QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF DAGDELEN||(CLAIMANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS SUSAN CHAN (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the DEFENDANT
Crown Copyright ©
Wednesday, 18 June 2003
"I do not accept his claim that he joined the PKK militia after his military service."
"In view of the outcome of the various detentions of the Appellant and my findings in that regard, I would not place this Appellant in a risk category, despite the family history, particularly in view of my rejection of the last alleged incident."
The adjudicator then dealt more specifically with the position of the claimant as a failed asylum seeker. He did this in paragraph 28. He said this:
"I have also considered the position of failed asylum seekers on their return to Turkey. Sections 5.85 - 5.91 in the CIPU Report deals with the issues at some length. 5.87 in particular sets out categories into which the 70 cases of ill treatment on return appear to have fallen. I have assumed that he would be checked out with records and found to have been arrested on a number of occasions but released without charge. I have already decided that he would not be of interest to the authorities because of this past record and I would not consider that there is a serious risk of ill treatment on arrival because of this record. The only other category into which he might fall is that of a person with family connections with the PKK. 2 of the 70 incidents fell into this category. Set against the total number of returnees this is barely measurable and I would not find there is a serious possibility of ill treatment of the Appellant as a result."
"The adjudicator accepted that the applicant was arrested on the various occasions claimed by him and that he was subjected to ill treatment during detention, although perhaps not with the severity he alleged. The Adjudicator found that none of the arrests resulted from his participation in PKK activities. It is this finding that has given rise to the grounds of appeal.
However the Tribunal is of the view that the Adjudicator's finding, which is well-reasoned, is based on a reflection of the evidence that was before him. The Adjudicator properly dealt with returnability and, [in] the light of the objective material, was entitled to reach the conclusions that he came to. His conclusions disclose no misdirection if law.
Accordingly, there is no likelihood of an appeal succeeding were leave to be granted."
On the basis of this analysis the Vice-President went on to set out her conclusion that leave to appeal should be refused.
"It is arguable that the adjudicator failed to take account of the political involvement of other members of the Claimant's family in deciding that he would not be at risk on return."
"Because the rules place an onus on the asylum-seeker to state his grounds of appeal, we consider that it would be wrong to say that mere arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the special adjudicator or, so far as the tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in a search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely 'arguable' as opposed to 'obvious'. Similarly, if when the tribunal reads the special adjudicator's decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. It follows that leave to apply for judicial review of a refusal by the tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the grounds of appeal to the tribunal had a strong prospect of success if leave to appeal were to be granted."