Judgments - Regina v. Secretary of State for the Home Department (Appellant) ex parte Sivakumar (FC) (Respondent)

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    24. Article 1A of the 1951 Geneva Convention relating to the Status of Refugees defines a "refugee" as:

    "any person who: …

    owing to 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

    25. The principal issue which arises is whether the persecution which the applicant feared was for reasons of race or membership of a particular social group or political opinion. The main submission advanced by Mr Underwood QC, on behalf of the Secretary of State, was that the applicant was singled out for detention and ill treatment, not for reasons of race or membership of a particular social group or political opinion, but because of his suspected involvement in terrorist activities and in order to obtain information to assist the security forces in combating Tamil terrorism and to assist in the identification of other terrorists.

    26. The main submission advanced by Mr Nicol QC on behalf of the applicant was that the LTTE carried out their terrorist activities for a political objective which was to secure an independent state for the Tamil people living in the northern area of Sri Lanka. Therefore he submitted that where a person was detained and ill-treated on suspicion of involvement in terrorism in support of the Tamil cause it followed that his ill treatment constituted persecution by reason of his race (he was a Tamil) or membership of a particular social group (a Tamil from Jaffna) or political opinion (the Tamils' desire for independence). In support of this submission he relied on paragraphs 84 and 85 of the UNHCR Handbook which state:

    "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 prosecution will not in itself make the applicant a refugee.

    85.  Whether a political offender can also be considered a refugee will depend upon 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."

    27. I do not accept Mr Nicol's submission that if a person is suspected of committing terrorist crimes in furtherance of a political objective and is detained by the security forces to be questioned about his suspected terrorist activities and the activities of other terrorists, he is necessarily subjected to such treatment for reasons of political opinion. I consider that there can be cases where the authorities detain and question and, if sufficient evidence is available, prosecute a person suspected of being a terrorist where the reason for such treatment is solely their concern to combat terrorism. In such a case the fact that the terrorist organisation to which the person is suspected of belonging carries out its violent activities for a political objective does not mean that the person is subjected to that treatment for reasons of his political opinion. But, of course, where measures are taken by the authorities against a person for alleged criminal acts against the ruling power, the real reason may be because of that person's political opinion. As paragraph 81 of the Handbook observes, where measures are taken against a person for reasons of his political opinion, "Such measures have only rarely been based expressly on 'opinion'".

    28. In this applicant's application for refugee status I consider that the decisive factor to be taken into account in determining whether or not he was persecuted for a Convention reason is the torture to which he was subjected. I think it is very relevant that in his statement the applicant said at paragraph 10.2:

    "They did many humiliating things to me which I do not want to remember and have difficulty in talking about."

And at paragraph 10.6:

    "They [the members of the security forces who tortured him] were nasty, sadistic people who were not educated."

    29. In Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449, 477-479 Sedley LJ said:

    "The issues for a decision-maker under the Convention (whether the decision-maker is a Home Office official, a special adjudicator or the Immigration Appeal Tribunal) are questions not of hard fact but of evaluation…. Finally, and importantly, the Convention issues from first to last are evaluative not factual. The facts, so far as they can be established, are signposts on the road to a conclusion on the issues: they are not themselves conclusions."

Adopting this approach I consider that in the present case the proper conclusion to draw is that the acts of torture inflicted in such a sub-human way on the applicant were not inflicted solely for the reason of obtaining information to combat Tamil terrorism but were inflicted, at any rate in part, by reason of the torturers' deep antagonism towards him because he was a Tamil, and the torture was therefore inflicted for reasons of race or membership of a particular social group or political opinion.

    30. In my opinion this conclusion finds support in paragraph 85 of the UNHCR Handbook, although I am in agreement with the view expressed by Dyson LJ, at p 318, para 26 of his judgment that the last sentence of paragraph 85 goes somewhat too far. Excessive and arbitrary punishment does not in itself constitute persecution for one of the reasons specified in article 1A of the Geneva Convention. But the fact of excessive and arbitrary punishment may, in the circumstances of a particular case, give rise to the factual inference that a reason for that punishment was the race or membership of a particular social group or political opinion of the victim.

    31. The conclusion that the applicant was tortured because he was a Tamil also finds support in the following propositions in the judgement of Merkel J in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 with which I am in respectful agreement. At p 48 he recognised that in a country:

    "such as Sri Lanka which has been torn by war and terrorism resulting from a separatist movement based exclusively on race … the line between legitimate government counter-terrorist activity (which is inevitably focused on those of Tamil ethnicity) and racial and political persecution of Tamils will not be an easy one to draw."

He stated, at p 49:

    "(3) Although persecution involves the infliction of harm, it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution: Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565, 568; 130 ALR 314 per Burchett J.

    (4) In the context of a country torn by war or terrorism, random acts of violence which occur during civil war and acts done pursuant to laws for the protection of the community in the course of the identification or punishment of criminals or terrorists would not ordinarily be seen as persecution of the individuals affected even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. However, law or its enforcement must be appropriately adapted to achieve some legitimate end of government policy. A law or its purported enforcement will be persecutory if its real object is not the protection of the public but the oppression of the members of a race, religion, nationality or particular social group or the holders of particular political opinions …

    (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."

    32. In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 258 McHugh J stated:

    "The enforcement of a generally applicable criminal law does not ordinarily constitute persecution (115). 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 (116).

    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 (117). 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."

    33. As I read that passage there is implicit in it the recognition that it does not follow automatically that sanctions constitute persecution because they do not apply generally in the state— rather such sanctions are likely to give rise to the factual inference that they constitute persecution where, as McHugh J states, the sanctions are "aimed at persons for reasons of race, religion or nationality". I think this point is made expressly in footnote 116 to the passage where McHugh J says:

    "It need hardly be said that a law or its purported enforcement will be persecutory if its real object is not the protection of the state but the oppression of the members of a race, religion, nationality or particular social group or the holders of particular political opinions."

    34. Dyson LJ states, at pp 320-321, para 30 of his judgment:

    "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."

I agree with this passage provided that it is recognised that what the adjudicator or tribunal or court has to decide on the facts of the individual case is whether the sanctions which do not apply generally in the state are applied to the particular applicant for reasons of race or membership of a particular social group or political opinion. It was apparent from Mr Underwood's submissions that the Secretary of State was concerned that in the third sentence of the passage Dyson LJ was stating an inference of law. I do not consider that he was; I think that the learned Lord Justice was stating an inference of fact.

    35. In the present case the special adjudicator stated in his reasons:

    "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."

    36. I consider that the special adjudicator was entitled to conclude that the applicant was arrested and detained because he was suspected of involvement in violent terrorism. But I consider that he erred in failing to go on to consider whether the acts of torture to which the applicant was subjected were inflicted by reason of his race or membership of a particular social group or political opinion as a Tamil. Therefore I consider that Dyson LJ was right to hold, at p 321, para 31, of his judgment:

    "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."

    37. Therefore I would dismiss the appeal and would make the order proposed by Lord Steyn.

LORD RODGER OF EARLSFERRY

My Lords,

    38. The evidence which my noble and learned friend Lord Steyn has narrated shows all too clearly that members of the security forces tortured the applicant, who is a Tamil from the north of Sri Lanka.

    39. In terms of article 1A of the Geneva Convention relating to the status of refugees, a refugee must have a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion". Persecution involves singling people out for ill-treatment and it is accepted that in the present case, when they tortured the applicant, the security forces in Sri Lanka did indeed persecute him. If an applicant is to have the benefit of the Convention, however, the person taking the decision must be satisfied that he has a well-founded fear that he will be persecuted for one or more of the reasons listed in article 1A.

    40. As has long been recognised, persecutors may act for more than one reason. Dyson LJ was drawing attention to this when he said, at paragraph 22 of his judgment in the Court of Appeal [2001] EWCA Civ 1196; [2002] INLR 310, 317, that, just because someone had been persecuted for suspected involvement in violent terrorism, it did not follow that he had not been persecuted for his political opinion. In other words, he might have been persecuted for both reasons. In the next paragraph Dyson LJ identified the task of the person considering a claim for asylum as being "to assess carefully the real reason for the persecution". His Lordship was there concerned to make the point that in many cases it is necessary to look below the surface and identify the true reason for any ill-treatment. Of course, there may turn out to be more than one "real reason". The evidence may show, for instance, that an applicant was ill-treated both because he belonged to a particular ethnic group and because he was suspected of taking part in terrorist crimes that were the work of members of that ethnic group. Not only is it often hard to draw the line between legitimate government counter-terrorist activity and racial and political persecution (Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24, 48 per Merkel J), but indeed members of security forces may act for both legitimate and illegitimate reasons. In such a case the appropriate inference may be that, if the applicant returned home, he would be ill-treated for a combination of Convention and non-Convention reasons. If so, the person considering the claim for asylum will properly conclude that the applicant has a well-founded fear of persecution for that combination of reasons.

    41. In a case like the present the task of the person considering a claim for asylum is therefore to assess carefully the reason or reasons for the persecution in the past and to draw the appropriate inference as to the reason or reasons for any possible persecution in the future. There is no rule that, if an applicant is to succeed, the decision-maker must be satisfied that the Convention reason was, or would be, the only reason for his persecution. In Suarez v Secretary of State for the Home Department [2002] EWCA Civ 722; [2002] 1 WLR 2663, 2672, para 29 Potter LJ said:

    "so long as an applicant can establish that one of the motives of his persecutor is a Convention ground and that the applicant's reasonable fear relates to persecution on that ground, that will be sufficient."

Keene LJ and Sumner J agreed. Potter LJ's guidance is indeed valuable, provided that it is remembered that the law is concerned with the reasons for the persecution and not with the motives of the persecutor. For instance, the law is concerned with whether state officials may persecute someone because he is Jewish, but the motives of those officials for any such persecution - whether a desire to give effect to the theories of racial purity in Hitler's Mein Kampf or simple jealousy of the prosperity of the Jewish community - are irrelevant. So long as the decision-maker is satisfied that one of the reasons why the persecutor ill-treated the applicant was a Convention reason and the applicant's reasonable fear relates to persecution for that reason, that will be sufficient. Ex hypothesi any such reason will be an operative reason for the persecution - but, as in the fields of sex and race discrimination, there is little to be gained from dwelling unduly on the precise adjective to use to describe the reason: Nagarajan v London Regional Transport [2000] 1 AC 501, 512 - 513 per Lord Nicholls of Birkenhead.

    42. The person considering an applicant's claim for asylum must reach his decision by making an assessment in the light of all the available material in the case: Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449. In that exercise there is no room for legal presumptions. I would therefore reject any interpretation of paragraph 30 of Dyson LJ's judgment in this case that suggested that there was.

    43. The applicant was twice seized by members of the security forces and brutally tortured. The majority of your Lordships have felt able to attach importance to the very fact that he was subjected to sustained and brutal torture as a factor leading to the conclusion that in 1999, on a realistic view of the facts, there was a reasonable likelihood of persecution of the applicant for any one of three possible Convention reasons. I have difficulty, however, in seeing why - in a case such as the present - the use of extreme torture should in itself be a factor pointing to the conclusion that the applicant was, or would be, ill-treated for a Convention reason rather than as part of the security forces' anti-terrorist operations. Torture can be used for any number of wicked reasons. When the Gestapo captured British agents dropped into Occupied France during the Second World War, they used extreme methods of torture to try to extract information from the agents about Resistance networks or to try to turn the agents so as to infiltrate those networks. But the Gestapo did this as part of their fight against the Resistance whom the agents were sent to assist. The Gestapo did not torture the agents because they were British or because they belonged to a particular social group or because of their political opposition to the German occupation. Similarly, if members of the security forces in Sri Lanka were barbaric enough to torture their Tamil captives, I see no reason why the correct view should not be that, in some cases at least, they did so as part, albeit an illegitimate part, of their fight against those suspected of involvement in the Tamil Tigers' terrorist attacks.

    44. On the applicant's own account, after he was picked up at the checkpoint in June 1997, he was tortured and forced to agree to act as an informer against the Tamil Tigers. This was in line with the pattern recorded by the United States State Department that the security forces mistreated detainees "particularly during investigation" and that most torture victims were Tamils suspected of being Tamil Tiger insurgents or collaborators. It was on this basis that the special adjudicator concluded that the ill-treatment of the applicant was "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".

    45. That conclusion may well have been right. But it is also possible that the security forces ill-treated the applicant for a combination of reasons rather than simply because he was suspected of involvement in violent terrorism. In his statement, which the special adjudicator saw no reason not to accept, the applicant gave a vivid account of being tortured during his first period of detention in 1994. He added that he was "also" interrogated and accused of being a member of the Tamil Tigers but, as he saw it, the security forces suspected him more because he was from Jaffna, which was under the Tigers' control. This leaves open the possibility that the security forces tortured him, in part at least, simply because he was a Tamil from Jaffna and was thought to share the separatist views common among that group. The adjudicator required to consider that possibility. If I had been satisfied that he had done so, I should not have thought it right to disturb his conclusion. As Lord Steyn points out, however, there is nothing in his determination to show that he did. With some hesitation, I therefore agree that the Immigration Appeal Tribunal should have granted the applicant leave to appeal.

    

 
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