Yogachandran, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 392 (Admin)

Case No CO/2499/2005[2006] EWHC 392 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 7th February 2006
Strand
London WC2
B E F O R E:
MR JUSTICE MUNBY
Between
THE QUEEN ON THE APPLICATION OF YOGACHANDRANClaimant-v-
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS S JEGARAJAH (instructed by K Ravi Solicitors, Middlesex HA5 5DY) appeared for CLAIMANTMS K STERN (instructed by the Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE MUNBY: This is an application for judicial review by an asylum seeker from Sri Lanka whose claim has been certified by the Secretary of State. The original decision letter was dated 16th March 2005. That, it will be appreciated, was after the Tribunal had given its decision on 28 October 2004 in re PS Sri Lanka CG [2004] UK IAT 00297, but before Mitting J, on 19 May 2005, gave judgment in R (on the application of Sinnarasa) v the Secretary of State for the Home Department [2005] EWHC 1126.[2]At the time of the decision letter the Secretary of State took a certain view of the effect of the decision in re PS (see paragraph 10 of Mitting J's judgment in Sinnarasa summarising the submissions of Miss Richards on behalf of the Secretary of State) which, in the event, Mitting J rejected: see paragraph 11 of the judgment.[3]On one view it might perhaps be said that the way in which the Secretary of State formulated his decision in the present case, in paragraph 42 of the decision letter, reflected the view subsequently rejected by Mitting J. That does not, however, take the claimant anywhere because the matter has subsequently been reconsidered by the Secretary of State on two occasions. First, on 11th August 2005, when Miss Stern settled detailed grounds of defence to the claim, those detailed grounds being, as I understand it, verified by a statement filed on behalf of the Secretary of State. The second more recently, on 23 January 2006 (the letter is incorrectly dated 23 January 2005), when the Secretary of State made clear that his renewed decision, in substance confirming his earlier decision, was founded on a consideration not merely of re PS but also of Sinnarasa.[4]As the argument has developed, the issue has become comparatively narrow. Miss Stern, on behalf of the Secretary of State, and Miss Jegarajah, on behalf of the claimant, are agreed that for present purposes the relevant principles are adequately stated in the passage in ZL and VL v the Secretary of State for the Home Department [2003] EWCA Civ 25 where it was stated that: "If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded"- in which event, of course, it cannot properly or lawfully be certified.[5]The centre point of Miss Jegarajah's legal analysis is the rejection by Mitting J in Sinnarasa of the proposition that it is only high profile targets who are at risk in cases such as this. It is common ground that the claimant in the present case is not, in that sense, a high profile target.[6]I need not go through the relevant passages in re PS and in Sinnarasa in detail, but Mitting J's analysis in Sinnarasa of the Tribunal's earlier decision in re PS demonstrates that there may be categories of Tamils other than high profile targets who are at risk from the LTTE. I should add that as Miss Stern helpfully pointed out the Court of Appeal has very recently in Nadanasikamani v the Secretary of State for the Home Department (2006) 25 January, seemingly taken the law as being correctly laid down in re PS and in Sinnarasa.[7]Miss Jegarajah demonstrates to my satisfaction that it is at least arguable, in the sense that an immigration judge could find on the evidence, that the claimant has been specifically targeted by the LTTE as a perceived renegade or traitor.[8]She took me through a detailed and, up to a point, compelling analysis of the claimant's original witness statement, dated 12th March 2005, as through his SEF (Statement of Evidence Form) recording his interview on 11th March 2005. In those documents one finds set out the claimant's case of how LTTE soldiers approached his sister asking for him by name and saying that if they caught him they would shoot him.[9]The difficulty which lies in the claimant's way is this: that evidence all relates to threats which were made in the east. Fundamentally the Secretary of State's justification for having certified the claim is that the claimant, if returned to Sri Lanka, will be returned not to the east but to Colombo. It is the Secretary of State's contention, set out in his decision letters and renewed before me today by Miss Stern, that there is to be found neither in any evidence specific to the claimant's case, nor in any of the more general background information before me, any material justifying the view that the claimant is even arguably at risk of being targeted and killed by the LTTE in Colombo.[10]In re PS the Tribunal explored in great detail the question of the risk to LTTE members at the hands of that organisation in Colombo. Miss Richards on behalf of the Secretary of State, who appeared in that case as subsequently in Sinnarasa, embarked upon a detailed analysis of all the known relevant incidents in Colombo down to 23 September 2004. That analysis, which is set out in paragraph 19 of the Tribunal's decision in re PS, was accepted by the Tribunal (see paragraph 59).[11]Against the background of Miss Richard's analysis, and its acceptance of that analysis, the Tribunal in re PS went on in paragraph 61 to reject as "unsustainable on the available evidence" what it described as the generalisation by the UNHCR at paragraph 212 of its background paper on Refugees and Asylum Seekers from Sri Lanka, dated April 2004. In paragraphs 19, 59 and 61 the Tribunal identified, in the light of its detailed analysis of the evidence, those categories of LTTE members who were at risk of death or injury at the hands of the LTTE.[12]There are, as Miss Stern points out, two striking features of that history and that categorisation. First of all, the total numbers involved, that is to say members of the LTTE killed by the LTTE in Colombo in the period between July 2002 and September 2004, was something of the order of 20 or so, whereas (see paragraph 21 of the decision) no fewer than 150,000 Tamils had come to Colombo by reason of the conflict during the period from 1983 to 2004; as the Tribunal expressed it, "an insignificant number" when contrasted with the very large number of Tamils in Colombo. Secondly, as Miss Stern asserts, and in my judgment correctly, none of the various groups identified by the Tribunal as being at risk of death or injury at the hands of the LTTE are groups of which it could even arguably be asserted that the claimant is a representative.[13]Each of the groups who are at risk, as described by the Tribunal, has a characteristic or characteristics that the claimant lacks. Putting the same point the other way round, there is nothing to be found anywhere in the judgment in re PS to suggest that somebody of the claimant's characteristics is going to be at risk in Colombo at the hands of the LTTE.[14]For present purposes the claimant's essential characteristics are that he was a low-level fighter who has been targeted, I accept, as arguably demonstrated, in the east. When I say targeted: as being someone perceived by the LTTE as a renegade or traitor. None of the materials considered by the Tribunal in re PS and nothing in its decision even begins to suggest, in my judgment, that somebody with only those characteristics is going to be at risk in Colombo.[15]The matter, of course, does not end there. And one has, in any event, to be careful in the light of Mitting J's subsequent analysis of the legal position in confining attention exclusively to what was said by the Tribunal in re PS. Mitting J, as I have already mentioned, explicitly repudiated the proposition that only high profile targets are at risk. It does not, of course, follow from that, either as a matter of logic or as a matter of law, let alone as a matter of fact, that all or even most low profile targets are at risk.[16]I recognise, of course, that cases are not to be decided merely upon a comparison of the facts of one case with the facts of another case. However, it is not unhelpful, in the present context, to see why it is that in Sinnarasa the challenge to the Secretary of State's certificate succeeded. In paragraph 24 Mitting J said this:
"The question which I have to consider is whether on the assumed facts I have recited the claimant cannot, on any view, succeed or her claim is so wholly lacking in substance that it is bound to fail."
That, of course, is the test that I have to apply. Mitting J continued:
"I have found this a far from easy question to answer. This case, in my view, comes very close, indeed, to the ward line but for the features that I am about to identify I have no doubt that the Secretary of State's certification was lawful, rational and should be upheld. The features that, in my view, just take this case out of that category are these."
[17]His Lordship then went on to identify in a passage which I need not set out, six features of that case which: "taken together," (see paragraph 25 of his judgment) raised the possibility, although he said no more than the possibility, that particular claimant's claim if heard by an adjudicator would succeed. Miss Stern has taken me carefully through the evidence in the present case and has demonstrated that none of the six features which were present in that case, and which, to repeat, taken together just sufficed to bring the claimant victory in this court at least, is present in the instant case.[18]In my judgment if matters had stopped at that point the present claim would, with all respect to Miss Jegarajah's arguments, have been little better than hopeless. Re PS is, as will be apparent, a country guidance case. It is not, of course, binding authority either on the law, let alone on the facts. As well-known authority to which I have been referred, and which is helpfully set out, as it happens, in paragraph 5 of Mitting J’s judgment in Sinnarasa shows, an immigration judge will not be justified normally in departing from a country guidance case; that is unless it can be shown that the particular circumstances take the case outside the ambit of what had been considered in the country guidance case, or it can be demonstrated that there are relevant materials which the Tribunal was not aware of at the time it made its decision, or it can be demonstrated that matters have, in some other way, moved on.[19]Miss Jegarajah seeks to persuade me that there is further and more recent material which sufficiently casts doubt on the analysis and appraisal of the Tribunal in re PS, as to enable an immigration judge conceivably to decide the case in the claimant's favour. That material falls into three categories. First, Miss Jegarajah points out that the country guidance provided by the Home Office in relation to Sri Lanka in October 2005, that is to say almost a year after the decision of the Tribunal in re PS, still treats as being relevant and reliable (see the language of paragraphs 1.06 and 1.07) the very UNHCR paper which the Tribunal had criticised (see paragraph 6.93). That may be so, but it does not seem to me to carry the matter anywhere. The Home Office Science and Research Group is not, by the general words upon which Miss Jegarajah relies, warranting, as it were, the truth and accuracy of every document which it quotes. She has not taken me to anything to suggest that even the Home Office Science and Research Group, never mind the Secretary of State, was, at that time, resiling from the views expressed by the Tribunal in re PS.[20]Secondly, she relies upon two letters from the UNHCR in which it has sought to respond to what it recognises were the criticisms of its background paper voiced by the Tribunal. The first of those letters, dated 3 November 2005, led to the adjournment of this matter when it came before Mr Michael Supperstone QC sitting as a Deputy Judge on 29 November 2005. His Lordship adjourned the case on the basis that the claimant was to serve all the evidence relied upon including, if possible:
"some physical evidence in support of the assertions contained in that letter."
[21]I do not seek to criticise in any way either the claimant's previous solicitors or his current solicitors, who, as is clear from the correspondence I have seen, have gone out of their way to try and obtain from the London office of the UNHCR the material which Mr Supperstone had directed should be obtained. The fact is that that endeavour has been unsuccessful, both the earlier letter and a more recent letter from the UNHCR, dated 16th December 2005, really taking the matter no further forward.[22]The UNHCR, in each of those letters, expresses its dismay that the Tribunal should have formed the view it did in re PS and asserts and reasserts its position as being that what it said in the background paper, and, in particular, in the key paragraph of the background paper, remains current and valid. What is conspicuously lacking, however, as Miss Stern points out in both of those letters, is any attempt on the part of the UNHCR to engage with the detailed criticisms of its paper which had been articulated by the Tribunal in re PS.[23]Of course, I accept, as Miss Jegarajah pressed on me, that the UNHCR is bound by considerations of confidentiality and a pressing need to protect the very lives of those who may be fleeing from oppression, and that it is therefore limited in the detailed and certainly in the personalised information it can make public or put before a court. However, bearing in mind that the Tribunal in re PS had been very clear both about the scale of the problem in Colombo, some 19 or 20 incidents causing approximately the same number of deaths, and also in identifying the groups of individuals, or the characteristics in individuals which might expose them to risk of retaliation at the hands of the LTTE, it is a striking fact that nowhere that I can see in either of the letters does the UNHCR make any, let alone any sustained and reasoned, attempt to argue that the scale of the problem is significantly greater than that identified by the Tribunal, let alone to suggest that the Tribunal is adopting too narrow or restrictive a view of the likely target populations.[24]Indeed, as Miss Stern, I think, was entitled to submit, if one looks to the detail rather than the generalities of what is said by the UNHCR, if anything it is supportive rather than destructive of the Tribunal's analysis. I have in mind, in particular, that on the second and third pages of the letter of 3 November 2005 the UNHCR gives what it calls instances of the killings that have taken place and which reflect the general scope of the situation in Sri Lanka. Without going through the list in detail, it is notable that in relation to the period which the Tribunal had been considering, that is the period down to 23 September 2004, the examples given by the UNHCR accord very closely indeed, as it seems to me, with the analysis of the Tribunal. One sees, for example, the attempted murder of a member of Parliament, the killing of eight persons believed to be aides of Karuna, the killing of a newspaper editor and the killing of a member of what is described as the Karuna faction.[25]Miss Stern's point does not end there because she observes that the two examples of such killings provided by the UNHCR in relation to the period subsequent to 23 September 2004, are in the one case murder of what is described as a "prominent pro-Tamil journalist" and in the other case of an army officer described as a "high ranking member of the military intelligence". Those further cases accord, in all respects, with the analysis of the Tribunal in re PS and are of people very far removed from the claimant in the present case.[26]The third group of materials relied upon by Miss Jegarajah are a number of more recent reports from the Asian Human Rights Commission, the general thrust of which is that the rule of law is breaking down in Sri Lanka, that the authorities and the judicial system are unable to provide the level of security and protection for the population which they had earlier been able to do, and that the police are at best incompetent and in some cases corrupt. It is said, for example, (see a paper issued by the Asian Human Rights Commission on 13 January 2006) that recent events "illustrate a tragic collapse beyond imagination".[27]None of that material, as it seems to me, goes to the question of whether the claimant would be at risk from members of the LTTE as someone perceived as being a renegade or traitor. That material goes to the entirely separate question of the adequacy of protection given by the Sri Lankan authorities generally speaking. The fact, if fact it be, that the state of affairs in Sri Lanka at present is as described in those recent reports cannot of itself, as Miss Jegarajah properly recognises, found a claim to asylum. The claim to asylum has got to be founded on a risk of persecution for a Convention reason.[28]Miss Jegarajah has appropriately, as it seems to me, acknowledged that the present case is founded not on any assertion of risk at the hands of the state agents, but solely on the basis of risk from the LTTE. Moreover, risk as someone who is, so she says, not merely perceived but specifically targeted by name as a renegade or traitor.[29]If the relevant question in this case was the risk which the claimant might be exposed to in the east of Sri Lanka, then I might be prepared to accept that there is a possibility that his claim, if heard by an immigration judge, would succeed in circumstances which would entitle him to have the certificate quashed. However, that, in my judgment, is not the proper question. The Secretary of State makes explicitly clear that the claimant, if returned to Sri Lanka, will be returned to Colombo and the question therefore is as to the degree of risk, if any, to which he will be exposed in Colombo.[30]In my judgment, and despite everything pressed upon me by Miss Jegarajah, the claimant has wholly failed to demonstrate, even to the very low level of possibility which suffices to quash a certificate, that there is any risk to him if he is returned to Colombo.[31]I accept, not least because the Secretary of State does not, for immediate purposes, raise any issue of credibility, that an immigration judge could take the view, on the material before me, that the claimant is at risk of killing at the hands of the LTTE in the east of Sri Lanka. There is, however, nothing either in the evidence specific to the claim that has been put before me, or elsewhere in the large volume of material that is before the court, which even begins to demonstrate that he will, for that reason, or indeed for any other reason, be at similar risk in Colombo.[32]On the contrary, the analysis of the law and of the situation on the ground performed, first, by the Tribunal in re PS and subsequently by Mitting J in Sinnarasa, points in directly the opposite direction. The circumstances of the present case are far removed not merely from the circumstances which the Tribunal in re PS envisaged as demonstrating the appropriate degree of risk, but are equally far from the circumstances which, by a very narrow margin indeed, just sufficed to persuade Mitting J to discharge the certificate in Sinnarasa.[33]There is, with all respect to Miss Jegarajah's sustained argument to the contrary, nothing in any of the subsequent materials to which she has drawn my attention which throws the slightest doubt upon the continuing validity of the factual analysis so carefully undertaken by the Tribunal in re PS. In those circumstances the challenge to the certificate fails.[34]The claimant, in my judgment, has failed to demonstrate that even on the facts as he asserts them there is the slightest realistic prospect of his claim to protection succeeding in front of an immigration judge. Even assuming, as for present purposes I do, that the facts of his particular case, upon which Miss Jegarajah relies, are true, I am nonetheless satisfied, for the reasons I have given, that his claim to the protection of the Convention is so wholly lacking in substance that it is bound to fail.[35]In those circumstances the Secretary of State was entitled to certify the case and this application for judicial review must fail.[36]MISS JEGARAJAH: Might I ask for leave to appeal?[37]MR JUSTICE MUNBY: What is the ground of appeal? You have either, I think, to show a real prospect of success, or that for some other reason there is a need for the Court of Appeal to look into this matter.[38]MISS JEGARAJAH: I know because there have been several applications: quite a few cases concerning certificate cases on Sri Lanka. Re PS was promulgated on 28th October 2004 and the Tribunal will be looking very carefully after what has been said by your Lordship. Your Lordship will probably know that the impact of this case will be very far-reaching. In those circumstances it would be a matter of great public importance, and it would be very useful to all of the lower courts or the Court of Appeal, to consider this matter, particularly bearing in mind the fact that some of what your Lordship has talked about touches on the UNHCR as well.[39]MR JUSTICE MUNBY: Miss Jegarajah, I sense that you are not so much suggesting or identifying some point of law on which you assert I have fallen into error, you are rather, as I understand what you are saying, suggesting that the point in general is an important one both because it involves certification in Sri Lankan cases, and also because of the judicial views expressed about the UNHCR. It is on that ground rather than any identified error of law that you say I should give permission.[40]MISS JEGARAJAH: Yes, your Lordship appreciates re PS was October 2004. It was the first time that the Tribunal had considered the risk from the LTTE. It is a new point.

MR JUSTICE MUNBY: Miss Stern, what do you have to say?

[42]MISS STERN: What I have to say is that there is re PS and there have been three High Court decisions which have considered the issue of certification. I can give your Lordship the names of them. I doubt they are controversial in which re PS has been applied to particular facts to consider whether on the facts there is a matter which ought to go to the Court of Appeal, and upon which certification can be undermined. In those cases, has that been successful? I would say unless there is some point in which your Lordship has erred, leave to appeal ought to be refused.[43]MISS JEGARAJAH: There does appear to be some ambiguity in terms of risk categories identified, in my submission.[44]MR JUSTICE MUNBY: The trouble is, Miss Jegarajah, it is no criticism of you, an ingenious counsel can usually find some degree of ambiguity, even in the most carefully written judgments. If minor ambiguity was to be the key to access to the Court of Appeal, the Court of Appeal would be overwhelmed. I think unless you want to pursue the matter further, my reaction to your application is that I am not minded to grant it really for two reasons: first, that you have not identified any error of law which you say I have fallen into; and if, and in so far as it can be said that there is, irrespective of that, some general point of importance which justifies or requires the case to be looked at by the Court of Appeal, I take the view that that is a matter to be determined by the court of appeal.[45]The Court of Appeal should normally be the gatekeeper rather than a judge in first instance, if it is to be said that the case requires to go to the Court of Appeal because it is of some general importance. There are some cases that quite manifestly are of such general importance that it is right and proper for the judge, at first instance, to grant permission. I see Miss Stern smiling. She can probably think of examples where I have done precisely that. But generally speaking, I think if it is to be said that a case is fit for the Court of Appeal because it raises some general point, then it is probably better for the Court of Appeal to take that decision than the judge at first instance, not least because the Court of Appeal, if it wishes, can select the most appropriate case to use as a vehicle for that.[46]At the back of all that you say, "Well, Re PS is now two years old". No doubt it is. I appreciate that events, particularly in this jurisdiction, can move very fast on the ground, but the mere fact that a country guidance case is two or three years old is not, of itself, reason for going to the Court of Appeal, not least, as Miss Stern points out, where there has since been a relatively uniform stream of first instance decisions.[47]MISS JEGARAJAH: I have to put it that it would have made our life easier in terms of getting legal aid, which is always an uphill struggle in this jurisdiction.[48]MR JUSTICE MUNBY: I appreciate that. You will forgive me for the purist approach. The correct way to approach this is to form a view as to whether permission to appeal should be granted - if yes then yes and if no then no - and not to allow the decision to be affected by public funding implications. No, Miss Jegarajah, I think that you may, of course, persuade their Lordships that I was either wrong in my judgment or wrong to refuse permission to appeal, but I think in all the circumstances, for the reasons I have given, I would refuse permission to appeal.[49]MISS JEGARAJAH: Can I ask for an expedited copy of the transcript so that I can properly advise the--[50]MR JUSTICE MUNBY: There will be a transcript, in any event. Can somebody help me? There is a transcript that comes automatically but is that supplied automatically and free to the litigants, or do they have to pay for it?[51]MISS STERN: My understanding is that one can access the transcripts on-line in a variety of forms. If one wants it expedited then for a copy of the transcript there is usually a need for some directions as to how that will be funded.[52]MR JUSTICE MUNBY: Miss Jegarajah, forgive me, I should know this but I have been focusing on the matter in issue: is your client at imminent risk of removal?[53]MISS JEGARAJAH: Yes, unless I am told otherwise. There is nothing pending. There is nothing barring his removal as of now.

MR JUSTICE MUNBY: Removal directions have not been set.

[55]MISS JEGARAJAH: He has reporting restrictions--

MR JUSTICE MUNBY: He might find that he is detained, handed the directions and then removed.

[57]MISS STERN: I am trying to see if there is any way around this by instructions. (Instructions taken) I am not in a position to offer any undertaking.[58]MISS JEGARAJAH: His understanding is if it was the Court of Appeal they take a week. At this level it will take a month. We would have to pay for it privately. We can do that. It is not a problem. We would have to do that if we were going to make any overtures to the Legal Aid Board.[59]MR JUSTICE MUNBY: Miss Jegarajah, what if anything are you asking me to do? So far I have made two orders: the first is to dismiss the application for judicial review and the second is to dismiss your application for permission to appeal. I will be dealing shortly with the question of costs. Before we get to costs is there any other application, of any sort, you wish to make?[60]MISS JEGARAJAH: No, apart from a public funding certificate.[61]MR JUSTICE MUNBY: Apart from that there is no other application you wish to make. As far as costs are concerned, you want detailed assessment for public funding purposes? In those circumstances, Miss Jegarajah, my order will be that the application for judicial review is dismissed, that your application for permission to appeal is refused and that there is no order for costs save a detailed assessment for public funded purposes of the claimant's costs.

Cited in 2 later judgments