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Koca v Secretary of State for the Home Department [2002] ScotCS 300 (22 November 2002)

OUTER HOUSE, COURT OF SESSION

OPINION OF LORD CARLOWAY

in the petition of

MEHMET KOCA (A.P)

Petitioner;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

for Judicial Review of: (1) a Determination of an Immigration Appeal Adjudicator dated 7^th February, 2002 refusing the petitioner's claim for asylum; and (2) a Decision of the Immigration Appeal Tribunal dated 19 March 2002 refusing leave to appeal

________________

Petitioner: Bovey QC, Blair; Drummond Miller WS

Respondent: Lindsay; the Solicitor for the Advocate General for Scotland

22 November 2002

1. FACTS

(a) The Immigration Authority

The petitioner is a Turkish national, born in 1973. He is an Alevi Kurd. He left Turkey in or about February 2000 and arrived at Dover in a lorry on or about 7^th March 2000. He made a claim for political asylum under and in terms of the Convention Relating to the Status of Refugees executed at Geneva in 1951 (Cmd. 9171) as amended by the Protocol made at New York in 1967 (Cmd. 3906) on the basis that he had a well founded fear of being persecuted in Turkey for reasons of race, religion and political opinion. More specifically, initially the persecution was said to stem from four sources: his ethnic origin as a Kurd; his religious views as an Alevi Muslim; his support for certain Kurdish political groups; and his opposition to military service in the Turkish army. He maintained that being returned to Turkey by the respondent would be a breach of article 3 of the European Convention on Human Rights and Fundamental Freedoms having regard to the risk of torture or inhuman and degrading treatment.

Shortly after his arrival in the United Kingdom, he, or rather a solicitor on his behalf, completed a questionnaire known as a SEF (statement of evidence form) [Pro.6/2 pp. A1-22]. It is dated 03/08/2000 but this must be an error since it must have been completed in advance of a later Interview in April 2000 which refers back to it. In any event, by the time of the questionnaire, the petitioner was living in Sighthill, Glasgow. In the questionnaire, he said that he had travelled by lorry from Turkey, but did not know which countries he had travelled through. His explanation for leaving Turkey was :

"After Ocalan was arrested the Turkish authorities and facists gave us lots of harassment. We had stones thrown at us. On 15/02/00 there was a protest march re Ocalan's detention. I managed to run away but my friend Yusuf Akca was arrested and under torture gave my name. The soldiers raided my house. I was not there. I was very scared and decided to flee Turkey."

In relation to his political opinions, there was the following exchange in relation to the pro forma questions :

"1. The name of any political organisations with which you have been involved either in the United Kingdom or abroad.

Sympathiser of PKK

2. When and where did you become involved with this organisation

After 1990 in village of Kirkisirak.

3. Any reason why you cannot move to a different village or part of the country.

Kurdish people get the same treatment everywhere in Turkey.

4. When you officially joined this organisation and why

I did not join. I was not an official member.

5. The nature of your involvement with them...

I gave the PKK food, clothes and medicine and was a guide.

6. Any posts/position in this organisation and any activities undertaken with or on behalf of this organisation.

No.

7. Any rallies or demonstrations you have attended...

All the newpoz celebrations and massacre protests. Each May day demonstration.

8. Have any of you family members also been involved in these or any other organisations ?...

All my family were PKK sympathisers."

In relation to military service, the petitioner said that he had received his call up papers in 1993 but had not gone because :

"I am Kurdish not Turkish. I do not want to support Turkey. I am against the use of violence and guns."

He continued :

"I could not stay at home after I failed to attend my medical for military service. I used various false ID cards with names such as Ali Aysolan and Huseyin Yabainkaya."

On 14^th April 2000 in Croydon, England, the petitioner was interviewed with the assistance of a Turkish interpreter. In a preamble to the Interview, he said that he was tired before the interview, having travelled all night from Glasgow. He was otherwise fit and well and was aware and happy about the content of the previously completed SEF. A representative from his solicitors was present at the interview. In a further preamble, the basis of the claim for asylum was said to be persecution as a result only of his race or ethnic origin and religion but not political opinion or avoiding military service [Pro. 6/2 p B5]. In relation to the bulk of the Interview, most of the questions and answers were recorded in longhand [Pro. 6/2 pp B1- 15]. These included the following :

"[Q 5] When did you decide to come to the UK ?

[A] On the 15^th January when we were protesting on Abdullah Ocalan arrest one of my friends got caught. Apparently during torture he gave my name. After his arrest I did not stay at my home. I thought he would give my name. Two days after his arrest the military raided my home, but I was not there because I knew he would give my name and since 1992 December I lived with a fake Id.

[Q 6] Do you know he gave your name or do you think he did ?

[A] Definitely he gave my name. The military thought I was on the mountains the last 8 years. They did not think I lived in Turkey.

[Q 7] Why do they think you had lived in the mountains for the last 8 years ?

[A] Because a few times they went to my father and said "We shot your son" and my father said "No, my son is not on the mountains but I don't know his whereabouts....

[Q 13] Have you been a member of a political party ?

[A] No. But I sympathise with Kurdish parties.

[Q 14] In what way ?

[A] The PKK, HADEP and previously DEP...

[Q 15] Have you ever actively supported those parties ?

[A] During elections I recruited more people to vote for HADEP and before that DEP...

[Q 16] Have you ever helped PKK ?

[A] Whenever they came to our village we gave them food and drink.

[Q 18] Never helped in any other way ?

[A] Because we knew the area sometimes we told them secure areas, e.g. caves on mountains...

[Q 20] Are you able to freely practise your religion ?

[A] I never practised my religion but my family did.

[Q 21] After your call up did you continue to live in the same village ?

[A] No I did not live in the same village. I went there sometimes but I did not live there...

[Q 24] Did anyone come looking for you when you did not report for your military service ?

[A] Yes many times.

[Q 25] Why leave now ? Why not continue to live there ?

[A] The military generally thought I was with the PKK but when my friend got caught they realised I was not on the mountains with the PKK but in the town."

By decision letter dated 12^th January 2001 [Pro. 7/5], the petitioner's application was refused. The decision first dealt with the claim relative to the petitioner's Kurdish ethnic origin. The letter recognised human rights abuses especially in the five provinces in the south east of Turkey most affected by the conflict between the Turkish government and the PKK. However, it relied on the fact that the petitioner did not live, nor would he be required to go to, these areas and stated that as a generality there was no evidence to demonstrate that being of Kurdish origin was of itself sufficient to demonstrate a well-founded fear of persecution in Turkey. Secondly, the letter dealt with the petitioner's claim in relation to military service and dismissed it on the grounds of implausibility (later called lack of credibility) for two reasons. First, any conscientious objection to military service as stated in the SEF was inconsistent with the petitioner's admitted support for the PKK, which it found to be a well known terrorist organisation. Secondly, the letter picked up an apparent inconsistency in the petitioner saying at interview that he had lived under fake identities since December 1992, because of his decision not to respond to his call up papers, yet in the SEF saying that his call up had not occurred until 1993. It also rejected the notion that any fear of persecution stemmed from the petitioner's call up given the time lapse since that had occurred. Thirdly, so far as political involvement was concerned, the letter dealt with this briefly by concluding that any enquiries about the petitioner by the authorities would have been justified by reason of his admitted involvement with a terrorist organisation. Fourthly, in relation to religion, it was noted that one third of the Muslim population in Turkey was Alevi and that there was no evidence of persecution, albeit that some, both Turks and Kurds, were viewed with suspicion by Sunni Muslims. Furthermore, the petitioner had not said that he practised his religion. Finally, as a general remark said further to reduce the petitioner's credibility, it was stated that a genuine refugee would have sought asylum in the nearest safe country and not delayed until arrival in the United Kingdom. The significant point to note at this stage is that the petitioner's credibility was in issue, indeed was criticised on several fronts, in the letter of refusal. The decision that the petitioner had not established a well-founded fear of persecution was based, to a significant degree, on his lack of credibility.

(b) The Adjudicator

The petitioner appealed to an Adjudicator. A substantial number of additional documents was placed before the Adjudicator. One of the documents was a Statement of Additional Grounds which stated :

"...I am an Alevi Kurd of Turkish nationality. I assert my cultural and ethnic identity. I support political organisations which seek to defend Kurdish political rights. I wish to express my political views by way of exercising my right to freedom of thought, expression, assembly and association. I do not support ...the violence of either Kurdish or political organisations nor the Turkish State and I am not prepared to be involved in such activities."

In terms of a Practice Direction issued by the Chief Adjudicator on 27^th July 2001, in proceedings before an adjudicator : "In normal circumstances a witness statement should stand as evidence in chief". A witness statement appears to be something akin to a precognition prepared by a solicitor and later signed by the witness. Another document placed before the Adjudicator was then a witness statement of the petitioner [Pro. 6/5], presumably prepared by his solicitor. It included references to the petitioner's experiences in the early 1990s, which it was accepted were only of background or marginal relevance, and continued :

"5 From the late 1990s onwards, I was a supporter of HADEP. I was a member. I did not have a membership card. HADEP being a legal party some members do have membership cards but as I shall explain by this time I was living underground under false identities. It would have been foolish and dangerous of me to have a membership card. I went to meetings. I went once a month or so. They were in Sariz and the neighbouring villages. The meetings were in people's houses. The main meeting place was the house of Yusuf Akca. Yusuf Acka is my cousin and also my friend. He is the main person who organises HADEP in the area.

9 As a HADEP activist I was travelling around the areas close to mine attending and speaking at meetings...

10. My father told me while I was "in hiding" that uniformed soldiers came to the farm looking for me twice, in 1994 and 1997. They thought, wrongly, that I had joined the PKK. They told my father that they suspected me because I had avoided military service. In the mind of these people you are either with them or you are against them. On the first occasion I was in Kavaktepe, the neighbouring village, on HADEP business. On my return my father told me that the authorities had been looking for me about week earlier. On the second occasion I was away in Carsak involved in a HADEP house meeting and when I got back my father told me that they had told him that I had been killed by security forces and that he should collect my body. This happened in 1997. My father didn't believe them since he knew that this could not be true as I would not and did not join the PKK...I was generally sympathetic to the PKK in terms of its protection of Kurdish rights and assertion of Kurdish identity, but did not support its armed violent activities, and I never joined them...

12. On 15 February 1999, Ocalon was taken to Turkey. I appreciate earlier I said that it was in 2000. This was a misunderstanding and is certainly not true. I would point out that at the time I was interviewed on 14^th April 2000 the Home Office had insisted on interviewing me in Croydon even though they had dispersed me to Glasgow. I had travelled all night on the train. I was given enough money to go in the sleeper car but I didn't manage to get much sleep...What I meant was that there were demonstrations on the anniversary...

14. About three days after the demonstration my father came to the house and told us that the army had been to my parents' home the previous day and had been looking for me...

15. It was becoming more difficult to find places to hide. I was tired of living in secret. I decided to leave the country..."

Yet another document was a relatively detailed "Chronology and Skeleton Argument" [Pro. 6/6]. This was framed in the style of a written legal submission. It stated that the principal basis of the petitioner's claim for asylum was that :

"if returned to Turkey there is a reasonable likelihood or substantial possibility that he will be detained as an actual or perceived Kurdistan Workers' Party (PKK) sympathiser and subject to mistreatment and probably torture."

A subsidiary ground remained based on his refusal to perform military service, this time centring upon the conduct of the Turkish military in human rights abuses, notably the village clearance programme in the south east, at the time of the petitioner's refusal to respond to his call up. Finally, he founded upon the adverse attention which he said he would receive as a returned asylum seeker. The section in this document on chronology attempted to draw together all the material into a coherent whole and contained detailed cross references to the SEF, the Interview and the Witness Statement. There then followed an assessment of the petitioner's claims, notably their credibility and reliability, under reference to the well known acts of oppression by the Turkish authorities against the Kurds generally over the years and referred to in "Turkey Country Assessment" of April 2001 by the Country Information and Policy Unit [Pro. 6/3] and the report prepared by David McDowall [Pro. 6/1/1]. The next section was an assessment of future risk and was expressly predicated on the credibility of the petitioner's account. It stressed :

"4.4 The appellant's principal submission is that on the facts of his case the single most indicative factor is that he is under suspicion of involvement in the PKK...

4.5 It is therefore submitted that the key question before the adjudicator is whether there is a reasonable likelihood that the appellant would if returned to Turkey be perceived as a PKK sympathiser. It is submitted that it is reasonably likely that the appellant is now known to the authorities as prominent in HADEP...it is submitted that it is reasonably likely that just the fact of the appellant's HADEP activism will now lead to his being a PKK suspect.

4.6 It is however submitted that two additional factors increase the risk of the appellant being perceived as a PKK suspect. First, there is the fact that he comes from an area where the government has had enough suspicion of the inhabitants to raze a nearby village...Then there is the fact that in 1997 the army disclosed to the appellant's father their suspicion that he was with the PKK in the mountains."

As foreshadowed earlier in the document, the argument concerning military service was confined to one relating to the petitioner being persecuted for not joining an army engaged in atrocious acts, namely the displacement of villagers. The argument concerning the risk to returnees was also based partly on the petitioner's claims in relation to his political activities.

The appeal was heard by an Adjudicator at Glasgow on 11^th December 2001. The respondent was not represented at the hearing and had not made any written submissions. I was informed that the absence of a representative was because of financial constraints. There was no particular policy concerning which appeals merited representation and which did not, although the respondent would attempt to be represented at hearings involving particular matters of general importance. The absence of a representative for the respondent would, of course, mean that there would be no cross-examination. As noted above, the practice direction already seems to discourage examination-in-chief. The somewhat unusual situation was then that there would be virtually no oral testimony from the petitioner at all in a case in which his credibility appeared to be a, if not the, live issue.

The problem thought to be created by the absence of a representative from the respondent was highlighted in a starred appeal (i.e. one which adjudicators must follow) before the Immigration Appeal Tribunal, MNM v The Secretary of State for the Home Department [2000] INLR 576. There, it was said by Collins J that :

"18. The absence of representatives on behalf of the Home Office has been regularly criticised by adjudicators and the tribunal. While we appreciate the problem created by the increase in the number of cases and the consequential increase in sittings, in an adversarial process which appeals to the Immigration Appeals Authority involve, it is very difficult for the adjudicator if the Home Office is unrepresented. It is as if in a criminal case the Crown were unrepresented. The adjudicator cannot and cannot be expected to conduct its case for the Home Office. Equally, he will be understandably and correctly reluctant to let what he regards as an improbable account lead to a wrong decision because it has not been tested or all relevant material has not been produced.

19. In Muwyinyi v The Secretary of State for the Home Department...the President observed that adjudicators were not bound to accept accounts at face value but could and should probe apparent improbabilities. However, they must not involve themselves directly in questioning appellants or witnesses save as was absolutely necessary to enable them to ascertain the truth and must never adopt or appear to adopt a hostile attitude. This is wholly consistent with the Surendran guidelines which show how the adjudicator should conduct such an exercise. We have decided to incorporate those guidelines in this determination and append them as an annex to it. They must be observed. If they are not, there is a real danger that the hearing will be regarded as having been conducted unfairly."

In the particular circumstances, the Tribunal had held that the adjudicator had acted unfairly by taking the appellant's witness statement and asking questions of the appellant in respect of each paragraph before, at the end of each set of questions, permitting her barrister to clarify any matter arising. The Tribunal annexed the previously circulated Guidelines. For reasons which will become clear, it seems that the Adjudicator in the present case had these Guidelines in mind. They include the following :

"2 The function of the adjudicator is to review the reasons given by the Home Office for refusing asylum within the context of the evidence before him and submissions made on behalf of the appellant, and then come to his own conclusions as to whether or not the appeal should be allowed or dismissed. In doing so he must, of course, observe the correct burden and standard of proof.

3. Where an adjudicator is aware that the Home Office is not to be represented, he should take particular care to read all the papers in the bundle before him prior to the hearing and, if necessary, in particular in those cases where he has only been informed on the morning of the hearing the Home Office will not appear, he should consider the advisability of adjourning for the purposes of reading the papers and therefore putting the case further back in his list for the same day.

4. Where matters of credibility are raised in the letter of refusal, the special adjudicator should request the representative to address these matters, particularly in his examination of the appellant or, if the appellant is not giving evidence, in his submissions. Whether or not these matters are addressed by the representative, and whether or not the special adjudicator has himself expressed any particular concern, he is entitled to form his own view as to credibility on the basis of the material before him.

5. Where no matters of credibility are raised in the letter of refusal but, from a reading of the papers, the special adjudicator himself considers that there are matters of credibility arising therefrom, he should similarly point these matters out to the representative and ask that they be dealt with, either in examination of the appellant or in submissions.

6. It is our view that it is not the function of a special adjudicator to adopt an inquisitorial role in cases of this nature. The system pertaining at present is essentially an adversarial system and the special adjudicator is an impartial judge and assessor of the evidence before him. Where the Home Office does not appear the Home Office's argument and basis of refusal, as contained in the letter of refusal, is the Home Office's case purely and simply, subject to any other representations which the Home Office may wish to make to the special adjudicator. It is not the function of the special adjudicator to expand upon that document, nor is it his function to raise matters which are not raised in it, unless these are matters which are apparent to him from a reading of the papers, in which case there matters should be drawn to the attention of the appellant's representative who should then be invited to make submissions or call evidence in relation thereto...

7. Where, having received the evidence or submissions in relation to matters which he has drawn to the attention of the representatives, the special adjudicator considers clarification is necessary, then he should be at liberty to ask questions for the purposes of seeking clarification. We would emphasise, however, that it is not his function to raise matters which a Presenting Officer might have raised in cross-examination had he been present.

8. There might well be matters which are not raised in the letter of refusal which the special adjudicator considers to be relevant and of importance...Where these are matters which clearly the special adjudicator considers he may well wish to deal with in his determination, then he should raise these with the representative and invite submissions to be made in relation thereto."

The detailed record of the proceedings before the Adjudicator [Pro. 6/11], which I was informed was composed by the Adjudicator herself during the hearing, recorded the absence of a representative for the respondent. The appellant was, on the other hand, represented by an experienced practitioner on immigration matters. At the start of the hearing, the Adjudicator, apparently conscious of the Guidelines, adjourned the hearing on the basis that, whilst she had looked at the papers that morning, she required to re-read the statements in case there was any point upon which she required clarification. Upon reconvening, the petitioner was led in evidence by his representative in the sense that he agreed that his witness statement be regarded as his evidence, it having been read over to him by an interpreter and he had confirmed its truth and accuracy. There was no further examination-in-chief. The Adjudicator then asked some thirty two questions. These included :

"Q. 1 Can you tell me when you went into hiding ?

Before 1993.

Q. 2 Why?

They were looking for me because they were accusing me to be a member of PKK and supplying the PKK with stuff and I would have been detained and disappeared same as hundreds of other people.

Q. 3 Were you supplying stuff to the PKK?

Yes I used to supply them with food and medicine and whatever they ask us."

The petitioner explained that although hiding and using fake identification documents, he continued throughout to work on his father's farm. He continued :

"Q. 11 When and how did you receive the letter asking you to do military service ?

The letter came to my home because we were living at the same address but I refused to go because war between 2 nations and I did not want to kill my own people and I am against arms.

Q. 12 So when did the letter come to your home. ?

It was about 45 days before 1993.

Q. 13 Over a month ?

Yes.

Q. 14 So that was at the time you left home ?

Yes.

Q. 15 But you said you went into hiding because you were helping the PKK or were accused of being a member of the PKK ?

Because I never turned up to go to military service and they thought I went away and joined PKK.

Q. 16 I want to be clear - was the reason you left home because you got the call up for military service ?"

At this point the adjudicator noted that he began answering at length and was halted so that his answer could be broken down into shorter parts. The question was repeated and the questioning continued :

"Because I was called up for the army was only one reason but another reason was that I was accusing to be a supporter of the PKK...

Q. 20 I find it difficult to understand how you could have lived in hiding and raised a family ?

The authorities did not know that I had a family or I had any children even though I did.

Q. 21 Were you living together as a family ?

Only sometimes but most times she used to stay with her father...

Q. 22 You decided to leave...

It was the anniversary of the Abdullah Ocelan capture. They organised a demo in Sariz. In that demo the police attacked us and my uncle's son has been arrested. When I come back at nightime I ask my uncle if his son is back, whenever they told me he was not returned to house and then I went away and did not stay because I thought it was dangerous and the next day the army raided my house and for that reason I think my uncle's son gave my name to the authorities. I was sure that they would know I was living in that area.

Q. 24 When you say they raided your house, which house ?

There is a village called Kirkisrak, about 25 kilometres away from Sariz

Q. 25 And did you live there with your family ?

Yes...That was my permanent address, always I had been there, apart from when I was hiding in around the villages. That is where I stayed with my fathers."

The Adjudicator then explained that she was having difficulty understanding what the petitioner was saying about where he had been staying from 1992 to 2000 because he was now saying that he was living at his father's house, except when hiding, but in the statement was saying that he stayed away from home but worked there. She asked the petitioner's representative to clarify the matter in re-examination. He attempted to do that but perhaps not with total success.

When it came to submissions, the petitioner's representative asked whether he required to address the Adjudicator on credibility and she said that he did. She recorded that this was because the Home Office Presenting Officer had raised it but presumably meaning that it had been raised in the refusal letter. The petitioner's representative then did address credibility and, in particular, the points about where the petitioner had been living. He accepted that the petitioner had not been clear on this matter. He addressed the petitioner's version concerning why he had left Turkey in 2000 and submitted that he had become animated during this passage which was significant in that this demeanour enhanced his credibility. A longhand note, presumably written by the Adjudicator, commented : "It was his longest answer but to say he was animated would be pushing it !" The petitioner's representative went on to submit that the evidence demonstrated that he was under suspicion of involvement with the PKK and that the petitioner had established an intense involvement with HADEP. He made reference to his skeleton argument in that regard. In relation to the military service argument, the petitioner's representative recognised that the petitioner had not said that the reason why he did not want to join the military was because of its involvement in the inhumane village clearance programme. He concluded by asking the Adjudicator to uphold the appeal apparently only on the single ground of suspected involvement with the PKK and daily intense involvement with HADEP. The arguments based on Kurdish ethnicity, Alevi religion and military service appear to have faded into the background and the petitioner focused on the political aspect of his case. That focus is also what the Adjudicator recorded in her note of the submissions to her, although there was an additional reference to the possibility of any punishment for draft evasion amounting to persecution.

In the Adjudicator's written decision dated 7^th February 2002 [Pro. 6/1/6, 7/1] it was not disputed that she had correctly directed herself on the ultimate question, that is to say whether the petitioner had shown that he had a well founded fear of persecution for a Convention reason in the sense of there being a reasonable degree of likelihood that he would be persecuted for a Convention reason if returned to his own country. In proceeding to answer that question the Adjudicator set about assessing the material before her. She first accepted that the petitioner was an Alevi and a Kurd but did not consider that these facts of themselves were sufficient. Indeed these matters had not ultimately been pressed upon the Adjudicator on the petitioner's behalf as per se involving a well founded fear of persecution. The Adjudicator then went on to assess the claim in relation to the petitioner's contention that he had a well founded fear because the authorities suspected him of involvement with the PKK. She rejected this contention for a number of reasons relating to the credibility of the petitioner's evidence. First, she noted that the petitioner's family were all said to be PKK sympathisers yet had not been persecuted. In that connection she criticised the lack of detail relative to an alleged disappearance of the petitioner's brother. Secondly, she noted that in the Additional Grounds of Appeal (supra) it was not said that the petitioner would, if detained as a returned asylum seeker and evader of military service, be suspected of PKK involvement. Thirdly, and most important in the context of the submissions to her on appeal, the Adjudicator went on to consider the petitioner's contention that the military suspected him of PKK involvement.

The Adjudicator dismissed the petitioner's claim that he gave practical support to the PKK in the form of food and drink on the basis that, if the rest of his account were true about him living in the houses of others although working at his father's farm, he simply would not have been in a position to do this. Next she analysed his account that his father had told him that the military thought he was in the mountains with the PKK albeit that his father had refuted this when the military called. This passage was heavily focused upon in the judicial review proceedings. The Adjudicator said :

"16 it cannot be true that every Kurdish evader of military service is regarded by the authorities as a PKK member and has fled to the mountains to assist them, particularly when the appellant is in an area not directly in the OHAL region. I note Mr McDowall states that nowhere is safe in Turkey if one is suspected of dissident views. The report to which he refers, 'Asylum Seekers from Turkey' was not enclosed in the bundle of papers. However, the appellant lives in the centre of Turkey so far as I can tell from the map, well away from active PKK areas. I also note that the appellant has been in touch with his father by telephone since he left Turkey and it seems somewhat surprising that having current contact with him, he was unable to provide any evidence from his family that the military have been to the family home searching for him and alleging that he is a PKK member."

On this basis then, the Adjudicator rejected the petitioner's contention that his father had informed him that the authorities believed him to be with the PKK as "implausible". Nevertheless, she went on to consider whether the authorities would now consider him to be involved with the PKK now that he had disappeared and was known to be involved with HADEP. This required a study of the evidence of his involvement with HADEP. The Witness Statement produced for the hearing before the Adjudicator had stated that not only had the petitioner been a member of HADEP but had been a party activist. However, as the Adjudicator observed, in rejecting this evidence, the initial SEF had not mentioned involvement with HADEP despite a question specifically aimed at political involvement. Furthermore, as the Adjudicator also pointed out, the petitioner had not said he was a member of HADEP at Interview. In analysing the apparent discrepancy, the Adjudicator stated :

"20 He said he was tired in the interview. However, I assume he was not tired when he completed the SEF form with his solicitor. He must have known whether or not he had been a member of any political party and to say on two occasions prior to refusal of his application that he was not now nor had been a member of any political party either in the UK or when abroad, and then to change this to a claim of being an active member of HADEP subsequent to the refusal of his claim for asylum is seriously damaging to his credibility. The picture which the appellant paints of himself after the appeal as a very active member of HADEP speaking at meetings, etc. is very different to the first picture he presented of himself. It is a very different thing to be a sympathiser of the PKK and previous parties concerning Kurdish interests than to being a political activist travelling the country, attending and speaking at meetings which is what the appellant had changed his claim to by the time he made his statement after refusal of his claim".

The Adjudicator also noted the absence of any reference to active membership of HADEP in the additional grounds. She concluded that his claimed membership of HADEP was made up to bolster his asylum application.

In looking at the petitioner's specific grounds for leaving Turkey and his account about his cousin being detained at a demonstration and giving his name to the authorities, the Adjudicator said that the petitioner had left Turkey some time after or at the end of February 2000. He had twice, in the SEF and at Interview, given the date of the demonstration as taking place on 15^th February 2000. Latterly, he had said it had been attended by 10,000 people. However, the report from the petitioner's expert, Mr McDowall, recorded that Ocalan had been detained in February 1999 and, although the demonstration might have been an anniversary protest, he had not said that any such protest had occurred. The petitioner had again used the explanation of tiredness to explain his earlier error and had said that Mr McDowall's supposition of anniversary was accurate. However, the Adjudicator, on this evidence, rejected the petitioner's account that there had been any such demonstration in February 2000 and presumably the related evidence about the cousin's arrest, torture and incrimination went with it. Ultimately, the Adjudicator held :

"23 that the appellant was a supporter, not a member and did not hold a position with HADEP despite his later claims to be an active member and therefore he is not in danger of being suspected as a threat to the government on grounds of any sympathy or support he has for HADEP."

The Adjudicator found that the petitioner had been avoiding the authorities since 1992 because of his desire to avoid military service. She accepted much of his evidence about living a clandestine life and thought that the discrepancy between the 1992 flight and 1993 call up was insignificant. She considered his flight from Turkey was prompted by his desire on the one hand to avoid military service but on the other hand to renounce the clandestine life which had been wearing him and his family down. She noted that the claim regarding persecution stemming from compulsory military service had all but been abandoned by the petitioner given his initial account of why he did not want to join the army and the subsequent alteration regarding fighting his own people, which it was found he would not have to do. This left the single question of the petitioner's claim that he would still be persecuted as a failed and returned asylum seeker who had attempted to avoid military service. The Adjudicator wrote :

"27 Mr McDowall argues that as an Alevi Kurd he would be subjected to ill feeling from within the armed forces although he was not able to quantify the risk or provide evidence within his report. He referred to evidence regarding Kurds in military service but none was produced with the report. The CIPU report states that both Turkish and Kurdish Alevis may be subjected to some bureaucratic discrimination as are other ethnic and religious minority groups in Turkey. However, it is stated in that report that there is no evidence that Alevis are persecuted on account of their religious beliefs by the Turkish state. He would suffer some consequences on his return as being an evader of military service. It is possible that he would be obliged to serve a sentence of imprisonment before being sent to carry out his military service. No differentiation is made between evaders who remain in Turkey and those who migrate abroad. The appellant would have suffered these consequences whether he had given himself up in Turkey or upon his return. The evidence does not support the contention that such consequences would amount to persecution although I note that there is not much evidence in this regard. On the evidence before me I do not find that the appellant would suffer persecution because he is an Alevi Kurd in military service or by the fact that he was an evader of military service."

The appeal was dismissed.

(c) The Immigration Appeal Tribunal

The petitioner sought leave to appeal to the Immigration Appeal Tribunal. The Grounds of Appeal [Pro. 6/8] criticised the Adjudicator for displaying "an over eager inclination to base her decision on credibility". They sought to tread a narrow path between the terms of the Guidelines (supra). First, they maintained that the Adjudicator had over stepped the mark set out in the Guidelines by straying into the shoes of a cross-examiner. Secondly, they said that, since she eventually founded upon it, the Adjudicator ought to have put the discrepancy between the contents of the SEF and Interview on the one hand and the Witness Statement on the other relative to HADEP membership to the petitioner when giving evidence or to his representatives in submissions. Thirdly, it was claimed that the adjudicator had placed undue weight on the HADEP point as distinct from the claim of PKK support. The Grounds detailed other matters which, it was said, the Adjudicator ought not to have placed weight upon, such as the absence of supporting evidence from the family in Turkey and the absence of any material to say that there had been a demonstration in February 2000 to which the petitioner had made reference.

In support of the petitioner's position, a supplementary witness statement [Pro. 6/9] was produced. This commenced in terms critical of the Adjudicator in founding upon the HADEP discrepancy and maintaining that no such discrepancy in fact existed. It stated :

"3. Really my position is that I do no accept there is a discrepancy at all. I have said that I was a member without membership card and that is exactly what I was. You could choose to characterise that as "support" or "sympathy" if you wanted."

It is fair to say that this statement failed singularly to address the critical point about the lack of reference to any involvement, far less membership, of HADEP at the SEF and Interview stage. It denied the existence of a discrepancy which, in submission to the Court, was ultimately and correctly accepted as indeed existing.

The outcome before a Vice President of the Immigration Appeal Tribunal was a decision dated 19^th March 2002 that leave to appeal be refused. The reasons for this [Pro. 6/10, 7/2] were that the Adjudicator :

"2 in a lengthy and carefully considered determination does not show any eager inclination to base her decision on credibility....The reasons for the partial adverse credibility finding are compelling. There is no obligation on an Adjudicator to put to an Applicant every point on which she subsequently relies in reaching an adverse credibility finding. Had she done so there might have been some justification for the suggestion of over-involvement. The Adjudicator has given proper consideration to how the authorities may perceive low-level involvement with HADEP and the PKK and the possibility that involvement with HADEP would lead to the conclusion of involvement with the PKK. In the circumstances where the Appellant had said that he had been in contact with his family in Turkey the adjudicator was entitled to take into account [the] lack of corroborative evidence from them. On the evidence the Adjudicator's conclusions were open to her...The appeal does not have a real prospect of success..."

2. SUBMISSIONS

The case came before me on the petitioner's application for judicial review on 30^th and 31^st October 2002. The petitioner sought reduction of the decision of the Adjudicator and that of the Immigration Appeal Tribunal refusing leave to appeal. Thereafter, the appropriate procedure would be a remit to a different adjudicator for re-determination. The grounds for this were set out in the twenty first and twenty second statements of the petition. The first ground as written and as essentially adopted in oral argument was that :

"the Adjudicator acted in breach of the duty to act fairly et separatim acted in an unreasonable manner in failing to put to the Petitioner her concern as to the purported discrepancy between his evidence at SEF and at interview that he was a supporter of HADEP and in his witness statement that he was a member. The Respondent was not represented at the Hearing and the Petitioner was not cross examined on this point. After the petitioner was sworn in, his representative, in accordance with the required procedure simply put a written statement signed by the Petitioner to him and established that the signature and the statement were the Petitioner's. This constitutes examination-in-chief. Thereafter, the Adjudicator put about 32 questions to the Petitioner. Her examination of the Petitioner took up about 15 minutes of a Hearing that lasted in total only about 20 minutes. Despite the leading role thus played in the proceedings by the Adjudicator she failed to put to him the perceived inconsistency on which she founded her decision. The Adjudicator noted the apparent explanation for difficulties with the asylum interview due to tiredness but stated that she assumed that the Petitioner was not tired when he completed the SEF with the help of his Legal Adviser. She was not entitled to make any such assumption. She should have sought an explanation and obtained evidence on which she could base a decision. The purported discrepancy arose in a statement provided after the said refusal letter from the Respondent. The purported discrepancy did not form any part of the basis for refusal. The statement was served on the Respondent as part of the Appeal Process. Where an Adjudicator is minded to make an adverse credibility finding where there was no contradictor on the point upon which that finding is to be made, fairness obliges the Adjudicator to give an Appellant an opportunity to provide an explanation.

In pressing the argument on this point, counsel did not dispute that there was a contradiction between the earlier SEF and Interview and the later post refusal Witness Statement but pointed to the explanation that the petitioner had provided to the Immigration Appeal Tribunal (supra [Pro. 6/9]). After it had been suggested during the argument that this document did not actually address the point raised by the Adjudicator, a supplementary statement was produced from the Petitioner [Pro 6/14] in which he maintained that in relation to a form said to have been completed on 13^th March 2000 (presumably a SEF), his solicitor, recommended by relatives, had asked him if he was a sympathiser of the PKK but did not :

"in terms ask me to name any political organisations with which I had been involved either in the United Kingdom or abroad. She did not ask me if there were any organisations other than the PKK and I didn't give any other name. It was all done in a hurry. If she had asked me about other organisations I would have said HADEP because I was in HADEP...The SEF 1 dated 3 August 2000 was filled in by my later solicitor...he just copied the answers."

It was accepted that in order to succeed this explanation would have to have been such that the Adjudicator might have reached a different decision (Ahmed v Secretary of State for the Home Department [1994] Imm AR 457, Lord McCluskey at 463-4, Lord Clyde at 466-7). This was such an explanation.

In immigration cases, if the applicant is being disbelieved on a particular matter then it was desirable that the reasoning for that be indicated. That reasoning can then be "anxiously scrutinised", if necessary, by the court, upon whom a special responsibility lies in cases, such as this, where life or liberty may be imperilled (Gurjit Singh v Secretary of State for the Home Office 2001 SCLR 776, Lady Paton (at para. 37) adopting the views of Collins J in R v Home Secretary, ex parte Chugtai [1995] Imm AR 559 and Lord Templeman in the celebrated case of Bugdaycay v Secretary of State for the Home Department [1987] AC 514). The petitioner ought to have been cross examined on the HADEP point (Ezzi v Secretary of State for the Home Department, 29^th May 1997, Immigration Appeal Tribunal, unreported) and should not have been put in a worse position than if the respondent had been represented. The guidelines in MNM (supra) were accepted practice and, emanating from a starred decision, were binding upon the Adjudicator. The Adjudicator should therefore have considered the papers in advance of the hearing and listed the issues which concerned her, including the contradiction between the witness statement and the SEF and Interview, and asked the petitioner, or at least his representative, about these in terms of either paragraph 4 or 5 of the Guidelines. If she had only noticed the discrepancy later then the case ought to have been re-scheduled for a further hearing. The Adjudicator's failure to adopt one or other of these options rendered the proceedings unfair.

The petitioner's next submission was in terms of the twenty second statement in the petition which contained a number of further criticisms of the Adjudicator. The first of these was that the Adjudicator had erred :

"in founding on lack of corroboration for the claim that the Petitioner's father had contacted him to say that the Military were looking for him because of their suspicion that he was fighting for the PKK...Corroboration is not required to establish a well founded fear of persecution and it is an error of law to require it. The Adjudicator conflated the issue of credibility with whether there was evidence which substantiated credibility."

The proposition here at its starkest came to be that the lack of supporting evidence could not be used to undermine credibility (Ackah v Secretary of State for the Home Department, Immigration Appeal Tribunal, 19^th May 1994 per Vice President Professor DC Jackson).

The next point, which essentially combined the remaining averments in the twenty second paragraph which were being founded upon, concerned the Adjudicator's approach to Mr McDowall's report. It was submitted that, in rejecting the petitioner, the Adjudicator had not treated this report as evidence, notably where Mr McDowall said that nowhere is safe in Turkey if one is suspected of dissident views. The Adjudicator had not accepted Mr McDowall's evidence as contained in his report because the supporting documents had not been produced to her. If that had been a problem then the Adjudicator could either have found the documents by doing her own research or continued the hearing for their production (Mehmet v Secretary of State for the Home Department, Immigration Appeal Tribunal, 19^th January 2001, unreported; cf R v Immigration Appeal Tribunal ex parte Kilinc [1999] Imm AR 588, Buxton LJ at 591-3). For all these reasons, it was said that, when scrutinised anxiously, the proceedings before the Adjudicator had not been fair and her decision was unlawful, rather than unreasonable in the traditional sense (R (Daly) Home Secretary [2001] 2 AC 532, Lord Steyn at 546-8). The Vice President of the Immigration Appeal Tribunal had erred in not recognising the potential defects in the Adjudicator's reasoning and also in failing to take into account the explanation for the HADEP discrepancy already noted.

The respondent maintained that the decisions of the Adjudicator and the Tribunal were lawful, reasonable and fair. In relation to the Adjudicator not specifically putting the HADEP discrepancy to the petitioner or his representative, it was said that their was no obligation upon the Adjudicator to raise this specific point when it was clear that credibility was an issue (Hassan (supra) Buxton LJ at 86-87). It was for the petitioner to establish his credibility and he had the assistance of legal representation to help him do that. The HADEP discrepancy was one of several reasons for the Adjudicator's rejection of the petitioner. None of the Guidelines compelled the Adjudicator to put all of these to an applicant. If credibility had not been an issue in the refusal letter then the Adjudicator might have had to raise it if it had become an issue, but that was not the position here. Credibility had been dealt with by the petitioner in his skeleton argument and the written statement had been designed to bolster that credibility.

In relation to the approach of the Adjudicator in assessing the material before her, including Mr McDowall's report, the Adjudicator's decision should not be treated as a statute or conveyancing document. It required to be read as a whole without taking words or individual sentences out of context (Irzekivicius v Secretary of State for the Home Department, 14^th July 1999, Lord MacFadyen, unreported). There was no need to go through all the evidence, including every expression of opinion in Mr McDowall's report, and form a view upon it (Asif v Secretary of State for the Home Department 1999 SLT 890, Lord Penrose at 895, affirmed, Extra Division, 11 December 2002, unreported; and approved in Singh v Secretary of State for the Home Department 2000 SC 219, Lord Weir at 223). Furthermore, there was no obligation on the Adjudicator to obtain the missing McDowall report or bring its absence to the attention of the parties (R v Immigration Appeal Tribunal ex parte Kilinc (supra) Buxton LJ at 592). That would be taking on an inquisitorial role. It was a matter for the petitioner to provide such material as he deemed appropriate. The particular report had not been lodged in this process either so it was difficult for the petitioner to set about demonstrating any prejudice.

In paragraph 16 of her report, all the Adjudicator had been doing was assessing the plausibility of the claim that the petitioner's father had told him that the authorities had thought that he was with the PKK. That was clear from the first and last sentences of the paragraph. She concluded that the claim was not plausible because it was inherently improbable that the authorities would look upon every Kurdish draft evader in this way especially in an area not renowned for PKK activity. She did not reject what Mr McDowall had said when reaching her conclusions on this. A further reason for rejecting the claim was the absence of supporting evidence where such evidence must exist and there had been no suggestion that it would be difficult to obtain. That was a factor (R v Immigration Appeal Tribunal ex parte Kilinc [1999] (supra), Buxton LJ at 591). Professor Jackson's position in Ackah v Secretary of State for the Home Department (supra) was not logical.

In paragraph 27 of her report the Adjudicator was pointing out that Mr McDowall was unable to quantify the risk of the petitioner entering military service in Turkey as an Alevi Kurd, yet quantification of the risk as a "reasonable degree of likelihood" was needed for the petitioner to have succeeded. There was little point in the petitioner reading out chunks of Mr McDowall's report which supported his position. He required to say that no reasonable adjudicator could have reached the conclusion this adjudicator reached on all the material before her.

In relation to the Immigration Appeal Tribunal's decision of refuse leave, it was accepted that if the Adjudicator had erred then the errors ought to have been identified by the Tribunal and its decision reduced. If there were no such errors then the Tribunal decision to refuse leave was correct. It should not be assumed, simply because of the absence of express reference to it, that the additional witness statement had not been considered (Retarded Children's Aid Society v Day [1978] ICR 437, Lord Russell at 444). In all these circumstances, the court should sustain the respondent's plea to the merits and refuse the prayer of the petition.

3. DECISION

(a) The HADEP Discrepancy

The general obligation upon the Adjudicator was first to ensure that the hearing before her was conducted fairly. As a prerequisite for the fairness of the hearing, the petitioner would have to know what the Adjudicator was to decide upon and what issues might form part of that decision making process. The petitioner's claim for asylum had been rejected by the Immigration Authority because, as a matter of fact, he had failed to prove, to the requisite degree, that he had a well founded fear of persecution. He had not been believed on that issue. There were a number of different reasons given for rejecting each of the four legs of his original claim. In relation to the two that survived through the appeal procedure, the military service aspect was rejected as implausible. On the political aspect, the petitioner having said he had been a sympathiser of and provider for the PKK, the refusal letter concluded that the interest of the authorities in him would be merited given that the PKK was a terrorist organisation. In advance of the hearing therefore, the petitioner and his advisers would be acutely aware that the establishment of his credibility would have to be at the core of any successful appeal. He had adequate notice of the central issue likely to form the basis for any ultimate decision by the Adjudicator.

Any analysis directed towards determining whether the procedure at the hearing was fair has to be done bearing in mind that the eventual rejection of the appeal by the Adjudicator, although also on the basis of lack of credibility, was for somewhat different subsidiary reasons, including the HADEP discrepancy. Such analysis also involves a consideration of an adjudicator's general function at a hearing. In that regard it is not disputed that such a hearing is part of an adversarial process normally involving an appellant and the respondent. It was suggested that, if the respondent been represented at the hearing, then the HADEP discrepancy would have been put to the petitioner in cross-examination for his comment. It is certainly the case that this may have happened but, for the reasons which follow, I do not consider that there would have been any obligation upon the respondent to do that. By doing so, the cross-examiner would simply have been providing the petitioner with an opportunity to explain a defect in the petitioner's own case. That is not the purpose of cross-examination, although it is a potential hazard to the cross-examiner if he has not carefully considered his strategy.

Apart from the situation where a party wishes to obtain positive evidence from one of his opponent's witnesses on a particular matter, the privilege of cross-examination is normally exercised only where the witness has given evidence contrary to the party's position and should be directed towards the undermining or discrediting of the witness' reliability or credibility. It is not intended to provide a bonus to the party's opponent by affording the opponent's witness an opportunity to clarify or explain contradictions or deficiencies left after examination-in-chief. Of course, if a witness is not cross-examined at all then that might, in certain circumstances, be taken as an indication that his credibility and reliability are not challenged. That will not always be the case, however, and it will depend on the circumstances. A witness' evidence may be so absurd or self contradictory that no cross-examination is necessary or even desirable. Equally, when embarking upon the exercise of undermining or discrediting a witness' evidence, the skilled cross-examiner may be able to achieve that by extracting responses to a very few pertinent questions, possibly even restricting those to peripheral matters. He does not require to go through a mechanical process of putting each aspect of his case to each of his opponent's witnesses for their denial and possible comment. Indeed to do so would be likely to damage his own case. On the other hand, if a party intends to develop a positive case of his own, which differs from that of his opponent, or intends to maintain that something, which the witness said happened, did not occur for a given reason then it will often be necessary for such a case or reason to be put in cross-examination to witnesses ostensibly in a position to comment upon them. This course of action forms part of our general procedure principally because it obviates any necessity of the opposing party having to move to recall his witnesses to deal with an unanticipated line of evidence emerging after his case has formally closed. In that regard, it is part of the process of ensuring that proceedings are fairly conducted as between the parties by giving each an opportunity to address the other's case. The requirement "to put" matters to an opponent's witness in cross-examination should be seen in that limited context. It follows from this that I do not entirely agree with the views expressed by the Immigration Appeal Tribunal in Ezzi (supra), in that these views appear to impose a greater burden upon the cross-examiner than I consider to exist.

In the present case the HADEP discrepancy arose as part of the petitioner's case and, in that sense, was created by him. At the stage of the hearing before the Adjudicator, there was the SEF, question 1 of which was directed specifically towards an applicant stating the name of any political organisations in which he had been involved. The petitioner made no mention of HADEP in response. In the Interview, question 13 was: "Have you been a member of a political party ?" It could hardly have been more direct. The answer, albeit followed by a short qualification, was : "No". The Witness Statement produced for the hearing before the Adjudicator, and presumably with not inconsiderable input from the petitioner's legal representative, stated not only that the petitioner was a member of HADEP but also that he was an activist for that party. This was a marked change in stance and, on the face of the documentation, a contradictory one. Since the Witness Statement took the place of examination-in-chief, the position was that the evidence in that examination was apparently different from what the petitioner had admittedly said on previous occasions. Now there would have been no need for a cross-examiner to put the previous statements to the petitioner in order to prove that he had made them because the SEF and Interview records were not disputed as being accurate, at least at that stage. The records were effectively part of the formal process. In that situation, there would have been no obligation upon the respondent's representative, had he chosen to appear, to put the contradictions to the petitioner to enable him to explain or clarify his position. Indeed that could only have resulted in the petitioner tendering some form of explanation presumably at least intended to be adverse to the cross-examiner's interests. It follows from this that I do not consider that the contention that the petitioner was placed at a disadvantage caused by the absence of cross-examination on this point by the respondent's representative is well founded.

Looking at the duties upon the Adjudicator to ensure a fair hearing in the absence of a representative from the respondents should be done against the background that such a representative would not have been obliged to cross-examine on the HADEP discrepancy and that it is accepted that the proceedings before an adjudicator are adversarial in nature. Where credibility is an issue, as it may often be in cases of this type, courts and tribunals which permit oral testimony have traditionally had the advantage of being able to assess the witnesses, notably the parties, by seeing and hearing them give evidence. They can make that assessment by reference to, amongst other things, the body language and demeanour of the witnesses in response to the questions being asked, by looking at the cohesion or otherwise of the particular witness' account and by comparing the account with other evidence, especially that found to be credible and reliable. In Scotland, the examination of a witness in chief, where leading questions are not normally permitted, is very often an important aspect of that assessment and sometimes of much greater advantage to the assessor than anything emerging during the course of cross-examination, especially if that cross-examination is confined to formal, closed and leading questions. However, the disadvantage of examination-in-chief administratively is that it can be very time consuming. In a very limited number of fori, and proceedings before an adjudicator is one of them, it appears to have been to a large extent abolished in favour of the written, and presumably to a degree tailored, "witness statement" or more commonly "precognition". Testing the credibility of the maker of that statement or precognition in the traditional way may be difficult. Oral cross-examination may have a part to play in certain situations but the decision maker may be particularly conscious, at least during the course of the decision making process, of any inherently implausible elements in the statement or any discrepancies arising between its content and other written material in the case. In the context of the adjudicator having to reach a decision on credibility, the question is to what extent must an adjudicator search for, and if discovered, probe implausibility and discrepancy during the oral hearing.