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Akyol, Re A Petition for Judicial Review [2005] ScotCS CSOH_27 (18 February 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 27 |
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P853/04
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OPINION OF LORD EMSLIE in the Petition of MEHMET AKYOL (AP) Petitioner; for Judicial Review of (1) a Determination of an Immigration Appeal Adjudicator promulgated on 20 September 2002 in terms of sections 65 and 69(5) of the Immigration and Asylum Act 1999 and (2) the refusal of an application for leave to appeal by the Immigration Appeal Tribunal promulgated on 15 November 2002 ________________ |
Petitioner: Blair; Allan McDougall
Respondent: Ms A. Carmichael; Solicitor to the Advocate General for Scotland
18 February 2005
Introduction
[1] The petitioner is a Turkish national, born on 1 January 1973. On arriving in the United Kingdom on or about 28 August 2001, he immediately claimed asylum under the United Nations Convention and Protocol relating to the Status of Refugees (1951). The respondent is the Secretary of State for the Home Department, who has responsibility for the enforcement of immigration and asylum laws throughout the United Kingdom. The petitioner's claim for asylum proceeds on the basis that he has a well-founded fear of persecution, if returned to Turkey, by reason of his political beliefs and activities. In the first instance that claim was refused by the respondent, whose decision was intimated to the petitioner by letter from the Home Office dated 21 February 2002, and the matter was then appealed to the Special Adjudicator. After a hearing in Glasgow on 13 August 2002, the Special Adjudicator refused the petitioner's appeal, and his determination to that effect was promulgated to the petitioner on 20 September 2002. Thereafter, by decision dated 28 October 2002 and served on the petitioner on 15 November 2002, the Immigration Appeal Tribunal refused the petitioner's application for leave to appeal against the Special Adjudicator's determination.
[2] The present petition is now brought for judicial review and reduction of the foregoing refusal of leave by the Immigration Appeal Tribunal. Notwithstanding the terms of his petition, counsel for the petitioner at the First Hearing disclaimed any desire to have the determination of the Special Adjudicator set aside as well. Put shortly, the petitioner maintains that, in various respects, the Special Adjudicator erred in law et separatim acted in an irrational manner. In particular, the Special Adjudicator is said to have made no findings in fact regarding (i) the petitioner's evidence, (ii) the objective country evidence as to the treatment of political activists in Turkey, or (iii) the documentary evidence relating to the position of the petitioner's brother. The Special Adjudicator is also said to have reached his decision, which involved a blanket rejection of the petitioner's credibility, without giving any or adequate reasons for doing so. Moreover, the nature and degree of the risk which the petitioner would face if returned to Turkey had not been addressed. These deficiencies in the Special Adjudicator's determination were, it is said, so obvious and so significant that the Immigration Appeal Tribunal's refusal to grant leave (which was itself brief and mechanistic) must also be held unlawful et separatim unreasonable. [3] For the respondent, on the other hand, it is contended (i) that the Special Adjudicator was well entitled to form an adverse view of the petitioner's credibility, and to decide the appeal on that basis; (ii) that his determination contained adequate reasons for doing so; and (iii) that, against that background, the Special Adjudicator was under no obligation to make further findings of fact on matters which could have no bearing on the outcome of the appeal. There was, moreover, no deficiency in the Special Adjudicator's determination which could be regarded as affording the petitioner a real prospect of success in any further appeal. In all the circumstances, the Immigration Appeal Tribunal's decision to refuse leave was one which they were entitled to reach, and should not be disturbed. [4] After sundry procedure, the First Hearing on the petition and answers has now taken place before me on 3 and 4 February 2005.Statutory framework and legal principles
[5] Since I did not understand the relevant law in this area to be materially in dispute between the parties, the following brief summary may be given together with a note of the authorities which were cited during the course of the debate:-(i) Under the United Nations Convention and Protocol relating to the Status of Refugees (1951), and the relevant Rules made under the Immigration and Asylum Act 1999, a claimant seeking asylum as a refugee must demonstrate - the onus being on him - that he has a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion ..." if he were to be returned to his country of origin. By virtue of section 65 of the Immigration and Asylum Act 1999, such a claim may also succeed on the alternative ground that to return the claimant to his country of origin would involve violation of his human rights, and in particular the fundamental rights conferred under Article 3 of the European Convention on Human Rights. In the present case, nothing was said to turn on any distinction to be drawn between "refugee" and "human rights" grounds.
(ii) In both cases, the applicable standard of proof is that of "a reasonable degree of likelihood" that such consequences would ensue, this being a lower test than the ordinary civil standard of the balance of probabilities:- R v SSHD, ex parte Sivakumaran 1988 AC 958; Karanakaran v SSHD 2000 3 AER 449; Kacaj v SSHD 2001 INLR 354.
(iii) Under the Immigration and Asylum Appeals (Procedure) Rules 2000 a claimant whose application for asylum is rejected by the respondent may appeal to the Special Adjudicator. If unsuccessful before the Special Adjudicator he may appeal further, but only with leave of the Immigration Appeal Tribunal under Rule 18(1). Under sub-paragraph (7) of the same Rule, leave may only be granted where the Tribunal is satisfied, either that an appeal would have a real prospect of succeeding, or that there is some other compelling reason why the appeal should be heard.
(iv) In considering an immigration appeal, or in determining a petition for judicial review in that context, it is incumbent on any Court or tribunal to carry out "the most rigorous examination" of the decision under review and to subject it to "the most anxious scrutiny". This obligation is of particular importance where the result of a flawed decision may imperil the claimant's life or liberty and thus violate his fundamental human rights:- R v SSHD, ex parte Bugdaycay 1987 AC 514 (esp. per Lord Bridge of Harwich at p.531, and Lord Templeman at p.537).
(v) For that purpose, a Court or Tribunal must take account of all relevant materials, including such information as may be available concerning the social, political and human rights situation in the country concerned. In evaluating such evidence, the Court or Tribunal should be sensitive to the effect of national differences (UK standards not necessarily being a reliable guide), and recognise that evidence may be acceptable in part notwithstanding deficiencies elsewhere:- Kasolo v SSHD (IAT unreported, 1994); Chiver v SSHD 1997 INLR 212. However, the weight or value to be attached to such evidence and materials must always remain a matter for the judgment of the decision-maker:- Karanakaran, supra, per Sedley, L.J. at p.478; Horvath v SSHD 1999 INLR 7.
(vi) As regards reasons, the fundamental requirement is that they must "...deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader and the Court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it":- Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345, per Lord President Emslie at p.348; Daljit Singh v SSHD 2000 SC 219. To meet this test, for example, it would be necessary to explain why a claimant's evidence was disbelieved:- Daljit Singh, supra; Gurjit Singh v SSHD (Lady Paton, unreported, 30 May 2001). Subject to that fundamental requirement, however, the evaluation of evidence relative to asylum claims has been entrusted by Parliament to an administrative system set up under the Immigration and Asylum Act 1999 and relative Rules. In appropriate circumstances, it is entirely legitimate for a decision to turn upon the assessment (along ordinary lines) of the credibility and reliability of the claimant. The Court should be slow to interfere with any such decision, except on clear grounds or in the face of unsustainable findings:- Kulwinder Singh v SSHD 2000 SC 288; Borissov v SSHD 1996 Imm.A.R.524. Moreover, in Daljit Singh, supra, approving earlier comments by Lord Penrose in Asif v SSHD 1999 SLT 890, the Court confirmed (at p.223) that "...nothing could be more destructive of the efficient disposal of immigration appeals than the notion that the Adjudicator and the Tribunal are under an obligation to carry through a mechanical process of narration of the evidence, analysis of it into classes, and an explanation factor by factor of the relevance or irrelevance, credibility and reliability or otherwise of it".
(vii) Judicial review remains, however, an exercise of the supervisory jurisdiction of the Court. It is neither an appeal nor a rehearing, and can only succeed where the petitioner is able to demonstrate one or more of the established grounds for review, notably illegality (in the sense that the decision under review is shown to have been in some way contrary to law) and irrationality (in the sense of the decision under review being shown to be one which no reasonable Tribunal, correctly directing itself on the law and addressing the relevant facts, could properly have reached).
Submissions for the petitioner
[6] Against that background, counsel for the petitioner laid great stress on the considerable degree of circumstantial and other detail contained in his client's written evidence. Political activities and events were specified, as were periods of detention and other consequences affecting the petitioner and his brother, friends and wife. Appropriate locations and dates were given where possible. This evidence was in no way vague or lacking in substance, and was contained in the petitioner's Statement of Evidence Form (Production 6/6), his recorded interview (Production 6/7) and his witness statement (Production 6/9). I do not propose to rehearse the contents of these documents here, but the summary at Article 6 of the present petition reads as follows:-"...the brother of the petitioner, Orhan Aykol, became active in the illegal Turkish Revolutionary Communist Party ('TDKP') in around 1986 just after the petitioner and his family moved to Istanbul. The petitioner had been detained for around 20 days in December 1989 when police raided their home looking for TDKP publications. During this detention the petitioner was interrogated in relation to the publications found in the house. He was punched. He was sprayed with pressurised cold water. The brother was detained for over a month. He was told, but refused to sign, a false confession in relation to the items found in the house. The brother was detained for over a month. After this incident the petitioner became more interested in politics. He began to distribute TDKP leaflets by the end of 1989. In May 1991 his brother was imprisoned for four months because of his involvement with the TDKP. On 3 March 1992 the petitioner and his brother were arrested. They were at home. Their home was raided by police and soldiers. They were looking for illegal political material. They did not find any. The petitioner and his brother were taken to the Anti-Terrorist Branch. The petitioner was blindfolded and interrogated. He was accused of helping the TDKP and of supporting separatism. The authorities tried to get the petitioner to sign a false confession. He was beaten with truncheons. He was forced to listen to other people being tortured. He was deprived of food and drink for the first four days of his detention. He was then interrogated on a further two occasions. In total he was detained for 10 days. His brother was detained for 35 days. The petitioner continued with his political activities. The police would regularly call at his workplace to ask his employers and workmates about his political activity. In May 1993 he attended a Mayday celebration where a number of persons were beaten and detained by the police. On 28 August 1993 the petitioner was detained by the police because he had not answered his compulsory military call-up. He left the army in January 1995 and returned to Istanbul. Towards the end of 1995 a legal socialist party called EMEK was formed. The petitioner was sympathetic to EMEK. He attended the branch meetings and distributed leaflets and attended other meetings and advised workers about their rights. He did not become a formal member because he suspected that he was the subject of state surveillance. In January 1996 he attended the funeral of a journalist who had died in police custody. The petitioner and other mourners were beaten by the police at this gathering. The petitioner continued with his political activities. On May Day 1997 the petitioner and his brother were again detained along with another 8 people. The petitioner and the others had been on their way to attend a demonstration. He was detained at the Anti-Terrorist Branch again for 3 days. Along with other detainees he was questioned about his attendance at the demonstration. He was asked who had sent him and the others to the demonstration. He was again beaten. His brother was released 25 days later. The brother did not return home and the petitioner has not seen him since. The petitioner lost his job as a result of this detention, regularly moved house and continued with his political activities. He married in 2000. Towards the end of 2000 there were many protests against the use of 'F-type' prisons. The petitioner became involved. On 15 January 2001 the petitioner and 2 of his friends distributed leaflets condemning 'F-type' prisons and asking people to attend a hunger strike rally. His friends were detained by the police. The petitioner escaped but was shot at as he fled. The police attended the home of the petitioner and searched it for illegal publications. The police found two legal left wing publications 'Devrimin Sesi' and 'Ozgurluk'. The police then detained the wife of the petitioner. She was told that the petitioner was to report to the police station. During that detention his wife was beaten. She was made to sign a paper confirming that the police had found items in the house including a gun. After her release the petitioner met his wife in secret and they fled from Istanbul to Kayseri. Thereafter their home was raided by the police for a second time as was the home of the father-in-law of the petitioner. The petitioner and his wife then fled to the United Kingdom".
Submissions for the respondent
[9] For the respondent, counsel maintained that neither the Special Adjudicator nor the Immigration Appeal Tribunal had been shown to have done anything unreasonable or improper. It was perfectly legitimate for the Special Adjudicator to have formed an adverse view of the petitioner's credibility and reliability, provided that the reasons which he gave in that connection met the test laid down by the Court in the Wordie case. It was only political activities that were alleged to expose the petitioner to a risk of persecution if he were returned to Turkey, and accordingly (as focused in the parties' submissions before the Special Adjudicator) the only real issue was whether the petitioner's claim to political activism was, or was not, to be believed. In the event, the petitioner's written evidence was summarised by the Special Adjudicator at paragraphs 4, 5, 7 and 8 of his determination; paragraph 9 described how the petitioner had got into difficulties during his cross-examination; and paragraph 19 in particular set out, with adequate clarity, the grounds on which the Special Adjudicator declined to accept the petitioner's claim to political activism of a nature, or at a level, capable of exposing him to a real risk of persecution if he were to be returned to Turkey. In these circumstances, it was submitted, the Special Adjudicator was under no obligation to make further specific findings of fact on matters which could have no bearing on the outcome of the appeal. There was thus no need for him to make such findings about the objective country information in this case, nor on the situation of the petitioner's brother, since even if these matters were taken pro veritate the petitioner's application for asylum was still bound to fail. The core of the petitioner's application, namely his claim to hazardous political activism, was simply not accepted by the Special Adjudicator and, even upon the most anxious and careful scrutiny of the determination, it was not possible to identify any good reason why it should not have been open to the Special Adjudicator to reach that conclusion. [10] With specific reference to the complaints set forth in Article 15 of the petition, it was submitted that findings in fact on the objective evidence were unnecessary if the petitioner's claim to be a political activist was not believed. The same applied to the situation of the petitioner's brother, more particularly in view of the fact that the evidence on that score dealt only with the period up to 1997. With specific reference to Articles 16 and 17 of the petition, alleging failure on the part of the Special Adjudicator to give proper and adequate reasons for his decision, counsel maintained that it was wrong to examine individual sentences in isolation. Not only should paragraph 19 of the determination be considered as a whole, but its terms should also be considered in the context of the remainder of the determination including paragraph 9 which described "....how the petitioner's paper evidence fell apart under cross-examination". The Special Adjudicator had had the advantage of seeing and hearing the petitioner in person; as was clear from the determination, the petitioner's verbal evidence was judged unsatisfactory and unimpressive; and in all the circumstances it could not be said that the Special Adjudicator was not entitled, for the reasons given, to reach the conclusion he did. [11] In any event, even if the petitioner was correct in claiming to have been involved in some form of political activism, that involvement was at such a low level that no credible risk of persecution by the authorities could be thought to arise. On his own evidence, the petitioner was not a member of any political organisation. The organisation EMEP was legal, and at most the petitioner appeared to have delivered leaflets once or twice a month and newspapers daily. His own answers in cross-examination disclosed a lack of active commitment to left-wing labour politics or to Kurdish separatism, and his claim to have been under surveillance was difficult or impossible to reconcile with the regularity of his claimed activities or with the fact that, during 2001, he lived and worked openly in Istanbul. Applying the test set out by the Court in the Wordie case, the determination left the informed reader and the Court in no real and substantial doubt as to the Special Adjudicator's reasons, or as to the material considerations which he had taken into account. On no view, counsel submitted, could it be said that the Special Adjudicator had been bound to reach the opposite conclusion, or that the conclusion which he did reach was unlawful or unreasonable. It may be that the reasons for the decision could have been more fully explained. It may be that the consequential observation in the penultimate sentence of paragraph 19 could have been omitted or differently expressed. However, that was not the point. The point was that the decision was perfectly intelligible, when read fairly and in its proper context, and that the basis upon which it had been reached was adequately set forth. [12] Against that background, it was submitted, the Immigration Appeal Tribunal were well entitled to refuse the petitioner's application for leave to appeal. Having applied their minds to the petitioner's detailed grounds of appeal, and having reviewed the Special Adjudicator's determination in that context, it was open to them to conclude, as they did, that the proposed appeal had no real prospect of success and that leave must therefore be refused. In all the circumstances, the petitioner had failed to make out any ground on which the Court could contemplate ordering reduction of the latter decision.Discussion
[13] Having carefully considered the competing submissions, I have reached the conclusion that the respondent's contentions are to be preferred, and that no convincing grounds have been made out for reducing the decision of the Immigration Appeal Tribunal dated 28 October 2002 and promulgated on 15 November 2002. [14] As regards the criticisms levelled at the Special Adjudicator's approach to this case, I am not of course called upon to decide whether, in point of fact, his determination was right or wrong. Nor is it for this Court to substitute its own judgment on matters of credibility and reliability for that of the Special Adjudicator, especially in circumstances where he alone had the advantage of seeing and hearing the petitioner give evidence in person. The issue is whether the determination in question was one which a reasonable decision-maker, addressing the correct issues and applying the proper tests, could legitimately have reached. Against that background, I am unable to accept the proposition that the Special Adjudicator was not entitled to give weight to the various factors on which he relied in reaching his determination, nor can I see why, on considering these factors together, it should not have been open to him to reach the conclusion he did. [15] In my judgment the Special Adjudicator has set out adequate and sufficient reasons for rejecting the petitioner's core assertion of political activism of a nature, or at a level, capable of exposing him to a reasonable likelihood of persecution if he were to be returned to Turkey. Paragraphs 9 to 11 of the determination contain a fairly detailed account of the difficulties which the petitioner encountered when his written evidence came to be tested in cross examination at the hearing on 13 August 2002. As is clear from paragraphs 13 and 15, the credibility of the petitioner's evidence was the only live issue to be resolved, and paragraph 19 sets out the basis on which the Special Adjudicator determined that issue. As it seems to me, paragraphs 9, 10, 11 and 19, read together, leave the informed reader and the Court in no real and substantial doubt as to either the Special Adjudicator's reasons or the material considerations which he took into account. The established test laid down by the Court in the Wordie case is accordingly satisfied here, and I do not consider that the petitioner can have any legitimate complaint on that score which would afford him a real prospect of success in any further appeal. As I see it, his main problem is the number of discrepancies and difficult areas which emerged in the course of his own evidence. He was not a member of any political organisation; he had difficulty in identifying any political views that he may have held; a problem arose regarding the acronym of the political organisation for which he claimed to have worked at different dates; when his claim of having been under surveillance appeared inconsistent with such work, he sought to play down the extent of the latter; his claim to have been in hiding appeared inconsistent with the fact that he had lived and worked openly in Istanbul over a considerable period; he contradicted himself on the question of forced confessions, giving an explanation which the Special Adjudicator did not regard as plausible; he appeared to be in considerable doubt as to whether he was at risk of prosecution; documentation had materialised on his brother's situation but not on his own; and the overall impression appears to have been of a man who was not genuinely involved in political activism at all, or whose involvement was at such a low level that no reasonable likelihood of persecution in that context could be held to arise. [16] If, as I have held, it was open to the Special Adjudicator to reject the petitioner's core assertion of political activism to a degree which plausibly gave rise to a risk of persecution in the event of his being returned to Turkey, it does not seem to me that the Special Adjudicator was nevertheless obliged to set out detailed findings of fact on other matters which, even if proved, could have no bearing on the outcome of the case. It may well be that political activists in certain areas, and at certain levels, would be at risk of persecution in Turkey; it may well be that the petitioner's brother fell into that category; but even if the Special Adjudicator had expressly accepted these matters pro veritate, I think that he would still have been entitled to determine the appeal in the way he did. On one view the clarity and detail of the objective country information, and of such evidence as there was regarding the petitioner's brother, represented a further difficulty for the petitioner, since that must have made it even harder for the Special Adjudicator to understand or explain the range of discrepancies and difficult areas which emerged in the course of the petitioner's own evidence. [17] Against that background, it may be that parts of the Special Adjudicator's decision might have been more happily, or perhaps more fully, expressed. However it is a matter of degree, in the circumstances of a given case, whether the conclusions under review have been adequately justified, and in the circumstances of the present case I am not persuaded that it was necessary for the Special Adjudicator to go further in this area than he did. [18] Having rejected as unsound the criticisms levelled on the petitioner's behalf against the Special Adjudicator's determination, it follows that I must refuse his motion for reduction of the later decision of the Immigration Appeal Tribunal to refuse leave for a further appeal. In my opinion it was open to the Immigration Appeal Tribunal to conclude that the petitioner had failed to identify any appeal point capable of affording him a real prospect of succeeding, and accordingly to refuse his application for leave pursuant to Rule 18(7) of the 2000 Rules.Decision
[19] For the foregoing reasons I now sustain the second plea-in-law for the respondent, repel the pleas-in-law for the petitioner, and refuse the prayer of the petition.