Viraj Mendis v Immigration Appeal Tribunal and Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 17 June 1988 |
| Date | 17 June 1988 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Neill, Balcombe, Staughton LJJ
I Macdonald QC and A Riza for the appellant
J Laws and P Havers for the respondents
Cases referred to in the judgments:
Bugdaycay and ors v Secretary of State for the Home DepartmentELR [1987] AC 514: [1987] Imm AR 250.
Secretary of State for the Home Department v Sivakumaran and orsWLR [1988] 2 WLR 92; [1988] Imm AR 147.
R v Immigration Appeal Tribunal and the Secretary of State for the Home Department ex parte Viraj Jerome Mendis (unreported, QBD 27 July 1987).
Political asylum — whether appellate authorities were entitled to take into account an unsolicited letter from the High Commissioner of the appellant's home country asserting that the appellant would not suffer persecution if returned to that country — whether such a letter was in law or factually irrelevant. HC 169 paras. 16, 165: United Nations Convention relating to the status of Refugees (1951) and Protocol (1967) arts. 1A(2), 33(1).
Appeal from Mann J. The appellant, a citizen of Sri Lanka, entered the United Kingdom as a student. He then became an overstayer for eight years. He then married a British citizen and in 1984, application was made for leave on the basis of marriage. He separated from his wife, however, a few months after that marriage and when interviewed about his application, sought political asylum. He had not engaged in political activities in Sri Lanka. His claim was based on activities allegedly undertaken in the United Kingdom and the assertion that because of those activities he was well-known to the authorities in Sri Lanka who, viewing him with disfavour, would subject him to persecution if he were returned there. His case attracted much publicity and the High Commissioner for Sri Lanka wrote an unsolicited letter to the Home Office denying that the authorities in Sri Lanka had any interest in the appellant or that, in terms, he would face persecution on his return. Both the Chief Adjudicator and the Tribunal, in dismissing his appeal against the refusal of political asylum, took account of that letter, as had the Secretary of State.
On application for judicial review it was argued that the letter was irrelevant. That argument was repeated in the Court of Appeal.
Held:
The letter was neither ‘irrelevant in law’ nor ‘factually irrelevant.’ The appellate authorities had been entitled to take it into account, and their decisions could not be faulted on Wednesbury principles.
The Court considered the proposition that a person who asserted that if he returned to his home country he would be obliged to speak out and give voice to unpopular opinions which would lead to persecution, could on that basis alone claim refugee status. Neill LJ left the matter open for future argument; Balcome LJ rejected the proposition; Staughton LJ thought that in certain cases such a person would qualify for refugee status, but considered the matter of no relevance in this appeal.
Neill LJ: This is an appeal from the decision of Mann J dated 27 July 1987 whereby he dismissed applications for judicial review of a determination of the Immigration Appeal Tribunal (the Tribunal) dated 10 July 1986 and of a deportation order made by the Secretary of State on 18 December 1986. The appellant is Mr Viraj Jerome Mendis.
The application to move the High Court for judicial review was made pursuant to the order of Nolan J dated 30 April 1987. In the course of the hearing of the appeal it became clear that leave to move for judicial review was limited by Nolan J to the application in respect of the deportation order. This court was satisfied, however, that Mann J dealt with the matter on the basis that there was also before him an application to review the determination of the Tribunal. Accordingly, with the consent of the Secretary of State, this court gave formal leave in respect of the determination of the Tribunal so that there should be no technical barrier in the way of a proper consideration of the two relevant decisions.
It is important to underline at the outset the limited role which the courts can play in cases such as the present.
On 21 August 1985 the Secretary of State initiated deportation proceedings against the appellant under s.3(5)(a) of the Immigration Act 1971 (the 1971 Act).
The appellant then exercised his right to appeal to the adjudicator. The Chief Adjudicator heard the appeal which opened on 2 December 1985 and was concluded on 12 February 1986. I shall refer again later to the hearing before the Chief Adjudicator. By a decision dated 14 February 1986 the Chief Adjudicator dismissed the appeal.
The appellant then appealed to the Tribunal. The appeal was heard on 3 July 1986 and was dismissed on 16 July 1986. By that stage the appellant's case had been considered by the two appellate tribunals which have been set up by Parliament to consider all the facts and to examine the exercise by the Secretary of State of the discretion given to him by statute. On 18 December 1986 the Secretary of State made a deportation order.
The High Court has no power to act as a further appellate tribunal. It can only interfere by way of the remedy of judicial review in those cases where there has been some defect in the decision-making process. Such a defect will be established where the authority entrusted by Parliament with decision-making has taken into account matters which ought not to be taken into account or, conversely, has refused to take into account or neglected to take into account matters which it ought to have taken into account.
In addition the court may interfere where it concludes that no reasonable authority could have reached the conclusion which was reached in the relevant case.
On the other hand it is to be remembered that, though the court can only interfere where there has been such a defect, the court is ‘entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines’: see R v Home Secretary ex parte BugdaycayELR [1987] AC 514 at page 531 per Lord Bridge. Moreover, as Lord Templeman observed at page 537 in the same case ‘Where the result of a flawed decision may imperil life or liberty a special responsibility lies on the court in the examination of the decision-making process’.
With this introduction I turn to the relevant facts as recorded at the hearings before the adjudicator and the Tribunal.
The appellant was born on 1 April 1956. He is now aged 32. He is of Sinhala extraction. His parents, who are Roman Catholics, live in Colombo in Sri Lanka. He has no close relations in the United Kingdom. He came to the United Kingdom on 29 October 1973 in possession of an entry clearance as a student. He came in order to study at the University of Manchester Institute of Science and Technology for the purpose of obtaining a Bachelor of Science degree and possibly a higher qualification before returning to Sri Lanka. He was subsequently granted leave to remain until 29 October 1975 so that he could continue his studies. He made no further application, however, to remain beyond 29 October 1975, nor did he then return to Sri Lanka. Subsequent enquiries as to his whereabouts proved unsuccessful until 25 May 1984, over eight years later, when he was interviewed by officers of the Greater Manchester police.
On 20 August 1984 solicitors acting on behalf of the appellant applied to the Home Office for leave for him to remain in the United Kingdom despite his overstay. The solicitors enclosed a copy of a marriage certificate showing that the appellant had married in Manchester on 25 July 1984. They requested that the appellant be granted an initial twelve months' extension of stay on the basis of this marriage.
The appellant and his wife were requested to attend an interview at Manchester airport on 29 October 1984. Only the appellant appeared. He explained that he and his wife had separated and that she had declined to come with him. He said that he had not returned to Sri Lanka in 1975 because his money had run out, he had failed his second year examinations and had decided to work for a time to save money in order to return to university. He retook the second year examination in 1979, 1980 and 1981 though he had had to work at the same time as he was studying. His attempts to pass the examination had been unsuccessful. He had ceased working in or about 1981 and since that time had been supported by public funds.
At this interview on 29 October 1984 the appellant was asked why he feared to return to Sri Lanka. According to the written determination of the Chief Adjudicator, to which we were referred, ‘He replied that it was well known that he opposed the present regime there and that the expression of the slightest left-wing viewpoint was sufficient to lead to his arrest. He added that even handing out political leaflets would lead to difficulties with the police and that he had not hidden his opposition to the present Sri Lankan government, attending demonstrations against the attacks on Tamils and writing magazine articles. The Sir Lankan High Commission Staff would have photographed him taking part in the demonstrations and also noted the content of the articles he had written’.
The appellant's wife was interviewed on 3 November 1984 when she confirmed that she and the appellant had separated in September and that she did not consider a reconciliation was possible.
The decision to make a deportation order was made on 21 August 1985. Before this decision was made, however, the Minister of State at the Home Office had received a letter dated 4 June 1985 from the High Commissioner for Sri Lanka in London. We have not seen a copy of this letter but it is common ground that its terms were...
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