England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No: AA/01879/2005]

		Royal Courts of Justice Strand, London, WC2A 2LL
		7th February 2008

Lord Justice May:

1. This is a renewed application for permission to appeal against a decision of the Asylum and Immigration Tribunal consisting of two immigration judges, following a hearing on 20 March 2007. The determination and reasons were prepared on 23 March 2007 and dated 30 March 2007, and apparently sent to the parties on 19 April.
2. The decision dismissed the applicant's appeal against the secretary of state's refusal on 10 May 2005 of the applicant's asylum claim and his associated claims on human rights grounds and for humanitarian protection. As is acknowledged, the tribunal dismissed the applicant's appeal because, having heard his oral evidence and having considered documents and other evidence presented to it, they did not believe the essentials of his factual account. In a sentence, his case was that he feared serious physical ill-treatment amounting to persecution and perhaps torture on political grounds if he were returned to his native Turkey, this on account of his relatively low-level political activities before he left Turkey in 2005.
3. The tribunal did not accept that he truly had this fear or, if he did, that it was well-founded because they did not believe his factual account which, he said, gave rise to that fear. He had, in their view, established no more than that he would be subjected to generalised harassment and discrimination falling short of the level necessary to amount to persecution or ill-treatment.
4. Conscious, no doubt, that an appeal to this court has to be on a point of law and that credibility findings based on a judgment of the reliability of oral evidence are not normally amenable to appeal to this court, nor do they normally raise points of law, Mrs Degirmenci puts the application in writing and orally on the nominal submission that the tribunal's findings were irrational or perverse; and upon an underlying strain of submission that the decision was inadequately reasoned, contained inadequate analysis of detail and inadequate reference to points which should have told in the applicant's favour.
5. I regret to say that I am not impressed with any of this, no more than was Latham LJ when he refused permission to appeal on the papers. He, rightly, in my view, wrote that there was no error of law in the tribunal's reasoning; the decision was based on conclusions of fact; the tribunal, he wrote, was entitled to take the view it did of the appellant's credibility; there was no real prospect of an appeal succeeding. I agree.
6. The applicant is a Turkish citizen of Kurdish ethnicity and of the Alevi faith, born in 1974. He arrived in the United Kingdom by lorry, according to him on 21 April 2005. He claimed asylum on 27 April 2005. Having been interviewed twice, his asylum claim was refused in a six-page closely-typed letter dated 10 May 2005. An appeal against this decision was dismissed in July 2005 but that decision was determined to be unsafe and a senior immigration judge directed a full rehearing. It is from the decision on that rehearing that the applicant now wishes to appeal. The principal issue before this second tribunal was agreed to be the appellant's credibility, which the secretary of state challenged.
7. The Asylum and Immigration Tribunal's directions of law are not challenged. The tribunal summarised the applicant's case as follows in paragraph 15 to 18 of their determination. They said this:

"The appellant was first interviewed on 28^th April 2005. In the course of that interview he said that he was staying with his cousin, Salman Dag. In answer to question 6.4 he said that his cousin had come to pick him up. An agent had arranged for his trip to the United Kingdom for which he had paid 10,000 euros.

He was next interviewed on the 7^th May 2005 at Oakington Detention Centre. He claimed that he and his family had moved from their village in the south east of Turkey to Mersin in 1998. He claimed that he had been arrested and detained in 1997 for two days, in 2002 for two days and in 2003 and 2005 for two days on each occasion. He was never charged with an offence and had never been a member of a political party although he had sympathised with the aims of HADEP and DEHAP. In 1997 he was detained and tortured when he and his father were arrested and accused of helping the PKK locally. His arm was broken during this detention. The only problems he had had before had been at school and during his military service when he was victimised because he was Kurdish. In 1996 his maternal uncle had been killed after being accused of being a PKK guerrilla. Another uncle had been sentenced to 16 years imprisonment. His family had moved to Mersin after he was told that unless he became a village guard he would have to leave the village.

In May 2002 he was detained on Labour Day when he attended a meeting in the main square and shouted slogans. He was beaten during this detention. Between then and his third arrest in March 2003 his house was raided at least twice. He claimed that his family was under surveillance because of their support for the PKK. In March 2003 he was arrested at work and detained and tortured. His house was then raided twice in 2003. That year his brother and sister both disappeared. They left home and the family had not heard from them since. In 2004 he had been threatened by the authorities at work.

His final detention was in March 2005 when he was arrested at home. He was tortured once more. After his release he was again approached by the police at work and told that he should become an informer. The police put a gun to his mouth. He decided to leave Turkey and travel to Istanbul where he found a driver who was willing to take him out of Turkey."

8. Paragraphs 19 to 33 of the determination constitute a summary of his oral evidence, and paragraphs 32 to 40 of his cross-examination. This included at paragraph 35 the following:

"His mother and father were present and the police also made threats to his family not to be involved in politics. They said that the family was helping the PKK and had connections with the PKK. They made death threats saying they would kill his mother and father and himself but he was the target because he was young and the state suspected him more. He was asked whether he was threatened with death more than once. He said it was more than once and the last time had been when his workplace was raided and he was threatened with a gun. He had been threatened every time he was arrested and a raid was made. He was asked whether his family members were also threatened or attacked. He said they were and they beat up his mother and father in June 2002 when his house was raided. He was asked why he had not mentioned this in interview in answer to Question 89. He said he was explaining the things that he could remember. He was psychologically unwell and he had just come to this country and he was not feeling good. He also said that a very long statement was taken -- it lasted 5 and a half hours."

9. Paragraphs 41 to 46 of the determination are a summary of evidence he gave in re-examination. Between paragraphs 47 and 50 there is reference to, and summary of, two medical reports which said that the applicant was suffering from post-traumatic stress disorder. One of them commented on the applicant's ability to understand questions and to answer them if they were not very simple in structure and to make himself understood. The next paragraphs referred briefly to objective evidence.
10. These paragraphs, that is to say paragraphs 19 to 53, occupy more than five pages of closely-typed A4 script and their content renders untenable, in my view, the proposition that the tribunal failed to take account of this or that part of the evidence.
11. The next 32 paragraphs give a detailed account of the parties' submissions. There is then a section in the determination headed "Findings of fact and conclusions on the evidence". The tribunal did not find Dr Petronie's brief report helpful. It relied entirely on what the applicant had told him. He was not a psychiatrist and gave no reasons for diagnosing post-traumatic stress disorder or agoraphobia. These points also applied, to a lesser extent, to Dr Gratton who had nevertheless administered what is referred to as the Harvard Questionnaire. Even if post-traumatic stress disorder was a correct diagnosis it did not follow, said the tribunal, that the events which gave rise to it were those described by the applicant, nor could Dr Gratton say that the described events were true. The first of these observations is logically correct and the second is not challenged.
12. The tribunal said that they had considered the parties' submissions; they did not feel it necessary to deal with every point taken by the parties, only those which would help in their determination. This, in my view, is a quite proper approach provided, of course, that the points which are addressed are sufficient and sufficiently persuasive. The crucial issue was whether the applicant's account could be believed or not -- that is to say, that he would be at risk on return. If he was not credible his asylum and other claims would fail.
13. The tribunal attached little or no significance to certain matters urged upon them as indicating lack of credibility. Those matters appear in paragraphs 91 to 94 of the determination. They took account of Dr Gratton's assessment that the applicant may have difficulty in understanding other than simple questions. However, they concluded that he had not given a true account of his activities and experiences for reasons which are set out in 11 numbered sub-paragraphs of paragraph 95. It is correct that these do not comprise 11 separate reasons since some of the sub-paragraphs run on from the previous sub-paragraph. However, the main reasons may be summarised briefly as follows.
14. First, the account given by the applicant in his oral evidence that his parents had been beaten and given death threats did not feature in his answers given in his asylum interviews. If he had seen his mother and father being beaten up by the police and threatened with death it was simply not credible that he would have overlooked events of such importance in his interview. He had been able to recount events with some precision when he gave evidence.
15. Second, he said that he left his home area after being asked to be a village guard. It was not credible that the authorities would have given this invitation if he was suspected of being a PKK supporter.
16. Third, his account of what happened when he arrived in the United Kingdom in the lorry was not credible. His case was that he had been intending to seek protection in the first safe country and was unable to leave the lorry earlier than he did. When the lorry stopped in the United Kingdom at a petrol station the Turkish driver asked whether he had relations here. It transpired "by great good fortune" that his cousin Salman Dag was here and within an hour's journey of the petrol station. He found this out after he had telephoned Mr Dag's father from the petrol station. His account was that Mr Dag had left Turkey three years previously to live abroad but he, the applicant, did not know where that was; yet the applicant was able to remember Mr Dag's father's telephone number even though he had not brought the number with him. I am not surprised that the tribunal regarded all this as incredible.
17. Among the reasons in the 11 sub-paragraphs was the fact that the applicant had not called Mr Dag nor any of the people whose details were in the appeal bundle to give evidence. It is, of course, correct that the evidence of a person seeking asylum is not required to be corroborated and in many cases cannot be corroborated. But it is not wrong in law for a tribunal to take some account of the absence of evidence from people who, on the applicant's own account, could readily have been called. The account of telephoning from the petrol station was, it seems to me, perfectly amenable to evidence from Mr Salman Dag or his father if they had been called.
18. The main points relied upon by the tribunal which I have summarised were, in my judgment, solid reasons for a credibility decision that the main necessary parts of the appellant's account were not true.
19. The grounds of appeal in truth amount to no more than submissions, available at first instance but not, in my view, on appeal, why the tribunal might have found the facts differently, together with a well-presented submission to the effect that there was really only one point properly to be taken into account and that that point was misrepresented by the tribunal's findings. It is said that the tribunal misread the interview question and answer. They may, in detail, have made errors here but it does not address the main point that the oral evidence about the applicant's parents did not feature in the interview, when, on any realistic view, the opportunity was given to give that account.
20. It is said that there was little analysis of much of the written and oral evidence in this and the earlier appeal, and little or no analysis of the main strands of the appellant's positive case that he was at risk of ill-treatment or worse if he went back to Turkey. But the tribunal was not in my view obliged to deal with every conceivable point, and did not purport to do so, provided that what they did consider was sufficient which, in my judgment, it was.
21. It is said that the tribunal failed to consider the applicant's own explanation for failing to mention the treatment of his parents. That is just incorrect. The tribunal did so in paragraph 35.
22. It is said that this matter was peripheral and that it was irrational and perverse to give it such prominence. I disagree, but in any event it did not stand alone among the tribunal's reasons. It is said to have been unremarkable that the appellant telephoned a relation in the United Kingdom on arrival and irrational to find that it went to the core of the claim. It is also submitted that under Section 8 of the 2004 Act this is a matter to be taken into consideration with all other material, which is of course correct, but I disagree that it was irrational to find that this went to the core of the applicant's credibility. This submission, I think, misses the point that the tribunal regarded it as an incredible coincidence, and they were in my opinion entitled so to regard it, that the applicant who was, according to him, escaping from Turkey for fear of persecution, intending to seek asylum in the first available safe country, should actually travel all the way across Europe to find himself, by chance, within an hour's drive of a cousin who had left Turkey three years earlier for an unknown destination and whose father's telephone number he was, by chance, able to remember.
23. It is said that the tribunal were wrong to place any reliance on the applicant's failure to call witnesses. I have already dealt with that. It is said that the general conclusion that the applicant had established no more than the possibility of generalised harassment and discrimination is unreasoned and not amenable to scrutiny. This is unpersuasive, in my view, when the tribunal found that the main basis of the applicant's claim was untrue. It is said that the tribunal failed to take account of the fate of two people, two high-profile relations of the applicant. This is wrong. These matters appear in paragraph 24 of the reasons and are also alluded to in paragraph 16, which I have read.
24. It is said that the tribunal failed to address other questions, but, as I have said, no tribunal is obliged to plough through everything and this tribunal did not purport to do so for sufficient reasons. It is said that the tribunal failed properly to consider the two medical reports. I do not think so, and I have already averted to these matters. Nor is it correct that the tribunal failed to take account of Dr Gratton's view that the applicant had difficulty answering complex questions or understanding matters put to him.
25. In short, in my judgment, the tribunal were entitled to make the credibility judgment which they did, for the reasons which they gave. There is no point of law amenable to appeal to this court and I would dismiss this application.

Lord Justice Laws:

26. I agree entirely.

Order: Application refused.