SR (Credibility - Fact Finding)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY,PRESIDENT |
| Judgment Date | 25 March 2004 |
| Neutral Citation | [2004] UKIAT 56 |
| Court | Immigration Appeals Tribunal |
| Date | 25 March 2004 |
[2004] UKIAT 56
IMMIGRATION APPEAL TRIBUNAL
The Honourable Mr Justice Ouseley (President)
Miss K Eshun
For the Appellant: Mr P Haywood, instructed by Van-Arkadie & Co, Solicitors
For the Respondent: Mr P Deller, Home Office Presenting Officer
SR (Credibility — Fact Finding) Sri Lanka
This is an appeal against the determination of an Adjudicator, Miss F Barry, who by her determination of 8 th October 2003 dismissed the Appellant's asylum and human rights appeals against the decision of the Secretary of State, taken on 21 st March 2001.
The Adjudicator's determination was a fresh determination following an earlier decision.
The Adjudicator rejected the evidence of the Appellant and seemingly of other witnesses whom he called to the effect that he was a prominent member of the LTTE who had been involved in broadcasting and presenting LTTE programmes, working as a newsreader, videoing conflicts and meetings of the LTTE. She accepted that he had been taken into custody by the Sri Lankan authorities in January 2000 and that he had been seriously tortured during his time in custody, some six months. She then assessed the risk of his being returned to Colombo on the basis that he was at best no more than a low level supporter of the LTTE and that as a failed returning asylum seeker, he would not be at risk from the adverse attentions of the authorities and that he would in all likelihood be waved through at the security checks.
She then considered his claim under Article 8. This was based on his diagnosis of PTSD, the treatment which he was receiving for it in this country and the absence in Sri Lanka of equivalent medical facilities. It was in particular the way in which Article 8 had been dealt with by the Adjudicator and her reliance inappropriately on A(E) and F(E) [2002] UKIAT 05237 as opposed to the decision of the Court of Appeal in Razgar [2003] EWCA Civ 840, which underlay the appeal. A number of other points were also raised about the way in which the evidence as to his prominence as an LTTE member had been appraised.
The Tribunal refused permission to appeal to it on the grounds that had the Article 8 claim been considered within the Razgar framework, it would inevitably have failed by reference to the thresholds which had to be met. The claims that there had been mis-appraisals of the evidence were also rejected. On statutory review, the Tribunal's refusal of permission was overturned.
For the purposes of the appeal before us, Mr Haywood who appeared for the Appellant commenced his submissions by dealing with the errors which he submitted existed in the appraisal by the Adjudicator of the evidence called on the Appellant's behalf. It became clear as we examined those points, that they were potentially critical errors. If what the Appellant had said was true, then plainly there was a much greater prospect of his succeeding on his Article 3 and asylum claims. Conversely, if the Adjudicator's appraisal was correct, and without expressing any view on the prospects of success of the Article 8 claim, the risk on return would have been markedly less. It might well fall within the scope of the series of the Tribunal decisions in Jeyachandran and subsequently as for example in Sathiyamoorthi 3 rd February [2004] UKIAT 00039S (Sri Lanka). In that case, the Tribunal in paragraphs 43 and 46 considered the latest position in relation to Sri Lanka and concluded that changes there did not alter the position as assessed in Jeyachandran. We set out those paragraphs:
“43. On a more general level, Miss Bayati recognised that the cautious note sounded by the UNHCR was the same as it sounded, before the Tribunal decided in Jeyachandran [2002] UKIAT 01689 that it was only the exceptional case which would not be able to return in safety. The position was reviewed in Thiagarajah [2002] UKIAT 04917. The current problems have been considered in a number of cases and the consistent position has been that the recent developments do not warrant a change in that assessment. Miss Bayati recognised that we should refer to our own reported cases on these country conditions. The pessimism in Dr Good's report of August 2003 is consistent with the pessimistic line which he has taken in the past, an approach which was considered by the Tribunal in May 2003, in P (Sri Lanka) [2003] UKIAT 00145. The current problems had not occurred by the time of his August report. That decision also considered the availability of medical treatment in relation to a case where the problems of the claimant were markedly more severe than here. He had been detained as a LTTE supporter and ill treated on a number of occasions. Nonetheless, the Tribunal concluded that he could be returned.
46. The...
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