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Berk, Re An Application for Judicial Review [2004] ScotCS 264 (09 December 2004)
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OUTER HOUSE, COURT OF SESSION |
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P695/04
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OPINION OF LORD BRODIE in the Petition of MUSLUM BERK (Assisted Person) Petitioner; for Judicial Review of a decision of an Immigration Adjudicator, promulgated to the Petitioner on 17 March 2003 and Judicial Review of a decision of the Immigration Appeal Tribunal
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Petitioner: Melvin-Farr; Lindsays WS
Respondent: Lindsay; Office of the Solicitor to the Advocate General
9 December 2004
Introduction
[1] The petitioner in this petition for judicial review of a decision of an immigration adjudicator and a decision of the Immigration Appeal Tribunal is a Turkish citizen of Kurdish Alevi origin. He is resident in Glasgow. He would claim to be a sympathiser with the Demokraci ve Baris Partisi (the "DBP"), a political party advocating Kurdish autonomy. The respondent is the Secretary of State for the Home Department. [2] The petitioner arrived in the United Kingdom on 24 October 2001 and applied for asylum on the grounds that he has a well founded fear of persecution in Turkey. That claim for asylum was refused. The petitioner was served with a Reasons for Refusal letter which was dated 15 January 2002. He appealed that decision. His appeal was heard by an adjudicator, Mrs I. A. M Murray, at Glasgow on 12 February 2003. The Adjudicator's determination of the appeal with reasons was promulgated on 17 March 2003. A copy of the Adjudicator's Determination and Reasons is number 6/2 in the petition process. It discloses that the petitioner had appealed on the grounds that he is a refugee under the 1951 Convention Relating to the Status of Refugees ("the 1951 Convention") and that any removal would be a contravention of Articles 2, 3 and 8 of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms ("the 1950 Convention"). [3] This being a case which pre-dates the Nationality Immigration and Asylum Act 2002, the statutory basis for the petitioner's appeal to the Adjudicator against refusal of asylum is to be found in the Immigration and Asylum Act 1999. Section 65 of the Immigration and Asylum Act 1999 provides that a person, who alleges that an authority (which means the Secretary of State, an immigration officer or a person responsible for the grant or refusal of entry clearance) has acted in breach of his human rights, may appeal. Acting in breach of human rights means acting or failing to act in a way which is made unlawful by section 6 (1) of the Human Rights Act 1998 (that is, in a way which is incompatible with a Convention right). Convention rights include those set out in Articles 2, 3 and 8 of the 1950 Convention. Article 2 provides that no one shall be deprived of his life intentionally save in the execution of a sentence of a court, article 3 provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment and article 8 provides that everyone has the right to respect for his private and family life. Section 69 of the Immigration and Asylum Act 1999 provides that a person may appeal on the ground that his removal in consequence of the refusal would be contrary to the 1951 Convention. A refugee, in terms of the 1951 Convention as amended by the Protocol, is any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. The 1951 Convention imposes certain duties on receiving states party to the Convention in relation to a person who is a refugee. Among these duties is that set out in Article 33.1 which is in these terms:"No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality."
The Remedies sought by the Petitioner
[4] The remedies sought in the petition are: i) declarator that the Immigration Appeal Tribunal erred in law in refusing leave to appeal, ii) declarator that the Adjudicator erred in law in her determination dated 17 March 2003, and iii) remittance of the petitioner's claim to another Adjudicator for a fresh hearing; and the expenses of the petition and such further or order or orders as may seem to the court just and reasonable in all the circumstances of the case.The Determination by the Adjudicator
[5] As appears from 6/2 of process, the Adjudicator refused the Petitioner's appeal. Her Determination was in the following terms:"38. With regard to the asylum appeal Article 1 of the 1951 Geneva Convention defines a refugee as someone who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and owing to such fear is unwilling to return to it.
39. The burden of proof is on the appellant. In the case of Kaja interpreting the House of Lords' case of Sivakumaran the Immigration Appeal Tribunal decided that as regards both the likelihood of persecution and the proof of the facts of the appeal, it was sufficient that there was 'a reasonable chance' or 'a serious possibility'. I applied that standard of proof to the present case.
40. I have considered all of the evidence on file, the subjective and objective evidence, including some which may not be specifically referred to herein the oral evidence given at the hearing and the submissions made by both parties and the skeleton argument of the appellant's agent.
41. This appellant is claiming asylum based on his Kurdish ethnicity, his Alevi Muslim religion and his political opinion.
42. With regard to this appellant's Kurdish origin, being a Kurd in Turkey is not sufficient reason for claiming asylum. I have considered the background evidence and Kurdish people can attain high positions in Turkey and although there may well be discrimination against Kurds in Turkey the background evidence makes it clear that this discrimination does not amount to persecution.
43. With regard to the appellant's Alevi Muslim religion again there are many Alevi Muslims in Turkey and although again there may be some discrimination against them the background evidence makes it clear that this does not amount to persecution and the fact that this appellant is an Alevi Muslim per se is not sufficient reason for him to claim asylum. He was not forbidden from practising his religion in Turkey.
44. The appellant has also claimed asylum because of his political opinion. The appellant was an active supporter of the DBP which is a legal party in Turkey and is a democratic and peaceful party and takes part in the elections in Turkey. Although this appellant has said that he is an active sympathiser of the DBP he did not appear to know that his party did take an active part in the elections in Turkey. I therefore find a lack of credibility in this appellant's evidence.
45. The appellant has stated that he was arrested twice, once after a Newroz demonstration when he was detained for one day and once after a May Day celebration when he was detained for three days. I do not consider that either of these arrests amount to persecution. The appellant has stated that he was tortured when he was detained and I do not condone this kind of treatment but having read the background evidence I am aware that Turkey is doing everything it can to improve the human rights situation there and I am aware from the background evidence and from recent newspaper reports that the human rights situation in Turkey is improving. On neither of these occasions was the appellant singled out, he was arrested along with others who were also at the demonstrations. I do not find that this appellant has been targeted.
46. The appellant then attended a demonstration on 2 July 2001. He states that two of his friends were arrested and detained for two weeks and tortured but he managed to escape. He has stated that there were 1,500 people approximately at the demonstration and that the authorities have been to his house looking for him. This man was not even a member of DBP. There were 1,500 people at the demonstration. This appellant has stated that he was singled out because he was carrying a picture of the martyrs that they were demonstrating on behalf of. He has admitted that other people were also carrying pictures of the martyrs. I do not believe that the authorities are interested in the appellant because he attended this demonstration. He was not arrested, he was not charged and he was not even a member of DBP. I do not find that because the appellant is a supporter and sympathiser of a legal, democratic and peaceful party in Turkey that takes place in the elections he would be persecuted by the authorities and I find credibility to be a serious issue here. I do not find that this appellant would be of any interest to the authorities in Turkey. He stated that he did not become a member of the DBP because it was too risky and yet he went on demonstrations and has told us in court that he was well known to the authorities and was targeted by them. This is not credible.
47. I find that the authorities have no interest in the appellant and would have no interest in him on return. I do not find that he would have any problems at the airport as he would not be considered to be a separatist and has no record in Turkey. This appellant has not discharged the burden of proof even to the lower standard mentioned in Kaja and I am dismissing the asylum appeal.
48. With regard to the human rights appeal and Articles 2 and 3 I do not find that this appellant's life would be in danger on return to Turkey or that he would suffer inhuman or degrading treatment to the threshold required by Article 3. The appellant is of no interest to the authorities in Turkey. I have considered this on the lower standard of proof and I find that the human rights claim based on Articles 2 and 3 stands or falls with the asylum claim and I am dismissing the human rights claim.
49. Most of the appellant's family are in Turkey and I do not find that Article 8 is engaged. There is nothing to stop the appellant's wife and child who is very young returning to Turkey with him.
50. Neither do I find that Articles 5, 6, 9, 10, 11 or 14 of the 1950 Convention are engaged.
DECISION
51. I am dismissing the asylum appeal.
52. I am dismissing the human rights appeal."
The Determination by the Immigration Appeal Tribunal
[6] Paragraph 22 of Schedule 4 to the 1999 Act provides, subject to an exception which does not apply here, that any party to an appeal to an adjudicator may, if dissatisfied with his determination, appeal to the Immigration Appeal Tribunal (the "Tribunal"). As appears from rule 18 (4) (c) of the Immigration and Asylum Appeals (Procedure) Rules 2000, SI 2000/2333 (the "Procedure Rules"), which came into force on 2 October 2000, appeal is available on error of fact or error of law which would have made a difference to the outcome, but rule 18 (1) provides that an appeal from the determination of an adjudicator may be made only with the leave of the Tribunal. [7] Rule 18 (4) provides that an application for leave must identify the alleged errors of fact or law in the adjudicator's determination which would have made a material difference to the outcome, together with all the grounds relied on for the appeal. In terms of rule 18 (6) of the Procedure Rules the Tribunal shall not be required to consider any grounds other than those included in the application for leave. An application for leave shall be decided by one legally qualified member of the Tribunal without a hearing. Leave to appeal shall be granted only where - (a) the member of the Tribunal is satisfied that the appeal would have a real prospect of success; or (b) there is some other compelling reason why the appeal should be heard. When an application for leave to appeal has been decided, written notice of the Tribunal's decision on the application shall be sent to the parties and, if granted, the grounds upon which the appellant may appeal. Where the application for leave to appeal is refused, the notice shall include, in summary form, the reasons for the refusal. [8] The petitioner sought leave to appeal the Determination of the Adjudicator by way of an application which included very full grounds of appeal, drafted by the counsel who had represented him at the hearing before the Adjudicator. A copy of these grounds is 6/4 of process. Leave was refused by Determination of the Tribunal dated 14 April 2003 (that determination being, as provided by the Procedure Rules, by one legally qualified member of the Tribunal, the Vice President, without a hearing). A copy of that Determination is number 6/3 in the petition process. [9] In summary, the three grounds of appeal advanced on behalf of the petitioner in the grounds of appeal were as follows: (1) that the Adjudicator erred in rejecting the petitioner's evidence that he was a supporter of the DBP; (2) that the Adjudicator erred in finding that the petitioner had not suffered past persecution; and (3) that the Adjudicator erred in finding that the Turkish authorities had no interest in the petitioner following his attendance at a demonstration in remembrance of the Sivas Victims. [10] The reasons for refusing leave which are included in the Tribunal's Determination, as required by rule 18 (10) of the Procedure Rules, are in the following terms:"The Adjudicator has set out her evaluation of the evidence in paragraphs 41-49 of her determination. She did not find the appellant's evidence about his active support for the DBP [sic]. She was not satisfied that he would be of any interest to the authorities in Turkey. The grounds seek to challenge these findings. Ground 1 argues that the Adjudicator was wrong to reject his evidence that he was a supporter of the DBP. This was an issue of fact for the Adjudicator to resolve on the evidence before her. There is nothing in the grounds to support a contention that her findings were wrong or otherwise not properly sustainable on the evidence.
Ground 2 argues that the Adjudicator erred in finding that the claimant had not suffered past persecution. The Adjudicator has dealt with the issues in paragraphs 45 and 46 of her determination. In my view her findings were properly open to her. The issue for her to assess is whether there would be a risk of persecution on return. For the reasons which she gave she was not satisfied that there would be. She found he would not be considered to be a separatist and would have no record in Turkey.
The third ground argues that she was wrong to find that the authorities had no interest in him following a demonstration in remembrance of the Sivas victims. In my judgment the grounds are seeking to reargue issues of fact and the evaluation of risk. I am not satisfied that it can properly be argued that the Adjudicator's findings were not properly open to her.
In summary, the grounds do not satisfy me that an appeal has any real prospect of success."
Submissions of Parties in the Petition
Submission for the petitioner
[11] The starting point for Mr Melvin-Farr, on behalf of the petitioner, was the Adjudicator's Determination. Mr Melvin-Farr advanced two propositions: first that the Adjudicator had not attached appropriate weight to the evidence of the petitioner; and second, that the Adjudicator had not provided adequate reasons for refusing the appeal. It was Mr Melvin-Farr's submission that the task for the Adjudicator when determining upon the petitioner's appeal was threefold: (1) to consider whether the appellant had a well founded view of persecution; (2) to consider whether there was a real risk of violation of the petitioner's human rights; and (3) to give reasons for his determination. He referred to the decisions in Sivakumaran v Secretary of State for the Home Department [1988] AC 958, Kacaj v Secretary of State for the Home Department Immigration Appeal Tribunal, 19 July 2001, unreported and R v Immigration Appeal Tribunal ex parte Khan [1983] QB 790. The Adjudicator, submitted Mr Melvin-Farr, had failed in her task. She had not made it clear on what basis she found the petitioner did not have a well founded fear of persecution. She had not demonstrated that there was not a real risk of the petitioner's human rights being breached. The reasons that she had given were insufficient. Mr Melvin-Farr reminded me of what had been said at the Court of Appeal in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449, as to the proper approach to be adopted by an immigration adjudicator in assessing evidence as to risk of future persecution. The Adjudicator here had not followed that approach. Notwithstanding the petitioner's evidence that he had been tortured and what appeared in the Country Assessment for Turkey, prepared by the Country Information Policy Unit of the Immigration and Nationality Directive of the Home Office dated November 2002, number 7/1 of process, a document which had been before the Adjudicator at the hearing, the Adjudicator had rejected the petitioner's claim that he had a well founded fear of persecution. The Adjudicator had given insufficient weight to the objective evidence which was before her, preferring unspecified "recent newspaper reports" to the effect that the human rights situation in Turkey is improving. Mr Melvin-Farr pointed to the decision of the Immigration Appeal Tribunal in Meral Hayser v Secretary of State for the Home Department [2002] UKIAT 07083, 6 March 2003, unreported, as an example of a case where the Immigration Appeal Tribunal, correctly in Mr Melvin-Farr's submission, had founded on evidence of the continuing use of torture in Turkey in concluding that the appellant in that case faced a real risk of detention, interrogation, serious ill treatment and torture, and accordingly persecution and infringement of her article 3 rights, should she require to be returned to Turkey. The Adjudicator had not explained her conclusion that the Turkish authorities would have no interest in the petitioner should he require to return to Turkey. Having regard to all the evidence before the Adjudicator, but particularly what appears in the Country Assessment, there had to be some doubt as to whether it would be safe for the petitioner to return to Turkey and it was accordingly wrong for the Adjudicator to come to the view that the Turkish authorities would have no interest in him. The Adjudicator had not explained why she had come to her views. [12] Mr Melvin-Farr turned to the decision of the Tribunal, refusing leave to appeal. This he said was made in error of law. What the Tribunal should do in a case such as this was to determine whether the allegation that an appellant has a well founded fear of persecution was arguably correct and, whether any error made by the Adjudicator would have made a material difference to the Adjudicator's determination. While the past ill treatment that the petitioner alleged was only one factor in determining whether there was a real risk of future persecution, there was in this case other material pointing in the same direction. The Adjudicator had not pointed out in any satisfactory way why the petitioner would not be at risk of persecution if returned to Turkey. The proper approach, which was that set out in Sivakumaran had not been followed. Moreover, in contravention of the terms of section 6(3) of the Human Rights Act 1998 the Adjudicator had failed to take into account the risk of breach of the petitioner's human rights. [13] Mr Melvin-Farr concluded by reminding me of the decision of the Court of Appeal in R v Secretary of State for the Home Department ex parte Robinson [1998] QB 929 where it was held that if, when considering an application for leave, the Tribunal reads the adjudicator's determination and reasons and there appears to be an obvious point of Convention law favourable to an asylum seeker which does not appear in the determination, then it should grant leave to appeal.Submissions for the respondent
[14] On behalf of the respondent, Mr Lindsay began by drawing attention to the remedies sought in the petition: i) declarator that the Tribunal erred in law in refusing leave to appeal, ii) declarator that the Adjudicator erred in law in her Determination, and iii) remittance of the petitioner's claim for a fresh hearing. He submitted, under reference to Lord Macfadyen's opinion in Ruslanus Irzekevikius v Secretary of State for the Home Department, 14 July 1999, unreported, that, should I uphold the submissions on behalf of the petitioner to the effect that the Adjudicator had made one or more material errors in law, it would be sufficient to give effect to that decision and consistent with this court's purely supervisory jurisdiction, simply to reduce the Tribunal's Determination, thereby leaving it open to the Petitioner to make a further application for leave to appeal in the expectation that, having regard to the court's decision, that application would be granted. However, it was Mr Lindsay's submission that the proper disposal of the petition would be to repel all of the petitioner's pleas-in-law and sustain the respondent's second plea-in-law, which was to the effect that the decision complained off being lawful et separatim reasonable, the orders sought in the petition should be refused. [15] Mr Lindsay went on to submit that the proper starting point was the decision by the Tribunal. The issue for the court was whether the Tribunal's refusal of leave to appeal the determination by the Adjudicator was unlawful. Only if the decision by the Tribunal was unlawful could the court review it. In determining whether the decision of the Tribunal had been unlawful, regard had to be had to the terms of rule 18 of the Procedure Rules. An appeal from the determination of the Adjudicator could only be made with the leave of the Tribunal. An application for leave to appeal had to be made by serving on the Tribunal the appropriate prescribed form which, inter alia identified the alleged errors of fact or law in the Adjudicator's determination which would have made a material difference to the outcome, together with all the grounds relied on for the appeal. The Tribunal was not required to consider any grounds other than those in the application. Leave to appeal was only to be granted where either the Tribunal was satisfied that the appeal would have a real prospect of success or there was some other compelling reason why the appeal should be heard. Mr Lindsay did not suggest that the Procedure Rules had over-ruled the decision in Robinson but it was his submission that regard had to be had to what was said in that case to justify a grant of leave on a ground not put forward by an appellant: there had to be an obvious point of law with strong prospect of success if argued. He referred to the decision of Lord Reed in Mutas Alabas v Secretary of State for the Home Department, 2 July 2004, unreported on this point, at paragraphs 17 and 23. [16] Mr Lindsay went on to say that he had discerned two strands in the oral submission advanced by Mr Melvin-Farr: first, criticism of the assessment by the Adjudicator of the evidence that had been led before her; and, second, criticism of the adequacy or sufficiency of her reasoning. Turning to criticism of the Adjudicator's findings of fact, it was Mr Lindsay's submission that findings of fact could only be set aside by the court on judicial review if they could be shown to be Wednesbury unreasonable. It was not enough to persuade the court that it might have come to a different conclusion than the Adjudicator had come to. Past ill-treatment was relevant in assessing future risk of persecution but not conclusive: Sahm Sunder Jaim v Secretary of State for the Home Department [2000] Imm AR 76, Nabil Salim v Secretary of State for the Home Department [2000] Imm AR 503. In relation to the newspaper articles, Mr Lindsay drew my attention to the fact that among the documents which had been before the Adjudicator at the hearing were articles from the Reuters news agency. In any event, if it was being suggested that the Adjudicator had regard to material other than that which was before her at the hearing, a question arises to whether it could be said that whether such extraneous material had made any material difference to her decision. Here that could not be said. The Adjudicator had had before her evidence which fully entitled her to make the findings that she did. Included in the material before the Adjudicator was the decision of the Immigration Appeal Tribunal in Byulent Polat v Secretary of State for the Home Department [2002] UKIAT 04332. This was an example of a decision where the Tribunal had formulated guidelines for the assistance of adjudicators in their consideration of certain classes of case. The issue addressed in Polat was whether general evidence indicated that the Turkish authorities routinely ill-treated returnees with a record of involvement in Kurdish separatist organisations, irrespective of the nature and the level of their involvement and irrespective of what the record might indicate about the level of risk posed by a particular claimant from the point of the view of the Turkish authorities. At paragraph 29 of the Tribunal's Determination and Reasons in Polat it identified a number of factors bearing on the question as to whether or not the Turkish authorities would ill treat a returnee with some record of involvement in a separatist organisation. At paragraph 30, while emphasising that the list of factors was not intended as exhaustive, the Tribunal explained that it was satisfied that a Turkish appellant of Kurdish origin cannot succeed in a claim for asylum unless he can show, by reference to factors of this kind, something more than that the authorities will have a record of his involvement in or sympathy for a separatist organisation. Here, submitted Mr Lindsay, it was clear that the Adjudicator's determination mirrored the elements identified in Polat. As far as the Adjudicator's view about improvements in Turkey's respect for human rights were concerned, that was supported by, for example, what appears at paragraphs 57 to 60 in Hayser. [17] As far as what was required by way of reasons, Mr Lindsay referred to what appears at paragraph 13 of my short statement of reasons in an application for statutory review, Alfred Anjalans Petitioner, 18 August 2004, unreported. It was Mr Lindsay's submission that here there was no real or substantial doubt as to why the Adjudicator had come to her decision. Her reasons were accordingly sufficient. [18] Mr Lindsay then turned to consider the terms of the Adjudicator's determination. As he read the determination, the Adjudicator had accepted that the petitioner was a sympathiser, albeit not an active sympathiser with the DBP. Her decision on that point could not be regarded as Wednesbury unreasonable given that the petitioner had not know what the DBP had participated in recent elections. That the petitioner was unaware of that notwithstanding the fact that Turkey was an associate member of the European Union, that Turkish newspapers were available in this country and that communication could be readily maintained with Turkey from the United Kingdom, was of significance. Mr Lindsay took the Adjudicator to have accepted that the petitioner had been arrested twice, albeit that she did not consider that these incidents amounted to persecution. Again, that conclusion was not Wednesbury unreasonable. It did not appear that the petitioner had been specifically targeted by the authorities prior to leaving Turkey and if that was so why should the position be different on his return? The references in the determination to credibility were indications that the Adjudicator had had regard to the approach laid down in Karanakaran. [19] Finally, it was clear from the terms of the Determination that the Adjudicator had regard to whether there was a likelihood of a breach of the petitioner's human rights should he be returned to Turkey. She was correct, as she said at paragraph 48 of her determination, that the human rights claim stood or fell with the asylum claim since they were both based on the same facts.Discussion
[20] This is an application for judicial review of a process of statutory appeal from the refusal of the petitioner's claim for asylum. It is the petitioner's position that two decisions in the course of that process, that of the Adjudicator dismissing the appeal and that of the Tribunal refusing leave to appeal against the Adjudicator's decision, were vitiated by errors. Mr Melvin-Farr, on behalf of the petitioner, began with, and appeared to me to concentrate upon, the Determination by the Adjudicator rather than the Determination by the Tribunal. That Mr Melvin-Farr should wish to impress upon me that the Adjudicator's Determination was flawed by reason of error is understandable. If the Adjudicator made no error in dismissing the appeal it is difficult to see why the court should interfere with the statutory process even if some criticism could be made about the way in which the Tribunal reached its decision. Equally, if the Adjudicator did make an error that would suggest that a Tribunal which did not grant leave to appeal had made an error of law. Moreover, while he did not refer me expressly to the very detailed grounds of appeal, 6/4 of process, it would be fair to say that much of what Mr Melvin-Farr had to say coincided with what appears in the grounds. However, that recognised, I agree with Mr Lindsay that when coming to consider whether it should exercise its supervisory jurisdiction in a case such as this, the court requires to start with the Determination by the Tribunal and the issue as to whether the Tribunal's refusal of leave was lawful. Any other approach risks confusion as to exactly what the court's jurisdiction comprises. This brings me immediately to the question of remedy. Notwithstanding the terms of the petition which states that the petitioner seeks the remedies which I have recorded at paragraph [4] of this opinion, Mr Melvin-Farr quite readily conceded, first, that this court simply had no jurisdiction to order the "remittance of the petitioner's claim to another Adjudicator for a fresh hearing"; and, second, that, as had been submitted by Mr Lindsay, should I uphold the submissions on behalf of the petitioner, it would be sufficient to give effect to that decision and consistent with this court's purely supervisory jurisdiction, simply to reduce the Tribunal's Determination, thereby leaving it open to the petitioner to make a further application for leave to appeal. It appears to me that Mr Melvin-Farr was correct to make these concessions. As far as the first concession is concerned, the Tribunal has power to remit a case to the same or another adjudicator in terms of Rule 23 of the Procedure Rules. That is a specific power conferred upon the Tribunal by statute. It is not a power which is conferred on the court. As far as the second concession is concerned, as Lord Macfadyen explains in Ruslanus Irzekevikius v Secretary of State for the Home Department, this court, when called upon to exercise its supervisory jurisdiction, should interfere with the proceedings of subordinate tribunals only to such extent as is necessary to afford a proper remedy against excess or abuse of jurisdiction where none is otherwise available. The statutory provisions for appeal from a determination by an adjudicator to the Tribunal allow for correction of any error that the adjudicator may make. Where the Tribunal errs in law by refusing leave to appeal, this court, in exercise of its supervisory jurisdiction, has power to correct that error to the extent of reducing the refusal. That done, the procedure, as Lord Macfadyen puts it, is restored, and the Petitioner is free to deploy all competent arguments before the competent statutory body. I accept that it is no more than an expectation, should this court reduce a refusal of leave to appeal, that a subsequent application for leave would be granted. It is, however, a strong expectation and if it were to be disappointed, the subsequent refusal would be subject to judicial review as had been the first. There may be cases where, as envisaged by Lord Reed in Mutas Elabas v Secretary of State for the Home Department supra at para 20, reduction of a refusal of leave may not be a sufficient remedy but parties here are agreed that this is not such a case. I accordingly turn to the Tribunal's Determination with a view to considering the question whether it acted unlawfully in refusing leave to appeal. [21] In order to determine whether the Tribunal acted unlawfully it is necessary to have regard to what matters were before it. As I have already noted, in terms of rule 18 (6) of the Procedure Rules, the Tribunal shall not be required to consider any grounds other than those included in the application for leave. Thus, on the face of the rule, the Tribunal is limited in its determination as to whether leave should be granted by the arguments that have been advanced on behalf of the petitioner. As Lord Reed points out in Mutas Elabas supra at para 17, the result of the decision in Robinson (and that in R v Secretary of State for the Home Department, ex parte Kolcak [2001] Imm A R 666) is somewhat to qualify the terms of rule 18: the Tribunal should grant leave to appeal if it discerns a point of Convention law, or, indeed, a point on an issue of fact, which has a strong prospect of success, whether or not it is raised in the grounds included in the application for leave. However, the Tribunal is not required to engage in a search for points of law which are not raised and it will only be possible to say that the Tribunal has erred in refusing leave, under reference to Robinson, if it has over-looked a ground which has the character of obviousness and strong prospects of success. [22] Although he cited Robinson, and advanced, or at least mentioned, lines of argument (that the Adjudicator erred by failing to provide adequate reasons for her decision, that she had failed to follow the approach commended by the Court of Appeal in Karanakaran, and that she had failed to take into account the risk of breach of the petitioner's human rights) which do not appear in the grounds of appeal, it was not clear to me whether Mr Melvin-Farr was suggesting that there were in fact grounds of appeal which, although not set out in 6/4 of process, were both obvious and had strong prospects of success and therefore should have led the Tribunal to grant leave. I do not find there to be such grounds. In my opinion, what appears in 6/4 of process was what was before the Tribunal when it was considering whether to grant leave, and nothing else. I have summarised the three grounds set out there at paragraph [9] above. They each attack a finding in fact which was made by the Adjudicator and led her to the conclusion that the petitioner was not at risk of persecution or breach of his human rights. When considering the question as to whether leave should be granted the approach of the Tribunal was to consider each of the grounds of appeal and to apply the test of whether any of them might be arguable with a real prospect of success. It concluded that none of them could be argued with any real prospect of success. It was not contended (nor could it have been contended) that the Tribunal had misdirected itself by applying the wrong test. [23] In my opinion, the Tribunal made no error in concluding that what counsel have accepted was the correct test was not satisfied. [24] The petitioner's first ground of appeal was that the Adjudicator had erred in rejecting the petitioner's evidence that he was a supporter of the DBP. That proposition is developed in 6/4 of process by emphasising the consistent nature of the petitioner's position and pointing to features of the evidence that the Adjudicator is said not to have had proper regard to. Now, it does not appear to me from my reading of the Adjudicator's Determination that she quite went the distance of entirely rejecting the petitioner's evidence that he was a supporter of the DBP. Rather, following, as I would understand it, the guidance which appears in Karanakaran, she expresses herself in terms of the degree of credibility she is prepared to attach to the petitioner's evidence on the matter. Moreover, it is his status as an active supporter of the DBP that she finds lacks credibility. If account is taken of what is an obvious typographical error in the second sentence of the first paragraph of 6/3 of process, that is how the Adjudicator was understood by the Tribunal. The Tribunal found that there was nothing to support the contention that the Adjudicator's findings were not properly sustainable on the evidence. I would agree. Mr Lindsay submitted, under specific reference to the judgement of Schiemann LJ in Sahm Sunder Jain, that the Tribunal would only be required to grant leave on an appeal based on an alleged error of fact if it could be said that the Adjudicator's decision on a question of fact was Wednesbury unreasonable: in other words, such that no reasonable adjudicator could come to it. Mr Lindsay may well be correct. He was not challenged on this point by Mr Melvin-Farr in his second speech. However, where the issue is not one of characterisation of primary facts or assessment of future risk (as was the case in Sahm Sunder Jain, where what was under consideration was whether the Tribunal was entitled to come to its conclusion on the reasonable likelihood of persecution of the claimant) but, rather, simply a finding of primary fact, I would prefer to reserve my opinion on the correctness of Mr Lindsay's formulation of the test. It is sufficient for present purposes to observe that in relation to the first ground of appeal, there was material before her which entitled the Adjudicator to be sceptical of the proposition that the petitioner was an active supporter of or sympathiser with the DBP. In my opinion the Tribunal was correct to hold that it was not arguable with any real prospect of success that the Adjudicator had erred in fact. In any event, having regard to the Adjudicator's other findings, even if she was to be assumed to have been wrong about the issue of the petitioner's active support for the DBP it is difficult to see how that could be said to have made a material difference to the outcome of the appeal. [25] The petitioner's second ground of appeal was that the Adjudicator erred in finding that the petitioner had not suffered past persecution. The Tribunal found the Adjudicator to have dealt with the issues in paragraphs 45 and 46 of her determination and, in doing so, making findings which were properly open to her on the evidence. It observed that the issue for the Adjudicator to assess was whether there would be a risk of persecution on return and that for the reasons which she gave she was not satisfied that there would be. In my opinion the approach of the Tribunal is not open to criticism. As I read the Determination of the Adjudicator, she accepted the petitioner's account of having been tortured on the two occasions when he was arrested (and that is how the Determination is approached in the petitioner's grounds of appeal). By repeating the word "tortured" which had been used by the petitioner to describe his experience at the hands of the Turkish police, the Adjudicator indicates that she is prepared to accept that he had suffered severe ill-treatment. However, ill-treatment does not necessarily amount to persecution and past ill-treatment, while relevant, does not necessarily mean that there will be a risk of persecution in the event of return to the country where the past ill-treatment occurred: Nabil Salim v Secretary of State for the Home Department supra. On the test to be applied by the Tribunal in determining whether an adjudicator has erred on whether there has been persecution or whether there is a risk of future persecution (by which I mean a well founded fear of persecution on the part of the petitioner), I am content to accept Mr Lindsay's submission, under reference to Sahm Sunder Jain, that in order to grant leave the Tribunal would require to come to the view that it was arguable that the adjudicator's decision was Wednesbury unreasonable. In pressing what were slightly different arguments from what appeared in the grounds of appeal, Mr Melvin-Farr drew attention to certain paragraphs in the Country Assessment for Turkey, 7/1 of process, pointing to the use of torture in Turkey in ways which supported the petitioner's account of his own experience. The way Mr Melvin-Farr formulated his position was that the Adjudicator, in addition to having failed to give adequate reasons for her decision, had attached insufficient weight both to the evidence of the petitioner and to the objective evidence that was available to her in the form of the Country Assessment. I shall have just a little more to say about sufficiency of reasons, but it is simply not an arguable ground upon which to appeal a determination of an adjudicator that she failed to give sufficient weight to part of the evidence before her. That some of the evidence available to the Adjudicator might point away from the conclusion that she arrived at is, of itself, of no particular consequence. The Adjudicator was obliged to have regard to all the evidence before her, including the other paragraphs of the Country Assessment and the agency news reports which had been lodged, and she was obliged to have regard to such guidance as was available to her from the Tribunal in its decision in Polat, to which she had been referred at the hearing and to which I was referred by Mr Lindsay. That, having regard to that evidence and to that guidance, the conclusion that the Adjudicator arrived at was one that was open to her as a rational decision-maker, as the Tribunal found to be the case here, means that she simply cannot be said to have erred in the sense necessary to provide a ground of appeal. [26] The petitioner's third ground of appeal was that the Adjudicator erred in finding that the Turkish authorities had no interest in the petitioner following his attendance at a particular demonstration. In 6/4 of process this is developed by listing four factors to which it was submitted the Adjudicator had failed to attach weight. For my own part I would not have found any of these factors (the final one of which is frankly speculative) particularly weighty. However, neither I nor the Tribunal are fact-finders in this appeal process. The fact-finder is the Adjudicator. I can discern no error in principle. Again, it cannot be maintained that the Tribunal erred in law in finding that it could not properly be argued that the Adjudicator's findings were not properly open to her. [27] Strictly, that is all that requires to be said. This application for judicial review falls to be dismissed because the Tribunal, whose decision is the decision under review, has not been demonstrated to have acted unlawfully. In my opinion, it simply cannot be said that, in relation to the petitioner, the Tribunal failed to grant leave in respect of a ground of appeal which might be arguable with a real prospect of success. No other compelling reason has been put forward why the appeal should be heard by the Tribunal. However, Mr Melvin-Farr's submissions went somewhat beyond what appears in the grounds of appeal which were before the Tribunal. Two of these submissions I can deal with very shortly. I agree with Mr Lindsay that the references to credibility that are to be found in the Determination are indications that the Adjudicator was aware of and had had regard to the approach laid down in Karanakaran. I also agree with Mr Lindsay that it was clear from the terms of the Determination that the Adjudicator had regard to whether there was a likelihood of a breach of the petitioner's human rights should he be returned to Turkey. I shall say just a little more about Mr Melvin-Farr's submission, under reference to R v Immigration Appeal Tribunal ex parte Khan, that the Adjudicator's Determination was vitiated by her failure to provide adequate reasons for dismissal of the petitioner's appeal. [28] There can be no question but that an immigration adjudicator has an obligation to give adequate reasons for her determination. However, precisely what is required in a particular case will depend upon the circumstances of that particular case. Some matters will require to be spelled out explicitly. Others will not. Regard has to be had to certain of features of a determination that bear on the way it comes to be expressed. A determination by an immigration adjudicator is a decision of a specialist decision-maker in an area which has accumulated its own jurisprudence, the leading cases in which, by frequent citation, will have become very familiar to adjudicators and those who appear before them as professional representatives. It will usually be addressed, as was the case here, to parties who are represented by specialist advisers. It will have been arrived at after consideration of a significant amount of factual material, some of which will be particular to the individual case, but much of which will be of more general application. The framework of adjudicators' decision making in cases falling within particular classes is determined, to an extent, by the guidance provided by the Immigration Appeal Tribunal as to what factors should be had regard to in particular classes of cases. What appears in the decision of the Tribunal in Polat is an example of such guidance. These are all factors which, as it appears to me, might lead to a degree of entirely legitimate economy of expression in way in which an adjudicator's determination is expressed. The judgment of Lord Lane CJ in Khan, to which I was referred by Mr Melvin-Farr, includes the following:"The important matter which must be borne in mind by tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue between the parties, and they should indicate the evidence on which they have come to their conclusions.
Where one gets a decision of a tribunal which either fails to set out the issue which the tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis on which it has reached its determination on that issue, then that is a matter which will be very closely regarded by this court, and in normal circumstances will result in the decision of the tribunal being quashed. The reason is this. A party appearing before a tribunal is entitled to know, either expressly stated by it or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not. Second, the appellant is entitled to know the basis of fact on which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in others it may not."
Decision
[30] As invited to do by Mr Lindsay, I shall accordingly repel the pleas-in-law for the petitioner, uphold the respondent's plea-in-law and refuse the orders sought in the petition.