Gedara, R (on the application of) v Secretary of State for the Home Department, Court of Appeal - Administrative Court, July 10, 2006, [2006] EWHC 1690 (Admin)

Resolution Date:July 10, 2006
Issuing Organization:Administrative Court
Actores:Gedara, R (on the application of) v Secretary of State for the Home Department
 
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Case No: CO/3231/2005

Neutral Citation Number: [2006] EWHC 1690 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Monday 10th July 2006

Before :

MR JUSTICE NEWMAN

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Between :

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(Transcript of the Handed Down Judgment of

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Mr Ranjiv Khubber (instructed by Luqmani Thompson) for the claimant

Ms Lisa Giovannetti (instructed by Treasury Solicitor) for the defendant

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JudgmentMr Justice NEWMAN :

  1. The claimant challenges a decision of the Secretary of State dated 17th May 2005 which certified his claim for asylum in accordance with section 94 of the Nationality Immigration Appeals Act 2002 (the 2002 Act). Bean J. granted permission on renewal of the application on 17th August 2005 and thereafter further representations were made, in particular by the supply of an expert report of Professor Anthony Good dated 14th October 2005 which became the subject matter of a confirming decision of the Secretary of State dated 3rd March 2006.

  2. Section 94 of the 2002 Act permits the Secretary of State to certify a claim as ``clearly unfounded''. Further, this is a case in which the claimant resists return to Sri Lanka, which is a State listed in subsection (4) in accordance with subsection (3) of the 2002 Act.

  3. The correct legal approach on judicial review of a decision to certify a claim as ``clearly unfounded'' has received detailed guidance both in the Court of Appeal and the House of Lords and the law is well settled. It follows that the following material propositions are common ground:

    (1) A claim is only ``clearly unfounded'' if it is ``bound to fail before an adjudicator'' [now an immigration judge]. R (Razgar) v Secretary of State for the Home Department (CA) [2003] EWCA Civ 840 or, on an alternative formulation if it ``cannot on any legitimate view succeed'', R (ZL and VL) v Secretary of State for the Home Department [2003] EWCA Civ 25.

    (2) The determination of whether or not a claim is ``clearly unfounded'' involves an objective test, ``which a court can readily re-apply once it has the materials which the Home Secretary had'' (R (ZL and VL) v Secretary of State for the Home Department).

    (3) The test is plainly a high one and will be applied with ``the degree of careful scrutiny appropriate to the seriousness of the subject matter''.

    (4) Assessment for certification is a ``screening process''. However, if the claim must clearly fail, certification is lawful ``no matter what the volume of material submitted or the sophistication of the argument deployed to support the allegation''. (R (Yogathas) v Secretary of State for the Home Department [2003] 1AC 920).

    The Factual Basis of the Claimant's Claim

  4. The claimant is a national of Sri Lanka (date of birth 21st May 1966). He joined the Sri Lankan Police Force in 1986. He originally worked as a constable until he was promoted to Intelligence Officer with a rank of police sergeant in the Intelligence Unit of the Police Force. His duties included gathering intelligence in the war against the LTTE.

  5. Whilst on service in 1990, the police station to which he was attached was attacked by the LTTE and the claimant was seriously injured. After recovery from his injuries, including hospital treatment, he returned to the police station and was put back on duty with the Intelligence Unit.

  6. As a result of his duties, he gathered intelligence on the operations of the LTTE and was responsible for arrests of over 100 members of the LTTE. The LTTE began to retaliate against intelligence officers and the claimant requested a transfer from Trincomale to Matale. This was granted and he remained there for four years.

  7. He was then ordered to Jaffna and he spent a year there, but was ordered to return to duties in Matale in March 2000. He continued with his duties in Matale until 2002 when he was transferred to the Kandy district. He was then there for a short time before being transferred back to Jaffna.

  8. The claimant was particularly successful in investigations against the LTTE. He became well known among the leadership of the LTTE and they regarded him as a serious threat to their operations. He was told by informers that his life was in danger as the LTTE wanted to kill him.

  9. Because of his concerns, he approached his superiors and requested protection. They gave him a pistol and a hand grenade, but he was told that outside the high security zone of the police station he could not be offered protection. The claimant's senior officer advised him to leave the country temporarily and to return only after the situation calmed down. The material before the court includes a statement dated 2nd May 2004 from the Headquarters Chief Inspector at the police station at Jaffna. The statement confirms that the claimant was one of the main intelligence operatives and a highly valuable individual to the police security force in Sri Lanka and goes on to state that he:

    ``had to leave his service and take off from Sri Lanka due to the current security situation in the country where many of his team members were killed by unidentified gunmen and who was categorized as a high risk operative''.

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