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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Sathiyaseelan v Secretary Of State For Home Department [2002] EWCA Civ 1244 (14 August 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1244.html Cite as: [2002] EWCA Civ 1244

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		The Royal Courts of Justice Strand London WC2 Wednesday 14th August, 2002

1. LORD JUSTICE ROBERT WALKER: I will ask Lord Justice Keene to give the first judgment.
2. LORD JUSTICE KEENE: This is a renewed application for permission to appeal against the decision of the Immigration Appeal Tribunal, permission having been refused on the papers by Auld LJ.
3. The applicant is an asylum seeker from Sri Lanka. He was born in May 1968, so that he is now aged 34. He arrived in this country in April 2001. His claim for asylum was refused by the Secretary of State and he in due course appealed to a special adjudicator. The special adjudicator dealt in some detail with the history of the applicant's experiences in Sri Lanka. The adjudicator accepted that the applicant, who is ethnically a Tamil, had been forced against his will to spend two months with the LTTE (the Tamil Tigers), during which time he had helped to dig bunkers and to carry wounded from the battlefront. The adjudicator noted that the applicant bore no scars from his time with the LTTE. He managed to escape from them and to return to his home in that part of the island. There, after about ten days, he was arrested by the Sri Lankan army and detained for a little over three weeks before he managed to escape in May 2000.
4. During his time of detention by the Sri Lankan army he was interrogated and ill-treated, although, according to the adjudicator, not so seriously as to leave scars. He was also sexually assaulted by one or more of the soldiers.
5. He went after his escape to Colombo. The adjudicator had doubts as to whether the applicant was arrested there by the police, but he could not rule out the reasonable likelihood that he was. The adjudicator accepted that the applicant was ill-treated while at the police station for two weeks and while in prison thereafter. Again the adjudicator could not "rule out the serious possibility" that the applicant was detained in all for about seven months at this stage. That is the combined time, it seems, of the detention at the police station and in prison. The applicant was released from prison on payment of a bribe.
6. Having considered the background material, the adjudicator did not accept that a failed Tamil returned asylum seeker was thereby, per se, a convention refugee. He therefore went on to consider the individual circumstances of this applicant's case. He accepted that the applicant if returned would be likely to be detained for questioning at the airport, and that it would be likely to emerge that he had been detained, once by the army and once by the police. However, it would also emerge, he said, that ultimately the applicant had been released, which would indicate that he was of no further interest to the authorities. His scars would not indicate membership of the LTTE.
7. Therefore, the special adjudicator concluded that it was not likely that the applicant would be detained on return for more than a short time or that he would be seriously ill-treated. The applicant, in his judgment, would not be of any particular adverse interest to the authorities. He found that the applicant did not fear persecution for a Convention reason, and in any event that any such fear was not objectively well-founded if the applicant were to be returned. Furthermore, he said that it would be safe, reasonable and not unduly harsh for him to be returned to Colombo as an internal flight area. He gave reasons for that conclusion and that part of his judgment has not been challenged.
8. The adjudicator also concluded that there was no risk of a breach of Articles 2, 3 and 5 of the European Convention on Human Rights.
9. An appeal to the Immigration Appeal Tribunal was dismissed on 8th February 2002. The Tribunal broadly supported the reasoning of the special adjudicator. That decision is now sought to be challenged broadly on the basis that the conclusions reached were Wednesbury unreasonable, that is to say were perverse. In particular Mr Muquit, on behalf of the applicant, makes two main points. First of all, it is contended that the IAT acted unreasonably, in the Wednesbury sense, in concluding that the applicant did not face a risk of persecution if returned to Sri Lanka, either at Colombo immediately upon return or subsequently in his home area.
10. Secondly, it is submitted that the IAT's determination that the applicant was not at risk of breaches of his Article 3 rights if returned was unlawful.
11. On the first of those two grounds it is said that the IAT failed to have regard to the fact that the applicant would be seen on return as a person who had sought refuge abroad. That point made in the written skeleton argument on behalf of the applicant seems to me to be a non-starter and it has not been pursued orally this morning. The Immigration Appeal Tribunal expressly states that the key issue is "what would happen to the appellant on return as a failed asylum seeker" (see paragraph 4 of its determination) and so the Tribunal was clearly alive to that particular issue.
12. Reference is then made to a number of factors which, it is argued, would put the applicant at risk on return: his ethnicity, his scars and in particular his detention history. Mr Muquit submits on his behalf that the applicant was held for much longer in Colombo than would be normal, which is something he says which shows that the authorities had a particular interest in him. It is also said that the applicant is likely to be detained for some time while he is investigated and that ill-treatment is reasonably likely during this time. Reference in that context is made to his seven months' detention before in Colombo and what happened to him in that time. On this basis it is contended, as I have indicated, that the judgment of the IAT should be seen as perverse.
13. It is first of all clear that the adjudicator and the IAT took into account the applicant's ethnicity as a factor; that after all was central to his claim. As for his scars, the IAT records at paragraph 5 that it was not argued before it that they were likely to give rise to adverse inferences in this case.
14. The main thrust of the argument before us has related to the applicant's detention history. In so far as that detention history is known or becomes known to the authorities at Colombo airport were the applicant to be returned, it seems to me that the special adjudicator and the IAT were entitled to attach weight to the fact that that history would show that the applicant had been released after his seven months' detention, rather than escaping. There was no evidence to indicate that he would be shown in the records as having escaped. That release is of some importance because it is a new factor which was not present when he was originally detained for some time in Colombo before coming to this country.
15. The IAT expressly had regard to those passages in the CIPU Country Information and Policy Unit Assessment for Sri Lanka of April 2001 which deals with the treatment of returned asylum seekers. Those passages do not suggest that most returned asylum seekers of Tamil ethnicity experience persecution. Obviously, as so often in these cases, a judgment as to the degree of risk is required. But the submission that a conclusion of the decision-maker is outside the range of conclusions properly open to it has a very high hurdle to surmount. For my part, I cannot see that the IAT's conclusion here was perverse or arguably so.
16. That deals with the first ground which is advanced on behalf of the applicant today.
17. The second ground concerns the risk of a breach of the applicant's Article 3 rights; that is to say, his right not to be subjected to torture or to inhuman or degrading treatment or punishment.
18. The thrust of that argument is that the decisions which it is sought to challenge have ignored the subjective element, the mental anguish which the applicant would suffer on being returned to Sri Lanka. This is said to relate particularly to his past experience of the sexual assaults on him by the army officer or officers. This would mean, says Mr Muquit, that he would experience feelings of humiliation and degradation, if returned, to a degree which would breach Article 3. It is contended that the IAT simply disregarded this subjective aspect of any assessment of the position under Article 3.
19. For my part I accept that in principle mental anguish and suffering can constitute something which can lead to a breach of Article 3. But in the present case there are, it seems to me, two problems with this line of argument. First of all, as Mr Muquit accepts, it was not something raised in the grounds of appeal to the IAT. We have no skeleton argument put before the IAT raising this as a point. Nor was the point so obvious that the Tribunal should have taken that point of its own volition as is sometimes the case: see the well-known decision in Robinson v Secretary of State for the Home Department. That being so, it simply cannot be said that the IAT went wrong in law in not dealing with this point. It was not something which formed clearly any significant part of the case with which they had to deal.
20. Secondly, and in any event, there was no evidence before the IAT that the applicant would suffer such mental anguish because of the sexual assaults if he were returned, and certainly not to the degree which would amount to a breach of Article 3. There was a report by a consultant psychiatrist, Dr Steadman, available to the Tribunal and which has been put before us. That report refers to the applicant's feelings of fear that his life would be in danger if returned to Sri Lanka. He clearly was anxious about that. But the report does not anywhere refer to any feelings of humiliation or degradation which he would have on return because of the sexual assaults in the past.
21. In those circumstances, given that absence of evidence and given also the absence of any reference to this point in the grounds of appeal to the IAT, I, for my part, can see no chance of this second argument succeeding. In my judgment there is no real prospect of success for an appeal in this case, and I would consequently dismiss this application.
22. LORD JUSTICE ROBERT WALKER: I agree.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)