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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Payalage v. Secretary State Home Department [2003] ScotCS 35 (18 February 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/35.html Cite as: [2003] ScotCS 35

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Payalage v. Secretary State Home Department [2003] ScotCS 35 (18 February 2003)

OUTER HOUSE, COURT OF SESSION
P994/02	OPINION OF LORD CARLOWAY in Petition of PATRICIYA DON PAYALAGE Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: for Judicial Review of a decision of the Immigration Appeal Tribunal to refuse the petitioner leave to appeal against the decision of an Adjudicator refusing her claim for political asylum ________________

 

Petitioner: O'Carroll; Anderson Strathern, W.S. (for Ethnic Minorities Law Centre, Glasgow)

Respondent: Lindsay; H.F. Macdiarmid (Solicitor to the Advocate General for Scotland)

18 February 2003

1. Facts and Procedure

1. The petitioner is a Sri Lankan national. She is married and has two children, aged seven and four. Until December 1999 she lived with her family in Ja-Ela, a town to the north of Colombo. The petitioner and her husband are Sinhalese and members of the United National Party. During the latter part of 1999, an employee of her husband, a Tamil, was lodging with the family. He disappeared following the explosion of a bomb at a UNP rally in Ja-Ela. The Liberation Tigers of Tamil-Eelam (LTTE), commonly known as the Tamil Tigers, were suspected of involvement. What happened thereafter, according to the petitioner, was set out initially in her Statement of Evidence Form (SEF) [Pro 7/3] completed not long after her arrival in the United Kingdom in early 2001. This form reads as follows:

"1. Please explain why you are applying for asylum...

I am applying for asylum in the UK because I am not safe in my country. My husband was suspected of providing information to LTTE group...which is illegal in my country. On or before 22^nd of December 1999 during the night, about five army men came to the family home and took my husband after this incident, I have been frequently harassed, which forced me to flee country.

2. ...who was responsible for [ill-treatment or harassment]...

The Government police authorities

3. Why do you believe that this treatment occurred ?

Because my husband was suspected of revealing information to Liberal Tamil Tigers (LTTE).

...

As a member of the United National Party which is the main opposition party in Sri Lanka, I have been harassed by the ... (Peoples Alliance) Party supporters and people. They are the ruling party. Police authorities are in conjunction with the ruling party. Because of this, I cannot seek any relief from the police authorities. When my husband disappeared, I complained but nothing was done about this. When he did not turn up since December 1999, we assumed that he was dead, like lots of people who disappear in similar situations. It is impossible to live in such situations where the police and the state cannot help you..."

In the form, the petitioner said that she had left her home town for her own, and her children's, protection but the authorities kept track of her. She sought political asylum on the ground of persecution for her political opinion, in that she was afraid that she too might be "disappeared", were she to be returned to Sri Lanka

2. At interview on 20 March 2001, the petitioner expressed contentment with the SEF but expanded on certain aspects of it. Although he had been taken to a police station, it had been the army who had taken her husband away on the grounds of suspected involvement with the Tamil Tigers, because of the connection with the lodger. The petitioner said that she had gone to the police station to obtain information on her husband's whereabouts but the police had denied any knowledge of him. She had been arrested when she had gone to the police station and detained for a week. She alleged that she had been raped by three policemen over a period of two days. After her release, the police had repeatedly come to her house, ostensibly to find out where her husband was. After about a year in hiding, the petitioner left Sri Lanka in late January 2001 by aeroplane to Russia, where she stayed a few months before reaching the United Kingdom at Dover in late April 2001. Contrary to what was in the SEF, she denied that she had been harassed by the Peoples Alliance party.
3. The petitioner had claimed asylum in early May 2001, about five days after her arrival in the United Kingdom. On 28 August 2001, her claim for asylum was refused by the respondent. In the letter giving reasons for the refusal [Pro 6/1] the respondent stated:

"7 ...The Secretary of State has noted...that, even by your own account, you were only held for relatively brief period and released, without charge. The Secretary of State considers that the authorities would not have released you had they had any reason to believe that you were of continuing interest to them.

8. He remains of the view that members of the civilian population, whatever their religion or ethnic origins, have nothing to fear from routine actions and enquiries made by the authorities in Sri Lanka in pursuance of their efforts to combat terrorism, and to maintain law and order. Furthermore the Secretary of State noted that your alleged arrest occurred in December 1999, over 2 years prior to your departure from Sri Lanka. He could not therefore accept that this arrest was instrumental in your decision to leave Sri Lanka, nor could he find any basis in fact to your claim that your life would be at risk if you were now to return to Sri Lanka.

9. The Secretary of State notes that you have claimed that you were raped during your detention in December 1999. Whilst the Secretary of State does not in anyway condone such abuses of human rights as rape he must point out that the act of rape is not such that can be classed as persecution under the terms of the 1951 United Nations Convention relating to the status of refugees."

The letter made general remarks about the improvement in human rights protections in Sri Lanka in recent times and continued:

"16. You have alleged that the authorities were unable to offer effective protection from the activities of members of the Peoples alliance. The Secretary of State considers that the authorities of Sri Lanka have offered effective protection and that your fear of persecution by members of the Peoples alliance does not bring you within the scope of the 1951...Convention...

17. In order to bring yourself within the scope of the ...Convention, you would have to show that these incidents were not simply the random actions of individuals but were a sustained pattern or campaign of persecution directed at you which was knowingly tolerated by the authorities, or that the authorities were unable, or unwilling, to offer you effective protection.

18. In the opinion of the Secretary of State, this has not been established in your case..."

Additional remarks were made about the timing of the petitioner's departure from Sri Lanka being some time after the alleged persecution, her ability to leave through an airport without apparent difficulty and her failure to claim refugee status in Russia. In short, the petitioner's claim under the United Nations Convention relating to the Status of Refugees executed at Geneva in 1951 (Cmnd. 9171) and subsequent Protocol was refused as was her additional plea under the European Convention on Human Rights and Fundamental Freedoms regarding the consequences of her being returned to Sri Lanka.

4. The petitioner appealed to an Adjudicator, who held an oral hearing at Glasgow on 22 April 2002. In her written decision issued on 18 May 2002 [Pro 6/2], the Adjudicator set out the standard tests relative to the burden and standard of proof to the effect that it was for the petitioner to establish a "reasonable degree of likelihood" of persecution in terms of the United Nations Convention and/or "substantial grounds for believing" that there would be an interference with her human rights under the European Convention. In the evidence presented at the hearing, there was reference to the petitioner having a scar some 15 cms in length on the inner aspect of her right breast. This, she said, was as a result of being cut with a bottle during the rape by the police. The existence of this scar was confirmed in a medical report dated 15^th April 2002 from the Gorbals Health Centre [Pro 7/7] which said that the scar was consistent with the history given. The report also referred to the petitioner becoming increasingly depressed and having recurrent nightmares concerning the rapes. The petitioner's position, in summary, was that her claim was a credible one in that she had a well founded fear of persecution by state agents by reason of being suspected of being a Tamil Tiger sympathiser. The respondent countered by challenging her credibility and raising, in addition, the prospect of internal flight, that is to say living in an area of Sri Lanka where no persecution would occur.
5. The Adjudicator considered substantial amounts of background material, noting that the Sri Lankan security forces do commit human rights abuses, for which they did not appear to be punished. Sexual assault was one form of these abuses and, along with torture, was used on those suspected of Tamil Tiger sympathies. The existence of scarring on a person was seemingly a ground for suspicion. The Adjudicator also examined the claim of rape, particularly in light of the absence of any such complaint in the original SEF and other inconsistencies apparent in the written material. The Adjudicator concluded:

"19. ...Due to all the inconsistencies I had some difficulty in accepting the [petitioner's] evidence as credible and reliable and suspect she may be embellishing her account. I however had to consider the evidence in conjunction with the background information and the medical report available. The medical report from the doctor states that the [petitioner] has a 15 cm long scar on the inner aspect of her right breast which is consistent with her having nightmares with regard to the events which took place at the police station. This taken together with the background evidence that security forces do torture women suspected of being LTTE sympathisers leads me to the conclusion that there is a reasonable degree of likelihood that the [petitioner] was raped. I also find that this rape while in police custody was a breach of her article 3 Human Rights."

Notwithstanding this finding, the Adjudicator continued:

"20. ...In this case the [petitioner] originally claimed persecution on the basis of her political opinion because she is a member of the United National Party which at that time was the main opposition party in Sri Lanka and is now the party in power. However the appellant is now claiming persecution on the basis of being suspected of being an LTTE sympathiser. I have accepted that the [petitioner] was taken into custody and raped in December 1999 because the Authorities were suspicious of her due to the Tamil that had stayed with her and the recent bombing which had occurred. I however have to consider whether if the [petitioner] was now returned to Sri Lanka she would be at risk of persecution. There were no further incidents between December 1999 and when she left the country in January 2002. There is no evidence that when the [petitioner] was in detention her fingerprints were taken and she was released without any reporting restrictions put on her. The appellant is Sinhalese and the party which the [petitioner] is a member of is now the party in power in Sri Lanka and there is no reason to think that the Authorities will be particularly interested in her on return. It is accepted that the [petitioner] has a scar but it would not be visible unless she was strip searched which is unlikely given the above. Conditions in Sri Lanka as far as Human Rights abuses have improved since 1999 although it is accepted that some abuses still occur. Consideration has been given to the cases lodged by [petitioner's] representative but these relate to Tamils who are in a different position from the [petitioner]. [The petitioner] also has her parents and other relatives in Sri Lanka and accordingly will not be a widow alone in Sri Lanka. Even if I had considered that the [petitioner] would have difficulties in her home town it would not be unduly harsh for her to relocate to another area and in fact she states that she did go to different towns in hiding to stay with relatives and friends prior to leaving the country. I accordingly find that there is no serious possibility that the [petitioner] would be persecuted on return."

On this basis, the Adjudicator found that the petitioner had not discharged the burden of proof upon her to demonstrate a well founded fear of persecution for a Convention reason. She rejected the human rights claim upon a similar basis.

6. The petitioner sought leave to appeal to the Immigration Appeal Tribunal [Pro 7/14] on the bases that: (a) the Adjudicator's ultimate decision was inconsistent with her earlier findings in fact; (b) the Adjudicator's view of internal flight was wrong given the petitioner's circumstances; and (c) the Adjudicator had failed to attach appropriate weight to the effects of the rape upon the petitioner and the failure of the authorities to offer protection. A general related ground was put forward under the European Convention. Leave to appeal was refused by a determination dated 31 May 2002 and notified a fortnight later. The reasons for refusal were compact and read as follows:

"Although it is plain that the adjudicator had difficulties with aspects of the [petitioner's] account she was prepared to accept that the [petitioner] had been raped in custody in December 1999. The authorities were suspicious of her because of a Tamil who had stayed with her and the recent bombing. The [petitioner] is Sinhalese. Cases of this kind clearly have to be looked at with anxious scrutiny, but I am satisfied that the adjudicator did that. She considered that the [petitioner] would not be the object of interest on return for reasons which she sets out clearly in a well reasoned determination. I am not satisfied that the adjudicator erred in concluding that the [petitioner] could properly be returned. It was not necessary for the adjudicator to deal with internal flight, but I am not persuaded that she erred in her consideration of the issue in any event. All the evidence was carefully evaluated and every aspect given due weight. There is no ground for the Tribunal to intervene on either the asylum or human rights aspects."

 

2. Submissions

7. The petitioner lodged a petition for judicial review of the decision of the Immigration Appeal Tribunal refusing leave to appeal. The petitioner set out the procedural context of the case, referring to the Statement of Changes in Immigration Rules (HC 395) (paras 328, 334, 336 and 338), to the powers of removal of persons by the respondent under section 10 of the Immigration and Asylum Act 1999 (c 33) and to the exception in the case of refugees as defined in the United Nations Convention. So far as the test for the grant of leave to appeal to the Immigration Appeal Tribunal was concerned, regulation 18 of the Immigration and Asylum Appeals (Procedure) Rules 2000 (SI No 2333) provides that such leave will be granted:

"only where -

(a) the Tribunal is satisfied that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard."

It was accepted that the burden of establishing that a person came within the criteria for a refugee rested upon that person. The standard of proof was not a balance of probability but a lower standard of showing that there was a "reasonable likelihood" of the person being persecuted for a Convention reason should he be returned to his country of origin (R v Secretary of State for the Home Department ex parte Sivakumaran [1988] 1 AC 958, Lord Keith at 994-5, Lord Goff at 1000). In looking at decisions in this field, a special responsibility fell upon the courts to scrutinise them anxiously (R v Secretary of State for the Home Department ex parte Bugdacey [1987] 1 AC 514, Lord Bridge at 531, Lord Templeman at 537).

8. Turning to the standard of decision making, the petitioner pointed to the need for written reasons for an Adjudicator's determination under regulations 2 and 15 of the Immigration and Asylum Appeals (Procedure) Rules 2000 (supra). The Adjudicator required to assess the evidence with the ultimate evaluation in mind and to base that evaluation on that evidence as a whole (Kaja v Secretary of State for the Home Department [1995] Imm AR 1, the majority of the IAT at 9). The Adjudicator's decision required to leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what material considerations were taken into account (Singh (Jaswinder) v Secretary of State for the Home Department 1998 SLT 1370, Lord MacFadyen at 1374 quoting the Lord President (Emslie) in Wordie Property Co v Secretary of State for Scotland 1984 SLT 345 at 348). Adjudicators had to indicate what evidence they accepted, what they rejected, whether there was evidence about which they were unable to make up their minds and what evidence they deemed irrelevant (per Lord MacFadyen (supra), not disapproved in Singh (Daljit) v Secretary of State for the Home Department 2000 SC 219 at 222). If an applicant were disbelieved then the reasons for this ought to be spelled out (per Lord MacFadyen (supra), and see Kaja (supra).
9. The central submission for the petitioner was that the reasoning of the Adjudicator was flawed in several respects (see statement of fact 6 of the petition). Although she had not made any express findings in fact on the point, the Adjudicator appeared to have accepted the petitioner's account of events. This meant that she implicitly accepted that the petitioner had been scarred while in police custody and that, in terms of the medical report, she suffered from depression as a result of her experiences. She must have accepted too that after her release from the police station, the petitioner went into hiding and that her husband had not reappeared after his detention. However, it was unfortunate that the Adjudicator had not set out exactly what she had found as fact. When it came to the assessment of the evidence, the Adjudicator had said (para 20) that she accepted that the petitioner had been taken in to custody and raped in December 1999, because the authorities were suspicious of her connection with the Tamil lodger and the occurrence of the bombing. Nevertheless, she rejected the petitioner's claim for several reasons, each of which was cumulative to the ultimate decision. The first of these had been the absence of further events between the release from the police station in December 1999 and her eventual flight in January 2001. However, this reason was "irrational" because it failed to acknowledge that the Adjudicator had already found, by implication, that the petitioner had been in hiding during this period. The second, concerning finger prints and reporting restrictions could not be criticised. The third, however, that the petitioner was Sinhalese and a member of what was now the majority party, was an irrelevant consideration because the ground for the petitioner's claim was not that she was persecuted for these social and political associations but because of the suspicion of her as a Tamil Tiger sympathiser. The fourth, the observation concerning the unlikelihood of strip searches, was dependent on the earlier premises. The fifth, that matters had improved in Sri Lanka had to be balanced with the finding that some abuses continued to occur and it was "irrational" to use improvement as a reason while at the same time acknowledging the existence of continuing abuses. The sixth, relative to other cases was accepted as legitimate. The seventh, that the petitioner would not return to Sri Lanka as a widow without relatives, was irrelevant to the consideration of the likelihood of persecution. Several of the reasons given were therefore flawed and one bad reason in a cumulative group will result in the whole reasoning being deemed faulty (Pirie v City of Aberdeen District Council 1993 SLT 1155, Lord Cullen at 1157). I should add here that, at the outset of the hearing, the petitioner sought leave to amend the petition to include certain averments including those alleging that, in any event, the Adjudicator had failed to give adequate reasons for her conclusions. This was not opposed and I allowed the proposed amendments.
10. In relation to her finding that internal flight was possible and not unduly harsh, this seemed to be based only upon the finding about the petitioner having relatives in Sri Lanka and thus not returning there as a lonely widow. The Adjudicator's findings provided an insufficient ground for such a conclusion. In that connection, the Adjudicator had not even made any findings about where in Sri Lanka the petitioner might safely live. Finally, upon the separate human rights issue, this argument stood or fell with that under the United Nations Convention, although the terms of the medical report had a bearing on this. Overall then, the Adjudicator's decision was in error, unreasonable and the reasons given by her were inadequate. No reasonable Immigration Appeal Tribunal could have considered otherwise and failed to grant leave to appeal. The decision to refuse leave therefore fell to be reduced.
11. The respondent invited the court to sustain his second plea-in-law (that the decision to refuse leave was both lawful and reasonable) and refuse the prayer of the petition. First, the Adjudicator had given adequate and comprehensible reasons within the accepted tests set out in Singh (Jaswinder) v Secretary of State for the Home Department (supra) following Wordie Property Co v Secretary of State (supra). The Adjudicator had accepted the petitioner's story and it was sufficient for her to say so. The Adjudicator would only have had to have expanded upon her reasoning had she been disbelieving the petitioner. However, because the fear of persecution had to be a present one, the Adjudicator then had to go on, as she did, to consider that issue. She had listed some seven reasons for coming to her decision that no present fear existed. All were relevant reasons, proper for the Adjudicator to take into account. None had proceeded upon a misunderstanding of the evidence. None was of itself conclusive but all supported the ultimate conclusion. It could not be said that no reasonable adjudicator could have reached that conclusion. In relation to internal flight, that was raised purely on an esto basis and, even if the reasoning there had been flawed (it was certainly rather brief) that did not affect the Adjudicator's decision to refuse the claim. So far as the human rights element was concerned, no separate submission had been made to the Adjudicator based upon the medical report, so it was not surprising that she had not specifically addressed this issue. In all these circumstances, it was not possible to criticise the decision of the Immigration Appeal Tribunal to refuse leave. Although that Tribunal may have to look beyond the terms of the grounds of appeal in determining whether to grant leave (R v Secretary of State for the Home Department ex parte Robinson [1998] QB 929), even having regard to the matters raised now and not in the grounds of appeal, it could not be said that the Tribunal had erred.

3. Decision

12. The Immigration Appeal Tribunal is statutorily bound to grant leave to appeal only where it is satisfied that an appeal has a real prospect of success or there is some other compelling reason why the appeal should be heard (Immigration and Asylum Appeals (Procedure) Rules 2000 (supra) regulation 18). In the present case, it was not suggested that there was a compelling reason, so the matter becomes focussed on whether there was a real prospect of success. In looking at that question, the Tribunal would no doubt have had particularly in mind the terms of the petitioner's grounds of appeal. Whilst not obliged to search exhaustively for other grounds, the Tribunal would be bound also to look at the decision of the Adjudicator to see if there were any readily discernible and obvious points which might be taken other than those specifically covered by the grounds lodged (R v Secretary of State for the Home Department ex parte Robinson (supra)). Whether the Tribunal erred in refusing to grant leave to appeal depends, in this case, primarily upon whether the petitioner can point to some error in the Adjudicator's decision which might give rise to an appeal with real prospects of success.
13. It was not suggested that the Adjudicator misdirected herself on the applicable law. In scrutinising the Adjudicator's decision, therefore, what is being searched for is some indication that she might have taken into account an irrelevant consideration, failed to take into account a relevant and material consideration, found a fact established without basis in the evidence before her or simply reached a decision which was so unreasonable that no reasonable adjudicator could have reached it (Wordie Property Co v Secretary of State for Scotland 1984 SLT 345, Lord President (Emslie) at 348). In order to be able to determine whether an adjudicator's decision is flawed in such a way, it is incumbent upon an adjudicator to give proper and adequate reasons for the decision, dealing with the substantial questions in issue in an intelligible way and leaving the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account (also Lord President (Emslie) in Wordie Property Co v Secretary of State (supra) at 348). Where issues of credibility and reliability of evidence arise, these will usually involve an adjudicator stating in broad terms what evidence is founded upon as material, credible and reliable and what evidence is discounted as irrelevant, incredible or unreliable (Singh (Jaswinder) v Secretary of State for the Home Department (supra), Lord MacFadyen at 1374). It will be for the adjudicator also to state what conclusions were drawn from the evidence which proved acceptable. Where an applicant's evidence is rejected, then the reasons for that must be made clear (also Lord MacFadyen in Singh (Jaswinder) v Secretary of State for the Home Department (supra) at 1374). But the degree of depth which an adjudicator has to go into, to meet the requirements of the basic test of adequacy set out in Wordie Property Co v Secretary of State (supra), will depend upon the circumstances of the case and an in-depth lengthy analysis of testimony will seldom be appropriate (Singh (Daljit) v Secretary of State for the Home Department (supra) at 222 under reference to Asif v Secretary of State for the Home Department 1999 SLT 890, Lord Penrose at 894).
14. In this case, the Adjudicator made it clear that, despite the difficulties in doing so, she accepted the basic version of events given by the petitioner, even although there might have been a degree of embellishment (Pro 6/2 para 19). The Adjudicator explained why she had accepted the petitioner's story, notably the objective finding of the scar and the co-incidence of the petitioner's version with known histories of abuse. Despite finding that the petitioner had been subjected to an appalling ordeal by the Sri Lankan police, the Adjudicator nevertheless held that there was no present well-founded fear of persecution, or, to quote her accurately, "no serious possibility" of persecution on the petitioner's return to Sri Lanka. The quoted phraseology used here is perhaps not strictly correct, but there was no suggestion that the Adjudicator had misdirected herself on the standard of proof and it is clear, from what she said elsewhere in her determination, that she was indeed applying the correct test of "reasonable degree of likelihood". Especially given the Adjudicator's finding on the petitioner's ordeal, however, it is certainly appropriate to scrutinise with particular care her reasoning on why she nevertheless rejected the petitioner's claim.
15. It is true to say that the reasoning of the Adjudicator in rejecting the claim of a present well-founded fear of persecution consists of seven sentences. Each of these sentences contains different factual material. Each was part of the reasoning process leading up to the conclusion that there was no present well-founded fear. These sentences set out the factors which led the Adjudicator to her ultimate conclusion. However, they are not isolated numbered propositions which should each be looked at independently of the others. They are not separate distinct cumulative reasons for the ultimate conclusion (cf Pirie v City of Aberdeen District Council (supra)). They are all matters of fact forming part of the whole circumstances, each factor playing a greater or lesser part in the context of the weighing exercise being carried out by the Adjudicator. Looked at in this way, it can be seen that the Adjudicator did set out clearly and adequately how she reached the conclusion that there was no present well-founded fear and hence that the petitioner's claim for asylum had to be rejected.
16. Even if it were appropriate to subject each factor to detailed analysis, it can also be seen that each one was appropriately taken into account by the Adjudicator. Looking at those criticised by the petitioner as irrelevant or "irrational", the fact that nothing had apparently occurred to the petitioner in the twelve months or so before her flight to Russia was something of importance. No doubt that importance had to be looked at in the light of the fact that the petitioner was in hiding, but that did not render the lack of action irrelevant. Authorities do look for, and not infrequently find, persons in hiding, and the fact that there was no suggestion that anything of that sort (e.g. a continuing search) was continuing was of note. The petitioner's Sinhalese origins and membership of the United National Party were also important. The first was of note because it meant that she was not a Tamil and, not surprisingly, it tends to be Tamils rather than Sinhalese that are suspected of involvement with the Tamil Tigers. The second was significant because, in the SEF, the petitioner was complaining of harassment from the Peoples Alliance Party, then the ruling one, because she was a member of the United National Party, now in power. The petitioner's specific complaint was that she could not obtain protection from the police because they were in league with the ruling party. But now she was a member of the ruling party. The improvement in human rights protections in Sri Lanka was again relevant in considering the likelihood of persecution, albeit that, on its own, it could not be determinative of that issue because some abuses continued. The fact that there were continuing abuses would no doubt detract from the weight to be attached to the improvement but it did not render consideration of it, as a factor, irrelevant. The existence of family support for the petitioner was also a factor to be taken into account. All of these factors were supported by the evidence and all were relevant, along with the others not subject to criticism, to the decision making process. Even subjecting them to close scrutiny, it cannot be said that the Adjudicator failed to meet any of the tests set out by the Lord President in Wordie Property Co v Secretary of State for Scotland (supra). It follows that this ground of attack upon the Adjudicator's reasoning and the adequacy thereof fails.
17. There are two subsidiary matters to be considered. First, there is the Adjudicator's determination that internal flight was open to the petitioner and not unduly harsh. In this connection, it is important to note that the determination of the Adjudicator is the refusal to allow the claim. One reason given for that was that internal flight was an option. Neither the informed reader nor the court could be in any doubt about that as a reason. What the petitioner seeks to do is analyse the reasons for the reason. That exercise might be legitimate where it is being argued that there was no evidential basis upon which the Adjudicator could have found internal flight to be possible, but that argument cannot succeed here. The Adjudicator explained that, even if returning to Ja-Ela might be problematic, the petitioner has relatives and friends in other parts of Sri Lanka, who would be in a position to assist, and this has been demonstrated by her ability to live elsewhere with friends and relatives during the year before her flight. Once again, such a view may be tempered by the fact that, on these occasions, the petitioner was in hiding, but that does not render the Adjudicator's decision on this matter baseless in fact or unreasonable. The second matter is the human rights one based upon article 3 of the European Convention, but it was acknowledged, with one possible exception, that this argument stood or fell with the principal refugee claim. The exception was the suggestion that the medical condition of the petitioner might add a different dimension to this part of the claim in that it might suggest a greater danger to the petitioner's mental health, should she return to Sri Lanka. The answer to this is twofold. First, it was not something which was argued before the Adjudicator and it is not surprising that she did not address it. Secondly, there is no material upon which such a contention can be based. The medical report does not say so and there is nothing to suggest that the petitioner so contended either. In such circumstances, it cannot be said to provide a discreet ground of appeal with a real prospect of success. The same applies to the other grounds put forward in submissions. It follows that the decision of the Immigration Appeal Tribunal was the correct one and the prayer of this petition must be refused.
18. I will therefore repel the petitioner's first plea-in-law, sustain the respondent's second plea-in-law and refuse the prayer of the petition as set out in statement three thereof.