SIVAKUMAR v SECRETARY of STATE for the HOME DEPARTMENT [2001] EWCA Civ 1196

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

Cresswell J.

[2001] EWCA Civ 1196

Case No Case No: C/2001/0314 QBAFC

Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Tuesday 24th July 2001

Between

SIVAKUMARAppellant

SECRETARY of STATE for the HOME DEPARTMENTRespondent

Before

Lord Justice Thorpe

Lord Justice Dyson

Mr A. Nicol QC and Miss M. Phelan(instructed by Messrs Nathan and Co for the Appellant)

Mr A. Underwood QC (instructed by the Treasury Solicitor for the Respondent)

Date 24 July 2001

LORD JUSTICE DYSON:

Introduction

[1]The Appellant is a Tamil citizen of Sri Lanka. He was born in 1973. He left Sri Lanka on 7 September 1997, and arrived in the United Kingdom four days later. He sought asylum. On 27 January 1998, he was refused leave to enter, and his asylum claim was refused. On 21 May 1999, his appeal was dismissed by the Special Adjudicator. On 23 June 1999, the Immigration Appeal Tribunal refused leave to appeal. He was granted permission to apply for judicial review of that decision. On 22 January 2001, Cresswell J dismissed his application for judicial review. It will be necessary to examine the facts in some detail. It is sufficient at this stage to say that the Special Adjudicator accepted the account given by the Appellant that he had been detained and maltreated by the authorities in Sri Lanka on the grounds of suspected involvement in the violent terrorist activities of the LTTE or Tamil Tigers. It was the Appellant's case that he was not an LTTE sympathiser or supporter, although during the period 1990-95, he had been taken by the LTTE and forced to dig bunkers for them about twice a week.

[2]The reasons given by the Special Adjudicator for his decision were contained in a short concluding paragraph in these terms:

"6. Conclusions. There is no particular reason not to accept the appellant's evidence, except about setting off for a completely unknown destination, rather than stay in Colombo: that is absurd, particularly given the large sum his family had paid for the trip. However, on the appellant's own account he was detained and ill-treated in the past on the various occasions he mentions 10.2 on suspicion of training Tamil Tigers 16.4 on suspicion of being a Tiger 25.2 for being a "black Tiger"

. Unpleasant though the consequences were, they were not the result of any political opinions he might have been thought to hold, but of being suspected, however unjustly, of involvement in violent terrorism. That does not in my view come within the protection of the Convention, and there is nothing else in the evidence to show that he in particular would face persecution if returned to Sri Lanka: it was not argued that northern Tamils in general would do so; nor should I accept that, for the reasons given at paragraph 2 above."

[3]At paragraph 2, the Special Adjudicator dealt with the safety of Sri Lanka for Tamils generally. Basing himself on material from the UNHCR, he said: "Statistically speaking, there can be no doubt that the majority of such persons (sc failed asylum seekers) returned to Colombo are Jaffna Tamils, and no reasonable likelihood that they are at risk there merely because of their origins".

[4]In refusing leave to appeal, the IAT said that the Special Adjudicator had made clear findings of fact which were fully supported by the evidence: there was no misdirection in law, and read as a whole, the determination was a full, fair and reasoned review of the appellant's case.

[5]The issue that arises on this appeal is whether the Special Adjudicator adopted the correct approach to the question whether the appellant had a well-founded fear of persecution within the meaning of the Geneva Convention on the Status of Refugees ("the Convention").

Article 1A of the Convention

defines a "refugee" as:

" any person who: ….. (2) owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …"

[6]Article 1F provides:

"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations."

The facts

[7]The appellant comes from the Jaffna area of Sri Lanka which has a large Tamil population and where the LTTE are active. He has never been a member of the LTTE himself. He went to Kalmunai in late 1993, and started to help his brother-in-law run a mill there. About one year later, the LTTE took his brother-in-law away. They also took one of the brother-in-law's lorries and used it to mount an attack on an army camp. The Special Task Force, a police unit, attacked the lorry and was later able to trace it to the mill at Kalmunai. In consequence, the appellant was arrested and detained for about a month. Throughout the period of his detention, his hands were tied behind his back, except when he was eating. He was tortured in appalling ways. His naked body was rolled on hot sand; hot sand was rubbed on his genitals; he was stripped and tied to a tree; burning cigarettes were placed on his body; he was hit with an s-lon pipe filled with sand, and kicked and beaten with rifle butts; and he was forced to watch appalling torture performed on other detainees. While in detention, he was interrogated and accused of being a member of the LTTE. After about a month of this treatment, his brother-in-law's father secured his release by paying a bribe.

[8]The appellant returned to Jaffna. He lived with his family. In October 1995, the army launched an attack in his home area. The family escaped to Kilinochchi, where he was forced to start helping the LTTE again. In about March 1996, Kilinochchi was captured by the army, and the appellant and his family moved to Malavi. He started to work using a lorry that he had acquired from his family business to transport goods. He was based in Vavuniya.

[9]The next arrest and detention occurred in Vavuniya in June 1997. He was driving the lorry when he was stopped at an army checkpoint. He was accused of taking goods for the LTTE. He was detained and tortured by the army authorities for 3 days. He was accused of being a Tiger and asked to "show them the others". He was beaten, a bag dipped in petrol was placed round his neck so that the petrol fumes burnt his nose and eyes; they said that unless he admitted that he was a member of the LTTE and identified other members, they would beat him to death; and the soles of his feet were beaten. Other similar acts of torture were perpetrated. He eventually agreed to identify members of the LTTE, whereupon the intensity of the torture was reduced. He was released on 16 August after his uncle had paid a bribe. He went to Colombo.

[10]He was arrested again on 18 August 1997 on the grounds that he had not registered with the police. He was taken to a police station, and kept in a cell with two others. He was beaten again, but the level of torture was not on the same scale as previously. He was released on 1 September 1997, once again after his uncle had paid a bribe. He was told that the authorities were still suspicious of him and were making further enquiries.

[11]He left Colombo on 7 September 1997, and, as I have already said, he claimed asylum on his arrival in the UK. The account that I have just summarised is derived from the witness statement that the Appellant made for the purposes of his appeal against the refusal of his claim for asylum. As stated in his Determination, the Special Adjudicator accepted this account with one immaterial exception. The submissions For the appellant

[12]Mr Nicol QC submits that the Special Adjudicator should have found that, based on his experiences at the hands of the Sri Lankan authorities, the appellant had a well-founded fear of persecution on three Convention grounds, namely imputed political opinion, race (being a Tamil) and membership of a particular social group (a Tamil from the north of the island, the main centre of activities of the LTTE).

[13]Mr Nicol argues that the Special Adjudicator set up a "false antithesis" between(a) persecution which was the result of a political opinion (which is protected by the Convention), and

(b) persecution because a person is suspected of involvement in violent terrorism (which is not protected). The two propositions are not mutually exclusive. A person suspected of violent terrorism may well have a political opinion imputed to him by his persecutor. Accordingly, a person who is persecuted for suspected involvement in political crime may also be persecuted because a political opinion is imputed to him.

[14]Mr Nicol relies on the UNHCR Handbook which, so far as material, states:

"81. While the definition speaks of persecution "for reasons of political opinion" it may not always be possible to establish a causal link between the opinion expressed and the related measures suffered or feared by the applicant. Such measures have only rarely been based expressly on "opinion"

. More frequently, such measures take the form of sanctions for alleged criminal acts against the ruling power. It will, therefore, be necessary to establish the applicant's political opinion, which is at the root of his behaviour, and the fact that it has led or may lead to the persecution that he claims to fear. …. 84. Where a person is subject to prosecution or punishment for a political offence, a distinction may have to be drawn according to whether the prosecution is for political opinion, or for politically motivated acts. If the prosecution pertains to a punishable act committed out of political motives, and if the anticipated punishment is in conformity with the general law of the country concerned, fear of such persecution will not in itself make the applicant a refugee. 85. Whether a political offender can also be considered a refugee will depend on various other factors. Prosecution for an offence may, depending upon the circumstances, be a pretext for punishing the offender for his political opinions or the expression thereof. Again, there may be reason to believe that a political offender would be exposed to excessive or arbitrary punishment for the alleged offence. Such excessive or arbitrary punishment will amount to persecution."

[15]Accordingly, Mr Nicol submits that it was not open to the Special Adjudicator to infer from his finding that the Appellant had suffered torture because he was suspected of involvement with terrorism that the torture was not the result of any political opinion that he might be thought to have had. On the contrary, the evidence indicated that on each occasion on which the appellant was tortured, he had been picked up by the authorities for reasons that were, or included, Convention grounds.

[16]Alternatively, the Special Adjudicator erred in his reasons for the arrests. The fact that the authorities suspected the Appellant of being involved with the LTTE did not preclude the possibility that they arrived at that suspicion in whole or in part because of his race or membership of a particular social group (ie being a young male Tamil from the Jaffna area). For the Secretary of State

[17]Mr Underwood QC submits that the approach of the Special Adjudicator cannot be criticised, and that the conclusion that he reached was one that was open to him on the evidence. He disputes that there was any false antithesis in the reasoning. There will be some cases where a person is persecuted on the grounds of his imputed political opinion, and others where he is persecuted for actual or suspected political acts: it is a question of fact to determine the reason for past persecution and feared future persecution. The question for the Special Adjudicator where such an issue is raised is whether the reason for the persecution is the actual (or suspected) offence or the alleged offender's underlying political belief. It is not the case that persecution resulting from a suspicion of terrorism necessarily involves persecution for a political reason whenever the motivation for the terrorism (or alleged terrorism) is political. Whether it is will depend on the facts. Mr Underwood submits that this submission is supported by paragraphs 84 and 85 of the UNHCR Handbook.

[18]Turning to the facts, Mr Underwood submits that there was ample material to justify the finding that the appellant was persecuted because he was a suspected terrorist, and not because of any imputed political beliefs, or because he was a young Tamil from the north of the island. Discussion

[19]The treatment to which the Special Adjudicator found that the appellant had been subjected was plainly torture and persecution. Mr Underwood does not suggest otherwise. The issue is whether it was, or was reasonably likely to have been, persecution for a Convention reason. I say "was or was reasonably likely to have been" because the issue for the Special Adjudicator was whether, in the light of(a) the current situation facing young male Tamils from Jaffna generally, and

(b) the appellant's previous experiences, there was a reasonable degree of likelihood of persecution if he were to return, in particular, to Sri Lanka: see R v Secretary for State for the Home Department ex p Sivakumaran

[1988] AC 958

, 994G.

[20]The Special Adjudicator did not explain precisely what he meant by "violent terrorism". But he cannot have intended to mean that the appellant had been persecuted because he was suspected of being a person to whom the Convention did not apply by reason of Article 1F. As was made clear by the House of Lords in T v Immigration Officer

[1996] AC 742

, Convention protection is not available to a person who commits an atrocious crime or violence that is considered to be too remote from any effective political object to qualify as a political act. But the Secretary of State has not argued that the appellant was persecuted for suspected criminal activity of that kind in this case. Article 1F did not form part of the argument before the Special Adjudicator or before this court. As was made clear in T v Immigration Office, terrorist acts can fall within the protection of the Convention. At page 778F, Lord Lloyd of Berwick approved the reasoning of the Court of Appeal in a passage which included the following:

"We too think it inappropriate to characterise indiscriminate bombings which lead to the deaths of innocent people as political crimes. Our reason is not that all terrorist acts fall outside the protection of the Convention. It is that it cannot properly be said that these particular offences qualify as political. In our judgment, the airport bombing in particular was an atrocious act, grossly out of proportion to any genuine political objective. There was simply no sufficiently close or direct causal link between it and T's alleged political purpose."

[21]It would seem, therefore, that the Special Adjudicator's reference to "involvement in violent terrorism" must have been intended to be a reference to involvement in violent crime against the state that was not too remote from the political objective of the LTTE to qualify as political crime. In what follows, I shall use the term "violent terrorism" in that sense.

[22]If violent terrorism is understood to bear this meaning, a person may be persecuted for suspected involvement in violent terrorism and/or on the grounds of his imputed political opinion and/or because he is a member of the race or social group which espouses the cause which the terrorism seeks to promote. I accept the submission of Mr Nicol that, if the positive proposition that a person has been persecuted for suspected involvement in violent terrorism is true, it does not necessarily follow that the negative proposition that he has not therefore been persecuted for his political opinion is also true. The two propositions are not mutually exclusive. The effective reason for the persecution will depend on the facts in any particular case.

[23]The Special Adjudicator had to determine whether the appellant had been tortured for a Convention reason. It is common ground that the UNHCR Handbook provides valuable guidance as to the approach that should be followed where the alleged persecution is maltreatment for actual or alleged political offences. Paragraph 81 deals with the problem of ascertaining whether measures suffered or feared by an applicant are in truth inspired by his political opinion, or whether, as they are often said to be, they are rather the result of crimes that he is alleged to have committed. In other words, are the alleged crimes merely the pretext for the persecution, and is the real cause the person's imputed political opinion? As is said in paragraph 81, persecutory measures are rarely expressly based on a Convention ground, least of all political opinion. It is necessary for the person who is considering the claim for asylum to assess carefully the real reason for the persecution.

[24]But paragraphs 84 and 85 of the Handbook are of greater importance in the present appeal. A clear distinction is drawn between prosecution for a political opinion and for politically-motivated acts. If the prosecution pertains to a punishable act committed out of political motives, and if the anticipated punishment is in conformity with the general law of the country concerned, fear of such prosecution will not in itself make the applicant a refugee. That is because, in the absence of special facts, there is no material from which it can be inferred that the prosecution is for a Convention reason. A person who commits a crime contrary to the general law of the country and who is punished in accordance with that general law is not a refugee, even if his motive for committing the crime is political. I am assuming that the law itself does not discriminate against the person for Convention reasons.

[25]But as paragraph 85 makes clear, the position may be very different if the case is not simply one of an offender who has committed a crime for political reasons being dealt with in accordance with the law that is applicable to others who commit such crimes but not for political reasons. A particular example that is given is where there is reason to believe that a political offender would be exposed to excessive or arbitrary punishment for the alleged offence. The Handbook says:

"such excessive or arbitrary punishment will amount to persecution"

. Mr Underwood submits that the word "persecution" in this context does not mean "persecution for a Convention reason". I do not agree. The whole point of the discussion in paragraphs 80-86 is to explain in what circumstances a person may be considered to be a refugee on the grounds of a well-founded fear of persecution for reasons of his or her political opinion. Read in its context, the reference to "persecution" must be a reference to persecution for the particular Convention reason under consideration, ie imputed political opinion.

[26]In my judgment, the last sentence of paragraph 85 goes somewhat too far. I do not consider that excessive or arbitrary punishment for political offences will necessarily in all cases amount to persecution for a Convention reason. But excessive and arbitrary punishment will raise a strong inference that it does so. In reaching this conclusion, I have been assisted by some authority. In Ravichandran and Sandralingham v Secretary of State for the Home Department [1996] Imm AR 97 , two Tamils appealed against their refusal of asylum. Their case was that the Sri Lankan authorities had a policy of rounding up and detaining young male Tamils, and that the appellants had been maltreated. The Court of Appeal held that the policy of round-ups and detentions was not persecution for a Convention reason: the purpose of the round-ups was not the oppression of the Tamils per se, but the maintenance of public order. As for ill-treatment, there was evidence that the situation had improved since the date of the decision by the Secretary of State to refuse the asylum claims. The appeals were accordingly dismissed. At page 109, Simon Brown LJ said this:

"If the real purpose of these found-ups was to deprive Tamils of their liberty simply out of hostility towards them (ie with "malignancy"), I cannot think that the loss of freedom involved would properly be held insufficient to constitute persecution. Equally, if there remained a practice of torturing those detained, I very much doubt whether a finding of persecution on Convention grounds would be precluded merely because the torture was intended to discourage terrorism or to persuade detainees to inform on their associates rather than inflicted for purposes for oppression."

The second sentence in this passage lends some support to the approach that I think should be followed in such cases. I do not accept that (as Cresswell J thought) this sentence is conditioned by the need for malignancy or hostility towards the victims, although no doubt arbitrary and excessive punishment, and certainly torture, will often be accompanied by such sentiments.

[27]Of perhaps greater assistance is Paramananthan v Minister for Immigration & Multicultural Affairs and Minister of Immigration v Sivarasa [1998] FCA 1693, decisions of the Federal Court of Australia. These two cases concerned the claims for asylum by young Tamils who were the subject of random round-ups, detention and severe mistreatment by the authorities in Sri Lanka. The Tribunal held that there was no persecution in the Convention sense because there was no suggestion that the mistreatment to which they were subjected was directed in a discriminatory way towards any particular group such as young Tamil males. Rather, it was a case of generalised failure to adhere to basic standards of human rights. Wilcox J said that he accepted that it was not an act of persecution within the meaning of the Convention for the Sri Lankan authorities to select people for questioning about the LTTE on the basis of their perceived ethnicity, and to detain them for that purpose for a reasonable time. He continued:

"But the fact that people have been selected for detention on the basis of their ethnicity or perceived political opinion makes it important for a government to ensure that there is no abuse of the power of detention. The people who are at risk of "indiscriminate cruelty" have been selected on a basis mentioned in the Convention. McHugh J made the point in Applicant A at 258-259: "

Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race. However, where a racial, religious, national group or the holder of a particular political opinion is the subject of sanctions that do not apply generally in the State, it is more likely than not that the application of the sanction is discriminatory and persecutory. It is therefore inherently suspect and requires close scrutiny. In cases coming within the categories of race, religion and nationality, decision-makers should ordinarily have little difficulty in determining whether a sanction constitutes persecution of persons in the relevant category. Only in exceptional cases is it likely that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving a legitimate government object and not amount to persecution." For the above reasons, it was legally incorrect for the Tribunal to reject the claims of Mr Paramananthan and Mr Sivarasa on the ground that the mistreatment they had suffered amounted to "indiscriminate cruelty" falling short of "persecution". In each case, the Tribunal should have entered upon the questions whether there was a causal connection between the cruelty the applicants had suffered and their Tamil ethnicity and/or perceived sympathy for the LTTE and, if so, whether the cruelty was something the Sri Lankan government tolerated or was unable to control."

[28]The judgment of Merkel J was to similar effect. He identified a number of propositions that he derived from the authorities. These included:

"5. If measures constituting serious violations of human rights are directed, for example, to members of a particular race, that circumstance may be thought to constitute persecution for the purposes of the Convention. As Davies J said in Paramananthan that is because an inference can be drawn from the excess of the measures taken, the inappropriate violence or detriment in what is done, that the measures involve an intent to inflict harm or penalty for reasons of race, political opinion etc."

[29]Later he said:

"The present appeals afford a good example of the difficulties that can arise in relation to the discriminatory criterion. It is true that, in order to protect the public, a number of laws have been enacted by the Government of Sri Lanka which permit the summary arrest and detention of individuals suspected of engaging in terrorist activities. Arrest and detention of individuals, who happen to be of a particular race, in accordance with such laws, is unlikely to be discriminatory and therefore persecutory as the persons are not targeted as persons of that race, rather, they are targeted as persons suspected of terrorism. However, the summary round up, arrest, detention, torture and extortion of young Tamil males from the Jaffna peninsula who are in Colombo or other government controlled areas, is not conducted in accordance with or authorised by such laws. Any mantle of legitimacy is lost in respect of such conduct which is plainly discriminatory and, as was pointed out by Burchett J in Savarasa, will constitute persecution. When the material before the RRT raises such a case, as it clearly did in each of the present matters, the conduct in question will, as was stated by McHugh J in Applicant A (at 259) become "inherently suspect and requires close scrutiny" in order to ascertain if it was engaged in for a Convention reason. As Davies J observed, the excess of the "measures" taken can properly found an inference of an intent to inflict harm for a Convention reason."

[30]I would hold, therefore, that where a person to whom a political opinion is imputed or who is a member of a race or social group is the subject of sanctions that do not apply generally in the State, then it is more likely than not that the application of the sanctions is discriminatory and persecutory for a Convention reason. That is where there is a prosecution followed, in the event of conviction, by a sentence imposed by a court. The inference of persecution for a Convention reason is all the stronger where, as in the present case, the sanction is torture by state authorities which is not even lawful by the law of the State concerned. It is essential that, as was said in Paramananthan , the question whether there was a causal connection between the torture and the appellant's perceived sympathy for the LTTE as well as his ethnicity should be examined with close and anxious scrutiny. It has been said time and again that asylum cases call for consideration with "the most anxious scrutiny": see, for example, R v Secretary of State for the Home Department ex p Bugdaycay

[1987] AC 514

, 531F-G.That is not a mantra to which only lip service should be paid. It recognises the fact that what is at stake in these cases is fundamental human rights, including the right to life itself. That degree of scrutiny is called for to a heightened degree in a case such as this where it is accepted that the appellant has been tortured for alleged involvement in political crimes. Conclusion

[31]In my view, it was insufficient for the Special Adjudicator to deal with the matter in the way that he did. It is not clear why he decided that the appellant had not been maltreated for reasons of his political opinion, or his ethnicity. There is no indication that he approached the matter on the basis that the torture raised an inference that he had been persecuted for a Convention reason. Quite apart from the fact that the appellant had been tortured, there was the further relevant fact that the material before the Special Adjudicator included a commentary on the documentary evidence on the current situation in Sri Lanka. This included a synopsis of the US State Department Report of 1999 (for the year 1998), which contained the following passage:

"despite legal prohibitions, the security forces continue to torture and mistreat persons. They continue to torture and mistreat detainees (male and female) particularly during investigation. Most torture victims are Tamils suspected of being LTTE insurgents or collaborators"

[32]Taken together with the appellant's own experiences, this was powerful evidence that Tamils who were (however unjustly) suspected of involvement with the LTTE were tortured by the State authorities. In my judgment, this raised a strong inference that they were, or that it is at least reasonably likely that they were, persecuted for reasons of imputed political opinion or ethnicity. The Special Adjudicator did not identify any factors which supported his assertion that the ill-treatment was not for reasons of imputed political opinion, but was for suspected involvement in violent terrorism. He dismissed the suggestion that the ill-treatment was for reasons of the appellant's ethnicity by reference to paragraph 2 of his Determination. But paragraph 2 dealt with the limited issue of the safety of Sri Lanka generally for Tamils who return as failed asylum-seekers.

[33]In my judgment, the Immigration Appeal Tribunal should have given leave to appeal in this case. For the reasons that I have given, the appellant had a strong case. I would allow this appeal and quash the decision of the Tribunal. MR

JUSTICE WRIGHT:

[34]I agree.

LORD JUSTICE THORPE:

[35]I also agree.

ORDER

Appeal allowed with the costs. The decision of tribunal quashed. (Order does not form part of approved Judgment)