England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LIST
(Mr Justice Newman)

		The Royal Courts of Justice The Strand London Friday 19 July 2002

Friday 19 July 2002

1. LORD JUSTICE SIMON BROWN: The applicant is a 29-year old Turkish Kurd who arrived in the United Kingdom on 18 August 2000 and immediately claimed asylum. His claim was refused by the Secretary of State. His appeal against that refusal was dismissed by the adjudicator on 28 June 2001. His application for permission to appeal to the IAT was refused by the President, Sir Andrew Collins, on 8 August 2001. His application for permission to apply for judicial review of the President's refusal of permission to appeal was itself refused, initially on the documents by Silber J on 16 January 2002 and then, following an oral hearing, by Newman J on 25 February 2002. His application for permission to appeal against that refusal was refused by me on the documents on 19 June 2002. He has, in short, already failed in six applications with regard to asylum.
2. He has nevertheless renewed his application to this court and this time, consistently with the direction which I myself gave when initially refusing permission on the documents, the matter has come before two of us. That is because, recognising the extreme importance of all asylum cases (as this court readily does) I wished to ensure that a second Lord Justice did not take a different view from my own, and indeed from that expressed by all those who previously have had occasion to consider this claim. I now know that my Lord shares my view. That being so, I propose to deal with the matter very briefly.
3. The adjudicator accepted the applicant's evidence that his family is known as a left-wing family associated with Dev Sol, a separatist organisation. His own involvement, however, was low-level, essentially no more than the distribution of leaflets. The adjudicator accepted that the applicant had been detained, initially for some three days following a Dev Sol meeting in 1996, then again for two days after a meeting in 1998, and on a third occasion upon his attending a May Day demonstration on 1 May 2000; following which he went to Istanbul and thence to the United Kingdom. Paragraphs 25 and 26 of the determination set out the adjudicator's central conclusions as follows:

"25. I have considered all the evidence presented to me, the evidence on file, the subjective evidence, the oral evidence given at the hearing and all of the objective evidence, some of which I may not have mentioned herein. I do not consider that the appellant has discharged the burden of proof even to the lower standard mentioned in Kaja. This is a similar case to the case of Hasan Akpinar previously referred to. The appellant is a low level member of Dev Sol. In six years he was arrested and detained for short periods on three occasions and was never charged. The reasons for his detention were support of Dev Sol and the fact that he went on a May Day march. I have considered the totality of the evidence before me regarding the risk of return to Turkey and having studied the objective evidence I do not consider that the appellant would be in any danger of persecution were he to return to Turkey. As stated at the hearing, past persecution is not sufficient for a person to be classed as a refugee and I do not consider that sufficient evidence has been presented to me to make me think that future persecution is likely. The appellant might be questioned if he was returned to Turkey but from the objective evidence I think it would be extremely unlikely that he would be ill-treated. The appellant broke Turkish law by leaving the country without a passport and the authorities would be right to question him because of this to try to find out why he had left the country illegally. The appellant is not a political activist and the fact that his family are known as a left-wing family is not a sufficient reason for the appellant to be classed as a refugee. Although the appellant states that he supported the Dev Sol he was not a member and any of his activities were low level activities.

26. In my view the appellant has not been persecuted for a Convention reason. He was not targeted by the authorities because of his political or ethnic origins but had been arrested because he was suspected of being a member of Dev Sol, a separatist organisation. The appellant has never been charged. I do not know whether the appellant was maltreated when he was arrested although he states that he was. I felt that the evidence given by the appellant regarding this to be lacking in credibility."

4. As in so many determinations, the adjudicator's conclusions are, to put it perhaps at its lowest, imperfectly expressed and are open to all sorts of criticisms. To take just one example, in the first part of paragraph 25, the applicant is referred to as "a low level member of Dev Sol", whereas the paragraph concludes, "Although the appellant states that he supported Dev Sol he was not a member and any of his activities were low level activities." As, however, Newman J observed below:

" .... the findings are expressed in succinct terms. There is not a great deal of elaboration on the facts, but, in my judgment, it does not follow therefore that the essential exercise in reaching the findings of fact on the evidence from the claimant and the weighing of it in the context of the objective material is flawed. The balancing is an essential task for the fact finder and whatever attraction there may appear to be in the way the determination and reasons have been criticised, in my judgment, the decision remains incapable of being impugned to a sufficient degree to render the case properly arguable on judicial review."

5. The real question for the adjudicator was whether, assuming the applicant would be returned to Turkey, he would be ill-treated to a degree properly to be regarded as persecution. She concluded that he would not. She said, indeed, that in her view that was "extremely unlikely". That was a judgment for her, not for the courts, and to my mind she based that conclusion on proper considerations: the fact that the applicant's own activities were low-level, the fact that he had never been charged, the fact that his various detentions were simply because he had attended Dev Sol meetings and the May Day march. Plainly she concluded on balance, having heard the applicant give his evidence, that he had not been ill-treated, at any rate to a significant degree, and I take that finding to include also her rejection of the suggestion that his final release was procured by some promise to inform on Dev Sol. She was certainly satisfied that he would not be ill-treated on return, which was the critical question.
6. One notes that the main ground of the application to appeal to the IAT had been that the adjudicator failed to give adequate consideration to the objective evidence; that is to say, the various published reports on the general situation in Turkey with regard to the treatment of those associated with left-wing causes. That is no longer the basis of attempted challenge and, if I may say so, unsurprisingly so, given this court's recent judgment in Avci [2002] EWCA Civ 977: see particularly paragraphs 19 and 24. The way the case now has to be put is that the errors and inadequacies of this adjudication on the facts so leapt from the page that the President of the IAT should have spotted them for himself.
7. To my mind that is an impossible contention. Reading these determinations, as one must, with the recognition that one cannot look for the degree of reasoning that one might find in a court judgment, to my mind there is no question here but that the adjudicator simply did not accept the applicant's case in so far as he was alleging significant ill-treatment in detention in the past.
8. Despite, therefore, Mr Grieves' further arguments to the court this morning, I for my part regard this application as no more persuasive than I did when I first considered the case on the documents. I would refuse it.
9. LORD JUSTICE LATHAM: I agree.
ORDER: Application refused