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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Polat v. Secretary State Home Department [2003] ScotCS 5 (15 January 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/5.html Cite as: [2003] ScotCS 5

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Polat v. Secretary State Home Department [2003] ScotCS 5 (15 January 2003)

OUTER HOUSE, COURT OF SESSION
P309/02	OPINION OF LORD KINGARTH in the Petition of IBRAHIM POLAT Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent:   ________________

Petitioner: Holmes; Skene Edwards, W.S.

Respondent: Carmichael; Solicitor to the Advocate General for Scotland

15 January 2003

1. The petitioner is a national of Turkey. He entered the United Kingdom on 3 March 2001. He applied for asylum. By decision dated 16 June 2001 the respondent refused the petitioner's application. By determination promulgated on 9 November 2001 a special adjudicator refused the petitioner's appeal against the respondent's decision. The petitioner sought leave to appeal to the Immigration Appeal Tribunal. By determination notified on 11 December 2001 the Immigration Appeal Tribunal refused the petitioner's application for leave to appeal. The petitioner now seeks inter alia reduction of the special adjudicator's determination, and of the Appeal Tribunal's refusal to grant leave.
2. Before me it was agreed that the question before the special adjudicator (and the respondent before him) was whether the petitioner was a refugee within the meaning of Article 1(1A) of the United Nations Convention Relating to the Status of Refugees (as amended); in particular whether the petitioner 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 unveil himself for the protection of that country",

and that that question fell to be decided by consideration of whether there was demonstrated a reasonable degree of likelihood that he would be persecuted for a Convention reason if returned to his own country.

3. The essential basis of the petitioner's claim before the special adjudicator was that (a) prior to his entry to the United Kingdom, certain things had happened to him which led to him being fearful of his continued safety if he remained in Turkey and (b) that in the light of that, in the continuing political situation in that country, he had a well founded fear of the relevant kind. In particular the main thrust of the petitioner's claim was that in August 1999 while he was tending his herd in the mountains, he was approached by persons whom he believed to be members of the PKK. They asked him to provide them with food, and the petitioner did so. He was then detained by Turkish soldiers some four or five days later on grounds of alleged sympathy with the PKK. He was subjected to torture during his detention. He thereafter moved to Istanbul in early 2001. He attended a rally organised for a group known as HADEP. He was detained by Turkish soldiers along with others. He was again subjected to torture.
4. Although the special adjudicator accepted that the background against which he required to consider the petitioner's case was that - in accordance with a Turkey Country Assessment dated April 2001 -

"the practice of torture may deserve the categorisation of systematic in the sense of being a pervasive technique of law enforcement agencies for the purpose of investigation, securing confessions, and intimidation",

the basis of his determination was that for a number of reasons he did not believe the petitioner's account of what had happened to him prior to his entry to the United Kingdom.

5. In particular, in his written determination, he said inter alia:

"The important aspect in this case is the Appellant's allegation that he was tortured and detained without cause.

The first occasion when this was alleged to have taken place was in August 2000. Although he said in his evidence that he had been arrested on the 15 August, 1999 I am prepared to accept that he was mistaken with regard to that date. He quickly corrected himself and I would not base any decision on credibility on that slip. I accepted that it was an innocent mistake. In August, 2000 the Appellant claimed that police disguised as PKK soldiers asked him for food while he was tending his animals on the high mountains. He gave them food and four or five days later soldiers came and dragged him out of the tent. He was then detained and tortured due to his alleged support of the PKK. He was also told to sell his farm animals.

I found this explanation to be implausible. It seemed to me that if soldiers were disguised as the PKK and the Appellant gave them food on being asked there would be no reason to wait four or five says before returning and arresting or detaining the Appellant for that supposed support. As soon as the Appellant gave the food or indicated in any way that he was a supporter of the PKK he could have been detained immediately.

The Appellant claimed that in January, 2001 he attended a rally organised for HADEP. Fifty or sixty persons were arrested because the rally was an illegal one. He claims to have been detained for two days and again tortured by the use of electric cables. Subsequent to that he decided to leave Turkey.

The Appellant gave a statement to his solicitor on the Monday prior to the Hearing before me. He confirmed that the contents of the statement were true and accurate. He remembered what he said.

In his evidence before me he stated that the date of the second incident was on 5 February, 2001. When it was pointed out to him that his recent statement stated early January and not 5 February, 2001 he stated that it was difficult to remember the exact date. I found that difficult to accept. He was able to be very specific with regard to the second occasion and was able to pinpoint it as 5 February in his evidence. That in itself might not have been conclusive as obviously mistakes in dates can occur. However, and in my view more importantly, the Appellant in his evidence was asked what happened to him in custody on the second occasion. He explained how he had been tortured by being blindfolded, beaten and electric shocks applied to him. He said in his evidence that this only happened on the second occasion. He was shown the inconsistency between what he said and what he has said in his statement which he confirmed had been accurate. He again stated that it had only happened on the second occasion. I consider that to be a material piece of evidence. At B27 of his asylum interview he told the officer that he had been subject to electrocution when he was first arrested. He also confirmed that he had been electrocuted on both occasions in his statement which he adopted at the beginning of his evidence. However, in cross-examination he insisted that he had only been electrocuted once. It seemed to me perfectly clear that any one who had truly suffered this type of torture on two separate occasions would have no difficulty in confirming that it had happened on two occasions. I consider that this discrepancy was a material one and one which undermined the credibility of the Appellant to a considerable degree. The Appellant also when interviewed gave the date of the second incident as the 25 of January. In his statement before me he stated that the incident took place on 5 February. The cumulative effect of these various inconsistencies made me doubt the Appellant's version of events. I did not consider that I could rely on his evidence or indeed accept it in relation to the two detentions. Since the allegations of torture were at the centre piece of the Appellant's account I had to be satisfied to a reasonable degree of likelihood that what he claimed had indeed taken place. I could not be so satisfied.

The appellant had no injuries of any note. Although that in itself might not be conclusive again it was a factor which I took into account in the assessment of the Appellant's evidence."

6. Counsel before me were agreed that the issues raised in the present application were narrow. Counsel for the petitioner stressed, and counsel for the respondent did not dispute, that the case was of a type which required the Court to give anxious scrutiny to the questions raised. Brief reference in that connection was made to Singh v Secretary of State for the Home Department 1998 SLT 1370. The thrust of his argument was that the decision reached by the special adjudicator as to the petitioner's credibility was Wednesbury unreasonable. It particular, it was submitted that none of four discernible reasons for disbelieving the petitioner in the passage quoted was reasonably based. Even if the petitioner succeeded in showing that only one of the given reasons could not be supported, the decision as a whole could not be said to be reasonably based. If the attack on the special adjudicator's decision succeeded, then it followed that the decision of the Immigration Appeal Tribunal should be reduced too.
7. For her part, counsel for the respondent argued that the decision of the special adjudicator could not be said to have been unreasonable, and that in each of the respects challenged the special adjudicator had reached a view which a reasonable adjudicator could have reached on the material before him. She appeared to accept, however, having regard to the way in which the decision was framed, that it would be difficult to support it as a whole if any one of the reasons adopted by the special adjudicator could be said to have been unreasonable - save perhaps the first. If there was force in the petitioner's arguments the proper approach, she argued, would be to reduce only the determination of the Immigration Appeal Tribunal to refuse leave to appeal.
8. In the first place, counsel for the petitioner submitted that in so far as the special adjudicator had found the petitioner's account of how he first came to be detained and tortured "implausible", this could not be supported. Although in the body of the Petition (and initially in submission) it was submitted that the special adjudicator had proceeded wrongly on the basis that it was the same people who had originally asked the petitioner for food who came back four or five days later to detain and torture him, it was ultimately accepted before me that - in accordance with the petitioner's written statement before the special adjudicator and apparently his oral evidence before him - this was indeed what the petitioner had said, and that in so far as the special adjudicator had at one stage described the forces as "police" and at another as "soldiers" this was simply an error of expression. In the event, the argument advanced was that there was no reasonable basis for the special adjudicator to find it implausible that the same people would wait for four or five days before returning and detaining the petitioner for his supposed support of the PKK. Reference was made to MacDonald Immigration Law and Practice 5^th Edition page 487, paragraph 12.29 where it is said:

"Since it is not in the nature of repressive societies to behave reasonably, the strange or unusual cannot be dismissed as incredible or improbable, particularly if there is supporting material of similar accounts in the relevant human rights literature, and decision makers should constantly be on their guard to avoid implicitly re-characterising the nature of the risk based on their own perception of reasonability."

Reference was further made to an unreported Immigration Appeal Tribunal decision Majorie Kasolo v Secretary of State for the Home Department (notified 1/4/96) and in particular to certain remarks by Sir Thomas Bingham MR (as he then was) quoted with approval. These were:

"The second note of caution must also be sounded. An English judge may have, or think he has, a shrewd idea of how a Lloyds broker or a Bristol wholesaler, or a Norfolk farmer, might react in some situation which is canvassed in the course of the case but he may, and I think should, feel very much more uncertain about the reactions of a Nigerian merchant, or an Indian ship's engineer, or a Yugoslavian banker. Or even, to take a more homely example, a Sikh shop-keeper trading in Bradford. No judge worth his salt could possibly assume that men of different nationalities, educations, trades, experience, creeds and temperaments would act in the way he might think he would have done or even - which may be quite different - in accordance with his concept of what a reasonable man would have done."

Reference was made to similar warnings given by an Immigration Appeal Tribunal in Ernesto Mendes v Secretary of State for the Home Department (notified 6/6/95). Reference was further made to a decision of the Federal Court of Australia, W321/01A v The Minister of Immigration and Multicultural Affairs 2002 FCA 210, where it was said inter alia:

"The Tribunal cannot exclude an applicant's account from the material the Tribunal is obliged to consider, by relying upon a bare assertion that the applicant's account is 'implausible'. There must be facts found that are inconsistent with claimed events, or the claimed events must be so beyond the human experience of possibilities that they may be said to be inherently unlikely."

9. Secondly, it was submitted that, allowing in particular for cultural and linguistic differences, it was unreasonable for the adjudicator to have placed emphasis on the differences in the dates given by the petitioner for the second incident, as between his evidence and his recent written statement. Thirdly, for the adjudicator to found on the fact that the "appellant had no injuries of any note" was unreasonable in the absence of any medical evidence. Finally, it was unreasonable for the adjudicator to have placed emphasis on the discrepancy, between his oral evidence and his previous written statement, as to whether he had been subjected to torture by application of electric shocks on one or both occasions on which he had been detained - again bearing in mind cultural and linguistic differences and the stress under which the petitioner must have been.
10. On behalf of the respondent it was submitted that, even allowing for cultural and linguistic differences, and accepting the need for caution as referred to in the authorities, it could not be said that in any respect the special adjudicator had formed views which a reasonable adjudicator could not have formed on the material before him. It should not be forgotten, as was stressed by Lord Reed in Singh v Secretary of State for the Home Department 2000 SC 288 293 that:

"A special adjudicator must be careful before rejecting an asylum seeker's account as incredible given that the decision under appeal is said to be one which may put the appellant's life at risk, and given also the cultural, linguistic and other difficulties (including those described in paragraph 198 of the UN Handbook), which may effect a genuine asylum seeker. Nevertheless, I must bear in mind that credibility is a question of fact (c.f. R v Secretary of State for the Home Department ex parte Agbonmenio). Such questions have been entrusted by Parliament to the tribunal of fact - in this case, the special adjudicator - and it would be constitutionally improper for the Court to interfere with that tribunal's assessment except on Wednesbury grounds. It is also important - especially in a case such as the present, when the Court has the same evidence before it, in the same form, as the special adjudicator - to bear in mind that the special adjudicator has been specially appointed to hear asylum appeals and has the benefit of his own training and experience in dealing with asylum seekers from different societies and cultures: something of which a Judge is unlikely to have any comparable experience. As Sir Thomas Bingham MR (as he then was) observed in Sahota v Immigration Appeal Tribunal at p.506:

"The present field is one in which it is tempting for the Court to stray into taking its own view of the facts. That is a temptation which the Court must resist. A Court's option is limited to a review of the challenged decision on one or more of the familiar grounds."

In relation to the first element of reasoning attacked, it was important to recognise that the petitioner had claimed that initially he was approached when tending his animals on the high mountains. It could not be said that it was not open to the special adjudicator to find it inherently unlikely that the same people would wait four or five days before returning and detaining him for what he did on that occasion. Secondly, the discrepancy in dates referred to was one to which the special adjudicator was entitled to have regard, although he himself stressed that on its own it might not have been conclusive "as obviously mistakes in dates can occur". Indeed earlier in the decision he had recognised just such a mistake. As regards the third matter, the context for the adjudicator's remarks was that the petitioner, in his written statement before the adjudicator, had indicated that, despite being beaten and having electric shocks applied to him, he had suffered no physical injuries to his body. This was a factor which the adjudicator was at least entitled to take into account, although he recognised that "that in itself might not be conclusive". As to the last matter criticised, it could not be said that the adjudicator was not entitled to treat the discrepancy as a material one (particularly since the petitioner had maintained his position, despite having had the terms of the inconsistent statement drawn to his attention).

11. Giving the matter the most careful consideration I can, it seems to me to be clear that the respondent's submissions are to be preferred. In short, for the reasons argued, it cannot, I consider, be said that the reasoning, which led to the special adjudicator's adverse decision as to the credibility of the petitioner's account was Wednesbury unreasonable in any respect. The petition therefore falls to be dismissed.
12. I add for completeness only that, in the course of the debate before me, there was some discussion of a section towards the end of the special adjudicator's decision in which he made remarks to the effect that even if the petitioner had been detained and tortured as he stated, he would have taken the view - if he had had to consider the matter - that there was nothing to suggest that the authorities in Turkey had any continuing interest in him (a view in part expressed by reference to 'the question of internal flight'). Both counsel were agreed that these remarks were obiter, and to be treated for present purposes as of no significance. Counsel for the respondent, however, while not seeking to defend the criticisms made of this passage by counsel for the petitioner, argued that it was not competent for the petitioner to criticise this part of the decision by way of judicial review, since it had not formed a specific focus for attack in the application for leave to appeal to the Immigration Appeal Tribunal. Reference was made to Rule of Court 58.3.2, the Immigrations and Asylum Appeals (Procedure) Rules 2000, Rule 18(6) and (7), and Sangha v Secretary of State for the Home Department 1997 SLT 545. Had I had to consider this matter I would have held, without requiring to deal with the questions of law referred to in Sangha v Secretary of State for the Home Department, that the written grounds of appeal stated by the petitioner to the Immigration Appeal Tribunal were probably broad enough to cover criticism of the relevant passage. The matter, however, as indicated, does not arise.