OLEED v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2002] EWCA Civ 1906

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
[2002] EWCA Civ 1906Case No Case No: C/2002/0125Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
OLEEDAppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Before
Lord Justice SchiemannLady Justice ArdenMr Justice AikensManjit Gill QC & Noah Weiniger (instructed by Corbin & Hassan Solicitors) for the AppellantSean Wilken (instructed by Treasury Solicitors) for the Respondent

Lord Justice Schiemann :

Before

[1]the court is an appeal by an asylum seeker, Mohamed Oleed, who came here from Sri Lanka. He arrived on 29 July 1999 and claimed asylum upon arrival. This was refused by the Secretary of State on 17 February 2000. He appealed to an Adjudicator who allowed his appeal, finding that Mr Oleed had proved to the required standard that he had a well-founded fear of persecution for a Convention reason if he were returned to Sri Lanka. The Home Secretary however did not accept this finding and appealed to the Immigration Appeal Tribunal. His main contention there was that the Adjudicator's determination was "against the weight of the evidence" and was internally inconsistent. The Tribunal accepted these contentions and restored the decision of the Secretary of State. Mr Oleed now appeals to us. The factual background[2]The background to the situation in Sri Lanka is well known. In a nutshell, at the relevant time the LTTE and the Government were at odds and a bitter civil war was going on. Those suspected by one side of belonging to the other were at risk of ill treatment. Mr Oleed's case was that he was a neutral shopkeeper wrongly suspected by each side of belonging to the other.[3]Mr Oleed gave evidence with the aid of an interpreter. His case before the Adjudicator contained the following assertions. His brother was a member of the Jihad and had been killed by the LTTE. Mr Oleed was also suspected both by the LTTE and by the police and army of belonging to the Jihad although in fact he did not belong to it. One day in Trincomalee where he was living he was going to the mosque and was detained by the LTTE; they gave him a gun and asked him to go forward; at this time a military truck arrived and the LTTE members ran away chased by the army; he was detained on the spot, questioned and beaten; as result one of his legs was broken, the other was dislocated; he lost consciousness; he assumed that the Army had left him for dead but had subsequently found out that he was alive. Some people took him to hospital where there were no guards around him. His leg was put in plaster there. He remained for two days. Whilst he was there a friend visited him and told him that the LTTE had been looking for him at his house and shop, and when they could not find him they ordered his wife out and set fire to the premises. He discharged himself from hospital and went into hiding for four or five days in Trincomalee. He and his wife then went to Colombo hidden in the back of a fish lorry for 15 hours. Subsequently the army visited the site of his burnt property and were told by neighbours that they had gone to the city. He remained in hiding in Colombo for eight or nine days because he learned that the army were searching for him there. During this time a man was brought to the house who removed his plaster. He was put in contact with an agent who was paid with money which came from his wife. She had managed to take some jewellery when the LTTE burned their house. He then fled from Sri Lanka and came to the UK via Russia and France. After he had arrived in the UK he had heard from his sister that the army had been searching for him in Sri Lanka at his sister's house and left a warrant for him (this 'warrant' appears to be a mistranslation for 'summons' but no one has suggested that anything turns on this). His sister had sent the warrant to him in England by post. He feared that if he were returned he would be arrested by the authorities.[4]The warrant on its face is dated 10 th May 1999, appears to have been issued by the Registrar of the District Court at Matale and orders him to appear at the Magistrate Court in Matale on 20 th May 1999. The charge is translated as "On the 10 th day of May 1999 with the terrorist you were jointly having a clash". The warrant has a number. It describes him as residing in Matale. Matale was where his sister lived, but he visited her regularly.[5]Although he had not before the hearing assigned a particular date for the incident with the army, in the course of cross-examination before the adjudicator he stated that the incident with the army had happened on the 10 th June 1999 and that this was the first time he had difficulty with the army or the authorities. This fitted in neatly with the rest of his account but did not square with the allegation in the warrant which related to a day a month earlier.[6]Medical evidence was given which was consistent with the version of events given by Mr Oleed.[7]The adjudicator examined the background situation in Sri Lanka with great care and his conclusions were not challenged. In areas affected by the LTTE serious human rights abuses continued to be committed by the security forces. The LTTE had also been responsible for atrocities and reportedly torture on a routine basis. There was a high likelihood of further investigation for those who were suspected of LTTE membership on the basis of police records. If returned to Sri Lanka Mr Oleed would be arrested on the warrant.[8]The following are the most important parts of the Adjudicator's decision. 32. I will now deal with the appellant's evidence. … The next difficulty the appellant had with the authorities was on 10 June 1999 when he states whilst travelling to the mosque to pray he was stopped by five or six members of the LTTE who gave him a gun and asked him to walk forward. At this time a military truck arrived and the LTTE members ran away. The army members caught him he was arrested, detained, tortured and beaten, he suffered one broken leg the other leg being dislocated, he passed out and awoke in hospital. Mr Weinegar [the appellant's counsel] submitted that the respondent had not attacked the credibility of his story here. That is correct. I do, however, find his story here somewhat bizarre. The appellant further indicated that when he awoke in hospital, where he remained for two days before discharging himself, no member of the security forces was present. I do find his evidence here somewhat surprising as a suspected member of the LTTE in possession of a firearm I do not believe he would be left unguarded. 35. …although I accept his premises were destroyed by the LTTE I do not accept the evidence in relation to his wife being able to retrieve money. … I cannot accept that the sale of [the] jewellery would fund the significant amount he allegedly paid to fund his journey and subsequent stay in Colombo and then his escape which eventually brought him to the United Kingdom 39. I do not believe the appellant has given a totally truthful account, there are significant parts of his evidence that in my estimation lack credibility. In particular I regard the following evidence as without foundation, his contention that he was not subject to any security during his two day stay in hospital, the sale of his wife's jewellery which I find would not cover the cost of his journey, the detail of his journey and stay in Colombo, and his evidence that he was suspected of LTTE membership prior to the incident in June 1999. I do, however, accept the evidence of the appellant that there was an incident with the army when he was severely beaten receiving the injuries of a broken leg and a dislocated leg. What does in this case tip the balance in favour of the appellant is the warrant issued against him. The warrant alleges "on the 10 th day of May 1999 with the terrorist you were jointly in having a clash" ( sic ). The authenticity of this warrant was not challenged by the respondent, the appellant gave the date of the only incident that had occurred with the army as the 10 June 1999. It may be that the appellant has given a wrong date of this incident for whatever reason, but it is clear to me that there was an incident with the army and a warrant is in existence against the appellant for what appears to be described as a similar incident. If returned to Sri Lanka the appellant will be arrested on the warrant and there is sufficient information available in the objective material to show that persons suspected of LTTE connection or terrorist connection being subjected to ill-treatment whilst detained ( sic) . …[9]The case was thus one of those with which adjudicators are familiar. An applicant gives evidence some of which, but not all of which is believed. The Adjudicator clearly believed that Mr Oleed had been beaten up by the army, that awaiting for him should he be returned was a summons dated 10 May 1999 requiring him to answer a charge of being involved on that day jointly with terrorists in a clash, that this would lead to his arrest on return and that there was a reasonable degree of likelihood that he would be persecuted for a Convention reason if he were returned.[10]We were given to understand that the Adjudicator had been furnished with a copy of the warrant some time before the hearing. Many months elapsed between the hearing before the adjudicator and that before the Immigration Appeal Tribunal. Although in other cases the Home Secretary, following inquiries via the High Commissioner as to the genuineness of warrants, produces evidence which casts doubts on their genuineness, in the present case there was nothing placed before the Tribunal, or indeed before us, to suggest that the warrant was not genuine.[11]The Tribunal said the following in their determination. The italics are mine. 5. The main and in our view the strongest ground of appeal in this case is that the Adjudicator erred in giving the "warrant" as much weight as he did and that his final conclusion that the respondent has a well founded fear of persecution for a Convention reason if he were returned to Sri Lanka is against the weight of evidence . We heard submissions from Mr Gulvin and Mr Weineger. Mr Gulvin reminded us that the Adjudicator had rejected most of the claims made by the respondent in his evidence. Drawing our particular attention to paragraph 39 of the Adjudicator's determination, Mr Gulvin pointed out that he had specifically rejected the respondent's claim that the army or the police had suspected the respondent of LTTE membership or sympathy prior to the incident in June 1999. The respondent had been sure that the incident with the army had taken place on 10 June and not on any other date. He had not claimed that there had been any other incident with the army or the police on 10 May or any other date before or after 10 June. The contents of the warrant make out that the incident for which the respondent was being sought had happened on 10 May 1999. This was clearly contrary to the evidence of the respondent and the respondent had been unable to provide any explanation for the inconsistency. According to Mr Gulvin, the Adjudicator was wrong in the circumstances to rely on the warrant for his conclusion that the respondent was at risk upon removal to Sri Lanka. Mr Gulvin said that it was not the ( sic ) question of authenticity or genuineness of the warrant. Bearing in mind that the burden of proof was upon the respondent at all times, it was the ( sic ) question of what weight should have been attached to this document in the context of all the evidence from the respondent. Mr Gulvin asked us to allow the appeal. Mr Weineger argued that as the only question before the Adjudicator was whether the respondent faced real risk of persecution on return for a Convention reason, it was perfectly reasonable and proper for the Adjudicator to conclude, in the light of the warrant that his fear of persecution was well founded. He reminded us that the warrant had not shown to be bogus by the Secretary of State. He further reminded us that the warrant had been issued by a court and not by the police. He asked us not to interfere with the decision of the Adjudicator. 6. We have given careful consideration to all the evidence in this case. We have reminded ourselves that the oral evidence of the respondent was in the main rejected by the Adjudicator. He had very good reasons to do so. We endorse the reasons that he has given and we agree with his description of some of the evidence as "somewhat bizarre". We accept that in the context of the totality of the evidence in this case, it was unreasonable and indeed perverse of the Adjudicator to conclude on the basis of the warrant document that the respondent had made out his case as a refugee under the Convention . This is, first, because the other evidence before the Adjudicator did not match the contents of the warrant document . Further there were a ( sic ) numerous other inconsistencies and contradictions in relation to the document and the events surrounding it that (sic) no reasonable person could have given the contents of the document as much weight as did this Adjudicator . It is no doubt true that the Secretary of State has produced no evidence either before the Adjudicator or before the Tribunal to establish that the warrant is not a genuine document. But in the circumstances of this case where the claimant's (respondent's) evidence has not been accepted as credible and also where the claimant's own evidence is inconsistent with the contents of the document , and given that the burden of proof is upon the claimant and not the Secretary of State, the Secretary of State's position that failure to challenge the authenticity of the document does not bar it from arguing that the document should not relied upon or should be given little weight, is perfectly tenable and correct (sic). It is important to note that when the respondent was first interviewed he made no mention of the warrant , and as the Adjudicator noted in his determination (paragraph 37) it "was not part of his case". We find no evidence in this case which establishes that the respondent is reasonably likely to face persecution for a Convention reason in Sri Lanka on removal from here. The Adjudicator had the benefit of seeing the respondent give oral evidence. He did not believe most of what he had been told. The parts that he did believe are intrinsically linked to the warrant and the Adjudicator's belief (in our view erroneous in this case) that in the absence of a challenge to the authenticity of the warrant he had to accept it and give it full weight . In our opinion the Adjudicator should have looked at the warrant with due caution since he had himself taken an adverse view of the veracity of the respondent's evidence. In our view the Adjudicator misdirected himself on the issue of authenticity of the warrant and as a consequence failed to evaluate it properly . This error was material to his final conclusion. Discussion[12]As it seems to me, reading this at times grammatically uncertain determination, it is not clear whether(1) the Tribunal took the view that the warrant was not authentic in the sense of coming from the court on the 10 th May and accusing Mr Oleed of doing something with the terrorists on that day, or whether(2) it took the view that the warrant was authentic but the adjudicator gave the warrant too much weight.[13]To do the former in the absence of a challenge from the Home Secretary to the authenticity of the warrant would have been a bold step. It is not a step which should in my judgment have been taken, at least not without adequate warning before the hearing so as to permit Mr Oleed to try and find other evidence of authenticity - such as asking the Home Office through the High Commissioner to check with the Magistrates Court or such as obtaining evidence from his sister. Perhaps conscious of these difficulties, the Tribunal refrained from a direct finding that the warrant was not authentic.[14]It is possible that the proper construction of the Tribunal's determination is that it accepted the genuineness of the warrant but considered that it should not have been "given as much weight" as the adjudicator gave it. The Tribunal has so framed its decision that it criticises the Adjudicator for failing "to evaluate it [the warrant] properly" and for giving "the contents of this document" as much weight as he did and for acting perversely.[15]The reasoning behind the Tribunal's criticism of the Adjudicator is in my judgment so flawed that this criticism cannot stand.[16]The fact that the warrant had not been mentioned by Mr Oleed when he was interviewed on arrival does not point to lack of veracity on his part if one accepts his assertion, which does not appear to have been challenged, that the warrant was sent to him later by his sister. This is not a small point since the Immigration Appeal Tribunal itself specifically stated that this was an important part of its reasoning.[17]Moreover, for my part I see no necessary tension between Mr Oleed's assertion that he had had no trouble with the army prior to the 10 th June and the assertion in the warrant that Mr Oleed had been involved with terrorists in a clash on 10 th May. A possible explanation is that Mr Oleed was truthful in his account and that what was alleged in the warrant was the result of an informer who was lying in what he was asserting. In the context of a civil war where Mr Oleed's brother had already been murdered that is not at all improbable. It is not uncommon for false informations to be sworn either maliciously or by reason of honest mistake. I accept that so far as one can see this explanation was not advanced before the Tribunal but that does not reduce its force. On that basis the criticism that Mr Oleed's evidence "does not match the contents of the warrant document" and that "the claimant's evidence is inconsistent with the contents of the document" has no force whatever. Nor is it right to say that "the parts of the claimant's evidence which he [the adjudicator] did believe were intrinsically linked to the document".[18]The adjudicator's assertion that "it may be that [Mr Oleed] has given the wrong date for whatever reason" as to the incident reveals a possibility of making the assertions in the warrant match some of the assertions made by Mr Oleed. But I accept that this would then indicate that some of the timings contained in Mr Oleed's evidence were wrong, and probably deliberately wrong. That, while possibly explicable by perfectly reputable reasons, such as seeking to protect others, would manifestly not help Mr Oleed's case.[19]The Tribunal proceeds on the basis that if the adjudicator was right in rejecting Mr Oleed's assertion that he was suspected of LTTE membership in May 1999 then the warrant which in effect accuses him of just that is manifestly unreliable. For my part I consider that the contrary proposition has at least equal and opposite force. If one starts with accepting the warrant at its face value, as the adjudicator was prepared to do, then the adjudicator's rejection of Mr Oleed's assertion that he was suspected of LTTE membership prior to June lacks any visible basis. Not merely was he suspected of what the adjudicator described as a similar incident prior to 10 th June (as evidenced in the warrant), the suspicion had resulted in action: there was a warrant out for him prior to 10 th June which alleged collaboration with terrorists, in the circumstances a synonym for the LTTE. He will not have known of that suspicion till later but it manifestly existed.[20]There are other possible grounds of error in the Adjudicator's reasoning. If one accepts, as the Adjudicator did, that Mr Oleed was badly beaten in an incident with the army, it is possible that, as he suspected, the army left him for dead and it was others who took him to hospital. In such circumstances it would not be wholly surprising for there not to be an army guard waiting for him at the hospital. These sorts of things are not all that unusual during the course of a war. So one might be surprised at the Adjudicator's refusal to credit that Mr Oleed was without a guard at the hospital.[21]Mr Wilken for the Home Secretary submitted that the warrant does not go to the substance of Mr Oleed's case. I do not accept this. Quite naturally he initially put all the emphasis on the beating he had received at the hands of the army. He asserted that he feared that this sort of thing was likely to happen again. Once the warrant came into his hands his fear, in the eyes of the adjudicator, had sufficient substance to cause him to fall within the definition of a refugee.[22]There was no dispute between the parties as to the general position prevailing in Sri Lanka at the time of the Adjudicator's decision and his findings thereon are not criticised by the Tribunal. The adjudicator felt that the combination of the situation in Sri Lanka, the beating and the warrant and was such as to satisfy him that there was a reasonable degree of likelihood that Mr Oleed would be persecuted for a Convention reason if returned. In my judgment there was nothing perverse in that conclusion and the Tribunal fell into error in so categorising it. The legal background[23]The task of Adjudicators and the Tribunal in this jurisdiction is immensely difficult and certainty in one's conclusions as to the facts is seldom to be found - hence the guidance in Karanakeran v Secretary of State for the home Department [2000] 3 All ER 449 .[24]There is no dispute about the task of the adjudicator. He directed himself impeccably, following the well known cases of Sivakumaran [1988] Imm AR 147 , Karanakaran and Ravichandran [1996] Imm AR 97 . He held that the applicant had to show a reasonable degree of likelihood that he would be persecuted for a Convention reason if he were to be returned to his home country.[25]The formal position of the Immigration Appeal Tribunal is set out in the Immigration and Asylum Act 1999 Schedule 4: 22(1) …. Any party to an appeal…to an Adjudicator may, if dissatisfied with his determination, appeal to the Immigration Appeal Tribunal. (2) The Tribunal may affirm the determination or make any other determination which the Adjudicator could have made. 23(1) If the Immigration Appeal Tribunal has made a final determination of an appeal…any party to the appeal may bring a further appeal to the [Court of Appeal] on a question of law material to that determination.[26]This court (Hirst, Peter Gibson and Ward LJJ) held in Borissov –v- Secretary of State [1996] Imm AR 524 at 535 held that 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, and in any event, in accordance with general principles, the Immigration Appeal Tribunal will naturally be most reluctant to interfere with a primary finding of fact by the special adjudicator which is dependant upon his assessment of the reliability or credibility of a witness who has appeared before him."[27]In Arshad –v- Secretary of State [2001] EWCA Civ 587 para 20 Laws LJ referred to something he had said in that case on giving permission to appeal:
"I am somewhat anxious that this case portrays a (no doubt unconscious) lack of even-handedness on the part of the IAT as between an Immigrant's appeal and a Home Office appeal. In the former class of case experience shows that the IAT will not generally go behind findings of fact made by an Adjudicator who has heard the witness (notably the appellant)."
He continued, with reference to the case in front of him, "It is, I think, fair to notice that the Secretary of State's grounds to the Tribunal while all very properly expressed in the language of legal challenge or Wednesbury irrationality, in some instances are at any rate close to being quarrels with the Secretary of State's [sc. Adjudicator's] findings of fact. Under the legislation, as is well known, the IAT has a jurisdiction to entertain appeals on fact. I certainly, and without qualification, acquit the IAT of anything remotely amounting to bias. I would only say this, which is no more than obvious, that the IAT will desire to ensure that the appearance of its decision is as rigorously even-handed as its substance undoubtedly is." In the same case Waller LJ stated:
"I share my Lord's views expressed when giving leave and at the conclusion of his judgment that possibly – and he suggests no bad faith and nor do I – the IAT's approached a findings of fact of the Special Adjudicator when the Secretary of State was appealing was not quite consistent with that adopted in cases where the asylum seeker is appealing."

Conclusion

[28]In the present case Laws LJ in granting leave to appeal stated "what troubles me is the reach of an appeal to the IAT, especially when the Secretary of State is the appellant. On the facts here, was the IAT entitled to overturn the Special Adjudicator's judgment? I have some doubt whether the reference to perversity in paragraph 6 of the determination are justified."[29]Before us it was accepted on behalf of the Secretary of State that the Tribunal should act even-handedly and should only set aside a decision of an Adjudicator who has heard the evidence if it is plainly wrong or unsustainable. I do not regard the Adjudicator's conclusion as perverse or plainly wrong nor do I think that the Tribunal was entitled, at any event by the process of reasoning which it employed, to come to that conclusion.[30]Mr Manjit Gill Q.C. advanced a submission to the effect that even if we were satisfied that the Adjudicator was plainly wrong nonetheless we should dismiss the appeal by the Home Secretary because the "plainly wrong" test was only applicable to appeals by immigrants and not to those by the Secretary of State. For appeals in the latter category some even more stringent test was appropriate. I do not find it necessary to reach a concluded view on this submission although I am not presently persuaded by it.[31]Mr Wilken submitted, as I understood him, that even if we were to allow the appeal and quash the decision of the Immigration Appeal Tribunal the effect of that would be to revive the appeal before the Tribunal. He submitted that the situation was changing in Sri Lanka and that it would be useful for the Immigration Appeal Tribunal to consider the position in the light of the present day position.[32]It might well be useful but I do not consider that it would be a proper use of this court's powers now to send the case back to the Tribunal. The powers of this court are set out in CPR Part 52.10. We have all the powers of the lower court. We may set aside or vary any order made by the lower court. Those provisions give us the power to allow the appeal from the Immigration Appeal Tribunal, set aside its determination, substitute a determination dismissing the appeal from the Adjudicator and thus restore his determination. The present is in my judgement an appropriate case in which to exercise that power. I accept that the Tribunal examines the situation in the country from which the refugee is fleeing as at the date of its determination. However, in the present case in my judgment there was nothing wrong with the Adjudicator's determination, there was therefore no reason to appeal it and it would be wrong for the Home Secretary, on the back of an appeal which has been dismissed, to seek to re-examine the threat to the refugee with reference to a date later than the adjudicator's determination. To permit this would merely encourage appeals by a party who has no ground for appeal but hopes that the situation would change sufficiently to enable him to advance different arguments on different facts on appeal. Such procedures would not be in anyone's interest.[33]I note in conclusion that there is nothing in the Convention which obliges this country to shelter a person once he is no longer a refugee as therein defined because the situation has changed in his home country: paragraph 18 of the judgement of this court in Saad and Others v Secretary of State for the Home Department [2001] EWCA Civ 2008 ; [2002] INLR 34 . I accept of course that there may well be humanitarian arguments which lead to a policy of not displacing erstwhile refugees from their country of refuge even if the situation in their home country changes. These matters do not fall to be examined by this court in the present case and have not been the subject of submissions. But I do not consider that a misuse of appellate procedures is the appropriate way of dealing with changes in the home country.[34]I would allow this appeal, set aside the determination of the Tribunal and substitute a determination dismissing the appeal from the adjudicator.

Lady Justice Arden :

[35]It is common ground in this case that the Immigration Appeal Tribunal is entitled to set aside the decision of an adjudicator where it is satisfied that the adjudicator's finding of fact on a material point was plainly wrong or unsustainable, although such a power should be used sparingly where the adjudicator has assessed the oral evidence of a witness. Mr Manjit Gill QC has gone further and argued for a wider proposition. However, in my judgment, that wider proposition does not arise for determination in this case.[36]In this case the Tribunal decided that, in the context of the totality of the evidence, it was "unreasonable and perverse" for the adjudicator to conclude, on the basis of the warrant of 10 May 1999, that the appellant had made out his case as a refugee under the Convention. The Tribunal noted that the adjudicator had in the main rejected the appellant's oral evidence and "had very good reasons to do so". The Tribunal pointed out that the appellant had been sure that an incident which he described with the army had taken place on 10 June 1999 and not on any other date. As a result of this incident he suffered serious injuries, was taken to hospital and subsequently left hospital, went to Columbo and left Sri Lanka. The appellant was certain that the incident had occurred on 10 June 1999 and he had not claimed that there had been any other incident with the army or the police on 10 May 1999 or any other date before 10 June. His case before the adjudicator was that the police had suspected him of being a member of the LTTE before 10 June 1999. No challenge was made before the adjudicator on behalf of the appellant to the date of the warrant. The warrant was issued because the police suspected the appellant of LTTE membership and he did not receive the warrant while he was in Sri Lanka because there was a delay in execution (and after the incident on 10 June 1999 he went into hiding and left the country).[37]In his findings, the adjudicator had rejected much of the evidence of the appellant. In particular, he rejected the appellant's evidence that the police suspected him of being a member of the Tamil separatist group, the LTTE, prior to the incident in June 1999. (The appellant does not claim that he was a member of the LTTE). He did, however, accept that the appellant had been involved in an incident with the army when he was severely beaten, receiving injuries of a broken leg and a dislocated leg. The adjudicator then decided the case on the basis of the warrant. He observed that the Secretary of State had not challenged the authenticity of the warrant and that the appellant gave the date of the only incident that had occurred with the army on 10 June 1999. The adjudicator considered whether that date was wrong and concluded:
"It may be that the appellant has given a wrong date of this incident but for what ever reason, but it is clear to me that there was an incident with the army and a warrant is still in existence against the appellant for what appears to be described as a similar incident. If returned to Sri Lanka the appellant will be arrested on the warrant and there is sufficient information available in the objective material to show that the person suspected of LTTE connection or terrorist connection being subjected to ill-treatment whilst detained."
[38]It is clear from this that the adjudicator thought that it was possible that the appellant had been wrong about the date of this incident.[39]As I have said, the Tribunal considered that, in the context of the totality of the evidence in the case, it was unreasonable and perverse for the adjudicator to conclude on the basis of the warrant that the respondent had made out his case under the Convention. He would not have decided it in the appellant's favour on any other ground. The Tribunal's reasons were that the other evidence before the adjudicator did not match up to the contents of the warrant. The Secretary of State could challenge the warrant without attacking its authenticity. In particular, the Tribunal noted that the warrant had not been available when the appellant was interviewed and that the warrant formed no part of his case for asylum to the Secretary of State. The Tribunal continued:
"We find no evidence in this case, which establishes that the respondent is reasonably likely to face persecution for a Convention reason in Sri Lanka on removal from here. The adjudicator had the benefit of seeing the respondent give oral evidence. He did not believe most of what he had been told. The parts he did believe are intrinsically linked to the warrant and the adjudicator's belief (in our view erroneous in this case) that in the absence of a challenge to the authenticity of the warrant he had to accept it and give it full weight. In our opinion the adjudicator should have looked at the warrant with due caution since he had himself taken an adverse view of the veracity of the evidence. In our view, the adjudicator misdirected himself on the issue of the authenticity of the warrant and as a consequence failed to evaluate it properly. This area was material to his final conclusion."
[40]There are a number of aspects of that paragraph which can be criticised. For example, the Tribunal failed to recognise that the appellant had provided an explanation for why the warrant had not been produced at the time of his interview. It was not sent to him from Sri Lanka until a later date. However, the question is whether or not the Tribunal were correct to interfere with the findings of the adjudicator and to substitute their own decision.[41]Mr Gill submits there are two certain facts found in the appellant's favour. First, there was an incident in which the army severely beat up the appellant. Second, there is in existence a warrant. The date of the warrant (10 May 1999) does not match up with the appellant's evidence as to the date of the incident (10 June 1999). The adjudicator was conscious of this and thought that it was possibly explicable by reference to an error in the appellant's recollection. The decision of the Immigration Appeal Tribunal in The Secretary of State for the Home Department v Chiver [1997] INLR 212 showed that it was perfectly possible for an adjudicator to believe that a witness was not telling the truth about some matters or had exaggerated his story to make the case better or was simply uncertain about some matters, but still be persuaded that the "kernel" of his story remains. In the Chiver case, the adjudicator found inconsistencies, but in the judgment of the Immigration Appeal Tribunal, he did not ignore them. He listed the adverse matters, and in the judgment of the Tribunal:
"it cannot be said this approach is so inherently illogical as to render the determination flawed. In effect, it adopts precisely the approach which is urged on adjudicators, i.e. to weigh up the evidence and indicate which is believed and that which is not. It is only when an adjudicator, after stating that evidence is believed or disbelieved, reaches a conclusion which has no foundation in the belief or disbelief that a determination cannot stand because of inherent inconsistencies."
[42]Mr Gill submits that it is material that the Secretary of State did not challenge the authenticity of the warrant. It could have checked its authenticity with the court which issued it (Matale) through the British High Commission in Sri Lanka. Accordingly, the adjudicator was entitled to decide the case in the way he did.[43]The argument put to us by Mr Sean Wilken, for the Secretary of State, is that since the adjudicator had ruled out police suspicion of the appellant prior to the incident in June 1999 and the appellant had been clear about the date of the incident, the adjudicator could not give much weight to the warrant. It was after all not part of the appellant's case that the warrant was concocted and issued on spurious grounds. The appellant's case was simply that the warrant must have arisen out of police suspicions of the appellant at a previous date. Accordingly, the course the adjudicator took was to find that the appellant must have been wrong about the date of the incident. This was the only way in which he could square the circle.[44]I agree with Mr Gill that this is a case where the adjudicator was faced with inconsistencies in the evidence. It had been put to the appellant by the Secretary of State's representative that the warrant related to a separate incident. The appellant, however, did not even accept the possibility that he was mistaken about the date of the incident with the army. He was firm that that incident had occurred on the 10 June 1999. Moreover, it was argued on behalf of the appellant that the warrant was issued because the police had suspicions that he was a member of the LTTE and there was a delay in its execution. That argument meant that it was no part of the appellant's case that the warrant was issued on the day of the incident with the army.[45]The appellant's evidence was disbelieved on very many points. The adjudicator's theory about the warrant was that it was actually issued on the day of the incident with the army. Mr Wilken contends that that is inconsistent with the adjudicator's finding that the police suspected the appellant of membership of the LTTE prior to the date of that incident. In my judgment, this is not so. The adjudicator's theory about the date of the warrant is all part of a piece with his rejection of the case on membership of the LTTE prior to the date of the incident with the army. That incident occurred and as the adjudicator saw it, that led to the issue of the summons.[46]Accordingly, the adjudicator was accepting a version of events for which there was no evidence and indeed was contrary to the appellant's evidence. The adjudicator did not go on to test his theory against the totality of the evidence. Why would the appellant not accept that possible sequence of events? What on this version of events happened between 10 May and 10 June 1999? Why if the summons was issued on the same day as the incident with the army was it not executed on the appellant in hospital nearby immediately? These were all relevant to the reliance which the adjudicator could place on the warrant. After all, the Secretary of State's case had been that the warrant related to a different incident and formed no part of a pattern of persecution.[47]Accordingly, I agree with the Tribunal that the adjudicator effectively assumed that because the authenticity of the warrant was not challenged he need not test the warrant in any other way by reference to the evidence. In my judgment, this was plainly wrong. He should have considered whether its evidential value was affected by the other evidence. Until he had done that, he could not properly come to a conclusion as to the risk of persecution for a Convention reason on return to Sri Lanka[48]The point of difference which I have with the Tribunal was that they themselves went on to reach a conclusion on the evidence. But the material parts of the evidence relating to the evidential value of the warrant related to evidence which had been given orally by the appellant. In those circumstances, in my judgment, the right course was for the Tribunal to remit the matter to the adjudicator with a direction that he should make findings as to the weight to be given to the warrant of 10 May 1999. Accordingly, I would allow the appeal for the purpose of setting aside the decision of the Immigration Appeal Tribunal on the basis that I have mentioned. Mr

Justice Aikens :

[49]I agree with the conclusion of Schiemann LJ and his reasons.[50]The Adjudicator made his findings of fact in paragraph 39 of his adjudication. In that paragraph he states that he did not believe that Mr Oleed, who had given evidence before him, had given a totally truthful account. The Adjudicator held that there were significant parts of Mr Oleed's evidence that lacked credibility. The Adjudicator identified four particular aspects of Mr Oleed's evidence which were " without foundation". They were:(i) Mr Oleed's contention that he had not been subject to any security whilst in hospital for two days;(ii) the sale of his wife's jewellery;(iii) the detail of his journey and stay in Colombo: (iv)lastly and most importantly " his evidence that he was suspected of LTTE membership prior to the incident in June 1999". The Adjudicator then went on to find that there had been an incident between the army and Mr Oleed, which may or may not have been on 10 June 1999. (Mr Oleed had placed the incident on that date in cross – examination before the Adjudicator). The Adjudicator also found that there was a "warrant" in existence which alleged that Mr Oleed was involved in a terrorist incident on 10 May 1999. We have seen a copy of the "warrant" and it appears to be dated 10 May 1999. The authenticity of that "warrant" was not challenged by the Secretary of State before the Adjudicator.[51]The Adjudicator concluded that the "warrant" tipped the balance in favour of Mr Oleed. As I read paragraph 39 of his reasons the Adjudicator reached the conclusion that(i) there had been an incident between the army and Mr Oleed; and(ii) there was an outstanding "warrant" in existence against Mr Oleed for what appeared to be a similar incident. The Adjudicator then held that if Mr Oleed was returned to Sri Lanka he would be arrested " on the warrant and there is sufficient information available in the objective material to show that persons suspected of LTTE connection or terrorist connection being subjected to ill – treatment whilst detained…" (sic). On that basis the Adjudicator allowed Mr Oleed's appeal from the decision of the Home Secretary refusing him asylum.[52]In my view there is no inconsistency in the Adjudicator rejecting the evidence of Mr Oleed that he was suspected of LTTE membership prior to the incident with the army and then relying on the "warrant" as one of the main bases for his conclusion that Mr Oleed was at risk of persecution for a Convention reason if he were to be returned to Sri Lanka. The "warrant" had not been challenged by those representing the Secretary of State at the hearing before the Adjudicator. As Schiemann LJ has stated, in those circumstances the Adjudicator would have been very bold to conclude that it was not authentic. The Adjudicator was in some doubt as to the precise date of the incident between Mr Oleed and the army. It seems to me that the Adjudicator concluded that, whatever the date of the incident with the army and notwithstanding the fact that prior to that incident Mr Oleed had not been suspected of LTTE membership, the "warrant" existed, it was authentic and it would be acted upon if Mr Oleed returned to Sri Lanka.[53]To my mind that conclusion, based on the evidence before the Adjudicator, was neither unreasonable nor perverse. Nor is it illogical.[54]However, the Immigration Appeal Tribunal overturned the decision of the Adjudicator, on the ground (set out in paragraph 6 of its determination) that his conclusion was unreasonable and perverse. In particular the Tribunal concluded that " no reasonable person could have given the contents of the [warrant] has much weight as did this Adjudicator". The reasoning of the Tribunal appears to have been as follows:(i) the evidence of Mr Oleed before the Adjudicator was that the incident with the army had taken place on 10 June 1999;(ii) the Adjudicator had not believed much of the evidence of Mr Oleed;(iii) in particular he had disbelieved Mr Oleed's evidence that he had been suspected of LTTE membership before the incident with the army;(iv) but the Adjudicator did accept that part of Mr Oleed's evidence concerning the incident with the army;(v) therefore the incident with the army must have occurred after the date of the "warrant" (ie. 10 May 1999);(vi) because at the date of the warrant Mr Oleed was not suspected of LTTE membership, therefore there was no reason why a "warrant" should have been issued against Mr Oleed. Accordingly the "warrant" should be given little weight in evaluating the risk to Mr Oleed if he were returned to Sri Lanka.[55]The Tribunal made an additional finding of fact that the Adjudicator had deliberately refrained from making, ie. it gave the precise date of 10 June for the incident with the army. It was on the basis of that finding that the Tribunal concluded that it was bound to question the "weight" to be given to the "warrant". This was despite no challenge to its authenticity by the advocate for the Secretary of State before the Tribunal.[56]The Tribunal did not give any reasons why it was overturning the Adjudicator's finding that he could not date precisely the incident with the army. The Tribunal does not indicate why it was prepared to accept the evidence of Mr Oleed on the date, whilst emphasising that it agreed with the Adjudicator's rejection of much of the other evidence of Mr Oleed.[57]The Tribunal was not entitled to attack the Adjudicator's conclusion unless it was either plainly wrong or unsustainable. In my view his conclusion that the incident with the army could not be precisely dated was a reasonable one on the evidence before him.[58]Whether or not the Tribunal was entitled to substitute its own finding of fact on that point, I am certain that it was not entitled to substitute its own view on the "weight" to be attached to the "warrant". As I understand it the Tribunal was accepting a submission of Mr Colvin, who had appeared for the Secretary of State, that it should conclude that the "warrant" was not going to be acted upon if Mr Oleed was returned to Sri Lanka. Therefore Mr Oleed was not at risk of persecution for a Convention reason.[59]The fact is that the "warrant" exists; its authenticity is not, even now, challenged. Given the finding of fact concerning the incident with the army, then there can legitimately be several views on the proper "weight" to attach to the "warrant" ie. whether or not it will be acted upon if Mr Oleed were to be returned to Sri Lanka. To my mind the view of the Adjudicator was within a reasonable band of views.[60]If, as I conclude, the Tribunal was not entitled to reduce the "weight" to be attached to the "warrant" to almost nothing, then the Adjudicator's conclusion that the "warrant" would be acted on if Mr Oleed was returned to Sri Lanka must also be a reasonable one. If so, then the Tribunal was not entitled to overturn the conclusion of the Adjudicator that Mr Oleed had proved that he had a well – founded fear of persecution for a Convention reason if he were to be returned to Sri Lanka.[61]Accordingly, like Schiemann LJ, I have concluded that the Adjudicator's decision was neither plainly wrong nor unsustainable. In my view the Tribunal was not entitled to come to its conclusion that was contrary to that of the Adjudicator. On this aspect I must respectfully disagree with Arden LJ.[62]I agree with Schiemann LJ that, in these circumstances, the proper exercise of this Court's power under CPR Part 52.10 is to allow the appeal from the Tribunal, set aside its determination, substitute a determination dismissing the appeal from the Adjudicator and thus restore his determination.[63]I have reached no concluded view on the wider submission made by Mr Manjit Gill QC on behalf of Mr Oleed, that when there is an appeal by the Secretary of State a more stringent test has to be passed before an Adjudicator's decision in favour of an applicant can be overturned. Like Schiemann LJ I am not, at present, persuaded by it.[64]I would allow this appeal.

Cited in 3 later judgments