[View without highlighting]
[Printable RTF version]
||Neutral Citation Number:  EWCA Civ 1946
||Case No: C5/2015/2841
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Warr
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
SIR TERENCE ETHERTON, MASTER OF THE ROLLS
LORD JUSTICE McCOMBE
LORD JUSTICE MOYLAN
|| REGINA (on the application of PR (Sri Lanka))
||- and -
||SECRETARY OF STATE FOR THE HOME DEPARTMENT
Alasdair Mackenzie (instructed by Birnberg Peirce & Partners) for the Appellant
Andrew Deakin (instructed by the Government Legal Department) for the Respondent
Hearing date: 8 November 2017
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice McCombe:
- This is an appeal from the order of 28 July 2015 of the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal Judge Warr) ("the UT") whereby the UT refused the appellant's renewed application for permission to apply for judicial review of a decision of the respondent of 10 June 2014. By that decision the respondent had refused to treat an application by the appellant for asylum/human rights protection as a "fresh claim" for the purposes of paragraph 353 of the Immigration Rules ("Para. 353"). Permission to appeal to this court was refused by the UT by the same order of 28 July 2015 but was granted by Arden LJ, upon application to this court, by her order of 1 March 2016.
- As is well known Para. 353 provides as follows:
"353. When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
This paragraph does not apply to claims made overseas."
As there is no statutory right of appeal to the First-tier Tribunal (FTT) in such cases, challenges by applicants to adverse decisions by the respondent under Para. 353 are made by judicial review and so are considered at first instance, artificially early, either in the Upper Tribunal or in the High Court, rather than in what might be thought to be the more natural forum, the First-tier Tribunal.
(B) Factual and Procedural Background
- The case has a long history.
- The appellant is a national of Sri Lanka and was born on 27 April 1973. He has a wife and two children in Sri Lanka. The appellant entered the UK clandestinely on 30 January 2010 and claimed asylum on 1 February 2010. On the same day he was issued with notice of liability to removal as an illegal entrant. His asylum claim was based on his affiliations with the Liberation Tigers of Tamil Eelam (LTTE) and ill-treatment by the authorities in Sri Lanka.
- On the appellant's account, he joined the LTTE in May 1998, reaching the rank of Lieutenant before leaving in May 2002. In June 2005 he was detained by security forces on suspicion of involvement with an LTTE bombing. He said he was released upon payment of a bribe. He attempted to seek asylum in Germany in 2005 but was sent back from there to Sri Lanka. He said that he was forced to re-enlist with the LTTE in August 2006 culminating in his being sent to an internment camp in 2009, following a defeat of the LTTE by the Sri Lankan Army. He was arrested from the camp by the police on 15 September 2009. Whilst in detention he described being tortured. On 3 January 2010 the appellant claimed to have been released following his uncle having paid a bribe. He left Sri Lanka for India, before coming to the UK to claim asylum.
- The Respondent refused the asylum claim on 26 March 2010. The appellant appealed this decision on 14 April 2010. The appeal was dismissed by the FTT. The appellant appealed from this decision to the UT.
- Designated Immigration Judge Wilson heard the appeal on 22 September 2010 and in a decision of 30 September 2010, promulgated on 13 October 2010, he dismissed the appellant's appeal. He accepted that the appellant had been ill-treated and detained in Sri Lanka, having been a member of the LTTE for a considerable period of time. However, Judge Wilson did not find that the appellant had been truthful about the circumstances in which he left Sri Lanka and his present circumstances.
- The UT refused permission to appeal to this court.
- His application for permission to appeal to this Court was again refused by Stanley Burton LJ on 25 January 2011, on a consideration of the papers, and was further refused after an oral hearing (by Lord Neuberger MR, Sir Anthony May P and Carnwath LJ) on 11 August 2011. The appellant then applied to the European Court of Human Rights on 10 February 2012, arguing that his removal would be contrary to Article 3 of the European Court on Human Rights. That application was struck out in April 2014.
- On 22 April 2014 the appellant made the further submissions to the Respondent which are now in issue. He asked for the application to be treated as a fresh claim for the purposes of Para 353, relying on the country guidance given in the case of GJ and Others (Post-Civil War: Returnees)  UKUT 319 (IAC) and a medical report from a psychiatrist indicating he was suffering from mental health problems. He argued that he was at risk of persecution if returned to Sri Lanka and that his return would breach Article 3, based on a risk of suicide.
- The Respondent refused to treat the appellant as making a fresh claim, in a letter dated 10 June 2014. These proceedings were issued by the appellant on 9 September 2014. Permission to proceed with the claim was refused by UT Judge Craig. The appellant renewed his application and the matter was heard by UT Judge Warr on 15 July 2015 who also refused permission.
(C) Decision of Upper Tribunal Judge Wilson
- It is necessary to say a little more about the 2010 decision of UTJ Wilson for the purposes of considering the basis upon which the respondent rejected the appellant's April 2014 submissions as constituting a "fresh claim" within Para. 353.
- The judge accepted that the appellant had been a member of the LTTE and had been detained and ill-treated. He accepted the findings of the appellant's medical witness (Dr Martin) as to scarring on the appellant's body and the consistency of the wounds with the torture alleged by the appellant. It was noted by the judge that the doctor did not say what the length of the period of torture might have been and that there was no evidence as to whether it had continued up to the date of the appellant's release. The judge considered this to be a relevant factor in the assessment of whether the appellant would be of continuing interest to the Sri Lankan authorities on return. The judge accepted that the appellant had signed a confession as to his membership of the LTTE. The judge reached the somewhat qualified conclusion that,
"…there is no reason that I can find to make a finding against the appellant that he was not released as claimed".
Notwithstanding these findings, the judge expressed significant doubts as to the appellant's overall credibility. Without detailing the various individual points, I note that the judge said at paragraph 28 of the decision,
"…even against the background of the medical report, which as I have stated I have accepted, I have come to the conclusion that the Appellant has not told either the Respondent, the first Immigration Judge or me the truth about the circumstances in leaving Sri Lanka or his present position...".
At paragraph 29 the judge said,
"…there are a large number of matters that cause one to doubt his credibility. These range from relatively minor matters…to far more substantial matters…"
- The judge considered that the appellant would not have been released, even on payment of a bribe, if the authorities had a continuing interest in him and that records would not disclose any such continuing interest on return. The appellant had not been involved at a high level in the LTTE or engaged in fund raising. He concluded that there was therefore no relevant risk to the appellant if he were to be returned to Sri Lanka.
(D) The Appellant's new submissions: April 2014
- The submissions presented to the respondent by the appellant's solicitors on 22 April 2014 (in the same month as the demise of his application to the European Court of Human Rights) advanced two overarching elements of the new claim: first, the then new "Country Guidance" case decided by the Upper Tribunal in GJ; and secondly, the report on the appellant from the psychiatrist, Dr Saleh Dhumad.
- On the first point, the solicitors' letter relied upon two passages from the UT's lengthy judgment in the GJ case as follows, quoting the letter:
"The Upper Tribunal in GJ recorded the submission of the Secretary of State for the Home Department (SSHD) on the question of bribery to facilitate departure from Sri Lanka:
'170. He accepted that there were no detention facilities at the airport and that, given the prevalence of bribery and corruption in Sri Lanka, having left Sri Lanka without difficulty was not probative of a lack of adverse interest in an individual'.
The Upper Tribunal also noted
275. Mr Anton Punethanayagam's evidence is that of a practitioner who has dealt with 3000 cases of detainees, in Colombo and Vavuniya. His evidence on the process of bribery was particularly useful. We did not have the opportunity of hearing him give oral evidence, and some of his evidence goes beyond what he can be taken to know himself but where his evidence concerns the criminal processes in Sri Lanka, we consider that it is useful and reliable. We take particular account of his view that the seriousness of any charges against an individual are not determinative of whether a bribe can be paid, and that it is possible to leave through the airport even when a person is being actively sought."
(The underlining is as in the letter, rather than in the judgment.) Reference was made by the solicitors to two further reports evidencing the prevalence of bribery and corruption in Sri Lanka, followed by this submission:
"All that evidence and the Tribunal's findings in GJ clearly indicate that it would have been entirely possible for PR to escape by way of corruption despite being of interest to the authorities (and despite being at risk of redetention after escape) and subsequently leaving Colombo airport with the assistance of an agent.
Indeed, it is submitted that the only reasonable way to make sense of the key facts which were accepted by Judge Wilson – that PR had been in the LTTE, that he had confessed to LTTE membership but that he had escaped by payment of bribery – is to conclude that PR's release must have occurred in spite of the authorities' continued interest in him and not because such interest had somehow ceased. The Tribunal's findings in GJ and the evidence set out above confirm this. If PR's records were checked on his return to Sri Lanka, they would show unambiguously that he was a person who had been detained as a suspected LTTE member, had confessed as such and had escaped, rather than being released because he had been exonerated of suspicion. That would plainly place him at risk, on the findings in TK, as endorsed in EG v United Kingdom."
- On the second point, the solicitors presented Dr Dhumad's report of 8 March 2014. The doctor said that the appellant's presentation was "consistent with a diagnosis of Severe Depressive Episode, with somatic symptoms (lack of sleep, energy, poor appetite and pain)". The presentation was also said to be "consistent with a diagnosis of Post-Traumatic Stress Disorder…" with anxiety, ongoing fear, nightmares and flashbacks. This was "consistent" with "severe psychological reaction to extreme traumatic events, caused by the experience of torture and maintained by ongoing fear of deportation". In the doctor's opinion there was a risk of suicide on return to Sri Lanka; the report said this:
"[PR] is clearly suicidal in his current situation, with recurrent suicidal ideation and concrete suicidal plans. He is determined to take his own life, if the decision is made that he has to go back to Sri Lanka. He has shown the seriousness of his suicidal impulses already back in 2009 when he made a suicide attempt. In my opinion, his determination to kill himself if the decision was made to remove him, is genuine and very serious. I believe he would do his utmost to take his life in such a situation. […] [I]t would be very likely, if he had not killed himself before reaching Sri Lanka, that he would do so after he has arrived there. His fear of being tortured by the Sri Lankan authorities would remain so severe that he would want to escape that risk by taking his own life. …
… His return to Sri Lanka will be detrimental to his mental health, and would increase the risk of suicide. He is currently on antidepressant medication Mirtazapine 45 mg (maximum dose). He also needs psychological treatment, trauma focused Cognitive behavioural therapy. In my experience, his symptoms are very unlikely to improve without a safe resolution of the fear of being returned to Sri Lanka. Therefore, in my view, he is very likely to suffer a serious deterioration in his mental health if he were to be returned to Sri Lanka now. …"
(E) The Respondent's Decision
- These points were addressed by the respondent in a 13-page "Consideration of Submissions" document.
- The respondent noted the earlier findings and decision of UTJ Wilson. She addressed the main features of the decision in the GJ case, noting that the current categories of persons in real risk of persecution were:
"(a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.
(b) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.
(c) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No Fire Zones in May 2009, only those who have already indentified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.
(d) A person whose name appears on a computerised "stop" list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a "stop" list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant."
- Addressing the possible material categories in this case, the respondent said:
"For the following reasons, your client is not perceived to be a threat to the integrity of Sri Lanka as a single state and he is not perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.
- Your client has never claimed to be, or has shown any evidence to suggest that he is, or has ever been involved in any form of Journalism (whether in print or other media). …
- Your client has not claimed to, or has ever shown any evidence that he is, or ever has been the subject of a court order, has ever had an arrest warrant issued against him or that he was a political activist in Sri Lanka and since his arrival in the UK. With regards to this, IJ Wilson has noted the following in his determination paragraph 31 states that
'I find its result is this; that the Appellant would be subject to initial further screening. Essentially however the record is that he was released with no apparent further interest. There were a large number of Tamils involved in the LTTE such as the Appellant. It is clear the government is interested in tracking down those people who were engaged at a high level or currently engaged in fund raising or immediately preceding. There is no suggestion the Appellant was involved at such levels at all. I find that the Appellant would be able to pass through Colombo airport without undue risk. Thereafter he could relocate in Colombo. That would appear to be safe and not unduly harsh.
It was noted further that the judge had assessed the alleged risk to the appellant in the light of his confession to LTTE membership and the payment of a bribe to secure release. The respondent quoted this passage from the earlier permission to appeal decision of this court of August 2011, referred to above, assessing in summary the court's findings on that application:
- In light of this, your client will not be on the computerised stop list, and will not be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant as a result."
"… It is a carefully reasoned decision. While it may be possible to criticise aspects of the reasoning, it cannot be said to be "perverse" or "plain wrong", not is there any allegation of serious procedural irregularity. There is no other reason requiring further consideration by the courts. The claimed risks are, unhappily, in no way exceptional in this jurisdiction, and not in themselves such as require the attention of the Court of Appeal" (paragraph 55).
The respondent's decision then gave detailed attention to a lengthy report of December 2012 concerning the procedures expected to be faced at Colombo airport by those returning compulsorily to Sri Lanka from this country. Having considered that material the respondent stated that there was nothing to suggest that the appellant would be detained on arrival at the airport.
Consideration was given to possible questions under Article 8 of the ECHR, which do not now arise in these proceedings. Attention was then turned to the report of Dr Dhumad. Certain passages were set out. The respondent stated,
"However, it is considered that the account that Dr. Dhumand has given is a repeat of your client's claim and is not considered to be an objective account. It is considered that Dr. Dhumad is seeking to rely on your client's version of accounts and has not given consideration to the IJ's findings which were not available to him during his assessment. Furthermore it is noted that Dr. Dhumad does not explain whether it would be possible to feign or exaggerate the symptoms as described by your client.
Furthermore it is considered that whilst your client's symptoms are claimed to be "consistent" with his described experience of trauma, it is considered that as per the Istanbul protocol Dr Dhumad has failed to provide other possible causes of his trauma.
Taking into account the initial refusal and all the court determinations, that these symptoms are equally attributable to other factors such as the experiences of an individual living in a foreign country without settled status. The Psychiatric report therefore adds little weight to your client's asylum claim."
The respondent then referred to evidence as to the availability of mental health treatment services in Sri Lanka. It was noted that the appellant had made no reference to suicidal impulses in 2009, or indeed an attempted suicide, as referred to by Dr Dhumad in his report, either in his asylum claim or in the hearings before either of the Immigration Judges in 2010. The decision quoted extensively from the judgment of Sedley LJ in Y & anor. (Sri Lanka) v SSHD  EWCA Civ 362. It was concluded that this appellant would be able to obtain medical treatment on return.
Overall, the respondent's decision was to uphold the previous decision on the asylum and human rights claims and the appeal decisions of 2010. The respondent said that the submissions made did not amount to a fresh claim and that they (together with the previously considered material) did not create a realistic prospect of success before an immigration judge, applying the necessary anxious scrutiny to the case.
In these proceedings the appellant challenges the lawfulness of the respondent's decision. The UT has held that he has no properly arguably case for judicial review.
(F) The Appeal and my Conclusions
It is common ground that the respondent applied the correct test in law (WM (DRC) v SSHD  EWCA Civ 1495), and that on any challenge to the decision the test for the court is whether the decision was flawed on traditional Wednesbury grounds (Associated Provincial Picture Houses Ltd. v Wednesbury Corp.  1 KB 223 and the cases leading to the decision in this court in TK v SSHD  EWCA Civ 1550, as cited in the respondent's skeleton argument, paragraphs 14 to 19).
On the appeal, Mr Mackenzie for the appellant raised two points in the written grounds of appeal. First, ("the Protection Ground") it was argued that the respondent had failed to consider how the FTT on a future appeal would approach the persecution risk "in the light of the accepted facts in the [Appellant's] case and the fresh country guidance in GJ…". In this respect, it is said that the UT incorrectly approached the appellant's case as if key facts in his account had been rejected in the earlier proceedings and in failing to take account of evidence given in GJ that a person released from custody by bribery would be at risk. Secondly, ("the Mental Health Ground") the submission was made that the respondent "arguably reached a perverse view on the risk that the [Appellant] would commit suicide on return to Sri Lanka".
1. The Protection Ground
Mr Mackenzie emphasised five "highlights" (my word, not his) in the factual findings of UTJ Wilson: 1) the appellant's LTTE membership; 2) his detention; 3) the fact that he had been tortured; 4) his signing of a confession; 5) his release on payment of a bribe. The judge found nonetheless that the appellant would not be of interest to the Sri Lankan authorities, because he would not have been released, even on payment of a bribe if there was still material interest in him. Mr Mackenzie submitted that, having regard to the decision in GJ, an Immigration Judge now might decide that that finding was wrong and that the respondent's failure to recognise that possibility was irrational.
I would note immediately that the respondent set out fully in her decision UTJ Wilson's relevant findings and stated that the judge had assessed the risks to the appellant against those findings. There is no suggestion in the respondent's decision that she was seeking to go back on the findings so made, although the judge's comments on the appellant's general credibility (or lack of it) were noted. It is also clear that UTJ Warr in the present proceedings also proceeded from the starting point of UTJ Wilson's conclusions on these matters.
It was argued that, quite apart from the particular passages from the GJ case referred to in the appellant's solicitors' submissions to the respondent, the respondent should have had regard to certain additional features of the evidence in the GJ case which (it was said) had a bearing on the appellant's case. It was said that such evidence, whether specifically relied upon by the Tribunal in its decision or not, should have been accepted and applied for the purposes of dealing with the appellant's new submissions.
Reliance was placed upon the Asylum and Immigration Tribunal (AIT) decision in SI (Reported Cases as Evidence) Ethiopia  UKAIT 00012. The judicial headnote to that case states:
"Typically cases reported as country guidance serve a dual role: they contain summaries of the background evidence; they also assess or evaluate that evidence. The obiter observations of Keene LJ in RG (Ethiopia)  EWCA Civ 339 concerned reliance as evidence of the background situation in a country on adjudicator determinations (in the old two tier system); these observations are not authority for the proposition that country guidance cases cannot be cited for the summary of background country evidence they often provide…".
This part of the headnote leads to the passages in paragraphs 23 to 26 of the decision in that case in which the AIT was addressing the status of adjudicators' decisions (as opposed to AIT decisions) and of the evidence recited in them as evidence in later proceedings. It took issue with the statement by Keene LJ, at the end of paragraph 37 in RG, that,
"…even the IAT's decisions in cases not categorised as "Country Guidance" cases are not to be cited as evidence of the background situation in a country: Eshete  UKIAT 01963".
After citing passages from the judgment in the AIT in Eshete, the AIT in SI said this (at paragraph 26):
"Manifestly Eshete was not addressing the issue of the propriety of reliance on reported IAT decisions for their summaries of factual material. It was talking about adjudicator decisions. Furthermore, both the Practice Directions in force at the time and Tribunal case law had fully recognised the value of some reported decisions of the Tribunal not only as guidance on country conditions but also as containing summaries of factual evidence. In addition it would be very strange indeed for there to be any legal principle effectively preventing evidence of the background situation in a country from being admitted simply because it was contained within a legal decision. Of course, when contained in a legal decision it is one stage further from the source and is necessarily hearsay. Furthermore, since facts are decided by the evidence, it is important for the fact-finding Tribunal not to proceed as if it thought that facts were to be found in law books. For this reason, when reported cases are relied on as evidence, there may often be a need for the Tribunal to insist on the production of the original sources themselves – country reports, expert reports and the like. But reported decisions of the Tribunal can generally be taken to contain accurate summaries of such items of evidence. Not to allow such summaries to be admitted into evidence would be likely to engender unnecessary and unwieldy bundles of documents. If a party to Tribunal proceedings considers that an IAT or AIT quotation from or summary of the background country materials is inaccurate, then it is open to that party to demonstrate this."
It seems that the AIT, therefore, was alluding to the evidential value generally of factual summaries in earlier IAT cases, even those that were not of "Country Guidance" status.
For my part, I was troubled by Mr Mackenzie's submission on this point, and indeed by the AIT's decision in SI. I can see that a recital of evidence given in a previous "Country Guidance" case may, if uncontroversial, help in providing background to country conditions in a later case, but care must be taken not to go too far. As the AIT itself observed, facts are decided by the evidence in a particular case. One must be careful to distinguish between a Tribunal's recital of the evidence that it has received and considered on the one hand and the evidence that it has accepted as accurate and reliable on the other. The difference may not always be apparent.
I am conscious that I am commenting upon the practice of a specialist Tribunal and I recognise the obvious practical realities of avoiding "unnecessary and unwieldy bundles of documents" in proceedings before that Tribunal. However, as the Tribunal noted in SI, if a party to proceedings "…considers that an IAT or AIT quotation from or summary of the background country materials is inaccurate, then it is open to that party to demonstrate this". With that comment, I entirely agree.
Mr Mackenzie's point was that it was Wednesbury unreasonable for the respondent not to have been guided in her decision in this case, as to who would be likely to be subject to a court order or arrest warrant, by certain passages in the evidence of expert witnesses as quoted by the Tribunal in GJ in appendices to their decision. It was submitted that these statements might lead a new Immigration Judge to find that the appellant was indeed likely to remain of interest to the authorities.
The passages relied upon by Mr Mackenzie were three in number, to be found in the evidence before the Tribunal given by Professor Anthony Good, Dr Chris Smith and Mr P A Punethanayagam. This evidence is to be found in Appendices I, J and K to the decision.
The passage from Professor Good's evidence was in paragraph 4(g) and (h) of Appendix I as follows:
"(g) Corruption and bribery are widespread in Sri Lanka, and includes those at the top of the political system and the police. Release through payment of a bribe is 'extremely common';
(h) The release of a detainee does not of itself indicate that the authorities have no continuing interest in that person. Release without charge or without the payment of a bribe does not preclude subsequent detention. There is evidence of re-arrest and abduction of former LTTE cadres on the East Coast and in the Northern Province in 2011 and 2012;"
Dr Smith's evidence included this (at paragraph 13 of Appendix J):
"… If someone of adverse interest is released upon payment of a bribe, those who accepted the bribe will be responsible for ensuring there is a record of why the suspect was released; a note indicating that a person was released because they were a person of no further interest, being one option. If the person who accepted the bribe could not acquire access to the records, it is more likely that they would report the 'release' as an escape which would lead to an arrest warrant being issued. Someone who is recorded as escaped or missing would be of significant adverse interest to the authorities."
The passage from Mr Punethanayagam's evidence relied upon appears at paragraphs 15 to Appendix K, with comment by the Tribunal in paragraph 16, as follows:
"15. In his report, Mr Punethanayagam gave evidence from his own client database in relation to the effect of bribery as a method of release from detention or to enable a person to leave the country. Bribery and corruption is pervasive, especially among the security forces, and well documented: …
27. The bribery is very common in the IDP camps as well as the detention centers [sic] from which even known LTTE leaders have managed to escape on payment of bribes. Hence it cannot be argued that only people of low interest to the authorities are able to secure their release through a bribe. In my opinion, it is plausible that the detainee was released following the payment of a bribe, even if of significant adverse interest to the authorities. It is unlikely that the person who accepts the bribe would access the detainee's record and change them as released or no longer wanted. Hence such cases would normally be recorded as escaped from detention in the database of the Police. Subsequently an absconder action will be commenced and the detainee's details would be passed to the National Intelligence Bureau.
... 16. The reference to the actions of the person obtaining the release of a detainee is speculation. The witness does not suggest that he has any direct knowledge on that point. He is however in a position to confirm that approximately 30 of his 3000 clients left Sri Lanka while of interest using bribery: unfortunately, he does not say when this was in relation to the end of the civil war."
In the body of the decision in GJ the Tribunal had the following to say on these issues raised by these witnesses, as Mr Mackenzie helpfully noted for us.
In relation to Professor Good, the Tribunal said this, at paragraph 262:
"Professor Good's evidence is set out in Appendix I to this determination. He was last in Sri Lanka in 2010. His subsequent information is derived from students and a Professor of Social Anthropology at his former university and we do not, therefore, rely on his report for the details it gives of airport procedures nowadays. We accept his evidence as to the current high levels of bribery and corruption in Sri Lanka and matters which may be ascertained from the press reports and other public information. When pressed on areas of more difficulty, in many cases Professor Good was unable to assist as his information was not up to date."
(They went on to consider other aspects of the Professor's evidence, not material to this case, at paragraph 263.)
As for Dr Smith, the only passage in the evaluation of his evidence to which we were taken was at paragraph 264 and 265 as follows:
"264. Dr Smith's evidence is set out at Appendix J. It is based on more recent personal knowledge; he had visited Sri Lanka as recently as December 2012 in order to prepare to give his evidence in these appeals. His evidence is supportive of the other evidence before us as to militarisation of the Northern Province, and the process of return to Sri Lanka with the disclosure of personal circumstances which that involves. Dr Smith considered that the 12 LP/TK factors remained valid but also broadly approved the risk categories identified in the UNHCR guidelines of December 2012.
265. Dr Smith considered that four additional issues would increase risk now: (a) the lack of an ID card, with the need to travel to one's place of origin through checkpoints to obtain a new card likely leading to detention; (b) the presence of an LTTE inspired tattoo on a person; (c) identification as having protested against the Sri Lankan government whilst outside Sri Lanka; and (d) having a mental health issue, with those with mental health issues being heavily stigmatised in Sri Lanka."
Reading a little further in the decision on the subject of Dr Smith's evidence, on factor (a) (in paragraph 265) it seems that the Tribunal found that the weight of evidence did not support a finding that returnees would be in difficulty in travelling to home areas to "refresh" documents, including ID cards. As to (b), it was noted (in paragraph 267) that there was only one case in the press reports of a person with an LTTE tattoo coming to harm. Factor (c) was said (in paragraph 268) to be relevant in a case where the person concerned had significant involvement in the diaspora activities which were adverse to the current regime. As to factor (d), the Tribunal said (in paragraph 271) that it did not think that "mental health" should now be considered an additional risk factor for persecution or serious harm.
Referring to the evidence of Mr Punethanayagam, the only passage of relevance in the body of the decision is to be found at paragraph 275 of the Tribunal's decision, which was the one paragraph of all this material that was referred to the respondent in the submissions made to her in April 2014. I have quoted this passage already.
In my judgment, apart from any other problem faced by the appellant in criticising the respondent for failing to refer specifically to this material, it is hard to see why the respondent could be at fault for failing to allude to matters which were not relied upon by the appellant in the submissions that had been made to her. As already noted, only one short passage from the evidence of one witness was mentioned in the April 2014 letter. No mention was made of any of the other passages now relied upon. Mr Mackenzie submitted that the respondent was required to be familiar with the GJ case generally. I agree, but the same is true of solicitors making submissions to the respondent. The respondent can hardly be blamed for focussing upon the specific risk categories identified in GJ in the context of the arguments that were actually presented to her on the appellant's behalf.
Further, returning to Mr Mackenzie's argument based upon the AIT decision in SI, it is difficult to see what the Tribunal in GJ made of the evidence in the passages upon which reliance is now placed. I would be cautious in accepting, as in any respect determinative, isolated passages of evidence, no doubt recited for completeness in that Tribunal decision, which appear to have played no part in its decision and upon which it passed no comment, and which, in at least one case, the Tribunal described as "speculation".
I consider that the respondent's decision on this part of the case, as presented to her, cannot be criticised on rationality grounds. She focussed upon the risk categories, as identified in GJ, that might be relevant to the appellant's case; she sought to see whether he had played a significant role in relation to post-conflict Tamil separatism and whether he claimed to be the subject of a court order or arrest warrant. He had made no such claim. She considered the findings of UTJ Wilson in this respect and further extensive material as to the procedures adopted in the case of the return to Sri Lanka of people such as the appellant. She considered the case presented in the new submissions and she made what seems to me an entirely rational decision based upon that material.
I would, therefore, reject the appeal based upon the Protection Ground.
2. The Mental Health Ground
I have set out above the outline of this ground of appeal and a summary of the report of Dr Dhumad upon which it is based. I have also summarised the response made to the submissions on this point given by the respondent in the answer to the letter from the appellant's solicitors of April 2014.
The attack on the rationality of the respondent's decision here has two aspects. First, it is argued that insufficient regard was paid to Dr Dhumad's report. Secondly, it is submitted that, in the light of the Tribunal's assessment (in GJ, paragraphs 454-455) of the mental health treatment facilities in Sri Lanka, the respondent could not reasonably find that an Immigration Judge might not take the view that there was no appropriate provision for care of mentally ill people such as the appellant was claimed to be.
Mr Deakin for the respondent accepted that if the view were taken that it was necessary to consider the issue of the adequacy of mental health treatment facilities in Sri Lanka, then that assessment "would be better dealt with by an Immigration Judge" (quoting my own note of his submissions). He did not, therefore, resist the second aspect of this ground of appeal. In making the concession, he pointed to paragraph 4 of Dr Dhumad's report in which he noted that the doctor had been asked whether "…reasonable mechanisms [could] be put in place to minimize the risk of suicide (before, during and after the actual removal), and if so what these [would] be". However, Mr Deakin noted that the doctor had not addressed this issue in the report.
Mr Deakin nonetheless argued that the respondent's decision on the substance of Dr Dhumad's report (the first aspect of this ground) had been entirely rational and that the respondent could not be criticised for rejecting the notion that this was adequate to found a "fresh claim" under Para. 353. Accordingly, it was not necessary to consider the question of the respondent's approach to the adequacy of mental health treatment facilities in Sri Lanka.
It has to be noted that, in his decision in 2010, UTJ Wilson stated (at paragraph 31) that he accepted that a person who had been tortured might have a somewhat fractured recollection and might be suffering from mental distress. He went on to say, however, that "…[t]here is no evidence…of mental ill-health set out in the papers". (This was following torture which Dr Martin's evidence suggested had occurred as recently as 6 to 9 months before April 2010, when the appellant had been examined by him.) The respondent observed in her decision that there had been no reference to any suicidal impulses or to a suicide attempt in 2009, either in the original asylum claim presented to the respondent or in the appeal hearings. The respondent had also taken account of the general credibility findings by UTJ Wilson, which had not been before Dr Dhumad, in assessing what must have been an account provided to the doctor largely by the appellant himself as to his suicidal feelings. The doctor had not explained whether he had considered the possibility of the feigning or exaggeration of symptoms or whether the professed symptoms might have had other causes. For these reasons, the respondent took the view that Dr Dhumad's report "add[ed] little weight to [the appellant's] asylum claim."
It is not for the court itself to decide whether the material presented to the respondent, upon which she made her decision, amounted to a proper "fresh claim", the question is whether the respondent's decision that it did not do so was arguably irrational in the Wednesbury sense. On this second aspect of the case, the mental health ground, as with the first, I do not consider that the UT erred in deciding that permission to apply for judicial review should be refused. I find that the reasons given by the respondent have not been shown to be irrational in that sense.
For these reasons, I would dismiss the appeal.
Lord Justice Moylan:
Sir Terence Etherton, Master of the Rolls:
I also agree.
Copyright Policy |
Donate to BAILII