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Regina v. Secretary of State for the Home Department (Appellant) ex parte Sivakumar (FC) (Respondent)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Regina v . Secretary of State for the Home Department (Appellant) ex parte Sivakumar (FC) (Respondent)
THURSDAY 20 MARCH 2003
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Secretary of State for the Home Department (Appellant) ex parte Sivakumar (FC) (Respondent)
 UKHL 14
LORD BINGHAM OF CORNHILL
1. I am in complete agreement with the opinion of my noble and learned friends Lord Steyn and Lord Hutton, which I have had the advantage of reading in draft, and for the reasons which they give I would dismiss the appeal and make the order which Lord Steyn proposes.
2. I am also in very substantial agreement with the careful and well-reasoned judgment given by Dyson LJ in the Court of Appeal:  EWCA Civ 1196;  INLR 310. I can well appreciate the concern of the Secretary of State if the Court of Appeal were understood to be laying down a rule of thumb or presumption to be applied in cases of this kind. That would be a wrong approach, since attention must always be focused on the position of the individual applicant and the peculiar facts of his or her particular case. I do not however think that Dyson LJ was purporting to lay down any rule or presumption: he was simply expressing a conclusion which was in my opinion, on the facts here, abundantly justified.
3. On this appeal from a decision of the Court of Appeal the issue is whether a special adjudicator adopted the correct approach in law to the question whether an applicant for refugee status had a well-founded fear of persecution within the meaning of article 1A of the Geneva Convention on the Status of Refugees (1951).
4. In the United Kingdom effect is given to the 1951 Convention relating to the Status of Refugees by the grant of asylum. Under paragraph 334 of the Immigration Rules (HC 395) an asylum applicant will be granted asylum only if the Secretary of State "is satisfied that" he is a refugee as defined by the Convention. An applicant who does not meet that criterion will be refused: see paragraph 336. A refusal of asylum may be appealed on the ground that it would be "contrary to the Convention" to refuse the applicant leave to enter or to require him to leave the United Kingdom: see section 69 of the Immigration and Asylum Act 1999.
5. Article 1A of the Convention defines a "refugee" as:
For present purposes the question is whether the applicant had a well-founded fear of being persecuted for reasons of race, membership of a particular social group or political opinion. Article 1F of the Convention provides:
It was common ground that article 1F and in particular 1F(b), is not applicable.
6. The applicant arrived in the United Kingdom in 1997. He applied for asylum. In 1998 his claim was dismissed. He was then aged 24 years. He is a Tamil from Jaffna in the north of Sri Lanka, the main centre of the terrorist activities of LTTE or the Tamil Tigers. Before the special adjudicator there was a synopsis of a US State Department Report of 1999 (for the year 1998) on the position in Sri Lanka. It included the following passage:
Subject to an immaterial exception, the special adjudicator accepted the account of the primary facts given by the applicant. His evidence was that, although he was not an LTTE sympathiser or supporter, he had been detained and ill-treated by authorities in Sri Lanka. The special adjudicator did not comment in any way on the severity of the ill-treatment and did not describe it as torture. This is how he described the position in his conclusions:
It may not be unfair to say that the italicised words prima facie indicate that the severity of the ill-treatment in this case made no significant impact on the special adjudicator's approach to the case. In any event, he dismissed the claim to asylum.
7. Cases involving claims for refugee status under the Convention are particularly fact-sensitive. The severity of the treatment inflicted on the applicant by the authorities in Sri Lanka has a logical bearing on the issues. Why this is so can readily be demonstrated. The important UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (1979) explains, at p 610, para 85:
The Court of Appeal held in the present case that the second sentence is phrased too strongly: p 318, para 26 of the judgment of the Court of Appeal. For "will" one should substitute "may". Subject to this qualification the guidance is valuable. If excessive or arbitrary punishment may tip the scales in favour of a conclusion that there was persecution meriting protection under the Convention, it must follow that if agents of the state inflict brutal torture on persons suspected, fairly or unfairly, of involvement in terrorism, that may equally engage the protection of the Convention. Since the special adjudicator did not describe the primary facts relating to the ordeal suffered by the applicant in Sri Lanka, I must set out the facts in explicit but necessary detail.
8. The facts found by the special adjudicator, and accepted by the Home Secretary, are as follows. In 1993 the applicant travelled to the east coast of Sri Lanka to work at a mill owned by his brother-in-law. In the latter part of 1994, the Tamil Tigers came and took his brother-in-law away. They also took a lorry belonging to his brother-in-law, which was used to carry out an attack on a nearby army camp. The lorry was traced back to the mill. A military Special Task Force took the applicant away and detained him in a house near a beach. On arrival at the house he was attacked by three soldiers, and told that when the officer arrived, he was to say that he was a member of the Tamil Tigers and that he had come south to attack the army camp. He was detained for about a month. Throughout his detention, except when he was eating, his hands were tied behind his back. He was kept in a room with other detainees. They were not allowed to speak amongst themselves. He was regularly tortured. He was stripped naked and taken to a beach, where he was made to roll in the hot sand. He was tied, naked, with his back to a tree. One of the soldiers ground hot sand into his penis. He was left there for the whole day. Cigarettes were stubbed out on his arms. In the house he was beaten on his lower back and on his heels with a pipe filled with sand. He and other detainees were kicked and their knees beaten with rifle butts. On one occasion, an officer attacked him with kicks and punches which broke his nose. He fainted as a result of the pain. The applicant was also forced to witness others being tortured. Another detainee was tied face first to a tree and a bottle was forced into his anus. Others were cut all over their bodies with razor blades. The applicant and other detainees were forced to watch people being burned on the beach. He was not sure whether the people were dead before burning tyres were put around them. After about a month a bribe secured the applicant's release from detention.
9. In about April 1996, the applicant and his brother started working at a co-operative society establishment. From time to time, he transported goods on a lorry. When the lorry left it would be stopped at a checkpoint. At the checkpoint, a hooded informer sat in a sentry box. In June 1997 the applicant was identified as a Tamil Tiger by the informer. He was thrown into the back of an army jeep and his hands were tied behind his back. He was taken to an army camp. On arrival at the camp, he was dragged into a room and beaten. His torturers took a plastic bag and immersed it in petrol. The bag was placed over his head and tied around his neck so that the vapour burned his nose and eyes. The applicant struggled to breathe and fainted. When he came to, he was on a concrete floor. He was forced onto a table. He could hear others outside the room crying for help. He was pulled from behind by his neck, and threatened that if he did not confess to being a Tamil Tiger, and did not inform on others, he would be beaten to death. He was stripped naked and the soles of his feet were beaten. He was placed on a chair, which his torturers then kicked away so that he fell to the floor. He would then be lifted up by his ears. On occasion, his hands were tied behind his back by his two thumbs, and he was lifted from the floor by a pulley device. On at least five occasions, he witnessed others who had been killed being burned with petrol soaked tyres. After three days at the camp, the applicant agreed to act as an informer, as the torture was becoming unbearable. Having agreed to do so, he says that the level of torture became less severe. On 16 August 1997, he was released, again as a result of a bribe.
10. The applicant went to Colombo in order to leave the country. He travelled to Colombo hidden in the back of a rice lorry. On 18 August 1997 he was arrested at a lodge he was staying at in the city. He had arrived in Colombo without an identity card as it had been retained at the army camp. He was taken to a police station and put in a dirty cell with two others. The applicant stated that in the police station the officers "merely" beat him and punched him. He was beaten with a baton and with the butt of a rifle on his back and shoulders. He was accused of being a member of a Tamil Tiger suicide squad. Again a bribe secured his release. Six days after his release from the police station, the applicant fled Sri Lanka. He arrived in the United Kingdom on 11 September 1997 and claimed asylum.
11. There was a medical report by Dr John Rundle, who had examined the applicant. He testified to multiple scars on the applicant's body which were in keeping with the assaults to which the applicant was subjected.
12. Torture is a strong word. In human rights instruments only deliberate inhuman treatment causing very serious and cruel suffering ranks as torture: Ireland v United Kingdom (1978) 2 EHRR 25, 80, para 167: compare N S Rodley, "The Definition of Torture in International Law" (2002) 55 CLP 467. The word however, applies in full measure to the barbarous treatment of the applicant by the authorities in Sri Lanka. Rightly counsel for the Home Secretary accepted before the House that such conduct must always be condemned even if used in the fight against terrorism.
13. Reverting to the forensic chronology, the next step was that the applicant applied for leave to appeal to the Immigration Appeal Tribunal. On 23 June 1999 The Immigration Appeal Tribunal refused leave to appeal. The tribunal observed:
On 22 January 2001 Cresswell J refused an application for leave to grant judicial review of that decision. The judge observed that the decision of the Immigration Appeal Tribunal was not beyond the range of responses open to a reasonable decision-maker.
14. The applicant appealed to the Court of Appeal. Procedurally the issue before the Court of Appeal was whether the Immigration Appeal Tribunal erred in concluding that the adjudicator's decision disclosed no arguable error of law. On 24 July 2001, Dyson LJ (with the agreement of Thorpe LJ and Wright J) concluded that the tribunal should have given leave to appeal and gave a judgment allowing the appeal and quashing the tribunal's decision:  EWCA Civ 1196;  INLR 310.
15. Dyson LJ put in the forefront of his discussion the fact that the applicant had been tortured in appalling ways. It was common ground before the court that the applicant had been subjected to persecution. Accordingly, Dyson LJ observed that the issue for the special adjudicator was whether, in the light of (a) the then current situation facing young male Tamils from Jaffna generally, and (b) the applicant's previous experiences, there was a reasonable likelihood of persecution if he were to return, in particular, to Sri Lanka: see p 316, para 19. He crisply and accurately held that it was necessary for the person who is considering the claim for asylum to assess carefully the real reason for the persecution: p 317, para 23.
16. Dealing directly with the special adjudicator's reasoning, Dyson LJ held, at p 317, para 22:
Dyson LJ's conclusions were in the following paragraphs, at pp 320-321:
17. On appeal to the House both sides adopted extreme positions on the central issues. Counsel for the Home Secretary submitted that persecution by agents of the state in the process of investigating suspected terrorist acts necessarily falls outside the protective net of article 1A. On the other hand, counsel for the applicant submitted that such persecution in the course of an investigation into suspected terrorist acts necessarily falls within the protective net of article 1A since terrorism involves matters of political opinion. Both submissions go too far. For my part Dyson LJ correctly analysed the position in the passage of his judgment quoted at paragraph 16. It all depends on the facts. As Lord Lloyd of Berwick observed in T v Secretary of State for the Home Department  AC 742, 778, not all terrorist acts fall outside the protection of the Convention. In other words not all means of investigating suspected terrorist acts fall outside the protection of the Convention. The reasons of the special adjudicator indicate that he took the view that the mere fact "of being suspected, however unjustly, of involvement in violent terrorism" took the case outside the terms of article 1A. In reasoning in this way he was in error. It was not a sufficient reason for concluding that the applicant was not ill-treated for a Convention reason. The case had to be considered in the round, giving due weight particularly to the evidence of extreme torture. On this ground alone, I would hold that the Immigration Appeal Tribunal was wrong to hold that the special adjudicator's reasoning was free from error.
18. Moreover, if the case is considered globally, the conclusion is justified that there was a strong claim to refugee status. The evaluation of the material facts must not be compartmentalised. It is necessary to consider the cumulative effect of the relevant factors. First, the applicant was a Tamil from the North of Sri Lanka which was plagued by the terrorist activities of Tamil Tigers. Secondly, there was evidence of widespread torture of persons and, in the words of the synopsis of a near contemporary US State Department Report "most torture victims are Tamils suspected of being LTTE insurgents or collaborators". Thirdly, and crucially, the Sri Lankan authorities subjected the applicant to sustained, exceptionally sadistic and humiliating torture. In combination these factors suggest that if the applicant had been returned to Sri Lanka, at the time of the special adjudicator's decision, the applicant's stated belief that he "was in daily fear everywhere in Sri Lanka" was not surprising. On a realistic view of the facts there was a reasonable likelihood of persecution on the ground of race (since he was a Tamil), a member of a particular social group (he was a Tamil from Jaffna) or political opinion (the separatist views predominant among Tamils from the North). However, the special adjudicator did not consider the matter in these terms. Indeed he gave no weight or virtually no weight to the predominant feature of this case, viz the repeated infliction of barbarous acts of torture. On this ground too I would hold that the decision of the Immigration Appeal Tribunal was in error.
19. There is, however, another feature of this case which requires careful consideration. Counsel for the Home Secretary submitted that in speaking of inference at several places in his judgment Dyson LJ conveyed the idea that such "inferences" imposed a legal duty on the decision-maker to recognise and apply the operative "inference" which attracts the protection of article 1A. Put differently the argument is that Dyson LJ created rebuttable presumptions which it would be an error for a decision-maker to fail to apply. If this is what Dyson LJ meant to say, I would respectfully agree that it would be a wrong approach. I am, however, satisfied that by using the word inference Dyson LJ meant to say no more than that on an overall view of the evidence there was a reasonable likelihood of a well founded fear of persecution for a Convention reason. The inferences were merely steps in the reasoning leading to an ultimate conclusion reached on an orthodox application of the burden of proof. In my view therefore the Home Secretary's fears about the effect of Dyson LJ's judgment are, on analysis, not justified. The true position is not in doubt. The correct approach was explained by Sedley LJ in Karanakaran v Secretary of State for the Home Department  3 All ER 449. He said, at p 477:
He continued, at p 479:
In short as Lord Hoffmann observed in R v Immigration Appeal Tribunal, Ex p Shah  2 AC 629, 655F each claim to refugee status case must always depend on the evidence.
20. Acknowledging the assistance I have gained from Dyson LJ's valuable judgment, and for the reasons I have given, as well as the reasons given by Lord Hutton, I would dismiss the appeal.
21. As matters stood at the time of the special adjudicator's decision, the claim to asylum was well-founded. However, nearly four years have now elapsed since that decision. The position in Sri Lanka may have altered radically. The correct order is therefore to remit the matter to the Immigration Appeal Tribunal to reconsider the case in accordance with the opinions expressed in the House today. I would make such an order.
22. I have had the advantage of reading a speech of my noble and learned friend Lord Rodger of Earlsferry and for the reasons he gives, I too would dismiss the appeal.LORD HUTTON
23. The facts found by the special adjudicator relating to the treatment meted out to the applicant in Sri Lanka have been fully set out in the speech of my noble and learned friend Lord Steyn. As he observes, the word torture applies in full measure to the barbaric treatment which the applicant suffered. My noble and learned friend has also set out the proceedings brought by the applicant which have resulted in this appeal coming before the House. Therefore I am able to turn directly to consider the issues which arise on the appeal.