Sri Lanka, who arrived in the United Kingdom on 23 October 2001 and claimed asylum. He is now aged 31. His claim for asylum was refused by the Secretary of State. The appellant, a Tamil, was found by the adjudicator to be a credible witness. His account of events in Sri Lanka was that he had been injured there while fighting under compulsion for the LTTE. As a result of his injuries, in particular a wound to his leg, he was subsequently arrested as an LTTE suspect at a checkpoint by the Sri Lankan army. This was in February 2001. He was then detained in army custody for six months during which time he was brutally treated and tortured, so much so that he attempted to commit suicide. He had been released after the payment of a bribe by his uncle. That was on 10 August 2001. He left Sri Lanka a few days later.
There was a medical report before the adjudicator describing various scars of a permanent nature, though there were also photographs indicating those scars.
The adjudicator in his determination took account of the cease—fire agreement in Sri Lanka and an amount of background material about conditions in that country. He concluded that the appellant would be in a high risk category if returned because it was reasonably likely that he was wanted by the Sri Lankan army as a prisoner who had escaped from custody and because of his visible scars. The adjudicator took the view that there was a very real risk that the appellant would be re—arrested and re—incarcerated and then treated in a similar persecutory manner as in the past. Hence the appellant had a well—founded fear of persecution for a Convention reason and his return would also engage, as the adjudicator put it, Article 3 of the European Convention on Human Rights.
The Secretary of State appealed to the IAT. That Tribunal saw the photographs of the scarring to Mr Sabanathan. As a result it concluded that the scarring was not particularly visible and was not of any significance; it would not draw him to the attention of the Sri Lankan army if he were returned, though it was noted that at the time of his arrest the injuries would have been fresh and of more interest to the army. The IAT could not find any evidential basis for the adjudicator's conclusion on the scarring.
It also said that there was no evidence that the appellant was wanted in Sri Lanka as an escapee or for any other reason. It concluded that it was unlikely that his release as the result of a bribe would be recorded as an escape because that would have drawn attention to a lack of security at a supposedly secure institution; it was more likely that the appellant was simply released, with an indication that he was of no further interest to the authorities. There was, said the IAT, no objective evidence that he would be recorded as an escapee.
The IAT had earlier referred to a passage in paragraph 10 of the adjudicator's decision where he had observed that the statement of evidence form (SEF) had stated that the appellant had been released on payment of a bribe but had been told that this would be recorded as an escape. The IAT commented that in his evidence in chief the appellant had only spoken of being released on payment of a bribe.
The Tribunal made reference to a number of recent decisions of the IAT, one of which set out the position of the UNHCR, which had stated:
"Obtaining release from army custody on payment of a bribe appears to be a possibility; it is possible that such releases would be recorded as an official release without charge."
In its concluding paragraphs the IAT said this:
"12. In these circumstances, we find no objective evidence to support the Adjudicator's belief that the respondent would be recorded as an escapee or that he would be involved at a level likely to give rise to an interest in him on return. We do not find the objective evidence not least the fact finding mission to Sri Lanka, and the manner in which the issue is summarised in the Country Assessment of October 2002 suggests that there is any real risk that the respondent would be re—arrested or detained or treated in similar fashion as he had suffered in the past.
13. We also find that the overwhelming evidence is that the cease—fire, which has now been for nearly a year, and the material changes that have taken place as demonstrated in the Country Assessment, show that there is nothing about this respondent which would distinguish him and give rise to the likelihood of him being picked up on return or thereafter. The respondent's representative sought to argue by reference to the country assessment that there was continuing ill—treatment by the authorities for certain persons if they came to be detained: this begs the question of whether or not the respondent would be detained. That is partly borne out by material within the country assessment although manifestly major changes are afoot to investigate and protect human rights. See Country Assessment paragraph 6.103—6.108."
The IAT concluded that the evidence did not show that there was likely to be a real risk of ill—treatment or persecution of the appellant if he were to be returned, that conclusion clearly being based on the earlier conclusion that there was not a real risk of him being detained on his return. Consequently it overturned the adjudicator's decision and allowed the appeal.
Permission to appeal to this court was granted by a vice—president of the IAT who expressed the reasons for his decision as follows:
"There may be an arguable question of law as to how far Oleed [2002] EWCA Civ 1906 can be reconciled with Ravichandran [1996] Imm AR 97 (which would have made it essential for the Tribunal to assess the current situation for themselves)."
I am bound to say that I have not found it easy to discover precisely what it was that the vice—president had in mind by those words. The case of Oleed had been referred to in the grounds submitted on behalf of Mr Sabanathan because of a passage in the judgment to the effect that the IAT should only set aside a decision of an adjudicator who has heard the evidence if it is plainly wrong or unsustainable. In Ravichandran this court held that in asylum cases the appellate authorities, that is to say the adjudicators and the IAT, should look at the issues on the basis of the facts as they stand at the time of their decision. This is because the test in asylum cases is a prospective one, looking to the future, asking the question whether if an asylum—seeker were to be returned he would be at risk of persecution. That is what the IAT did in the present case in that it had regard to the country assessment produced by the Home Office's Country Information Policy Unit ("CIPU") dated October 2002. That document, strictly speaking, post—dated the adjudicator's decision which was produced in August of that year.
But even taking that at face value that does not conflict with this court's decision in Oleed, as can be seen by an examination of that case. The Court of Appeal there overturned a decision of the IAT because of flawed reasoning on the part of that Tribunal. Having so decided this court then had to decide whether to send the case back to the IAT to reconsider it in the light of the up—do—date situation in Sri Lanka. It declined to do so and Schiemann LJ, at paragraph 13, said this:
"It might well be useful but I do not consider that it would be a proper use of this court's powers now to send the case back to the Tribunal. The powers of this court are set out in CPR Part 52.10. We have all the powers of the lower court. We may set aside or vary any order made by the lower court. Those provisions give us the power to allow the appeal from the Immigration Appeal Tribunal, set aside its determination, substitute a determination dismissing the appeal from the Adjudicator and thus restore his determination. The present is in my judgment an appropriate case in which to exercise that power. I accept that the Tribunal examines the situation in the country from which the refugee is fleeing as at the date of...
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