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OUTER HOUSE, COURT OF SESSION
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P252/03
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OPINION OF
R F MACDONALD QC
(Sitting as a
Temporary Judge)
in the Petition of
D.B.
for
Judicial Review of
the decision of the Immigration Appeal Tribunal in relation to appeals under
Sections 65 and 69 of the Immigration and Asylum Act 1999
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: Govier;
Wilson Terris, SSC
Respondent: Lindsay;
H F Macdiarmid, Solicitor to the Advocate General
3 December 2004
Introduction
[1] The
petitioner is a Turkish citizen who was born on 7 May 1964. He
is an Alevi Kurd by ethnic origin and religion.
He unsuccessfully attempted to enter the United
Kingdom on a Eurostar train on 5 February 2002. On that occasion he was immediately returned
to France,
whence he was deported back to Turkey. He again arrived in the United
Kingdom on 27 February 2002 and claimed asylum. His claim was refused by the respondent, the
Secretary of State for the Home Department, by letter of refusal dated 23 April 2002. On 29 April 2002 he was served with a
Notice of Decision to issue Removal Directions to an Illegal Entrant and
brought an appeal against that Notice on the grounds that his removal from the
United Kingdom would be contrary to its obligations under the 1951 Geneva
Convention relating to the Status of Refugees ("the Refugee Convention") and
the 1950 European Convention on Human Rights ("ECHR"). His appeal was heard at Glasgow
on 12 September 2002
by an adjudicator, Ms E A Mozolowski, who by her determination dated 2 October 2002 and promulgated
on 7 October 2002
refused his appeal.
[2] The
petitioner thereafter sought leave to appeal against that refusal to the
Immigration Appeal Tribunal ("the IAT").
Six grounds of appeal were tabled by him. By its determination dated 28 November 2002 and notified
on 5 December 2002 the
IAT refused him leave to appeal. It
concluded that the adjudicator, in a carefully considered determination,
accepted most of his claims and gave sound reasons for the evidence which she
rejected, including evidence that he had been ill-treated. It also concluded that her conclusions
disclosed no misdirection in law, that the grounds of appeal lacked merit and
that an appeal therefore had no real prospect of success were leave to be
granted.
[3] In
this petition for judicial review the petitioner seeks reduction of the
determination of the IAT on the grounds that it was unlawful and unreasonable
for the reasons which he sets out in the petition. Answers have been lodged by the Secretary of
State in which it is averred that the decision of the IAT was lawful and
reasonable and that reduction should be refused. A first hearing took place on Friday 19 November 2002.
The factual background
[4] The
relevant facts found by the adjudicator were as follows.
[5] The
petitioner is married with two children.
His wife and children remain in Turkey. He has been discriminated against by Turkish
society throughout his life because of his ethnic origin and religion, but the
discrimination which he has suffered has been no more than most other Alevi
Kurds in Turkey
have suffered. He successfully completed
an electrical training course and thereafter his National Service in 1986. Following his return from military service he
obtained employment in a Government run factory under the company name of
TAKSAN, where he worked from 1986 until April 1999. While working in TAKSAN he suffered some
discrimination from fellow employees, but nothing marked. He was happy in that employment for over
13 years and achieved a promoted post, a fact which indicated that he was
not being held back in his employment.
It was conceded on his behalf that he had not been persecuted in his employment. He claimed to be a sympathiser with the PRK,
an illegal organisation founded in 1976 which is left radical and Kurdish
nationalist. He was not allowed to be a
member of the PRK because of a law prohibiting Government employees from
participating in or being members of any political party. As he showed no interest in politics, this
prohibition made very little difference to him.
His brother was an active supporter of the PRK and attracted the
attention of the Turkish police. The
police did not visit their concerns about his brother upon the appellant, whom
they allowed to get on with his life.
The appellant was nevertheless detained on two occasions lasting three
or four hours by the Turkish police.
During the first detention on 25 August
1999 he was beaten and in the course of the detention fell and
broke his wrist. He went immediately to
hospital, where his wrist was x-rayed and put in a plaster cast. The second detention of the appellant by the
police was on 1 September 2000. He and another brother were taken by the
police from a bus following upon an identification check and interrogated at a
police station. The appellant was
released after three or four hours. When
the petitioner was returned to Turkey
after his unsuccessful attempt to enter the United
Kingdom on 5 February 2002 he was detained for a few hours at Istanbul
Airport but was not ill-treated,
beaten or tortured.
[6] An
incident occurred on 2 September
1998 when the Turkish police came to the family home of the
petitioner and enquired about the whereabouts of his brother A. The petitioner's mother answered the door to
the police and an argument ensued in the course of which she was shot
dead. Various people were in the house
and heard the argument. The cause of her
death was certified as murder. The
hospital authorities informed the State Prosecutor about the circumstances of
the death and a prosecutor came to the hospital the following morning and asked
the petitioner's father various questions.
The petitioner thereafter visited the State Prosecutor and the police
station but no criminal proceedings were taken against the police officer
concerned. The murder of the
petitioner's mother was the action of an ill-disciplined police officer, and
not part of a concerted action by the Turkish police against the petitioner's
family.
The grounds of appeal
[7] Although
six grounds of appeal were tabled in the application for leave to appeal made
to the IAT, Mr Govier accepted that the present petition related only to
grounds 2 and 4, and that the other grounds of appeal were no longer
live. Grounds of appeal 2 and 4 related
to the reasoning of the adjudicator at paras 41 and 42 of her
determination, which deal with her findings about the murder of the
petitioner's mother and what happened in the course of the detention of the
petitioner at Istanbul Airport
when he was returned to Turkey
in early February 2002.
The relevant law
[8] Both
Mr Govier and Mr Lindsay drew my attention to the general legal
considerations which applied in a case of this nature. Mr Govier began by reminding me that the
appeal to the adjudicator was brought under the terms of article 1A(2) of
the Refugee Convention as amended by the 1967 Protocol and article 3 of
the ECHR. The former provision, so far
as relevant, defined a refugee as someone who, owing to a 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 avail himself
of the protection of that country. The
latter provision enacts that no one shall be subjected to torture or to inhuman
or degrading treatment or punishment.
The onus of proof before the adjudicator rested on the petitioner and
the standard of proof was the same under both Conventions. Under the Refugee Convention the petitioner
had to show that there was a real risk that his fear of persecution was
well-founded and under the ECHR he had to show that there was a real risk that
he would be subject to torture or to inhuman or degrading treatment or
punishment: see R v Home Secretary ex parte
Sivakumaran [1988] 1 AC 958 per Lord Keith at p.994F; Secretary
of State for the Home Department v Kacaj
[2002] Imm AR 213 (a decision of the IAT per Collins J) and Macdonald's Immigration Law and Practice
(5th ed.) at para 12.24.
The reasons given by the adjudicator for the determination had to be
adequate and proper: see Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT
345 per Lord President Emslie at p.348; Singh (Daljit) v Secretary of State for the Home Department 2000 SC 219 per Lord
Weir at p.222A-223A and Singh (Jaswinder)
v Secretary of State for the Home
Department 1998 SLT 1370 per Lord Macfadyen at p.1374J. In asylum cases the basis of the decision
called for the most anxious scrutiny: R v Home
Secretary ex parte Bugdaycay [1987] AC 514 per Lord Bridge of Harwich at
531E-G. It was not enough that an
adjudicator might in theory have had comprehensible reasons: the reasons had to be found in the stated
reasons and nowhere else (per Lord Macfadyen in Singh (Daljit) (supra) at
p.1374L-1375A.)
[9] Mr Lindsay
began his consideration of the applicable law by referring me to the rules of
procedure which applied at the material time. These were the Immigration and Asylum Appeal
(Procedure) Rules 2000. Rule 18(7)
thereof provided:
"Leave to appeal shall 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."
In the present case only (a)
applied. It was not sufficient to
identify just a grammatical error in the determination of the adjudicator: it had to be an error which gave rise to a
reasonable prospect of success in the appeal to the IAT. In order to succeed in the present
proceedings the petitioner had to show that no reasonable appeal tribunal could
have concluded that he had no real prospect of success in his appeal. The Tribunal was, by virtue of
Rule 18(6), not required to consider any grounds other than those included
in the application for leave to appeal, but the Tribunal was not confined to
the stated grounds of appeal if there was an obvious point which required
consideration on appeal (Mutas Elabas,
Petitioner, 2 July 2004, unreported per Lord Reed at
para 20). In the present case there
were no obvious points requiring consideration which were not contained in the
grounds of appeal. The test which the
petitioner had to satisfy was therefore the very exacting one of establishing
that his appeal to the IAT would have a real prospect of success. Refugee status was not to be regarded as a
reward for past ill-treatment, but as a protection against future ill-treatment
(Nabil Salim v Secretary of State for the Home Department [2000] Imm AR 503 per
Hale LJ at paras 14 and 19). Past
ill-treatment was only a material consideration in the determination of the
question whether there was a well-founded fear of persecution. So far as the duty of an adjudicator to give
adequate and proper reasons was concerned, Mr Lindsay accepted that the
decisions in Wordie Property Co Ltd
and Singh (Daljit) had not been
doubted in any way or overruled.
Reference was also made to the decision of the House of Lords in South Bucks District Council and Another
v Porter [2004] UKHL 33 (a planning
case) per Lord Brown of Eaton-under-Heywood at para 36.
The adjudicator's determination
[10] While it is the refusal of leave by the IAT which is challenged
in this petition, it is necessary, since the petitioner maintains that the IAT
failed to identify errors in the adjudicator's determination and consequently
erred in refusing leave to appeal, to consider the criticisms made by the
petitioner of the adjudicator's determination.
I now turn to consider each of these in turn.
[11] The first criticism which was made was of the finding by the
adjudicator in para 38 of her determination that the petitioner "showed no
interest in politics whatever". It was
submitted that the adjudicator, in making that finding, took into account an
irrelevant matter, in that it was no part of the case before her that it was
the personal involvement of the petitioner in politics that resulted in his
persecution. The petitioner's case was presented on the basis of persecution by
reason of his imputed political opinions due to the support by his brother and
brother-in-law of the PRK. The
adjudicator recorded in para 5 of her determination that this was the
case. Para 38
of the adjudicator's determination is in the following terms:
"The Appellant claims
that he was a sympathiser with the PRK but was never allowed to be a member
because of a Government law forbidding the participation and membership of
Government employees in any political party whatsoever. I note that the Appellant continued to stay
in Turkey
despite detentions, the death of his mother and disappearance of his brother A. I find that the Appellant showed no interest
in politics whatever and this rule made very little difference to the
Appellant's interest in politics (or rather lack of it) in general."
Mr Govier submitted that the
finding in para 38 that the petitioner showed no interest in politics
amounted to a finding of credibility against him. He submitted that the question whether the
petitioner was himself involved in the PRK was quite irrelevant to the case
which was presented before the adjudicator.
He asked why the adjudicator made the finding in question at all. The finding was a rejection of his evidence
that he was a sympathiser with the PRK.
It was difficult to say that a sympathiser had no interest in
politics. Mr Lindsay submitted that
what the adjudicator stated in this paragraph did not amount to an adverse
finding against the petitioner on credibility.
The adjudicator was there merely concluding that the restriction on
party membership made no real difference to the petitioner.
[12] The challenge set out in the petition to the finding by the
adjudicator in para 38 that the appellant showed no interest in politics
did not feature in the grounds of appeal submitted to the IAT, and I therefore
fail to see how it can now be suggested that the IAT erred in law in not
holding that this ground of challenge would have had a real prospect of success
in an appeal. The fact that the point
did not feature in the grounds of appeal is not conclusive, but I see no reason
why the IAT should have considered this point, which was not drawn to their
attention, to amount to "some other compelling reason why the appeal should be heard"
(Rule 18(7)(a)). In any event I am
clearly of the opinion that this ground of challenge is wholly without
merit. All that the adjudicator was
saying in para 38 was that, as the petitioner showed no interest in
politics, the prohibition on his participation in or membership of a political
party made no difference to him. Far
from her finding that he showed no interest in politics being an adverse
finding on his credibility, it was entirely consistent with his evidence and
the basis upon which the appeal was presented.
The finding is not in any way a rejection of his evidence that he was a
sympathiser with the PRK, for it is perfectly possible to be a sympathiser with
a political party or movement without being interested in politics. Many people in the United
Kingdom sympathise with a political party
without having an interest in politics.
[13] The second criticism of the adjudicator's determination related
to her findings in para 41, which is in the following terms:
"I accept fully, in the
absence of any challenge to the contrary, that the death certificate of the
Appellant's mother is genuine and that she was murdered. It is with great hesitation however that I
accept the Appellant's version of events that this was done by a Policeman
enquiring from the mother after the whereabouts of the Appellant's brother
A. However, given that the standard of
proof is so low, and contrary to any other explanation before me, I would
accept that this is in fact how the Appellant's mother was murdered. However I find that this was the action of a
rogue Policeman and that the public prosecutor did become involved in the
investigation of her death. The public
authorities had no qualm in registering the cause of death as being murder
rather than anything else. I do not
therefore accept that the death of the Appellant's mother was caused as a
concerted action by the Turkish Police against the Appellant's family, but
rather it was the action of an ill disciplined police officer. The fact that no further action appears to
have been taken could be for a number of different reasons, unrelated to the
family of the Appellant's perceived political views."
The phrase "contrary to any other
explanation" in that paragraph is clearly a mistake as there was no competing
explanation before the adjudicator. It
is obvious that what she intended to say was "in the absence of any other
explanation". Mr Govier accepted
that this was the case.
[14] The criticism based on para 41 was that the adjudicator
had given no reason or explanation for her finding that the murder of the
petitioner's mother was the action of an ill-disciplined police officer. It was submitted that this was pure
speculation on her part. Mr Govier
accepted, in response to questions from me, that what the adjudicator appeared
to be saying was that the murder of the petitioner's mother was an isolated
incident, and not part of a concerted police campaign against the petitioner's
family. He then went on to submit that
that meant that the reasons of the adjudicator were not obvious to the reader,
who was having to work out what those reasons were. It was submitted that the circumstances of
the death of the petitioner's mother demonstrated the growing pressure which
the petitioner maintained had been inflicted upon him in Turkey. Mr Lindsay submitted that in
para 41 the adjudicator had given adequate and comprehensible reasons for
her conclusion that it was a rogue policeman who had murdered the petitioner's
mother. He accepted that whether it was
a rogue policeman who had carried out the murder or whether the murder was part
of a concerted campaign by the Turkish police against the petitioner's family
was highly significant in the assessment of future risk of persecution. The reasons given by the adjudicator in para 41
for her conclusion that the murder of the petitioner's mother was the action of
a rogue policeman were that the death was certified as murder and that there
was an investigation of her death by the public prosecutor. In these circumstances the adjudicator was
entitled to infer that the death of the petitioner's mother had not been
brought about by what Mr Lindsay described as "a State death squad".
[15] In my opinion there is no merit in the criticism made of the
finding by the adjudicator in para 41 that the murder of the petitioner's
mother was carried out by what she describes as "a rogue policeman" or "an
ill-disciplined police officer". I
accept the submission of Mr Lindsay that the adjudicator has stated that
she made the finding because the death was certified as murder and the public
prosecutor became involved in the investigation. I do not consider that her reasoning and
conclusion on this point can be faulted in any way.
[16] The third criticism of the adjudicator's determination related
to her finding at para 42 that the petitioner was not ill-treated, beaten
or tortured when detained and questioned for a few hours at Istanbul Airport
when returned there by the French authorities in early February 2002. His evidence, as narrated at para 23 of
the determination, had been that he was interrogated and beaten for three or
four hours because he had no documents.
At para 36 the adjudicator had found that "the appellant was in the
main credible". By finding at
para 42 that he had not been ill-treated, beaten or tortured she was
ignoring his evidence and she failed to give any reason for her finding. The relevant portion of para 42 is in
the following terms:
"With regard to his two
attempts at entering the United Kingdom
I find it extremely significant that the Appellant was detained and questioned
for a few hours at Istanbul Airport
when he was returned by the French Authorities.
I find that he was not ill treated and he was not beaten or
tortured. The Appellant was vague about
what happened at the interview at Istanbul
Airport and focused far more on the
advice (not order) to report to Kayseri Police Station. From the treatment of the Appellant at Istanbul
Airport, I accept that he did have
a few hours of rigorous questioning.
However, what the Appellant has described fully fits in, in this
particular case, with the background information about returnees in the CIPU
Report also."
Mr Lindsay submitted that in that
passage the adjudicator had given adequate and comprehensible reasons for her
finding that the petitioner had not been ill-treated, beaten or tortured at Istanbul
Airport. What she had found to be significant was that
the petitioner had been detained for only a few hours (and not for a much
longer period). She also relied upon the
fact that he was vague in his evidence about what had happened at the airport
and focused far more on the advice to report to the police station. This was in contrast to his evidence about
his previous two detentions when he was resident in Turkey,
which contained no vagueness.
[17] In my opinion there is no substance in the criticism made of
the adjudicator's finding in para 42 that the petitioner was not
ill-treated, beaten or tortured when detained at Istanbul
Airport in early February
2002. The adjudicator accepted the
evidence of the petitioner that he had been subjected to rigorous questioning,
but not his evidence that he was beaten during his detention. She gave two clear reasons for making such a
finding. The first was his vagueness
about what had happened at the airport, including the focusing of his evidence
on the advice to report to the police station.
The second was that his evidence of interrogation was consistent with
the background information about returnees in the CIPU Report. As recorded by the adjudicator at
para 33 of her determination, para 5.80 and the following paragraphs
of the CIPU Report consider treatment of returned asylum seekers by the Turkish
authorities and confirm that the police can and do interrogate returnees at the
airport to see if they are suspected of criminal offences or illegal political
associations. When the adjudicator
stated that "what the appellant has described fully fits in, in this particular
case, with the background information about returnees in the CIPU Report", she
was obviously referring to what the appellant had described so far as his
detention and questioning were concerned, but not so far as any beating was
concerned. That this must be so follows from
the fact that she rejected his evidence that he had been beaten. Accordingly, in my opinion, the reasoning and
finding by the adjudicator in the quoted passage from para 42 of her
determination cannot be faulted.
[18] The fourth criticism of the adjudicator's determination related
to what she held in para 39, which is in the following terms:
"I fully accept the Appellant's
claim that his brother A was an active supporter of the PRK, but to have
attracted the attention of the Turkish police I consider that either the
Appellant's brother did a lot more than simply distribute leaflets or the
Appellant has exaggerated his brother's harassment by the police. With great hesitation I am willing to accept
that the Appellant's brother was an active supporter of the PRK and did in fact
come to the attention of the Turkish Authorities. I also take from that however that the
police, having detained the Appellant and released him so shortly thereafter,
did not visit their concerns about Aydin upon the appellant and happily allowed
the appellant to get on with his life".
The submission for the petitioner
in relation to that passage was that the findings of the adjudicator were
illogical in that the last sentence of para 39 did not follow from the
preceding sentence or from any of the preceding parts of the
determination. The adjudicator had based
a material conclusion as to the level of police interest in the petitioner on a
non sequitur. She had found at
para 40 that the petitioner had been detained by the Turkish police on two
occasions, each lasting only three or four hours, and that he had been beaten
during the first detention, as a result of which he sustained a broken
wrist. It therefore could not be said
that the police happily allowed him to get on with his life. Mr Lindsay submitted that the finding in
the last sentence of para 42 was a reasonable conclusion for the
adjudicator to make, and was one which was supported by the evidence before
her.
[19] I find no illogicality or contradiction in what the adjudicator
stated in the last sentence of para 39.
All that the adjudicator was saying in that sentence was that she
concluded from the fact that the police had detained the appellant for only
short periods that they were not really concerned about him, but were more
concerned about the activities of his brother A, who was an active supporter of
the PRK. In my opinion, therefore, there
is no substance in the criticism made of the adjudicator's findings in
para 39.
[20] As I am of the opinion that there is no merit in any of the
criticisms made of the adjudicator's determination, it follows that there was
no substance in the grounds of appeal based upon those criticisms and that the
IAT did not act unlawfully or unreasonably in refusing leave to appeal.
Decision
[21] For the reasons set out above I shall sustain the second
plea-in-law for the respondent, repel the plea-in-law for the petitioner and
dismiss the petition.
