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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Abernethy
Lord Nimmo Smith
Lord Clarke
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[2006] CSIH23
XA79/04
OPINION OF THE COURT
delivered by LORD
ABERNETHY
in
APPEAL TO THE COURT OF SESSION
under section 103(2) of
the Nationality, Immigration and Asylum Act 2002
by
MS. GULNAZ ESEN
Appellant;
against
REFUSAL OF LEAVE TO APPEAL
BY THE IMMIGRATION APPEAL TRIBUNAL
and
SECRETARY OF STATE FOR THE
HOME DEPARTMENT
Respondent:
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Act: Devlin; Allan McDougall (Appellant)
Alt: Drummond; Solicitor to the Advocate General for Scotland (Respondent)
5
May 2006
Introduction
[1] At
the start of the hearing in this case it was necessary to deal with a
procedural error. Although the case had
earlier been appointed to the Summar Roll, it was not in fact an appeal since
leave to appeal had not been granted. It
remained an application for leave to appeal.
Counsel for the applicant therefore moved the Court to allow the
application to be treated as the appeal.
Counsel for the respondent, the Secretary of State for the Home
Department, did not oppose this and the motion was granted.
[2] The
appellant is a national of Turkey. She was born on 3 May 1980.
She has a dependent son Eren Esen, born on 13 October 1998. She made a claim for asylum on her arrival in
the U.K. on 23 November 2001. The claim was refused by the respondent by
letter dated 3 April
2002. On 10 April 2002 the
appellant was served with a Notice of Refusal of Leave to Enter after Refusal
of Asylum giving directions for her removal to Turkey. She appealed against these directions on the
grounds that her removal in pursuance of the directions would be contrary to
the U.K's obligations under the United Nations Convention relating to the
Status of Refugees and the European Convention on Human Rights. By determination promulgated on 8 April 2003 the adjudicator dismissed
the appeal both on asylum grounds and on human rights grounds.
[3] The
appellant sought leave to appeal to the Immigration Appeal Tribunal. Seven grounds of appeal were put
forward. Leave was granted in respect of
ground 5 but refused in respect of the other grounds. Following a hearing the Tribunal, by
determination notified on 10
February 2004, dismissed the appeal.
[4] The
appellant then sought leave from the Tribunal to appeal to this Court. On 26 March 2004 that was refused.
On 30 June
2004 the appellant applied to this Court for leave to
appeal. As narrated above, the Court
agreed to treat the application as the appeal.
[5] The
appellant's claim for asylum was, as her counsel put it, largely parasitic on
the claim of her husband, Ali Esen, whom she married on 28 December 1998. He had claimed asylum on 22 May 2001. On 27 June 2001 the claim was refused. Mr. Esen appealed to an adjudicator. By determination promulgated on 14 May 2002 the appeal was
dismissed. Mr. Esen sought leave to
appeal to the Immigration Appeal Tribunal but that was refused. We were informed that his solicitors had
thereafter sought legal aid in order to present a petition for judicial review
of that decision but in or about September 2003 legal aid had been
refused. The solicitors had not heard
from Mr. Esen thereafter until the week of the hearing before us when he had sought
advice as to whether he could renew his application for leave to appeal in
light of the fact that a new Turkish warrant for his arrest had been
issued. Apart from this the present
position in relation to his asylum claim was not known. We were informed, however, by counsel for the
respondent that it was Home Office policy not to remove a spouse from the U.K. pending
the other spouse's appeal. Mr. Esen was therefore
still in the U.K. and was
living here with his wife, the present appellant, and their children (of whom
there were now two).
The Ground of Appeal before the Immigration Appeal Tribunal
[6] Ground
5 of the appellant's grounds of appeal in her application for leave to appeal
to the Immigration Appeal Tribunal was in the following terms:
"Following
on from his positive credibility findings in paragraph 24 the Adjudicator at
paragraph 25 gives findings as to why he does not accept the remainder of the
Appellant's evidence. It is arguable
that he has not given adequate reasoning for making said findings."
The scope of the appeal to the Immigration Appeal Tribunal and of the
appeal to this Court
[7] The
application for leave to appeal to this Court states that it is brought under
section 103(2) of the Nationality, Immigration and Asylum Act 2002. For a considerable part of the hearing both
counsel presented their submissions on that basis. It was only on the morning of the second day
that we were informed that it was common ground between the parties that in
fact the governing statutory provision was not section 103(2) of the 2002 Act
but paragraph 23 of Schedule 4 to the Immigration and Asylum Act 1999. To say the least this confusion was
unfortunate. The relevant part of
paragraph 23 of Schedule 4 to the 1999 Act provides as follows:
"23(1) If the Immigration
Appeal Tribunal has made a final determination of an appeal brought under Part
IV, any party to the appeal may bring a further appeal to the appropriate
appeal court on a question of law material to that determination. ...
(3) 'Appropriate appeal court' means -
(a) if the appeal
is from the determination of an adjudicator made
in Scotland, the Court
of Session ... "
[8] The
appeal from the adjudicator to the Immigration Appeal Tribunal was governed by
paragraph 22(1) of Schedule 4 to the 1999 Act.
This provides as follows:
"22(1) Subject to any
requirement of rules made under paragraph 3 as to leave to appeal, any party to
an appeal ... to an adjudicator may, if dissatisfied with his determination,
appeal to the Immigration Appeal Tribunal."
It was common ground that the Immigration
and Asylum Appeals (Procedure) Rules 2003 applied to such an appeal. Leave (or permission) to appeal is required by
Rule 15(1) thereof and Rule 18, which is headed
"Determining the permission application", provides as follows:
"18. ...
(2) The Tribunal is not required to consider
any grounds of appeal other than those included in the application ...
(4) The Tribunal may grant permission to
appeal only if it is satisfied that -
(a) the appeal
would have a real prospect of success;
or
(b) there is some
other compelling reason why the appeal should be
heard ...
(5) Where the Tribunal grants permission to
appeal it may limit the permission to one or more of the grounds of appeal
specified in the application ... "
[9] In
this case the appellant applied for permission to appeal to the Immigration
Appeal Tribunal from the adjudicator's determination on seven grounds (numbered
1, 2, 3 (twice), 4, 5 and 6). As we have
said, permission was granted on numbered ground 5 only.
[10] Counsel for the appellant submitted that the Immigration Appeal
Tribunal had a discretion to take note of and deal
with any points which arose out of the adjudicator's determination which
appeared to it to be arguable, even although they had not been raised in the
grounds of appeal to the Tribunal.
[11] Counsel for the respondent submitted that that was not correct
given the statutory framework within which this case had to be decided. Formerly there was no appeal from a refusal
of the Immigration Appeal Tribunal to grant permission to appeal to it. The only remedy was by way of judicial review
of its decision. In the context of such
a review the court was not limited by the grounds of appeal if there was a
readily discernible and obvious point in the appellant's favour: see R v
Secretary of State for the Home
Department, ex parte Robinson [1998] QB 929. The position here was different. The Immigration Appeal Tribunal had granted
permission to appeal, although on one ground only. The provisions of the 2003 Rules now
applied. In terms of Rule 18(2) the
Tribunal was not required to consider any grounds of appeal other than those
included in the application for permission.
It had granted permission on one ground only (ground 5) and refused
permission on the other grounds. It was
not possible now to consider those other grounds or, indeed, any other readily
discernible and obvious points in the appellant's favour except in so far as
they arose in the context of ground 5.
What counsel for the respondent did accept, however, was that any errors
of law in the Tribunal's determination in relation to ground 5 of the grounds
of appeal to it, even if they were not focused in the appellant's grounds of
appeal to this Court, could and should be noticed and dealt with by this
Court. If, however, there were no such
errors by the Tribunal in respect of ground 5, the appeal should be dismissed.
[12] In our opinion the submissions of counsel for the respondent
are correct for the reasons she gave.
The scope of the appeal to this Court is therefore limited to ground 5
of the grounds of appeal to the Immigration Appeal Tribunal.
[13] It was common ground, however, that the wording of ground 5 was
such as in effect to allow discussion of some of the matters more specifically
referred to in the other grounds of appeal to the Tribunal. But it is important to recognise and bear in
mind how this comes to be.
The determination of the adjudicator
[14] Although this is an appeal from the Immigration Appeal
Tribunal, it is necessary in order to give content to the appeal to record the
essential findings of the adjudicator, which were as follows:
"19 Within the bundle of evidence for the
Appellant there is a copy of the
Adjudicator's
Determination of 14th May
2002 of the Appellant's husband's claim for asylum. The Adjudicator dismissed her husband's claim
under the Refugee Convention and under Article 3 of the European Convention of
Human Rights. The facts supplied by Mr
Esen in his asylum claim, as stated in the relative determination, are
generally consistent with the evidence which he has provided in support of the
Appellant's claim for asylum but there are certain important differences. According to paragraph 29 of the determination
of Mr Esen he stated in cross examination at the relative hearing that he was a
supporter rather than a member of KAWA (a Kurdish organisation) whereas in
paragraph 5 on page 2 of his statement Mr Ali stated that he was 'influenced to
join' the party. In the said paragraph
29 of the said determination reference is made to paragraph 5 of Mr Esen's
statement 'I was also influenced to join this party'. As stated above he was cross examined about
this at this own asylum hearing but at the Appellant's hearing he was not asked
about this either by Mr Winter nor by myself nor did Mr Esen give any oral
evidence on his own in this issue. I
have taken into consideration that the said determination of Mr Esen's asylum
claim was submitted as evidence by the Appellant. On the basis that the information about Mr
Esen being a supporter rather than a member of KAWA arose from cross
examination and is unequivocally referred to by the Adjudicator at the relative
hearing I find that Mr Esen was a supporter rather than a member of KAWA. I make this finding taking into consideration
that by his own evidence Mr Esen's activity in respect of KAWA related to
distributing magazines.
20. In paragraphs 28
and 29 of the said determination of Mr Esen's asylum
claim the magazines in question are referred to as 'legal'. In paragraph 12 of his statement Mr Esen
states that the magazine was illegal and in his oral evidence at the hearing on
behalf of the Appellant Mr Esen stated that the magazine was not legal. There is clearly a material difference in the
evidence which was provided to the hearing in respect of Mr Esen's claim for
asylum in this regard and the evidence which is provided by Mr Esen on behalf
of the Appellant. When asked at the
hearing by Mr Winter if the distribution of magazines was a main role or a minor
role Mr Esen stated that not everyone does it because it is risky and stated
that it was an important role because you are distributing a magazine which is
not legal. I have to decide whether the
magazine was a legal magazine or an illegal magazine and having heard Mr Esen
give evidence at the hearing and taking into account the evidence in this
regard as stated within Mr Esen's determination of his asylum claim I find that
the magazine was legal. I make this finding
also taking into consideration all the evidence together with my other findings
in fact in relation to Mr Esen.
21. There is a further matter which is raised
on behalf of the Appellant but
was not
raised on behalf of Mr Esen at his asylum hearing on 24th April 2002 in Glasgow
and this relates to the document headed 'defaulting warrant of arrest' for Mr
Esen. As stated above Mr Esen's asylum
hearing took place on 24th April
2002 and the date specified on the arrest warrant is 21st June 2001. It would be reasonable to expect that where
an arrest warrant had been issued approximately eleven months prior to the date
of an asylum hearing that the Appellant in question would produce as evidence
on his behalf the relative arrest warrant.
Clearly from the contents of the said determination of Mr Esen's asylum
claim the alleged arrest warrant was not submitted on evidence on his
behalf. Such an arrest warrant would be
an important document and it would be reasonable to expect that every effort
would be made by an Appellant to have such a document available for his asylum
hearing. I have given full consideration
to the explanation as to how the said document came in to the possession of Mr
Esen via his father. I have also taken
into account that no explanation was given to me at the hearing, on behalf of
the Appellant, as to why the document was not available for Mr Esen's own
hearing but is available for the hearing of the asylum claim for his
spouse. Taking into consideration the
fact that the Appellant lodged the said determination of her husband's asylum
claim I believe it would be reasonable to expect that following upon the
submission of the said document in the current hearing for the Appellant that
some explanation of why the document was not lodged at Mr Esen's hearing would
be expected. Looking at all the evidence
in the round and taking into consideration my other findings on credibility I
do not accept that the said arrest warrant is genuine and I find that it has
been fabricated to improve the chances of success of the Appellant's asylum
claim. I also make this finding taking
into account that in general the Appellant's claim for asylum is based upon the
activities of her husband with respect to KAWA.
22. According to Mr Esen his last period of
detention was on 21st March
2001 and lasted seven days.
Although he was released he said that the authorities told him that they
would send plain clothes police to his house to avoid suspicion and that when he
got out of detention he went straight to his maternal uncle's house in Gebze
before he went to Izmir and stayed
mainly in a Kurdish part of the city called Yamanlar. He finally decided that he had to leave Turkey and stated
that on 15th May 2001 he was
taken in the back of a taxi with an agent and another person to an unknown
location and this was the start of his fleeing Turkey. This was just over two months after his last
release from detention. Mr Esen had a
wife and child and in his oral evidence he stated that he had to escape
immediately. He said that in his last
detention of seven days he was extremely tortured and badly damaged and he
could not think of anything else at the time.
In her oral evidence at the hearing the Appellant was asked why she did
not go with her husband when he left and she replied that her husband went into
hiding for a week or two and she did not know his whereabouts and that the
authorities kept an eye on her ever since her husband went into hiding. I have given careful consideration to Mr Esen
fleeing his native land without his family.
This was a man who had been arrested, according to his own evidence on
three occasions as a result of his activities.
On the first occasion he was beaten and they put a large stick behind
his back and passed it through his handcuffs, then he was hung from the ceiling
and one the policemen pulled his leg downwards so as to make it more
painful. He further stated that when he
fainted they used a pressurised water hose to waken him up. On the following day he was beaten with
sticks and a metal bar. In his second
period of detention Mr Esen stated that he was pistol whipped by one of the
policeman on the upper part of the body and his head and he suffered a deep cut
above his left eyebrow as a result of this and bled heavily from the
wound. He further stated that he did not
receive treatment for this and when he was put into a cell the blood continued
to pour out of his head and he could not stop the flow as he was
handcuffed. He said that he had to put
his head against the wall to stop it bleeding so much. He further said that he was beaten and
interrogated on the second and third days of this detention. Despite these two periods of detention where
Mr Esen stated that he was badly assaulted he continued to distribute the
magazines eventually leading to a third period of detention according to his
evidence. His position is that on his
release after this third period of detention he was so badly treated that all
he could think about was fleeing Turkey. Taking into consideration his own evidence
about the previous treatment meted out to him I do not believe Mr Esen's
evidence in this regard. In all the
circumstances, particularly taking into account (if he is to be believed) the
two periods of detention where he was so badly treated and continued to
distribute the magazine I conclude that Mr Esen would have done what most men
in his circumstances would have done and that was to try to make arrangements
for his wife and child to leave with him.
The fact that he failed to do so, taking into account his two previous
assault incidents (after which he went back for more so to speak), lead me to
disbelieve Mr Esen's evidence in this regard.
23. I have further taken into account the
negative findings of credibility
against Mr Esen in his asylum determination, a copy of which
determination was submitted by the Appellant as part of her evidence. In paragraph 29 of the said determination the
Adjudicator found it completely implausible that the factory in question would
be raided repeatedly in search of legal magazines distributed by someone who
was not even a member of KAWA. In
paragraph 31 of the said determination the Adjudicator refers to the statement
of Mr Esen about being held for seven days and tortured, being forced to agree
to become an informer against KAWA, immediately absconding thereafter, going
elsewhere in Turkey and
leaving the country. The Adjudicator
stated that he did not believe it. With
respect to the question of the police having any interest in Mr Esen as an
informer the Adjudicator in the said determination stated that it was not
plausible that the police would have waited until Mr Esen was randomly picked
up for what the Adjudicator described as a 'public order offence'. The Adjudicator also stated that it was not
plausible that the authorities would use someone who was not even a member of
KAWA. The Adjudicator also stated in the
said paragraph 31 of the determination that he found Mr Esen unconvincing in
saying that he did not seek the assistance of his doctor on release because he
was frightened that the doctor would let the authorities know and they would
call the police. In paragraph 32 of the
said determination the Adjudicator did not consider it reasonably likely that
the police elsewhere would have the slightest interest in someone whose
previous activities were largely confined to the distribution of legal
magazines. The Appellant gave evidence
at the Hearing on behalf of her husband and the Adjudicator stated that she
basically corroborated her husband's account.
The Adjudicator stated that he did not consider that the level of
interest in the Appellant's husband to be plausible. If Mr Esen was only a supporter of KAWA and
not even a member then I do not find it reasonable that he would have the type
of information about the organisation which the police would want. I do not believe it likely that the police
would choose someone with such a low level of relationship to the organisation
as an informer. I agree with the Adjudicator's
view in the Determination of Mr Esen that if the police wanted someone to
become an informer then they would not leave it to chance to use someone who
just happened to be arrested because he was one of some twenty people who tried
to stop the police from arresting a few of the Newroz (festival) revellers on
21st March 2001. I accordingly do not
accept Mr Esen's evidence that he was arrested, detained for seven days and
ill-treated on 21st March
2001.
24. The Appellant claims that her family had
a history of being harassed
by Turkish gendarmerie since she was a child because of their
Kurdish origins and the fact that her family supported the struggle of Kurdish
rights. She stated that whilst she was
still at school her parents were held for three days and released having been
beaten because they had been accused of supporting the PKK (a Kurdish
organisation) and that two weeks later her elder sister Derya was detained for
two days at the gendarmes station and thereafter had been sent to Istanbul for
her own safety by her father. The
Appellant also stated that around 1991/1992 her parents were taken to the
gendarmes station and held for one day again being beaten and accused of
supporting the PKK. In or around 1996
the Appellant stated that her other sister Meryem was beaten and tortured by
the gendarmes and her mother was badly beaten in front of her. The Appellant further stated that in 1997
(when she would have been around 16) she was taken to the gendarmes
station and interrogated for two days about the whereabouts of PKK guerrillas
and that she was slapped and kicked and verbally abused. They threatened to rape and kill her and a
few days after her release her father sent her to Istanbul to live
with her maternal aunt. I accept that
the Appellant was being truthful in these matters and all these matters are
consistent with the background evidence available to me. However, in relation to the treatment of the
Appellant by the authorities based on her family's support for the struggle of
Kurdish rights the matter ends here when her father sent her to Istanbul according
to the evidence of the Appellant. As Mr
Winter told me in his submission the Appellant's fear is based on the imputed
political opinions due to her husband's activities in relation to KAWA.
25. Taking into account my above findings in
relation to the evidence of
the Appellant's husband I do not accept her statement that after
her husband left she was kept under surveillance by the authorities and that
her home was raided and ransacked in April 2001 when she was slapped and her
hair pulled and she suffered a miscarriage.
I do not accept the police returned a few days later and detained her
overnight at Umranye police station where she was beaten up and humiliated nor
do I accept that the police again came to her home at the end of September 2001
and beat her up as she held her son in her arms. I do not accept that these incidents took
place. Taking into account my finding
that the Appellant's husband was only a supporter of KAWA that following the
incident on 21st March 2001 when Newroz was being celebrated he was not held
for seven days and forced to become an informer I find that there would be no
plausible reason for the authorities to keep the Appellant's home under
surveillance nor to come to her home to interrogate her about the whereabouts
of her husband."
The determination of the Immigration Appeal Tribunal
[15] In its determination the Immigration Appeal Tribunal, after
summarising the basis of the appellant's claim, noted that the adjudicator had
accepted her account of events up to the time when her father sent her to Istanbul but did
not accept her account of subsequent events.
He did not believe she had been kept under surveillance by the
authorities nor that her home was raided and ransacked
in April 2001. He rejected her account
of being detained at Umranye police station and he did not accept the account
of events in September 2001. He was not
satisfied that the appellant would be of any adverse interest to the
authorities on return. After noting the
terms of ground of appeal 5 the Tribunal recorded that the solicitor for the
appellant had argued that while the adjudicator had made some positive
credibility findings, he rejected the evidence about the arrest warrants and
did not accept the appellant's account of events after she had moved to Istanbul. He submitted that in relation to some of the
negative credibility findings the adjudicator appeared to have based these
findings on assumptions of how he believed the appellant would have acted in
given circumstances. In response, it is
recorded, the presenting officer for the respondent submitted that the
adjudicator's findings were properly open to him. He had considered the evidence of both the
appellant and her husband.
[16] The Tribunal then stated as follows:
"9. The Tribunal are satisfied that the
Adjudicator did give clear and
adequate reasons for his findings of fact. It is clear from paragraphs 24 and 25 that he
accepted the appellant's account of events until her father sent her to Istanbul. He rejected the account of subsequent
events. Paragraphs 24 and 25 cannot be
read in isolation from the rest of the determination. The Adjudicator's analysis of the evidence is
set out in the paragraphs which precede paragraph 24. In paragraph 19 the Adjudicator referred to
the determination in Mr Esen's appeal which had been adduced in evidence before
him. He was entitled to take that
evidence into account as part of the background although he was of course not
bound by the findings. He came to the
conclusion that Mr Esen was a supporter rather than a member of
Kawa. He noted Mr Esen's own
evidence that his activities on behalf of Kawa related to distributing
magazines. He also took into account
that at the hearing before him a document headed 'Defaulting Warrant of Arrest'
for Mr Esen was produced. No such
document was produced at the hearing of his own appeal. The Adjudicator noted that the date specified
on the arrest warrant was 21 June
2001 whereas Mr Esen's asylum hearing took place on 24 April 2002. He took into account the explanation as to
how the document had come into Mr Esen's possession via his father and the fact
that no explanation was given why the document was not available for Mr Esen's
own asylum appeal. Looking at the evidence
as a whole he did not believe that the arrest warrant was genuine and found
that it had been fabricated to improve the chances of success in the
appellant's appeal.
10. In paragraph 22 of his determination the
Adjudicator went on to
consider the assertion that Mr Esen had been detained on 21 March 2001. He had then decided to leave Turkey in May
2001 without his family. The Adjudicator
commented that this was a man who had been arrested according to his own
evidence on three occasions. On the
first occasion he was beaten and hung from the ceiling and then beaten with
sticks and a metal bar. In his second
period of detention he had been pistol-whipped.
Despite these two periods of detention he had continued to distribute
magazines eventually leading to a third detention. He had said that after being released all he
could think about was fleeing Turkey. It was the Adjudicator's view that if this
sequence of events was correct, Mr Esen would have
tried to make arrangements for his wife and child to leave with him. In paragraph 23 the Adjudicator considered
further aspects of Mr Esen's evidence.
He did not believe it likely the police would choose someone with such a
low level of relationship to Kawa to use as an informer. He did not accept his evidence that he had
been arrested, detained and ill-treated on 21 March 2001.
11. In summary paragraphs 24 and 25 have to
be read in the context of the
Adjudicator's
analysis of the evidence in paragraphs 19-23.
The Tribunal are satisfied that the Adjudicator has given clear reasons
why he disbelieved the appellant's account of events after she moved to Istanbul."
[17] The appeal was dismissed.
Counsel's submissions to this Court
[18] Before us counsel for the appellant stated that whether the
adjudicator was entitled to make the assumptions referred to by the solicitor
for the appellant before the Tribunal was pivotal to the appellant's case. Counsel pointed out that in paragraph 9 the
Tribunal had concentrated on the adjudicator's reasons. Counsel accepted that his reasons were clear
and, on the whole, adequate. But the
issue raised in ground of appeal 5 was the adequacy of the adjudicator's
reasoning for making his findings, which was a different thing. At no stage did the Tribunal address that
issue. The adjudicator's reasoning,
whereby he drew conclusions from his own apparent knowledge of how people would
behave in certain circumstances, amounted to speculation with no proper basis
in the evidence and was an error in law.
Although it was permissible for an adjudicator to speculate in favour of
an asylum seeker - which was a consequence of the nature of the issues at stake
and the low standard of proof in cases such as this - it was not permissible to
speculate against an asylum seeker. It
was not permissible for an adjudicator to make findings on the basis of what he
thought a reasonable person would have done.
It was also not permissible for an adjudicator to make findings based
solely on how he thought the organs of a State might have behaved in the
absence of objective evidence justifying that finding. It was not permissible for an adjudicator to
make findings on the basis of implausibility unless it could be shown either
that the evidence contradicted the claimed facts or that the claimed facts were
so beyond human experience as to be inherently unlikely. For that reason, while there was a role for
common sense, it was a limited one.
Reference was made to Symes and Jorro on Asylum Law and Practice, paragraphs 2.31 and 2.46; Lubana v Canada
(Minister of Citizenship and Immigration) 2003 F.C.T. 116; W321/01A
v Minister for Immigration &
Multicultural Affairs [2002] F.C.A. 210;
Wani v Secretary of State for the Home Department 2005 S.L.T. 875; and Kasolo
v Secretary of State for the Home
Department I.A.T. Appeal No. 13190, 1 April 1996. Counsel submitted that the adjudicator in
this case had erred in four respects. The
first two were to be found in paragraph 22 of his determination. There he noted Mr. Esen's evidence that,
although he had been detained and badly assaulted on two occasions, he
continued to distribute magazines for KAWA, which had eventually led to a third
period of detention. On release from
that his evidence was that he had been so badly treated that all he could think
about was fleeing Turkey. The adjudicator did not believe that
evidence. In all the circumstances,
particularly taking into account (if he is to be believed) the two periods of
detention where he was so badly treated and continued to distribute the
magazine, he concluded that Mr. Esen would have done what, in the adjudicator's
view, most men in his circumstances would have done and that was to try to make
arrangements for his wife and child to leave with him. The fact that he failed to do so, taking into
account his two previous assault incidents (after which he went back for more
so to speak), led him to disbelieve Mr. Esen's evidence in this regard.
[19] The other two were to be found in paragraph 23 of his
determination. There the adjudicator,
having noted that Mr. Esen was not a member of KAWA, only a supporter of the
organisation, said that he did not believe it likely that the police would
choose someone with such a low level of relationship to the organisation as an
informer. He agreed with the view expressed
by the adjudicator in his determination of Mr. Esen's appeal that if the police
wanted someone to become an informer, then they would not leave it to chance to
use someone who just happened to be arrested because he was one of some 20
people who tried to stop the police from arresting a few of the Newroz
revellers on 21 March 2001. Also in
paragraph 23 the adjudicator had referred to, and apparently accepted, the
finding of the adjudicator in Mr. Esen's appeal that Mr. Esen was unconvincing
in saying that he did not seek the assistance of his doctor on release from
police detention because he was frightened that the doctor would let the
authorities know and they would call the police. These findings amounted to errors in law
which justified reducing the adjudicator's decision. The appeal should therefore be allowed, the
decision of the Immigration Appeal Tribunal reduced and the case remitted to
the Asylum and Immigration Tribunal for reconsideration of the appeal from the
adjudicator's determination.
[20] In reply counsel for the respondent submitted that the proper
test for determining the adequacy and sufficiency of reasons given by an
administrative Tribunal in this context was that, in the words of Lord
President Emslie in Wordie Property Co. Ltd.
v Secretary of State for Scotland
1984 S.L.T. 345 at page 348:
"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." (See also Singh v Secretary of State for the Home Department 2000 S.C. 219.)
With regard to credibility three
points could be made. An adjudicator was
entitled to judge an appellant's credibility by reference to the ordinary tests
of consistency and inconsistency. The
adjudicator was someone to whom questions of fact had been entrusted by
Parliament and had particular experience in his field. It was not for the court to decide whether an
adjudicator's judgment on an appellant's credibility was right or wrong. The question was whether the adjudicator
arrived at a decision which was within the reasonable range of findings which
he was entitled to reach on the material before him. Reference was made to Asif v Secretary of State for
the Home Department 2002 S.C. 182 and Singh
v Secretary of State for the Home
Department 2000 S.C. 288. An
adjudicator was entitled to make reasonable findings based on implausibility,
common sense and rationality and could reject evidence if it was not consistent
with the probabilities affecting the case as a whole. It was open to an adjudicator to take a view
as to the internal coherence of an account and conclude that it did not make
sense. An adjudicator could make
findings on credibility on the basis of reasonably drawn inferences which had a
basis in the evidence. Such inferences
could concern the plausibility of the evidence (Wani v Secretary of State for
the Home Department 2005 S.L.T. 875).
In the present case the adjudicator had not made any bare assertions in
either paragraph 22 or paragraph 23 of his determination. He had based his conclusions on the
evidence. Where, in paragraph 23, he had
narrated and accepted the previous adjudicator's findings he had then gone on
to make his own judgment on the matter.
All the judgments he had made were ones that were open to an adjudicator
acting reasonably. The criticisms, which
counsel for the appellant had levelled at him, had no real prospect of success
and were therefore not ones which the Immigration Appeal Tribunal ought to have
recognised. It was clear that the
Tribunal had found the adjudicator's reasoning adequate. The Tribunal had not erred in law. The appeal should be dismissed.
Discussion
[21] It seems to us that there was no material difference between
the parties as to the law to be applied.
We accept that in giving his decision the adjudicator must meet the
basic test set out by Lord President Emslie in Wordie Property Co Ltd. v
Secretary of State for Scotland, which we have quoted above (Singh v Secretary of State for the Home Department 2000 S.C. 219). Credibility is an issue to be handled with
great care and with sensitivity to cultural differences and the very difficult
position in which applicants for asylum escaping from persecution often find
themselves. But our system of
immigration control presupposes that the credibility of an applicant's account
has to be judged (Asif v Secretary of State for the Home Department
2002 S.C. 182). Credibility is a
question of fact which has been entrusted by Parliament to the
adjudicator. The adjudicator is someone
specially appointed to hear asylum appeals and has the benefit of training and
experience in dealing with asylum-seekers from different societies and
cultures. Of course an adjudicator must
give his reasons for his assessment. A
bare assertion that an applicant's account is implausible is not enough (W321/01A v Minister for Immigration & Multicultural Affairs [2002] F.C.A.
210). But an adjudicator is entitled to
draw an inference of implausibility if it is based on the evidence he has heard
and in coming to his conclusion he is entitled to draw on his common sense and
his ability, as a practical and informed person, to identify what is or is not
plausible (Wani v Secretary of State for the Home Department
2005 S.L.T. 875).
[22] Turning to the present case, we are not persuaded that there is
anything in the adjudicator's reasoning in the matters covered by ground 5 of
the grounds of appeal to the Immigration Appeal Tribunal which is open to
successful attack. In passing we should
say that in the present context we do not consider that there is a material
difference between considering the reasons that led to his conclusion and
considering his reasoning. It seems to
us that his reasoning is no more than the process by which his reasons led to
his conclusion.
[23] In relation to the two matters relied on by counsel for the
appellant in relation to paragraph 22 of the adjudicator's determination (which
we consider are truly part and parcel of one and the same matter) the
adjudicator's conclusion was in our opinion one which he was entitled to
reach. His rejection of Mr. Esen's
evidence was not a bare assertion of implausibility. On the contrary, it was a conclusion which he
arrived at after considering the relevant evidence which had been placed before
him.
[24] We are of the same view in relation to the two matters relied
on by counsel for the appellants in relation to paragraph 23 of the
adjudicator's determination. Again we
consider that the two matters are truly part and parcel of one and the same
matter. The rejection by the adjudicator
in Mr. Esen's appeal of the evidence as to why Mr. Esen did not seek the
assistance of his doctor was just a part of the material before the present
adjudicator which led to his ultimate rejection of Mr. Esen's evidence that he
was arrested, detained for seven days and ill-treated on 21 March 2001. That was a conclusion reasonably based on the
material which had been placed before him.
It is true that that material consisted of the findings of the
adjudicator in Mr. Esen's appeal but the present adjudicator was entitled to
consider it and take it into account in coming to his own conclusion, which is
what he did.
[25] Finally, we should say that in our view there is no other way
in which it could be said that the Tribunal erred in law in dealing with ground
of appeal 5.
Decision
[26] For these reasons we are not persuaded that the Immigration
Appeal Tribunal erred in any way in dealing with the appellant's appeal to it. The appeal to this Court must therefore be
dismissed.
