England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Monday, 19th November 2001

1. LORD JUSTICE DYSON: This appellant is a Turkish Kurd, who arrived in the United Kingdom on 17th October 1998 and claimed asylum. Following the refusal of his claim, he appealed the decision of the Secretary of State for the Home Department not to grant asylum. That appeal was dismissed by an adjudicator on 6th April 2001. He applied to the Immigration Appeal Tribunal for permission to appeal and that application was granted, but the tribunal dismissed the appeal on 17th July 2001. He now seeks permission to appeal that decision to the Court of Appeal.
2. The facts may be briefly stated. The appellant had produced in support of his claim an arrest warrant which purported to indicate that he was wanted by the Turkish authorities in connection with his involvement with the PKK. He had produced it at his appeal but, because it had not been authenticated by the Home Office unit, the appeal was adjourned in order for that to be done. In fact, no authentication exercise has ever been carried out. As I have said, the appeal was dismissed by the adjudicator, who found the appellant to be incredible. In a word, it was the appellant's case that he was a low level helper of the PKK.
3. The arrest warrant was a document which assumed considerable importance both before the adjudicator and before the tribunal. The adjudicator recorded that the appellant gave evidence to the effect that his father had obtained the original of the arrest warrant by asking a friend to remove it from the police station without permission. The appellant was cross-examined, amongst other matters, as to this point. He said that his father had worked as a security guard for the government all his life and had retired some ten years before. He was pressed as to the circumstances in which his father came to obtain the warrant. He said that he did not know in detail how this had occurred.
4. The critical paragraph in the determination of the adjudicator is paragraph 13, which is in these terms:

"The essence of this appeal is credibility. The appellant's case is that he left his job in Mersin in a book shop to visit his parents for three days and became a low level helper of the PKK because he thought their aims were just. In itself this scenario is not unusual. However the appellant would have me believe that despite national service (some of it in Cyprus) he is of the view that the PKK does not resort to the use of guns and bombs to pursue a change, otherwise the appellant and other Kurds in general would not support the PKK. This is such an absurd proposition when it is common knowledge that the PKK in the mid 1990s and before conducted many acts of terrorism that I cannot in my assessment find the appellant credible on his involvement with the PKK. My assessment is that his motive was to join his brothers in the UK. His evidence on his treatment in the army, which I find could be true, is merely evidence of discrimination and nowhere near persecution. His evidence that the original arrest warrant was stolen from the police station is also hard to credit. Since I do not believe the appellant's account of becoming involved with the PKK I do not accept the arrest warrant is a genuine document."

5. The appellant was given permission to appeal to the tribunal because it was thought to be arguable that the adjudicator had erred in dealing with the burden of proof in relation to the authenticity of the warrant of arrest. It is now established (and was common ground in this case) that, if a question is raised as to the authenticity of the warrant, it is for the Secretary of State to prove that the document is not genuine and not for the appellant to prove that it is genuine.
6. The tribunal dismissed his appeal. At paragraph 2 of its decision the tribunal, as it seems to me, directed itself correctly as to the burden of proof in relation to the authenticity of the warrant of arrest, and Mr Kerr does not suggest otherwise. At paragraph 3 the tribunal said:

"The idea that any friend of the appellant's father's, unnamed but not suggested to have any particular connection with the police, could simply walk into the station in question, find the very warrant naming his friend's son, and walk off with it under their eyes, is too ludicrous for further discussion."

7. Then at paragraph 4 the tribunal said:

"The essence of Mr Kerr's case is really that, unless the genuineness of a warrant (or any other apparently official document) is strictly disproved by the Home Office, on the basis of evidence from a document examiner or person with access to the official procedures in the country in question, then the adjudicator is obliged to accept it. This is not the law: see Mukhtar Shala Mohd. [2001] Imm AR 162 (Newman J), to which we referred him. It is enough to cite the first paragraph of the headnote, which accurately expresses the result:

It was not necessary for there to be direct or expert evidence to support a conclusion that documents were forged. The requirement was that there should be some evidence, whatever its source, and a source was the document itself.

If that is right, then the claimed provenance of the document must be an equally possible source, as here. In our view, the adjudicator was fully entitled to reject it on that basis."

8. It is submitted on behalf of the appellant that the Secretary of State adduced no evidence to impugn the validity of the document. This in a sense is true, but it seems to me that it was still open to the Secretary of State to allege (the burden being on him), on the basis of all the evidence in the case, that the document was not genuine. The adjudicator appears to have accepted that the warrant was not genuine for two reason: (i) the appellant's evidence as to the circumstances in which the warrant was stolen was incredible; and (ii) his account of becoming involved with the PKK itself was hard to credit.
9. Before me, Mr Kerr submits that the first limb of this reasoning at any rate was flawed because the appellant did not know about, and was unable to give direct evidence as to, the circumstances in which the warrant came to be in the possession of his father. But it seems to me that the adjudicator was fully entitled to accept the hearsay evidence given by the appellant, based on what his father had told him. There was no other evidence as to the provenance of the arrest warrant and no other explanation as to how it came to be in the appellant's possession. It seems to me that the first reason given by the adjudicator was a cogent reason, to which he was entitled to have regard, as was the second reason.
10. I have reached the conclusion that there is no substance in the points sought to be raised by Mr Kerr. There are no real prospects of success in this appeal. The reasoning of the adjudicator was, on analysis, valid. The conclusions that he reached were ones which he was rationally and fairly entitled to reach, and the tribunal was fully entitled to reach the same conclusions as well.
11. For all these reasons, this renewed application must be dismissed.
Order: application for permission to appeal dismissed.