England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		25th February 2003

1. MR JUSTICE LIGHTMAN: The claimant, Mr Erdogan, is a Turkish Kurd. He seeks in these judicial review proceedings to challenge a decision of the Immigration Appeal Tribunal dated 31st July 2002, refusing permission to appeal from a decision of the Special Adjudicator dated 27th June 2002. By his decision, the Special Adjudicator refused the claimant's appeal from the decision of the Home Secretary dated 1st February 2002 to refuse asylum. Permission to apply for judicial review was granted by Sir Richard Tucker on 6th November 2002.
2. The claimant is a citizen of Turkey aged 23 years old. He entered the United Kingdom clandestinely on 4th December 2001 and claimed asylum on arrival. He immediately obtained assistance from solicitors and with their help prepared a full statement. The formal documentation for an application for asylum was not completed until 17th December 2001 after he had obtained that legal advice and assistance, and the documentation was plainly prepared with the benefit of that advice and assistance.
3. The claimant was interviewed on 28th January 2002, when the solicitors' representative was present. These circumstances explain, as held by the Adjudicator in his decision, why the main details of the claimant's case, as presented by him and on his behalf, were plausible and consistent.
4. The claimant's case, as presented to the Adjudicator, was as follows.

(1) He suffered general hostility and three days' solitary confinement during his military service.

(2) He was arrested on 1st September 2001 when attending a demonstration, and detained three days and ill-treated during that period because of his perceived association with illegal Kurdish organisations.

(3) The ill-treatment that he suffered was indeed serious, but he had no marks or scars because the police were very clever in their torture methods.

(4) He did, however, have bruises on his hand.

(5) On his release without charge, the police told him that they were going to supervise and monitor him. He did not return home.

(6) His home was raided on 24th and 27th October 2001.

(7) He left Turkey illegally about a month later.

(8) Since he left, his family have told him that it would be unsafe for him to return.

(9) His father had been politically active with the PSK and his uncles and aunts had also been involved.

5. The Adjudicator, after examining the evidence of the claimant given in-chief and under cross-examination, stated in paragraph 12 of his decision that the claimant had been largely consistent in the evidence in his statement, interview and the evidence given to the Adjudicator, and that in most respects the claimant's account was plausible. Nonetheless, the Adjudicator stated that the major issue before him was whether the claimant was a credible witness and whether he had satisfied the Adjudicator that his account was true.
6. In paragraphs 13 to 19 of his determination, the Adjudicator carefully examined each element in the claimant's account. In paragraph 13, he examined his treatment during military service and reached the conclusion that, though he may have experienced an element of discrimination during this period, that did not amount to persecution and did not add anything to his claim.
7. In paragraphs 14 and 15, the Adjudicator dealt with the allegations of ill-treatment in police custody and in substance rejected them as incredible for the reasons detailed in those paragraphs.
8. In paragraph 16, the Adjudicator examined and rejected the allegation of involvement of the claimant's father with the PSK as a recent invention raised for the first time at the hearing before him.
9. In paragraph 17, the Adjudicator examined the claimant's suggested connection or involvement with the DVP and, likewise rejected that, stating that the claimant's evidence in that regard again caused him to have doubts about the claimant's credibility.
10. In paragraph 18, the Adjudicator concluded that, though the claimant's account was largely consistent and plausible, this was explicable as the product of legal advice and assistance that he had received and did not affect the clear finding of the Adjudicator that the claimant's account was not credible and could not be true.
11. In paragraph 19, the Adjudicator considered other matters in the claimant's evidence which caused him concern. Paragraphs 20 to 22 read as follows:

"20. In the light of all the above matters, I regret to say I do not find the appellant to be a credible witness. Although his account has been consistent and may well be plausible, I regret to say that I am unable to accept it as true. In my view, the appellant has had some knowledge of the sort of matters relied on in support of an application for asylum, and has fabricated an account in support of his own claim. There are simply too many matters, referred to above, which I am unable to accept. In these circumstances, the appellant has failed to satisfy me that he was persecuted for any Convention reason prior to his departure from Turkey.

21. It is conceded that, if I found the appellant's account to be true, he would be at risk. It seems to me that the corollary must apply. Although the appellant told me that the family was known as politically motivated, he also claimed that the family had received regular visits from the police. However, apart from visits, the appellant did not seek to put before me any evidence that the family in Turkey had suffered problems from the authorities. The appellant sought to rely upon the fact that his uncles in the United Kingdom had been granted indefinite leave to remain in the United Kingdom as refugees, and that some at least of these relatives were sympathisers of the PSK. However, I note that the letter relied upon concerning his uncle Muslum Dogan is dated 1st September 1997, and I was told that that uncle had in fact left Turkey some 11 years previously. I simply have no information concerning the circumstances of that uncle's claim, but in view of the time factor, I cannot see that that assists the appellant in the slightest. Rejecting, as I do, the appellant's account, I am unable to accept that he was involved in politics in any way so as to be of adverse interest to the authorities. If he returns to Turkey, he may face routine questioning, and possibly detention, whilst his details are checked. However, in all the circumstances, the appellant has failed to satisfy me to the necessary standard that he would be at risk from the authorities in circumstances sufficient to amount to persecution by reason of any Convention reason. Accordingly, on asylum grounds, this appeal is dismissed.

22. It must follow, in view of my findings above, that Human Rights issues and asylum issues essentially stand or fall together. A number of Articles are relied upon in the application appeal, but, in the light of my findings, and with the exception of Article 8, which I will address separately, I cannot see that there is any serious risk of the appellant's rights under any of the Articles being breached if he were to return to Turkey".

12. Accordingly, as I said, the Adjudicator dismissed the appeal.
13. The claimant thereupon applied for permission to appeal to the Immigration Appeal Tribunal. The Immigration Appeal Tribunal on 21st July 2002 refused that permission. Paragraph 2 of the decision reads as follows:

"I can find no arguable merit in the grounds of appeal. The Adjudicator found that the applicant was not a credible witness. On the evidence this conclusion was open to him. I am surprised that the respondent's counsel conceded that if the applicant's account of events was true he was entitled to succeed. Whilst some concessions would bind the Adjudicator this would not. The Adjudicator was under a duty to reach his own conclusions. The Adjudicator said that the applicant was largely or broadly consistent, not entirely consistent. He went on to refer to important inconsistencies. There is no reason why an account of events should not be in line with country information but still incredible. The Adjudicator's conclusion that the applicant's account of events was largely consistent and plausible in the light of the country information but still not credible does not indicate that he applied the incorrect burden or standard of proof. Consistency and plausibility are always important factors but not necessarily determinative".

3. The appeal does not have a real prospect of success and there is no other compelling reason why the appeal should be heard".

14. Two issues are raised on this application for judicial review. The first is whether the finding of lack of credibility on the part of the claimant is open to challenge. The second is whether the Adjudicator was entitled to hold that, even if the claimant was credible, despite the concession made by counsel before the Secretary of State that in those circumstances he was at risk of persecution if he returned to Turkey, the Adjudicator was entitled to hold that there was no such risk. The second issue only arises if the finding of lack of credibility by the Adjudicator is successfully challenged. In the circumstances, as a first and possibly only issue on this application, I shall have to decide the issue of credibility. Only if I decide that issue in favour of the claimant, do I need to hear further argument and decide the second issue relating to the concession.
15. On the issue of credibility, three questions are raised. The first matter raised is whether, as a matter of principle, it was open to the Adjudicator, applying the appropriate burden of proof, to find that an account was consistent and plausible, having regard both to matters of common sense and country evidence, and yet make a finding that the evidence was incredible. This was raised as a matter of principle in the notice of appeal of the claimant to the Immigration Appeal Tribunal and finds repetition in paragraphs 15 and 16 of the application for judicial review.
16. In my view, there is no principle that a claimant's account satisfies the requirements for asylum if it is consistent and plausible, nor does it preclude a finding of lack of credibility. The reasoning in this regard of the Immigration Appeal Tribunal is plainly correct. It is a matter of common experience in many cases that witnesses, particularly where their evidence is fabricated, as the Adjudicator found it was fabricated in this case, give consistent and plausible evidence, but their evidence is rejected as a lie. In my view, the invocation of principle by the claimant in this case is misconceived.
17. The second principle, which is much more important, however, is whether the Adjudicator's decision in this case that the claimant's account was largely plausible and consistent is inconsistent with the finding that the claimant's account was not credible.
18. In my view, it was perfectly open to the Adjudicator in this case to point out the very significant exceptions to that general consistency and plausibility, and in reliance on those inconsistencies to find that the account was incredible. There can be no principle of law precluding such an approach and it seems to me, having read with the greatest care the decision of the Adjudicator, that he gave the most anxious consideration to the issue of credibility and the significance of the areas where the claimant's evidence failed on grounds of consistency and plausibility and that he appropriately took into account the areas with the claimant's evidence was consistent and plausible and, in reaching a decision, he was perfectly entitled to reach, as he did, the view that the claimant's case in this case was fabricated, and that his claim accordingly failed.
19. The third matter raised relates to the question whether, on a fair reading of the Adjudicator's decision, he rejected as incredible the whole account given by the claimant or only the identified core elements which he specifically found to lack credibility.
20. Counsel for the claimant submitted to me that, on a fair reading of the decision, the Adjudicator decided that the whole of the claimant's account was incredible and he submitted that such a finding was not tenable, having regard to the finding to which I have already referred that large parts of the case were indeed plausible and consistent.
21. I am happy to proceed on the basis that indeed that is what the Adjudicator held and that was the basis on which the Immigration Appeal Tribunal refused permission to appeal. I do not, however, think that it really makes any practical significance whether one reads the decision as rejecting the whole account or merely the identified elements. They seem to me, as counsel for the Secretary of State said, to be merely two different sides of the same coin.
22. The identified core elements found to be plainly incredible and inconsistent in my view amply justified the Adjudicator in reaching the conclusion that the whole story, or the whole story so far as it is relevant and significant for the purposes of this application for asylum, ought to be rejected as fabricated. The identified core elements are indeed core elements in the claimant's case; in particular I have in mind the allegation of mistreatment whilst in prison.
23. In my view, where so many and so significant features in a case have been found to be fabricated, that is of itself sufficient for an Adjudicator in the exercise of his judgment to say and hold that the whole account given by the party is, for all practical purposes, incredible. I therefore see no basis for challenge of the decision on the ground adduced.
24. I should add that the outcome of this challenge to the decision is the same if the decision is read as a decision, not that the whole account is fabricated, but merely the core elements are fabricated. For if the core elements are rejected it seems to me that the whole of the claimant's claim, for all practical purposes, can and should be rejected, as it was rejected by the Adjudicator.
25. For all these reasons, notwithstanding the persuasive submissions made by Mr Norton-Taylor on behalf of the claimant, this application for judicial review must fail, and I accordingly dismiss it.
26. MR NORTON-TAYLOR: My Lord, I am legally aided in this matter and I seek detailed assessment. I trust the certificate is on the file.
27. MR JUSTICE LIGHTMAN: Whatever the appropriate formula of words is now, it will be there.
28. MR NORTON-TAYLOR: My Lord, I am grateful.