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Karanakaran v Secretary of State for the Home Department
Factual and Procedural Background
This is an appeal by the Appellant from an order of the Immigration Appeal Tribunal dated 8th April 1999, which dismissed his appeal from an order of a special adjudicator dated 2nd June 1998. The special adjudicator had dismissed the Appellant's appeal against removal directions dated 21st February 1996, following a decision by the Secretary of State in January 1996 refusing his application for asylum. The Appellant, a young Tamil man born in 1977 in northern Sri Lanka, experienced significant hardship and violence in his home area, including army raids, family deaths, and destruction of his home. He fled first to Colombo and then to the United Kingdom, where he claimed asylum upon arrival in March 1995.
The special adjudicator accepted the Appellant's evidence about his background and the risks he faced in the north but concluded that he had no well-founded fear of persecution in Colombo and that it would not be unduly harsh for him to be returned there. The Immigration Appeal Tribunal upheld this conclusion, discounting expert evidence submitted by the Appellant as speculative. The appeal to this court raised questions about the correct standard of proof to be applied when assessing the reasonableness of internal relocation within a country for asylum purposes.
Legal Issues Presented
- What is the correct standard of proof to apply when deciding the reasonableness of internal relocation (the "internal flight alternative") in asylum cases?
- How should decision-makers evaluate the cumulative effect of disparate considerations in determining whether it would be unduly harsh to expect an asylum-seeker to live in a different part of their home country?
- Whether the standard of proof applicable to establishing past and present facts differs from that applied in assessing future risks or protection issues in asylum claims.
- How the concept of "unwillingness" to avail oneself of state protection, due to a well-founded fear of persecution, should be applied in cases involving internal relocation.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Robinson [1998] QB 929 | Established that a person should be regarded as unable to avail himself of protection if it would be unduly harsh to expect him to live in a part of his country; set the test for internal relocation. | Applied to assess whether it would be unduly harsh for the Appellant to return to Colombo; the court emphasized a common-sense approach rather than a formulaic one. |
| Sivakumaran [1988] 1 AC 958 | Set the standard of proof for well-founded fear of persecution as a "reasonable degree of likelihood" or "serious possibility". | Used to distinguish between proof of past facts (balance of probabilities) and assessment of future risk (lower standard); court held this standard applies to asylum claims. |
| Fernandez v Government of Singapore [1971] 1 WLR 987 | Supported the adoption of a lesser degree of likelihood than "more likely than not" for assessing risk of detention or persecution. | Referenced in explaining the appropriate standard of proof for future risk in asylum cases. |
| Jonah [1985] Imm AR 7 | Discussed the standard of proof for past and present facts in asylum claims as being on the balance of probabilities. | Considered in relation to whether past facts must be proved on a civil standard before assessing future risk. |
| Kaja [1995] Imm AR 1 | Addressed the standard of proof in asylum cases, concluding that assessment is a single-stage process applying a "reasonable degree of likelihood" standard. | Majority decision favored a single-stage approach combining proof of facts and risk assessment; court reviewed and ultimately adopted this approach. |
| Manohoran [1998] Imm AR 460 | Held that the burden of proof for internal flight alternative was on the appellant to show on the balance of probabilities that return would be unduly harsh. | Discussed but not followed by the court, which favored a different test. |
| Sachithananthan [1999] 1 WLR 205 | Held that internal flight alternative is part of the refugee status assessment and used a "serious possibility" standard. | Supported the approach that the question is a single one of assessment of risk and hardship, influencing the court's reasoning. |
| Horvath (CAT 2 December 1999) | Addressed burden and standard of proof in asylum cases, questioning the correctness of Kaja's standard for past facts. | Prompted the court to reconsider the standard of proof in asylum cases and to relist the appeal for further argument. |
| Hotson v East Berkshire Health Authority [1987] AC 750 | Distinguished the process of establishing past facts (balance of probabilities) from evaluating future chances (varying degrees of likelihood). | Used to clarify the distinction in standards of proof applicable to different aspects of asylum claims. |
| Chan (1989) 169 CLR 379 | Held that an applicant must show a "real chance" of persecution, which is a substantial, not remote, chance. | Australian authority cited to support a lower standard of proof for future risk assessments in asylum claims. |
| Wu Shan Liang (1996) 185 CLR 259 | Explained application of the "real chance" test and emphasized the evaluative nature of asylum decision-making. | Supported the approach that decision-makers may give different weights to evidence and must consider all relevant material. |
| Guo (1997) 144 ALR 567 | Held that tribunals may rely on findings of fact unless there is significant doubt, and may disregard unlikely alternative explanations. | Referenced to support the approach that decision-makers may exclude possibilities if they have no real doubt about their findings. |
| Abebe (1999) 162 ALR 1 | Confirmed that credibility findings affect the assessment of well-founded fear and that unsupported claims may be disregarded. | Used to illustrate limits of considering speculative claims in asylum decisions. |
| Rajalingam [1999] FCA 719 | Outlined principles for decision-makers to consider reasonable speculation and the cumulative effect of evidence in asylum claims. | Strongly influenced the court's view on the evaluative and non-formalistic approach to asylum decision-making. |
| Sayandan (5 March 1998: HX/65429/96 (16312)) | Provided a list of considerations relevant to assessing whether it would be unduly harsh to return an asylum-seeker to a particular part of their country. | Praised by the court as a good example of how to evaluate the cumulative effect of risks in internal relocation cases. |
| In re H (Minors) [1996] AC 563 | Treated family proceedings as civil proceedings, highlighting the application of civil standards in some contexts. | Not directly cited but acknowledged by the court to distinguish public law asylum proceedings from civil litigation. |
| Canada (A-G) v Ward [1993] 2 SCR 688 | Considered the state's ability to protect and its relation to the well-founded fear test in refugee claims. | Discussed but distinguished by the court regarding the focus on the claimant’s ability to avail themselves of protection. |
Court's Reasoning and Analysis
The court undertook a detailed examination of the standards of proof applicable in asylum cases, particularly concerning the internal flight alternative. It emphasized that the process is primarily evaluative rather than strictly factual, requiring decision-makers to weigh all relevant evidence, including expert testimony and country reports, without rigidly applying civil litigation standards.
The court distinguished between establishing past and present facts, which generally require proof on the balance of probabilities, and assessing future risks, where a lower standard such as a "reasonable likelihood" or "serious possibility" suffices. It rejected the notion that decision-makers should exclude evidence not proven on a civil standard if such evidence could contribute to a reasonable evaluation of risk.
Applying these principles, the court found that the Immigration Appeal Tribunal erred by dismissing expert evidence as "pure speculation" and by failing to consider the cumulative effect of the hardships and risks the Appellant would face if returned to Colombo. The court stressed that the question is whether it would be "unduly harsh" to require the Appellant to live in Colombo, considering all circumstances collectively, not in isolation.
The court also clarified the proper interpretation of the Convention's requirement that an asylum-seeker be "unable or, owing to such fear, unwilling to avail himself of the protection" of their home country. It held that internal relocation issues relate to the asylum-seeker's ability or willingness to avail themselves of protection in a different part of the country, which must be assessed separately from the well-founded fear of persecution in the original area.
Given the importance of up-to-date evidence and the need for a proper evaluation of the cumulative risks, the court concluded that the matter should be remitted to a differently constituted tribunal for rehearing on a correct legal and factual basis.
Holding and Implications
The court ALLOWED THE APPEAL and directed that the case be remitted to a differently composed Immigration Appeal Tribunal for rehearing.
The direct effect is that the Appellant's removal directions are not upheld at this stage, and the case must be reconsidered with proper regard to expert evidence and the correct legal standards. The court did not set new precedent beyond clarifying the appropriate approach to standards of proof and evaluation in internal relocation cases, but its detailed guidance provides important direction for future asylum determinations involving internal flight alternatives.
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