Scottish Court of Session Decisions

Background

"21. I turn to consideration of the evidence.

22. The Appellant claims to come from the village of Derbent in Elbistan which is in the south of Turkey. He claims to have suffered persecution in Turkey because of his activities with the political party HADEP and because he provided food and shelter to Kurdish guerrillas from the PKK. He claims to have been arrested twice (5  November 1997 and 20 December 2000) and detained for four days and two days respectively in respect of the latter activity. He claims to have been tortured. He claims to fear persecution from the Turkish authorities on return.

23. I found the Appellant's claim to lack credibility for the following reasons.

24. The CIPU country assessment (R2. Annexe A and paras. 5.108-109) states that HADEP (Halkin Demokrasi Partisi - People's Democracy Party) was founded in 1994 and is a legal Pro-Kurdish nationalist political party which campaigns for greater cultural rights for Kurds and a peaceful solution to the Kurdish issue. Although predominantly supporting the Kurds, it emphasises democratic socialism and a democratic society in Turkey as a whole as its aim. It has never resorted to violence.

25. R2. Annexe B states that the PKK (Kurdistan Workers' Party) is an illegal political organisation, which advocates armed struggle inside and outside Turkey, in order to achieve an independent Kurdish state. The PKK's armed operations have included attacks on civilians, on military targets and human rights violations. The Turkish authorities have taken a tough stance against the organisation.

26. The Appellant stated in evidence that between the time of his completing his military service (26.7.99) and his second arrest on 20.12.2000, the PKK guerrillas came twice requiring food and shelter, and that they came to his village after his second release on about 22/23.12.2000. He further claimed that between the date of his first arrest and the commencement of his military service (November 1997 to March 1998) he was also visited three times by them.

27. However, the objective evidence (R2. para. 3) shows that in August 1999, the PKK leader, Abdullah Ocalan, called on PKK fighters to end their armed struggle and to withdraw by 1  September 1999 to beyond Turkish borders. The PKK guerrilla forces agreed to cease operations against Turkey. The number of PKK fighters in Turkey, thereafter dramatically decreased and the armed conflict between the government and the PKK effectively came to an end in 1999, with only a few clashes reported thereafter. The PKK was "almost completely inactive during 2000". The Appellant was asked in cross examination why there should still have been PKK guerrillas coming to his village looking for support when they had ceased military operations. The Appellant did not answer this and only stated that they were not just coming to him, but to relatives and other villagers for support.

28. Against the background of cessation of armed struggle between the PKK and the Turkish authorities, I did not find plausible without an explanation, which was not provided, the Appellant's claims that the PKK guerrillas had visited the village as many times at the time of and after the ceasefire as they had done when they were actively engaged in armed struggle. The Appellant claimed that Turkish soldiers had arrested him on the second occasion on 20  December 2000 and that it was Turkish soldiers who had come to the village after his release, and caused him to flee. I did not believe this. Without explanation, which was not provided, it was not plausible that, against the background of cessation of armed struggle between the PKK and the Turkish authorities, the Turkish authorities would have been sufficiently concerned about the activities of PKK guerrillas to visit the Appellant's village twice in a matter of days in December 2000. The objective evidence also states that in October 2000 the Turkish Armed Forces announced that they had successfully completed their struggle against the PKK and that police and Jandarma would henceforth be taking over any necessary security operations (R2.3.24). Accordingly, it is unlikely that in December 2000, soldiers would have arrested him and then returned to the village a few days after he had been released.

29. The Appellant claimed for the first time in cross examination that on his second detention, he had actually been charged and released pending a court date. However, he maintained that he had not been told the charges and that he was not released on bail, just released "the normal way". I did not find this believable. The Appellant claimed that the authorities had detained him on 20 December 2000 and tortured him for two days, upon the accusation that he was feeding and sheltering PKK guerrillas. They then decided to charge him. The Appellant claimed not to know what the charges were. However, as his involvement with the PKK was the only matter regarding which he was arrested, it is not unreasonable to suppose that the basis of the charges would be his assistance of terrorists. In that event, it was not credible that they would have released him at all pending trial or, if they release him, it was not credible that he was not required to provide bail. It was not explained why this material part of his account, namely his charge and release pending a court date, had never before formed part of his asylum claim. It was not explained why the Appellant had maintained in examination in chief that he had not been charged on the second occasion but been told that the next time he "would be charged and put away", and that he was warned that if he was caught again the authorities would "never leave [him] alone" and would "keep [him] here for good".

"4. The Adjudicator's findings on credibility and fact are stated at paragraphs of the determination. In the case of Grine (13868) the Tribunal stated '...a decision which concentrates primarily on findings of credibility for its outcome is in general more likely to be found to be flawed ....In our view it is safer for the adjudicators first to look at the story to see whether if it were true the appeal would succeed and then proceed to examine it against the background of the country in question'. In the case of Mendes HX/70739/94 'the exercise involves an objective assessment of the plausibility of the Appellant's tale. It is set in the scene of the overall background which an adjudicator has drawn to his attention or is aware of ....what is often difficult to avoid, expressly or implicitly, as re-characterising a risk based in perceptions of reasonability and plausibility from the vantage point of the country of adjudication'.

6. It is submitted that the Adjudicator failed to specify any consistent or plausible findings capable of supporting the Appellant's claim during the course of extensive cross-examination by the Respondent. The Adjudicator has singularly ignored al the consistent aspects of the Appellant's evidence. It is submitted that from the face of the determination, it cannot be ascertained why the Adjudicator rejected the credibility of the following facts

·        That the Appellant was a supporter of HADEP

·        The Appellant's involuntary activities in support of HADEP

·        That the Appellant had been detained on several occasions.

7. The Adjudicator makes several references to "I do not believe this" in particular at paragraphs 28 and 31. The Adjudicator's findings and conclusions upon credibility are fundamentally flawed in her references to believability of the Appellant's evidence. It is submitted that her task is not to decide upon the truth as she states but upon reasonable likelihood.

8. Paragraph 28 of the determination shows a complete failure by the adjudicator to comprehend the arbitrary and violent way in which power is exercised by the authorities - also the inherent difficulty the Appellant has in giving an account of them. The Tribunal has acknowledged that some applicants will not be able to provide a logical account as to why they are at risk ..."

The relevant law

"For the purposes of combating the PKK, the armed forces have some 200,000 troops stationed in the south-east including highly trained commanders."

Submissions on behalf of the respondent

ceased military operations was of some importance. The adjudicator was seeking to test the petitioner's account against the background information that she had and he had plainly failed to provide any adequate explanation. It was clear from paragraph 28 of her determination that she did seek to test the petitioner's account against the background evidence, and in the absence of an adequate explanation rejects his evidence. That was, she submitted, a perfectly appropriate approach to take. Also, as the adjudicator set out in paragraph 29, it was plain that the petitioner had changed his account, initially claiming that he had not been charged, and then, in cross examination, maintaining that he had. She also pointed out that the comments made by the adjudicator in paragraphs 30, 31 and 32 and the reasons given by her for not believing the petitioner's account had not been challenged by counsel for the petitioner.

Reply by the petitioner

Decision

"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 SC 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 and Multicultural Affairs [2002] FCA 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 SLT 875)."

"....two days later the PKK presidential council answered his appeal and confirmed that the PKK combatants would indeed cease operations against Turkey. The statement was supported the following day by the People's Liberation Army of Kurdistan (ARGK), the armed wing of the PKK, which confirmed that it would abide by Ocalan's decision, although it claimed the right to fight in self defence if attacked.

The armed conflict between the Government and the PKK effectively came to an end in 1999, and only a few clashes between the Turkish army and dissident PKK groups were reported. In October 2000 the Turkish Armed Forces announced that they had successfully completed their struggle against the PKK; the struggle had reduced to a level which could be taken over by the police and the Jandarma. The PKK was almost completely inactive during 2000, and in 2001 there were, according to the military, only about 45 armed clashes."

"In this case the learned judge in the Court below was of course obliged to consider what the adjudicator had said about the credibility of the applicant. It was the whole basis of the adjudicator's decision. While Hutchison J. was not himself finding facts, he was required to consider whether there was material upon which the adjudicator could properly come to the decision he did, as there clearly was. For my part, I agree that there may well be cases in which the precise nature of the standard to which an adjudicator has to direct himself in finding whether there is a reasonably founded fear of persecution becomes material. But when, having heard the applicant, he says in effect, 'I do not believe anything this man says that is material to the question', then questions of standards do not come into it. Whatever standard one applied the answer would still be the same: 'he has not made out this case because I do not believe him'. With a man who starts by coming in on a false passport and goes on maintaining that it is his passport for some time, and then gives the other accounts with their inherent improbability to which the adjudicator has referred, there is ample material upon which the adjudicator, who is the tribunal of fact, could properly find that he did not believe him.

It is then submitted that the adjudicator did not set out the issues and therefore his approach was inadequate. Again, it is correct that he did not say in terms, 'I have to decide the following issues'. But he is a special adjudicator doing one job, and one only. He has deciding an asylum application. He had to decide, first of all, whether the facts that he found to the required standard, might be established. Having found that he did not believe what the applicant said, it is quite clear that in relation to the central issue: has he made out his claim to asylum? He was entitled to be satisfied that he had not".

Leggett, L.J. and Sir Michel Kerr agreed.

"This approach does no entail the decision-maker (whether the Secretary of State or an adjudicator or the Immigration Appeal Tribunal itself) purporting to find 'prove' facts, whether past or present, about which it is not satisfied on the balance of probabilities. What it does mean, on the other hand, is that it must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur (or, indeed, that they are not occurring at present). Similarly, if an applicant contends that relevant matters did not happen, the decision-maker should not exclude the possibility that they did not happen (although believing that they probably did) unless it has no real doubt that they did in fact happen.

For the reasons much more fully explained in the Australian cases, when considering whether there is a serious possibility of persecution for a Convention reason if an asylum-seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur".

"But where the two reasons or purposes cannot be disentangled and one of them is bad or where, even though the reasons or purposes can be disentangled the barred reason or purpose demonstrably exerted a substantial influence on the relevant decision the Court can interfere to quash the decision. This proposition is recognised in the authorities referred to by May L.J. in the Broadcasting Complaints Case and by that decision itself. Indeed, on this aspect of the case, the principles of law are not in dispute."

I consider that to be the correct approach. In my opinion it is apparent from the adjudicator's approach in assessing the petitioner's credibility that she does regard as significant the inconsistencies she considered went to undermine his account as tested against her interpretation of the CIPU country assessment. She begins her analysis of the petitioner's credibility by deciding that the petitioner's account when so tested was not credible, and although she advances other reasons which have not been competently challenged, or challenged at all, I do not consider that her flawed approach at the outset of her analysis of credibility can be severed from the rest of her reasoning so as to leave her ultimate conclusion untainted and intact.