England and Wales High Court (Administrative Court) Decisions

QUEEN ON APPLICATION OF HASAN KAYMAK v. SECRETARY OF STATE FOR HOME DEPARTMENT; IMMIGRATION APPEALLATE AUTHORITY and IMMIGRATION APPEAL TRIBUNAL [2000] EWHC Admin 431 (13th December, 2000)

IN THE HIGH COURT OF JUSTICE CO/961/2000

QUEEN'S BENCH DIVISION

(ADMINISTRATIVE COURT)

Royal Courts of Justice

Strand

London WC2

Wednesday, 13th December 2000

1. JACK BEATSON Q.C.:- In this application for judicial review Mr Hasan Kaymak, an Alevi Kurd aged 31 who is a Turkish citizen, seeks certiorari to quash the decisions of Miss Lingard, the Special Adjudicator promulgated on 3 November 1999 to dismiss his appeal against the Secretary of State's refusal of asylum dated 24 November 1998, and of the Immigration Appeal Tribunal promulgated on 15 December 1999 to refuse him permission to appeal against the Special Adjudicator's decision. Permission to move for judicial review was granted by Elias J on 16 March 2000.

2. The issues before me are whether the Immigration Appeal Tribunal was correct to conclude that, in the circumstances, the Special Adjudicator was entitled (a) to refuse an application for an adjournment to obtain medical evidence, and (b) to conclude that the applicant's credibility was seriously undermined by confusions an discrepancies arising from the Applicant's evidence. The Immigration Appeal Tribunal.

3. The grounds of the application for permission to appeal to the Tribunal are detailed but, as is often the case, the tribunal's decision refusing permission to appeal is short. Save for stating that the adjudicator heard oral evidence from the applicant who she recorded gave calm and coherent replies, the reasons given are formulaic and do not address the issue of the adjudicator's refusal to adjourn the case. Where, as in this case, explicit grounds of appeal are given, more explicit reasons for refusing permission are needed: see for example Kennedy LJ in R v IAT, ex p Sahota [1995] Imm AR 500, 505-506. In my view it is arguable that the reasons given by the tribunal in this case for refusing permission are so inadequate as to suggest the want of any proper consideration by it of the application for permission to appeal. This deficiency in the Tribunal's reasons means that it is necessary for the Respondent to show that no Tribunal would reasonably have granted permission for an appeal from the decision of the adjudicator and the submissions made before me concerned the adjudicator's decision.

4. The refusal of an adjournment: The hearing before the adjudicator was due to take place on 20 September 1999. On 15 September the applicant's solicitors sought an adjournment to obtain a medical report because of their concerns about his psychological condition which they stated came to light when they took appeal instructions. They indicated they were seeking an appointment with Dr Turner at the Traumatic Stress Clinic. Their request was refused. At the hearing there was a further request for an adjournment which was again refused. The adjudicator states that it was refused due to the lateness of the request, the fact that the same instructing solicitors had been acting for the applicant since at least June 1998 when they made detailed representations on his behalf, and also because it appeared to her that if the applicant was suffering from stress this was a situation that was more likely to be exacerbated by a delay in the hearing of his appeal. She also stated that the applicant appeared to give coherent responses in oral evidence and to be able to do so in a relatively calm manner.

5. Rule 10 of the Asylum Appeals (Procedure) Rules 1996 requires that Special Adjudicators should not adjourn an appeal unless satisfied that an adjournment is "necessary" and should have particular regard to the "need to secure the just, timely and effective conduct of the proceedings". Mr Juss, who appeared on behalf of the applicant, submitted that in considering the request for an adjournment the adjudicator only had regard to administrative convenience, did not have regard to the interests of fairness and justice, and thus fell into error. Reliance was placed on the decisions of the Court of Appeal in two personal injuries cases; Boyle v Ford Motor Co Ltd. [1992] 2 All ER 228 and Joyce v King The Times 13 July 1988. In the second of these the brief report indicates that although the question of whether to grant an adjournment is essentially a matter of discretion, where it is clear that it would not be possible for a litigant to obtain justice without one then, regardless of inconvenience, an adjournment should be granted.

6. Mr Juss also submitted that the adjudicator blamed the applicant's solicitors for not getting a medical report in time and that even if, which was denied, this was right, the shortcomings of a party's solicitor should not be visited on that party, especially in an asylum case. He relied inter alia on the decision of the Court of Appeal in Corbin v Penfold Metallising Co. Ltd. The Times, 2 May 2000, concerning the exercise by the court of the discretion under section 33 of the Limitation Act 1980 to extend a limitation period. In that context a claimant is required to act diligently once he knew enough to begin to investigate whether he had a claim and it was held that the faults of the claimant's solicitors' were not to be attributed to him in deciding whether he had acted diligently. This is an attractive argument but Miss Anderson directed me to the decision of the House of Lords in R v Secretary of State for the Home Department, ex p Al-Mehdawi [1990] 1 AC 876, which concerned an alleged procedural impropriety affecting a decision of a special adjudicator. It was held in that case that a person who had been deprived of the opportunity of having his case heard by the adjudicator because of the default of his advisers could not complain that he had been the victim of procedural impropriety or that natural justice had been denied to him. The prejudice to the applicant in that case was stronger than in this. His solicitors had sent a letter informing him of the date of his hearing to an old address and took no further steps when they did not hear from him. He was thus neither present nor represented before the adjudicator who dismissed his appeal. Lord Bridge stated that although the conclusion that there was no procedural unfairness may appear harsh in a deportation case, the applicant was not left wholly without a remedy since it was open to him to obtain a report and submit it to the Secretary of State for consideration under section 21 of the Immigration Act 1971 and referral to an adjudicator. That possibility exists in the present case. I conclude that R v Secretary of State for the Home Department, ex p Al-Mehdawi governs in the present case which is concerned with the fairness of a procedural decision rather than with whether, as in Corbin v Penfold Metallising Co. Ltd, a litigant has acted diligently. In my view, the application of the reasoning in ex p Al-Mehdawi to the present case leads to the conclusion that, if the refusal to grant the adjournment was not otherwise unfair, the fact that it was the fault of the solicitors that a medical report was not obtained in time does not make it unfair.

7. The submissions of Mr Juss were in part premised on the assumption that the request for an adjournment had been made in respect of both psychological and physical injuries. But the letter of 15 September related only to psychological injury and it appears from page 2 of the adjudicator's determination that she considered the request to her was confined to a report regarding the applicant's psychological condition. One of the grounds of appeal to the Immigration Appeal Tribunal is that the adjudicator failed to state that the medical evidence being sought included physical evidence as well as psychological evidence. There is, however, no evidence before me as to whether at the hearing before the adjudicator the adjournment was sought to obtain medical evidence of physical injuries as well as psychological evidence. Witness statements in support of the application were made on 14 March and 12 May 2000 by the applicant's solicitor, Bhapinder Singh but these refer only to a psychiatric report dated 8 February 2000 by Dr Stuart Turner, which I was shown at the hearing but which was not formally in evidence. The notes of the hearing are not exhibited to those statements.

8. Miss Anderson, on behalf of the Respondent, submitted that the discretion given to Special Adjudicators is a wide one. She relied on the decision of the Court of Appeal in R v IAT, ex p. Adrees (18 April 1996) and that of Richards J in R v Special Adjudicator, ex p Kotovas (2 July 1999) in which his Lordship stated that "the court will be slow to interfere" with the exercise of discretion as to whether to grant an adjournment. Mr Juss submitted this was a proper case for interference and that the decision not to grant an adjournment was flawed for a number of reasons. Firstly, there was evidence of psychological confusion given by the applicant. Secondly, the adjudicator considered the applicant would have benefited from medical evidence. Thirdly, Dr Turner's report, which was shown to me at the hearing, would have been of importance in relation to the adjudicator's findings on credibility because it showed the applicant's confusion as to dates had to do with his level of education and general cognitive skills. Finally, it was perverse to use the very reason for which an adjournment is being requested (that the applicant was suffering from stress) to refuse the request.

9. With regard to the submission that there was evidence of psychological confusion, the adjudicator considered that the applicant appeared to her to be able to give coherent responses in oral evidence. I accept Miss Anderson's submission that, as was the case in R v Secretary of State for the Home Department, ex p Odubanjo [1996] Imm AR 504, the adjudicator was entitled to form a view based on her impression of the applicant as to whether fairness required her to grant the adjournment. In ex p Odubanjo Tuckey J stated that an adjudicator "without the benefit of a medical report was entitled to use his own common sense and judgment to see whether it was a case which, in fairness, he should adjourn or not". The observation that any stress the applicant was suffering from was likely to be exacerbated by a delay in the hearing of his appeal was made by the adjudicator who had observed the applicant in the course of determining whether fairness required an adjournment. It was in my view one she was entitled to make and is not at all perverse or unreasonable.

10. The argument that refusal to adjourn was unfair because the adjudicator herself considered the applicant's failure to produce any medical evidence in support of his claims that he had been tortured and continued to suffer psychological effects as a consequence of his having been tortured was central to his credibility is based on two passages in the determination. The first passage, on page 2 of the determination, simply notes that no medical evidence of any nature was adduced in respect of the applicant and does not indicate that the adjudicator considered that the applicant would have benefited from evidence as to his psychological condition.

11. The second passage, on page 7, is solely concerned with evidence concerning whether physical injuries were likely to have been caused by torture or in the manner the applicant had stated. The adjudicator stated "I have further cause to doubt the [applicant's] credibility when he has failed to be consistent about the ill-treatment he received during his detention. In some accounts [he] refers to having been hung up by the arms whereas in other accounts he states he was hung up by his legs. I am mindful that the [applicant] has produced no medical evidence whatsoever to identify that he may have been subjected to torture or any indication that scars he pointed out to me in the hearing room are likely to have been caused in the manner he has stated". This passage does not assist this submission. First, there is no evidence before me that there had been a request to adjourn for a medical report on his physical injuries. Secondly, the adjudicator's comments about credibility relate to the inconsistency in the applicant's accounts of what had been done to him, not the absence of medical evidence.

12. The reasonableness or rationality of the adjudicator's decision to refuse an adjournment cannot be impugned or tested by material that was not before her and indeed not in existence at the time of the decision. Accordingly, the argument that the contents of Dr Turner's report prepared in February 2000 would have been very significant in relation to the adjudicator's findings on credibility is of no assistance in showing that the adjudicator's decision in September 1999 was perverse or irrational.

13. I have concluded the decision by the adjudicator to refuse the adjournment was not arguably irrational. She gave consideration to the specific submissions that were made on behalf of the applicant and her observation of the applicant, and was entitled to reach the view that, having regard to the length of time the solicitors had been acting, the representations they had made on the applicant's behalf, and the lateness of the request, there should not be an adjournment.

14. The Special Adjudicator's finding on the applicant's credibility: The adjudicator concluded that she was unable to find the applicant to be credible on many issues which she regarded as being central to his claims. She found that there were confusions and discrepancies arising from the record of the asylum interview, from subsequent representations made on his behalf by his solicitors, and from the subsequent accounts given by him. This determination on credibility is criticised on the ground that the adjudicator's finding that the applicant's evidence could not be believed turns on matters that on analysis are not discrepancies but ambiguities and which in any event were not put to him. It is also criticised on the ground that, having failed to grant the adjournment sought, the adjudicator considered the applicant's failure to produce any medical evidence in support of his claims that he had been tortured and continued to suffer psychological effects as a consequence of his having been tortured as central to his credibility.

15. The discrepancies found by the adjudicator concerned the reasons the applicant gave for being of interest to the authorities, the reason he gave for being tortured, the account of how he had been treated during his detentions, the period of detention, and the number of times he had been detained. The applicant's case is that on analysis these matters are not discrepancies. So, for example, it is submitted that there was no real inconsistency between him stating at interview that he was tortured because the authorities wanted him to leave his village and later that it was to find out the whereabouts of his brothers, or for giving more than one reason for being of interest to the authorities. In the grounds of appeal to the tribunal it is stated that all the reasons given by him were correct. Similarly, referring to the adjudicator's finding that there was inconsistency about the ill-treatment received because in some accounts the applicant stated he was hung up by the arms and in others that he was hung up by his legs, it is submitted the adjudicator has failed to take into account that both might be true.

16. Turning to the detention, which was at the core of the applicant's claim, in her determination the adjudicator analysed the applicant's accounts in detail. Her analysis can be summarised as follows. In his interview the applicant stated that on being detained he was taken to an unknown place for "a few days" before he was tortured and that he was kept in prison from "June 1997 until February 1998", but also that he was taken to the unknown place for two months before being put in prison. At the end of the interview he stated he wanted to clarify that torturing took place over the first two months and he was "just in prison" for the last four months. Shortly afterwards his solicitors made representations and claimed that he had been detained in total for eight months, the last six months of which were in prison where he had been tortured but less than in the first two months.

17. Mr Juss submitted that great care must be made before making adverse findings of credibility in asylum cases. Accepting this, I conclude that the adjudicator did take such care. Her determination contains a detailed analysis of the discrepancies in the accounts of the detentions and an explanation of the others, and on the evidence before her she was perfectly entitled to find that there were inconsistencies between the different accounts given by the applicant of what he claims were his experiences in Turkey.

18. I turn to the complaint that these discrepancies were not put to the applicant. Mr Juss relied on R v Secretary of State for the Home Department, ex p Mayioskele (18 October 1995). In that case Ognall J stated that an adjudicator's failure to put a discrepancy that was central to a person's asylum claim to that person was arguably of itself a ground of appeal and granted leave to apply for judicial review. The approach taken by Ognall J at the leave stage, however, should be contrasted with that taken in R v IAT, ex p Sahota [1995] Imm AR 500 and R v IAT, ex p Joseph Christy Williams [1995] Imm AR 518. In ex p Sahota the Court of Appeal held that an adjudicator was not obliged to put to the appellant critical questions relating to the determination provided the matter had been canvassed in evidence. In ex p Joseph Christy Williams it was stated (at p 520) that

"... the applicant, who was represented by Counsel, had ample opportunities to put forward the points upon which he relied and to deal with any discrepancies there may have been between his oral evidence and what has been said in his asylum application or in his asylum interview. I do not, therefore, consider that there was any procedural impropriety on the part of the adjudicator. He was not bound as a matter of natural justice to point out the previous inconsistencies in the asylum application or in his asylum interview."

In the present case the matters upon which the adjudicator found that there were discrepancies were canvassed at the hearing before him (see pages 3 - 4, and 6 -7 of the determination). In these circumstances there was no requirement that the adjudicator put the discrepancies to the applicant before reaching a decision. What I have said so far assumes that the discrepancies were in fact not put to the applicant. There is, however, no evidence before me that they were not put to him, nor were the notes of the hearing exhibited to the statements. Miss Anderson rightly observed that this places the court in a difficult position. As with regard to the issue as to the purpose for which an adjournment was sought (paragraph 6 above), if it is sought to set aside a decision on the basis of a factual assumption, this should not be done solely by way of submission; there should be an evidential basis for it.

19. It is then said on behalf of the applicant that, the adjudicator, having failed to grant the adjournment sought, considered the applicant's failure to produce any medical evidence in support of his claims of ill-treatment as central to his credibility. The passage on page 7 of the determination which is relied on is set out in paragraph 11 above together with my conclusion that the link between this complaint and the request for an adjournment has not been made out. As I also noted, I do not in any event consider this passage arguably demonstrates a reviewable error on the part of the adjudicator. Although her comments on the absence of evidence are in the same paragraph as those on credibility, they are not linked to what is said about credibility. The adjudicator's comments about credibility relate to the inconsistency in the applicant's accounts of what had been done to him, not the absence of medical evidence. Since medical evidence is usual in a case where it is alleged that physical scarring has resulted from torture and since the absence of such evidence put the adjudicator in a difficult position in reaching a conclusion about the origin of the scars she was, in my view, entitled to comment on its absence.

20. Mr Juss's final submission is that the adjudicator's conclusions on the objective evidence constitute a misdirection of law in the light of established Immigration Appeal Tribunal cases concerning the position of Kurdish asylum seekers returned to Turkey. He relied on Aziz Kilic v Secretary of State for the Home Department (12 May 2000) and Ali Ozturk v. Secretary of State for the Home Department (9 May 2000). He also relied on the fact that the House of Lords is to hear an appeal from the decision of the Court of Appeal in R v Secretary of State for the Home Department, ex p Turgut. I accept Miss Anderson's submission that R v Secretary of State for the Home Department, ex p Turgut is not of relevance in the present case. That case concerned Article 3 of the European Convention which has a different test from that for asylum claims under the Geneva Convention.

21. The cases of Aziz Kilic and Ali Ozturk are also distinguishable and do not support the submission that the adjuicator's treatment of the objective evidence was arguably flawed. In those cases the adjudicators had accepted the central elements of the appellants' claims concerning involvement with the ERNK and PKK, arrest and ill-treatment. It was accepted that the appellants in those cases would thus have a police record which would show such involvement and periods of detention and in such cases the objective evidence established there was a real risk of further serious ill-treatment and torture. The position of Kurds without such records is different. In Ali Ozturk v. Secretary of State for the Home Department the tribunal stated (para 29) that while "it is well established that a returning failed asylum seeker is likely to be detained and interrogated", "a Kurd in whom the authorities have no interest will be released without serious ill-treatment." In the present case the adjudicator stated that bearing in mind her credibility findings she was "satisfied that when the applicant left Turkey he was not of any real or continuing interest to the Turkish authorities and there is nothing to suggest that if he were now to return to Turkey that he would be persecuted there by the authorities for any Convention reason". She did not accept that he had been detained and ill-treated. After setting out the submissions on the dismal human rights record of the Turkish authorities, she stated that in addition to the finding set out above based on the applicant's lack of credibility, "one cannot conclude on the basis of Kurdish ethnicity alone that a person in Turkey is persecuted". I do not find that her treatment of the objective evidence shows an error of law.

22. Accordingly this application is dismissed.

MR JACK BEATSON QC: For the reasons given in the judgment that I am about to hand down and notify to the parties, I dismiss Mr Kaymak's application for judicial review of the decisions of the Special Adjudicator to dismiss his appeal against the Secretary of State's refusal for asylum, and of the Immigration Appeal Tribunal to refuse him permission to appeal against the Special Adjudicator's decision.

MISS ANDERSON: Your Lordship, did you have an opportunity to see the note that I sent to you this morning?

MR JACK BEATSON QC: No.

MISS ANDERSON: I would aplogise for that. It is just a small matter I have discussed with my learned friend. Section 21 of the 1971 Act has very recently been repealed. It was available to the applicant at the time when judicial proceedings were lodged and has been available sort of throughout, as it were, but it has recently been repealed.

MR JACK BEATSON QC: I say it is available in the judgment, do I not?

MISS ANDERSON: So it would be perhaps possible to say it was available, and of course now there is a much more effective remedy in the form of section 65 of the new Asylum and Immigration Appeals Act 1999.

MR JACK BEATSON QC: Well, I will correct the judgment that I am going to hand down on the copy I will give the shorthand writer to this effect then, subject to what Mr Juss says, but I will correct it by saying in paragraph 6 at page 4, the sentence that says, "That possibility exists in the present case," I will say, "That possibility existed in the present case, and there is now an alternative under section 65 of the 1999 Act."

MISS ANDERSON: It is probably not necessary to say it, but for your information, your Lordship, there is actually a much more effective remedy, but the decision of the Special Adjudicator is binding, whereas under section 21 it was merely advisory. Of course, any new evidence that pertains to the case can be put before the Special Adjudicator as of right.

MR JACK BEATSON QC: This is the Asylum and Immigration Appeals Act, is it not?

MISS ANDERSON: Yes, 1999. The framework for the appeal is of course human rights, but it would clearly be apt in this case to take account of the medical evidence.

MR JACK BEATSON QC: Yes.

DR JUSS: My Lord, in the same vein, the only correction if I may make to the transcript is paragraph 17, "Mr Juss submitted that great care must be taken".

MR JACK BEATSON QC: Yes, "Mr. Juss submitted that great care must be made".

DR JUSS: Must be taken.

MR JACK BEATSON QC: Must be taken.

DR JUSS: Yes.

MR JACK BEATSON QC: I accept that.

DR JUSS: My Lord, that aside, I apply for permission to appeal to the Court of Appeal.

MR JACK BEATSON QC: I think you must go to the Court of Appeal and ask for permission. I do not think that this is a suitable case for me to give permission. There were many points that you raised, but, in the event, I have come to a careful conclusion, and I do not think that the test has been satisfied for me to give permission, that a reasonable arguability of appeal is made out.

DR JUSS: I am grateful, my Lord. My Lord, I am legally aided. If I may apply for the appropriate order.

MR JACK BEATSON QC: Yes. What is the appropriate order?

MISS ANDERSON: I think there is a new terminology, is there not? I think that the matter of costs will be subject to a further order, I think. I am sure the associate would have the wording on file.

MR JACK BEATSON QC: We will draw up the file in the usual order for the legal aid assessment. I am very grateful to both of you.