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OUTER HOUSE, COURT OF SESSION

P252/03

OPINION OF

R F MACDONALD QC

(Sitting as a Temporary Judge)

in the Petition of

D.B.

for

Judicial Review of the decision of the Immigration Appeal Tribunal in relation to appeals under Sections 65 and 69 of the Immigration and Asylum Act 1999

________________

Petitioner: Govier; Wilson Terris, SSC

Respondent: Lindsay; H F Macdiarmid, Solicitor to the Advocate General

3 December 2004

Introduction

[1] The petitioner is a Turkish citizen who was born on 7 May 1964. He is an Alevi Kurd by ethnic origin and religion. He unsuccessfully attempted to enter the United Kingdom on a Eurostar train on 5 February 2002. On that occasion he was immediately returned to France, whence he was deported back to Turkey. He again arrived in the United Kingdom on 27 February 2002 and claimed asylum. His claim was refused by the respondent, the Secretary of State for the Home Department, by letter of refusal dated 23 April 2002. On 29 April 2002 he was served with a Notice of Decision to issue Removal Directions to an Illegal Entrant and brought an appeal against that Notice on the grounds that his removal from the United Kingdom would be contrary to its obligations under the 1951 Geneva Convention relating to the Status of Refugees ("the Refugee Convention") and the 1950 European Convention on Human Rights ("ECHR"). His appeal was heard at Glasgow on 12 September 2002 by an adjudicator, Ms E A Mozolowski, who by her determination dated 2 October 2002 and promulgated on 7 October 2002 refused his appeal.

[2 ] The petitioner thereafter sought leave to appeal against that refusal to the Immigration Appeal Tribunal ("the IAT"). Six grounds of appeal were tabled by him. By its determination dated 28 November 2002 and notified on 5 December 2002 the IAT refused him leave to appeal. It concluded that the adjudicator, in a carefully considered determination, accepted most of his claims and gave sound reasons for the evidence which she rejected, including evidence that he had been ill-treated. It also concluded that her conclusions disclosed no misdirection in law, that the grounds of appeal lacked merit and that an appeal therefore had no real prospect of success were leave to be granted.

[3 ] In this petition for judicial review the petitioner seeks reduction of the determination of the IAT on the grounds that it was unlawful and unreasonable for the reasons which he sets out in the petition. Answers have been lodged by the Secretary of State in which it is averred that the decision of the IAT was lawful and reasonable and that reduction should be refused. A first hearing took place on Friday 19 November 2002.

The factual background

[4 ] The relevant facts found by the adjudicator were as follows.

[5 ] The petitioner is married with two children. His wife and children remain in Turkey. He has been discriminated against by Turkish society throughout his life because of his ethnic origin and religion, but the discrimination which he has suffered has been no more than most other Alevi Kurds in Turkey have suffered. He successfully completed an electrical training course and thereafter his National Service in 1986. Following his return from military service he obtained employment in a Government run factory under the company name of TAKSAN, where he worked from 1986 until April 1999. While working in TAKSAN he suffered some discrimination from fellow employees, but nothing marked. He was happy in that employment for over 13 years and achieved a promoted post, a fact which indicated that he was not being held back in his employment. It was conceded on his behalf that he had not been persecuted in his employment. He claimed to be a sympathiser with the PRK, an illegal organisation founded in 1976 which is left radical and Kurdish nationalist. He was not allowed to be a member of the PRK because of a law prohibiting Government employees from participating in or being members of any political party. As he showed no interest in politics, this prohibition made very little difference to him. His brother was an active supporter of the PRK and attracted the attention of the Turkish police. The police did not visit their concerns about his brother upon the appellant, whom they allowed to get on with his life. The appellant was nevertheless detained on two occasions lasting three or four hours by the Turkish police. During the first detention on 25 August 1999 he was beaten and in the course of the detention fell and broke his wrist. He went immediately to hospital, where his wrist was x-rayed and put in a plaster cast. The second detention of the appellant by the police was on 1 September 2000. He and another brother were taken by the police from a bus following upon an identification check and interrogated at a police station. The appellant was released after three or four hours. When the petitioner was returned to Turkey after his unsuccessful attempt to enter the United Kingdom on 5 February 2002 he was detained for a few hours at Istanbul Airport but was not ill-treated, beaten or tortured.

[6 ] An incident occurred on 2 September 1998 when the Turkish police came to the family home of the petitioner and enquired about the whereabouts of his brother A. The petitioner's mother answered the door to the police and an argument ensued in the course of which she was shot dead. Various people were in the house and heard the argument. The cause of her death was certified as murder. The hospital authorities informed the State Prosecutor about the circumstances of the death and a prosecutor came to the hospital the following morning and asked the petitioner's father various questions. The petitioner thereafter visited the State Prosecutor and the police station but no criminal proceedings were taken against the police officer concerned. The murder of the petitioner's mother was the action of an ill-disciplined police officer, and not part of a concerted action by the Turkish police against the petitioner's family.

The grounds of appeal

[7 ] Although six grounds of appeal were tabled in the application for leave to appeal made to the IAT, Mr Govier accepted that the present petition related only to grounds 2 and 4, and that the other grounds of appeal were no longer live. Grounds of appeal 2 and 4 related to the reasoning of the adjudicator at paras 41 and 42 of her determination, which deal with her findings about the murder of the petitioner's mother and what happened in the course of the detention of the petitioner at Istanbul Airport when he was returned to Turkey in early February 2002.

The relevant law

[8 ] Both Mr Govier and Mr Lindsay drew my attention to the general legal considerations which applied in a case of this nature. Mr Govier began by reminding me that the appeal to the adjudicator was brought under the terms of article 1A(2) of the Refugee Convention as amended by the 1967 Protocol and article 3 of the ECHR. The former provision, so far as relevant, defined 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 is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. The latter provision enacts that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. The onus of proof before the adjudicator rested on the petitioner and the standard of proof was the same under both Conventions. Under the Refugee Convention the petitioner had to show that there was a real risk that his fear of persecution was well-founded and under the ECHR he had to show that there was a real risk that he would be subject to torture or to inhuman or degrading treatment or punishment: see R v Home Secretary ex parte Sivakumaran [1988] 1 AC 958 per Lord Keith at p.994F; Secretary of State for the Home Department v Kacaj [2002] Imm AR 213 (a decision of the IAT per Collins J) and Macdonald's Immigration Law and Practice (5^th ed.) at para 12.24. The reasons given by the adjudicator for the determination had to be adequate and proper: see Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 per Lord President Emslie at p.348; Singh (Daljit) v Secretary of State for the Home Department 2000 SC 219 per Lord Weir at p.222A-223A and Singh (Jaswinder) v Secretary of State for the Home Department 1998 SLT 1370 per Lord Macfadyen at p.1374J. In asylum cases the basis of the decision called for the most anxious scrutiny: R v Home Secretary ex parte Bugdaycay [1987] AC 514 per Lord Bridge of Harwich at 531E-G. It was not enough that an adjudicator might in theory have had comprehensible reasons: the reasons had to be found in the stated reasons and nowhere else (per Lord Macfadyen in Singh (Daljit) (supra) at p.1374L-1375A.)

[9] Mr Lindsay began his consideration of the applicable law by referring me to the rules of procedure which applied at the material time. These were the Immigration and Asylum Appeal (Procedure) Rules 2000. Rule 18(7) thereof provided:

"Leave to appeal shall be granted only where:

(a) 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."

In the present case only (a) applied. It was not sufficient to identify just a grammatical error in the determination of the adjudicator: it had to be an error which gave rise to a reasonable prospect of success in the appeal to the IAT. In order to succeed in the present proceedings the petitioner had to show that no reasonable appeal tribunal could have concluded that he had no real prospect of success in his appeal. The Tribunal was, by virtue of Rule 18(6), not required to consider any grounds other than those included in the application for leave to appeal, but the Tribunal was not confined to the stated grounds of appeal if there was an obvious point which required consideration on appeal (Mutas Elabas, Petitioner, 2 July 2004, unreported per Lord Reed at para 20). In the present case there were no obvious points requiring consideration which were not contained in the grounds of appeal. The test which the petitioner had to satisfy was therefore the very exacting one of establishing that his appeal to the IAT would have a real prospect of success. Refugee status was not to be regarded as a reward for past ill-treatment, but as a protection against future ill-treatment (Nabil Salim v Secretary of State for the Home Department [2000] Imm AR 503 per Hale LJ at paras 14 and 19). Past ill-treatment was only a material consideration in the determination of the question whether there was a well-founded fear of persecution. So far as the duty of an adjudicator to give adequate and proper reasons was concerned, Mr Lindsay accepted that the decisions in Wordie Property Co Ltd and Singh (Daljit) had not been doubted in any way or overruled. Reference was also made to the decision of the House of Lords in South Bucks District Council and Another v Porter [2004] UKHL 33 (a planning case) per Lord Brown of Eaton-under-Heywood at para 36.

The adjudicator's determination

[10] While it is the refusal of leave by the IAT which is challenged in this petition, it is necessary, since the petitioner maintains that the IAT failed to identify errors in the adjudicator's determination and consequently erred in refusing leave to appeal, to consider the criticisms made by the petitioner of the adjudicator's determination. I now turn to consider each of these in turn.

[11 ] The first criticism which was made was of the finding by the adjudicator in para 38 of her determination that the petitioner "showed no interest in politics whatever". It was submitted that the adjudicator, in making that finding, took into account an irrelevant matter, in that it was no part of the case before her that it was the personal involvement of the petitioner in politics that resulted in his persecution. The petitioner's case was presented on the basis of persecution by reason of his imputed political opinions due to the support by his brother and brother-in-law of the PRK. The adjudicator recorded in para 5 of her determination that this was the case. Para 38 of the adjudicator's determination is in the following terms:

"The Appellant claims that he was a sympathiser with the PRK but was never allowed to be a member because of a Government law forbidding the participation and membership of Government employees in any political party whatsoever. I note that the Appellant continued to stay in Turkey despite detentions, the death of his mother and disappearance of his brother A. I find that the Appellant showed no interest in politics whatever and this rule made very little difference to the Appellant's interest in politics (or rather lack of it) in general."

Mr Govier submitted that the finding in para 38 that the petitioner showed no interest in politics amounted to a finding of credibility against him. He submitted that the question whether the petitioner was himself involved in the PRK was quite irrelevant to the case which was presented before the adjudicator. He asked why the adjudicator made the finding in question at all. The finding was a rejection of his evidence that he was a sympathiser with the PRK. It was difficult to say that a sympathiser had no interest in politics. Mr Lindsay submitted that what the adjudicator stated in this paragraph did not amount to an adverse finding against the petitioner on credibility. The adjudicator was there merely concluding that the restriction on party membership made no real difference to the petitioner.

[12 ] The challenge set out in the petition to the finding by the adjudicator in para 38 that the appellant showed no interest in politics did not feature in the grounds of appeal submitted to the IAT, and I therefore fail to see how it can now be suggested that the IAT erred in law in not holding that this ground of challenge would have had a real prospect of success in an appeal. The fact that the point did not feature in the grounds of appeal is not conclusive, but I see no reason why the IAT should have considered this point, which was not drawn to their attention, to amount to "some other compelling reason why the appeal should be heard" (Rule 18(7)(a)). In any event I am clearly of the opinion that this ground of challenge is wholly without merit. All that the adjudicator was saying in para 38 was that, as the petitioner showed no interest in politics, the prohibition on his participation in or membership of a political party made no difference to him. Far from her finding that he showed no interest in politics being an adverse finding on his credibility, it was entirely consistent with his evidence and the basis upon which the appeal was presented. The finding is not in any way a rejection of his evidence that he was a sympathiser with the PRK, for it is perfectly possible to be a sympathiser with a political party or movement without being interested in politics. Many people in the United Kingdom sympathise with a political party without having an interest in politics.

[13 ] The second criticism of the adjudicator's determination related to her findings in para 41, which is in the following terms:

"I accept fully, in the absence of any challenge to the contrary, that the death certificate of the Appellant's mother is genuine and that she was murdered. It is with great hesitation however that I accept the Appellant's version of events that this was done by a Policeman enquiring from the mother after the whereabouts of the Appellant's brother A. However, given that the standard of proof is so low, and contrary to any other explanation before me, I would accept that this is in fact how the Appellant's mother was murdered. However I find that this was the action of a rogue Policeman and that the public prosecutor did become involved in the investigation of her death. The public authorities had no qualm in registering the cause of death as being murder rather than anything else. I do not therefore accept that the death of the Appellant's mother was caused as a concerted action by the Turkish Police against the Appellant's family, but rather it was the action of an ill disciplined police officer. The fact that no further action appears to have been taken could be for a number of different reasons, unrelated to the family of the Appellant's perceived political views."

The phrase "contrary to any other explanation" in that paragraph is clearly a mistake as there was no competing explanation before the adjudicator. It is obvious that what she intended to say was "in the absence of any other explanation". Mr Govier accepted that this was the case.

[14 ] The criticism based on para 41 was that the adjudicator had given no reason or explanation for her finding that the murder of the petitioner's mother was the action of an ill-disciplined police officer. It was submitted that this was pure speculation on her part. Mr Govier accepted, in response to questions from me, that what the adjudicator appeared to be saying was that the murder of the petitioner's mother was an isolated incident, and not part of a concerted police campaign against the petitioner's family. He then went on to submit that that meant that the reasons of the adjudicator were not obvious to the reader, who was having to work out what those reasons were. It was submitted that the circumstances of the death of the petitioner's mother demonstrated the growing pressure which the petitioner maintained had been inflicted upon him in Turkey. Mr Lindsay submitted that in para 41 the adjudicator had given adequate and comprehensible reasons for her conclusion that it was a rogue policeman who had murdered the petitioner's mother. He accepted that whether it was a rogue policeman who had carried out the murder or whether the murder was part of a concerted campaign by the Turkish police against the petitioner's family was highly significant in the assessment of future risk of persecution. The reasons given by the adjudicator in para 41 for her conclusion that the murder of the petitioner's mother was the action of a rogue policeman were that the death was certified as murder and that there was an investigation of her death by the public prosecutor. In these circumstances the adjudicator was entitled to infer that the death of the petitioner's mother had not been brought about by what Mr Lindsay described as "a State death squad".

[15 ] In my opinion there is no merit in the criticism made of the finding by the adjudicator in para 41 that the murder of the petitioner's mother was carried out by what she describes as "a rogue policeman" or "an ill-disciplined police officer". I accept the submission of Mr Lindsay that the adjudicator has stated that she made the finding because the death was certified as murder and the public prosecutor became involved in the investigation. I do not consider that her reasoning and conclusion on this point can be faulted in any way.

[16 ] The third criticism of the adjudicator's determination related to her finding at para 42 that the petitioner was not ill-treated, beaten or tortured when detained and questioned for a few hours at Istanbul Airport when returned there by the French authorities in early February 2002. His evidence, as narrated at para 23 of the determination, had been that he was interrogated and beaten for three or four hours because he had no documents. At para 36 the adjudicator had found that "the appellant was in the main credible". By finding at para 42 that he had not been ill-treated, beaten or tortured she was ignoring his evidence and she failed to give any reason for her finding. The relevant portion of para 42 is in the following terms:

"With regard to his two attempts at entering the United Kingdom I find it extremely significant that the Appellant was detained and questioned for a few hours at Istanbul Airport when he was returned by the French Authorities. I find that he was not ill treated and he was not beaten or tortured. The Appellant was vague about what happened at the interview at Istanbul Airport and focused far more on the advice (not order) to report to Kayseri Police Station. From the treatment of the Appellant at Istanbul Airport, I accept that he did have a few hours of rigorous questioning. However, what the Appellant has described fully fits in, in this particular case, with the background information about returnees in the CIPU Report also."

Mr Lindsay submitted that in that passage the adjudicator had given adequate and comprehensible reasons for her finding that the petitioner had not been ill-treated, beaten or tortured at Istanbul Airport. What she had found to be significant was that the petitioner had been detained for only a few hours (and not for a much longer period). She also relied upon the fact that he was vague in his evidence about what had happened at the airport and focused far more on the advice to report to the police station. This was in contrast to his evidence about his previous two detentions when he was resident in Turkey, which contained no vagueness.

[17 ] In my opinion there is no substance in the criticism made of the adjudicator's finding in para 42 that the petitioner was not ill-treated, beaten or tortured when detained at Istanbul Airport in early February 2002. The adjudicator accepted the evidence of the petitioner that he had been subjected to rigorous questioning, but not his evidence that he was beaten during his detention. She gave two clear reasons for making such a finding. The first was his vagueness about what had happened at the airport, including the focusing of his evidence on the advice to report to the police station. The second was that his evidence of interrogation was consistent with the background information about returnees in the CIPU Report. As recorded by the adjudicator at para 33 of her determination, para 5.80 and the following paragraphs of the CIPU Report consider treatment of returned asylum seekers by the Turkish authorities and confirm that the police can and do interrogate returnees at the airport to see if they are suspected of criminal offences or illegal political associations. When the adjudicator stated that "what the appellant has described fully fits in, in this particular case, with the background information about returnees in the CIPU Report", she was obviously referring to what the appellant had described so far as his detention and questioning were concerned, but not so far as any beating was concerned. That this must be so follows from the fact that she rejected his evidence that he had been beaten. Accordingly, in my opinion, the reasoning and finding by the adjudicator in the quoted passage from para 42 of her determination cannot be faulted.

[18 ] The fourth criticism of the adjudicator's determination related to what she held in para 39, which is in the following terms:

"I fully accept the Appellant's claim that his brother A was an active supporter of the PRK, but to have attracted the attention of the Turkish police I consider that either the Appellant's brother did a lot more than simply distribute leaflets or the Appellant has exaggerated his brother's harassment by the police. With great hesitation I am willing to accept that the Appellant's brother was an active supporter of the PRK and did in fact come to the attention of the Turkish Authorities. I also take from that however that the police, having detained the Appellant and released him so shortly thereafter, did not visit their concerns about Aydin upon the appellant and happily allowed the appellant to get on with his life".

The submission for the petitioner in relation to that passage was that the findings of the adjudicator were illogical in that the last sentence of para 39 did not follow from the preceding sentence or from any of the preceding parts of the determination. The adjudicator had based a material conclusion as to the level of police interest in the petitioner on a non sequitur. She had found at para 40 that the petitioner had been detained by the Turkish police on two occasions, each lasting only three or four hours, and that he had been beaten during the first detention, as a result of which he sustained a broken wrist. It therefore could not be said that the police happily allowed him to get on with his life. Mr Lindsay submitted that the finding in the last sentence of para 42 was a reasonable conclusion for the adjudicator to make, and was one which was supported by the evidence before her.

[19 ] I find no illogicality or contradiction in what the adjudicator stated in the last sentence of para 39. All that the adjudicator was saying in that sentence was that she concluded from the fact that the police had detained the appellant for only short periods that they were not really concerned about him, but were more concerned about the activities of his brother A, who was an active supporter of the PRK. In my opinion, therefore, there is no substance in the criticism made of the adjudicator's findings in para 39.

[20 ] As I am of the opinion that there is no merit in any of the criticisms made of the adjudicator's determination, it follows that there was no substance in the grounds of appeal based upon those criticisms and that the IAT did not act unlawfully or unreasonably in refusing leave to appeal.

Decision

[21 ] For the reasons set out above I shall sustain the second plea-in-law for the respondent, repel the plea-in-law for the petitioner and dismiss the petition.