England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN IMMIGRATION APPEAL TRIBUNAL
(MR JUSTICE COLLINS)

		Royal Courts of Justice Strand London, WC2 Monday, 18th November 2002

Monday, 18th November 2002

1. LORD JUSTICE PETER GIBSON: Sinan Yildirim is a Kurd from Turkey. He left Turkey on 23rd March 1999. He came to the United Kingdom via Italy. On arrival here on 14th September 1999 with a false passport he claimed asylum. That was rejected and he was refused leave to enter. He appealed to an adjudicator under both the Geneva Convention on the Status of Refugees and also under Article 3 of the European Convention on Human Rights. His appeal was dismissed on 4th March 2002. He appealed with leave to the Immigration Appeal Tribunal. That appeal was dismissed on 17th July 2002. His Appellant's Notice was filed on 27th September 2002. It is not clear whether he was within time. On the face of the Appellant's Notice he would need permission to appeal out of time. However, the practice of this court is always, even if an applicant is late, to consider the substance of what is alleged to be the grounds of complaint against the decision of the lower tribunal; and that is particularly important when the subject matter is as serious as that of asylum. The application for permission to appeal was refused by Carnwath LJ on paper on 25th October. Mr Yildirim now renews his application in open court.
2. The facts in short are these. Mr Yildirim was born on 30th December 1977. His family moved with him to a predominantly Kurdish area in Istanbul in October 1996. He became a member of the Youth Committee of HADEP, a Kurdish political party. It is a legal organisation, but it and its members have been the object of harassment. He claims that he was arrested four times, in March 1997, January 1998 and February and March 1999, and ill-treated on each occasion. He was due to be eligible for military service in 1997 when he was 20. He obtained a three-year postponement and worked in his family's textile business.
3. The adjudicator found Mr Yildirim's account of each of the four claimed arrests highly implausible and therefore incredible. He found that whilst, if he was returned to Turkey, he would be detained and on discovery that he had not completed his military service he would be prosecuted and punished, that would be according to law in the same way as any other Turk. The adjudicator held that Mr Yildirim would not be at risk of suffering a disproportionate sentence or treatment. He was found by the adjudicator to have attempted to deceive the immigration officer on arrival. The adjudicator found that Mr Yildirim had not established that he was persecuted, as claimed, and that his fear of persecution for Convention reasons, if he was returned to Turkey, was not well-founded. His removal therefore would not be in breach of the Convention, and the adjudicator further found on the facts there was no real risk that he would suffer a breach of his rights under Article 3 of the Convention.
4. On appeal Collins J, giving the decision of the Tribunal, was prepared to approach the case on the basis that Mr Yildirim had been politically active to the extent he claimed, which the judge said was not particularly great, and that he had been detained on the occasions he alleged and had been ill-treated to some extent. But the judge said that although this may have happened, it all happened some years ago; he was only a low level supporter, his activities had not been very significant; his detention had been short and as for the last occasion he was detained his account that he had been released and given ten days to consider whether he should become an informer was decidedly implausible; in any event, he would now be of no use to the Turkish authorities after all this time away. The Tribunal accepted that Mr Yildirim would be interrogated at the airport on his return and that his draft evasion would interest the authorities. But that, the Tribunal considered, would be the only interest of the authorities and not the fact that he was someone who had been marginally active in HADEP. The Tribunal also held that his draft evasion would cause him to be punished, but that that would not amount to persecution or ill-treatment. The Tribunal considered the latest CIPU report dated April 2002, but noted that, according to the report, being a Kurd did not in itself constitute a higher risk of inhumane treatment, everything depending on the individual and his activities in Turkey and abroad. The Tribunal said that having regard to the low-level support for, and activities on behalf of, HADEP there was no real risk he would be ill-treated in a way which breached the Convention.
5. Mr David Morgan for Mr Yildirim today submits that the Tribunal's conclusions are unsustainable. He relies in particular on what was said by the Tribunal in paragraph 4 that it was well-known that there were many accounts given, supported by objective evidence, that in similar circumstances young men had been detained because they had been involved in political activities of which the authorities did not approve and may well have been released very shortly afterwards, but the Tribunal said that there was frequent torture or ill-treatment by the police against those who were picked up. The Tribunal noted that what occurred happened some years ago and that there was some evidence in the objective material that the situation had begun to improve somewhat, in that the propensity of the police in Turkey to torture was beginning to be addressed by the authorities there. Nonetheless the Tribunal accepted that that propensity still existed.
6. Mr Morgan also referred to paragraph 10 of the Tribunal's decision and to the fact, which I have already recounted, that it would be as a draft evader that Mr Yildirim would attract the attention of the authorities. Mr Morgan's primary submission was that the Tribunal was unreasonably holding that because the draft evasion would attract attention, therefore there would be no risk in relation to Mr Yildirim's other activities. I do not read the Tribunal's decision as involving that reasoning. What the Tribunal was saying was that Mr Yildirim's activities on behalf of HADEP and his membership of it were at too low a level and were too insignificant to excite the attention of the authorities, notwithstanding that he had been arrested on four occasions. The Tribunal noted that Mr Yildirim had been only marginally active and that he had been released without charge when he had been arrested and after a relatively short period. Mr Morgan then said that the interest that had been shown by the authorities in the past and the fact that Mr Yildirim had been asked to be an informer demonstrated that it was likely that on his return Mr Yildirim would attract the attention again of the police and that he would therefore be likely to suffer persecution such as has been shown to be a real possibility in relation to all persons active on behalf of HADEP. The difficulty with that is that so far as the allegation about Mr Yildirim being asked to be an informer is concerned, both the adjudicator and the Tribunal found that to be extremely implausible. The Tribunal considered that it was right to take the allegation into account, but it noted the extreme implausibility of that evidence. Accordingly that cannot add very much to Mr Yildirim's case. It is difficult to see that the low-level activities which Mr Yildirim engaged in would excite the attention of the police.
7. In any event, the approach of this court to an intended appeal from the Tribunal is one which has been the subject of recent decision. An appeal to this court would in ordinary parlance be a second appeal, but it is not a second appeal to which CPR 52.13 applies. In Koller v Secretary of State for the Home Department [2001] EWCA Civ 1267 on 26th July 2001 this court said that properly reasoned, well-structured judgments of the Tribunal will normally mark the end of the road unless there is some uncertainty about the applicable law. Mr Morgan submits that whilst the decision of the Tribunal in the present case was reasoned, it was not properly reasoned.
8. In my judgment there is no uncertainty about the applicable law. Nor can it fairly be said that this very experienced Tribunal failed to give its reasons properly. The Tribunal's judgment is scrupulously fair to Mr Yildirim in its assessment of the facts. The Tribunal was prepared not to accept a number of adverse findings made by the adjudicator. It explains why, nevertheless, the appeal fell to be dismissed. The fact of the matter is that there is nothing unusual about this case. No point of principle or practice arises. I find it quite impossible to say that the conclusion of the Tribunal was unsustainable or that its decision was not properly reasoned. On the contrary, for the reasons given in the Tribunal's decision, Mr Yildirim's grounds of appeal do not seem to me to offer any real prospect of success. The Tribunal was entitled to take into account what was said in the CIPU report that being of Kurdish origin does not in itself constitute a higher risk of inhuman treatment and that everything depended on the individual and his activities in Turkey and abroad. Mr Yildirim's activities in Turkey were low-level and took place some time ago. There is no evidence of any activities abroad.
9. In my judgment, therefore, this is not an appeal which has any real prospect of success. No point of principle is raised. In my judgment the appeal should not be allowed to go ahead. I would therefore refuse this application.
10. LORD JUSTICE CARNWATH: I agree.
Order: Application refused.