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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> SN (Scarring, Bribes, LTTE Reprisals) Sri Lanka CG [2003] UKIAT 00150 (19 November 2003) URL: https://www.bailii.org/uk/cases/UKIAT/2003/00150.html Cite as: [2003] UKIAT 150, [2003] UKIAT 00150 |
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SN (Scarring– Bribes – LTTE - Reprisals) Sri Lanka
CG [2003] UKIAT 00150
Date of hearing: 12 November 2003
Date Determination notified: 19 November 2003
SN | APPELLANT |
and | |
Secretary of State for the Home Department | RESPONDENT |
For the appellant: Mr D Coleman, Counsel.
For the respondent: Ms J Sigley, Home Office Presenting Officer.
"…. His family are supporters and have been involved for some years with the LTTE, One of his older brothers, whom he has not seen for five or six years, holds high rank in the LTTE. Two other older brothers both live in the UK are married and each has one daughter. They live together in one house (owned by one of the brothers) and the appellant lives with them as well. One of the brothers originally had refugee status in the UK and the other came as a student. Both have now obtained British citizenship.
In June 1991 the appellant was badly injured by an exploding bomb. Serious operations were necessary and he has major scars to his stomach. Over the next few years he assisted the LTTE and he says that he was forced to do this.
At the end of 1995 the Sri Lankan Army captured Jaffna from the LTTE and all the civilians relocated in about March 1996 for their safety. Those who remained were killed or tortured as being LTTE supporters. Shortly after relocation, the appellant went home to collect some belongings but he was captured by the authorities. As a result of his scars he was beaten up and tortured. He was identified as being the brother of a high-ranking officer of the LTTE and was tortured for information about his brother.
He was released with a bribe from his father. He later contracted malaria severely. In January 1997, despite his weakness, he was asked to help the LTTE and did so under duress.
The appellant's parents were unhappy at his being forced to work and, in November 1999 they arranged for him to go to Vavuniya. Shortly afterwards he was again detained on suspicion of being an LTTE member. He was beaten and required to identify LTTE members. He received scarring as a result of being tortured for the information.
In February 2000 the appellant's brother-in-law paid money to obtain his release and, with the assistance of an agent, arranged for him to flee to the UK. Because of his older brother's senior position in the LTTE as well as because of the numerous scars on his body he believes that he will be detained and persecuted if he returns." [The typed emphasis is ours].
"…. The report states that the scarring is consistent with his own description as to how the wounds were caused. At his Counsel's request, I inspected the appellant's scars on his chest and back although I made it clear that I did so as a layman without any medical knowledge. The scars are large and numerous and unmissible". [The typed emphasis is ours].
"…. However the appellant's scars are unmistakable. They caused him to be arrested on the last occasion that he was detained as the army thought that he was a combatant."
"I accept the appellant's evidence as being credible. Where there are inconsistencies in his statements, as raised in the refusal letter, I am satisfied that they do not go to the core of his evidence. I am similarly satisfied that when the appellant fledSri Lanka
in March 2000 he did so with a well-founded fear of persecution which, at that time, would certainly have been a Convention reason for obtaining refugee status in the UK.
Circumstances since January 2002 have, of course, changed significantly inSri Lanka
with the development of the peace process. I am aware of the indication given by Mr Justice Collins in the case of Jeyachandran when he stated that it is as yet premature to accept that everyone who has claimed asylum in this country would be able to return safely. But the present view is that it is only the exceptional cases that will not be able to return in safety. There are few who would not be at risk but it is always necessary to consider the circumstances of each individual case.
I have examined the latest objective evidence produced to me. I am also conscious of the major scarring to the appellant's body. There is a serious risk that this scarring would bring him to the immediate attention of the authorities if he were to return. The state of affairs inSri Lanka
has not yet moved to the position where a man in the appellant's situation can be reasonably sure of passing through immigration unnoticed.
Applying the lower standard of proof that applies in asylum cases, I am satisfied that this appellant is at risk if he is sent back. The fact that he is a Tamil with serious scarring would be likely to bring him to the attention of the authorities and it would not be right to subject him to that risk.
Having made such a finding of fact I am obliged to and do allow the appeal on asylum grounds. [The typed emphasis is ours].
"Insofar as one is seeking to reach a conclusion from such documentation as to whether the appellant would be on record as an escapee, the IAT was in as good a position as the Adjudicator to form a view and was entitled to do so. By itself I do not suggest that the mere fact that the IAT could form a different view from that of an Adjudicator even in the case where one is dealing with documents, is enough. As has been indicated on authorities to which I have referred, the IAT should be slow to intervene in such matters merely because it takes a different view but if it does come to the conclusion that an Adjudicator was clearly wrong in the conclusion which he reached then it is entitled and bound to do. In the present case the IAT did, in effect, conclude that the Adjudicator was plainly wrong on the inferences drawn by him in his assessment of the risks. In those circumstances I cannot say the IAT went wrong in the approach which it adopted in this case. It was entitled to allow the appeal as it did".
"Thus the jurisdiction of the Immigration Appeal Tribunal is not limited to questions of law and it is within the scope of their jurisdiction for them to review, if they see fit to do so, the Special Adjudicator's conclusions of fact, though no doubt this power will be sparingly exercised in any event in accordance with general principles, the Immigration Appeal Tribunal will naturally be most reluctant to interfere with a finding of primary fact by the Special Adjudicator which is dependent upon his assessment of the reliability or credibility of a witness who has appeared before him".
"Where no question arises as to truthfulness and where the question is as to proper inferences to be drawn from truthful evidence then the original Tribunal is in a better position to decide than the judges of an Appellate Court".
Keen LJ observed that there was a difference between cases where the Adjudicator had arrived at the conclusion of fact based on or principally upon oral evidence put before it and those where his conclusion is based on (or principally on) documentary material. That was the difference as spelt out by Jawitt J in Balendran.
". that the ceasefire between the Government and the LTTE was not in jeopardy. Her spokesman said, 'the President has no intention of resuming or provoking the resumption of hostilities'."
The Bulletin further records that following the return to Sri Lanka
of the Prime Minister on 7 November 2003 that:
"That just after his arrival, Sri Lankan officials said that the ten day state of emergency declared on 6 November was being lifted to be replaced by less draconian security regulations".
We do not therefore agree with Mr Coleman's submission that in the respondent's particular circumstances he would be at heightened risk if now returned to Sri Lanka
.
"… it is only in exceptional cases that a person returning toSri Lanka
would attract the attention of the authorities there and that such persons are likely to be limited to those who are wanted persons. The question is whether the case of the applicant is an exceptional case as a person likely to be of interest to the Sri Lankan authorities and so likely to be detained, it being conceded that, once he is detained, there is a substantial risk of persecution".
N H Goldstein
Vice President