United Kingdom Asylum and Immigration Tribunal

APPEAL No. BA (Persistent questioning by Adjudicator) Turkey [2004] UKIAT 00123

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 26 May 2004

Date Determination notified: 27 May 2004

Before

MS. D. K. GILL (VICE PRESIDENT)

MRS. M. E. MCGREGOR

MRS. E. MORTON
Between

 

BA	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr. S. Rossier, of Kuddus Solicitors. For the Respondent: Mr. S. Ouseley, Senior Home Office Presenting Officer.
DETERMINATION AND REASONS
1. .1 The Appellant (a national of Turkey, born on 10^th May 1967) has appealed against the determination of Mr. J. R. A. Hanratty, RD, an Adjudicator (sitting at Hatton Cross), who dismissed his appeal on asylum and human rights grounds against the Respondent's decision of 20^th April 2004 to refuse leave to enter the United Kingdom. The Appellant's appeal was brought under Section 82(1) of the Nationality, Immigration and Asylum Act 2002. His appeal is being dealt with under the Fast Track procedures. He is in immigration detention at Harmondsworth.
2. .2 This case is being reported because it raises the issue as to whether persistent questioning by an Adjudicator means that an appellant has not had a fair hearing.
3. The Appellant arrived in the United Kingdom on 12^th April 2004, having left Turkey on 8^th April 2004. His appeal before the Adjudicator was heard on 28^th April 2004. His application for permission to appeal to the Tribunal raises four grounds of appeal. By a decision notified on 6^th May 2004, a Vice President of the Tribunal refused permission to appeal to the Tribunal. The Appellant challenged that decision by way of Statutory Review. By an Order of the High Court of Justice notified on 24^th May 2004, the Tribunal's decision was reversed, on the ground that it is arguable that the Tribunal's rejection of the first ground of appeal was based upon a wholly false premise.
4. The first ground of appeal as contained in the Appellant's original grounds of application for permission to appeal to the Tribunal alleges that the Adjudicator had asked the Appellant a series of questions which crossed the line from being clarification to cross-examination, with 13 probing questions having been put to the Appellant by the Adjudicator about the details of the torture endured in detention. It is alleged that the Appellant's representative at the hearing before the Adjudicator, Mr. Baharat Ali (a solicitor, of Aman Solicitors) had objected to the Adjudicator's "cross-examination/intervention" but to no avail.
5. Mr. Ali has lodged a witness statement dated 2^nd May 2004, in which he refers to his record of the evidence and the proceedings (which we shall hereafter refer to as the Appellant's ROP). He says that, in his opinion, the Adjudicator had overstepped the mark in seeking to clarify matters with the Appellant to the extent that he had cross-examined him; that he had objected to the Adjudicator's questioning of the Appellant on two occasions (pages 16 and 17 of the Appellant's ROP refer) because of the manner in which the Adjudicator was questioning the Appellant and that, in his opinion, the Adjudicator had treated the Appellant in a manner which was unfair and wrong. However, Mr. Ali makes it clear that he does not make any allegation of prejudice or bias against the Adjudicator.
6. We have compared both the Adjudicator's ROP and the Appellant's ROP and are satisfied that the records of both documents as to the content of the questions asked by the Presenting Officer and by the Adjudicator, and the answers given, with regard to the Appellant's alleged ill-treatment are substantially the same. However, we found the Adjudicator's ROP difficult to read and we have therefore referred here to the Appellant's ROP. The parties before us were content to proceed on the basis of the Appellant's ROP.
7. We set out below relevant extracts of the refusal letter, the Appellant's statement dated 27^th April 2004, the Appellant's ROP and paragraphs 13 and 16 of the Determination. We have numbered the questions and answers as recorded in the Appellant's ROP, for ease of reference in this Determination.
8. It is clear that the refusal letter put the Appellant's credibility in issue and that the Adjudicator's overall questioning covered the three credibility points mentioned at paragraphs 19, 20, 22 and 26 of the refusal letter. These raised the following points:

(a) that it was not credible that the Appellant had been detained on 1^st March 2004, as he had only been distributing the newspaper of EMEP, a legal party (paragraph 19); paragraph 22 raises a related credibility issue;

(b) that, if the Appellant had been as badly beaten as claimed, he would have had more severe injuries (the first point in paragraph 20);

(c) that the Appellant's failure to mention at his screening interview that he had received treatment for his alleged injuries called his credibility into account (the second point in paragraph 20); and

(d) that the Appellant had fabricated an account in an attempt to join his siblings in the United Kingdom (paragraph 26).

9. It is only the Adjudicator's questioning regarding the first point in paragraph 20 of the refusal letter which is before us. Accordingly, only paragraph 20 of the refusal letter is quoted below. His questioning on the other credibility points was not before us. We were concerned as to why, given the challenge in paragraph 20 of the refusal letter, examination-in-chief before the Adjudicator had not gone beyond the Appellant's adoption of his witness statement. Mr. Rossier drew our attention to paragraphs 18, 19, 20 and 23 of the Appellant's statement dated 27^th April 2004, in which the Appellant had responded to paragraphs 19, 20, 22 and 26 of the refusal letter. We only quote from paragraph 19 of his statement, in which he responds to paragraph 20 of the refusal letter.
10. It is clear that the Presenting Officer, at the hearing before the Adjudicator, had cross-examined the Appellant about his alleged ill-treatment in detention and specifically about the falaka. Under cross-examination, the Appellant's evidence was that, as a result of the falaka treatment, his feet were swollen and blood had been drawn. It is clear from paragraph 13 of the Determination that, before the Adjudicator commenced his questioning of the Appellant, he said that he was going to ask questions to clarify issues in his own mind and to give the Appellant a greater opportunity to explain his case. This is clear because paragraph 13 of the Determination is then followed by the Adjudicator's summary of the questions he asked the Appellant about delivering newspapers/magazines for EMEP which, according to the Appellant's ROP, was the first issue the Adjudicator dealt with. Paragraph 13 of the Determination is quoted below, as well as paragraph 16 which is also relevant.
11. We now set out the extracts to which we have referred.

Paragraph 20 of the refusal letter:

20. Additionally you claim that you were tortured throughout the three days you were detained, and were only released after you signed a blank piece of paper. You claimed that you were beaten by 3, 5 and 10 people throughout that period, and were beaten with truncheons, hosed with pressurised water, and had falaka. You claimed that the torture lasted from 15 minutes up to an hour. (asylum interview Q54 – 64). If you were beaten as badly as you claim you would have received more severe injuries than you claim. It is also noted that in your Screening Interview you stated that you last received treatment about a year ago for flu, and made no mention of receiving treatment for the injuries you claim. (Screening Form Level 1 Q1.8). If you had had the injuries you claim, which would only have been about a month before your screening Interview they would have been fresh in your mind, and you would have mentioned them. Your failure to do so at the earliest opportunity undermines the credibility of your claim. It is considered that you have manufactured an account in order to claim asylum.

Paragraph 19 of the Appellant's statement:

19. (RFRL, Paragraph 20) I have given a detailed account of the events that happened to me in Turkey, both at the Screening Interview and the Asylum Interview. There is no contradiction between the two. After I was released from detention, my father arranged for a nurse to come and treat me, not a doctor.

Cross-examination, on alleged torture:

L1 Question: What injuries suffer from torture?

L2 Answer: During torture I had bruises on back foot swollen. Also pressurised water heavy handed hitting, nasty words

L3 Question: What injuries suffered as a result of this treatment?

L4 Answer: This tortures were 6 weeks ago all of them vanished I only have one mark from it left lower shin / knee.

L5 Question: What wrong with it?

L6 Answer: Kicked with boot that is

L7 Question: Any other injuries?

L8 Answer: Purple bruises on back. Scratch on chin. On foot because of falaka.

L9 Question: Describe what happen to foot?

L10 Answer: Make lie down with truncheon and stick hit me, 2 of them.

L11 Question: What happened, swollen, blood as well?

L12 Answer: Yes. Swollen + blood.

L13 Question: Had it all disappeared when in UK ?

L14 Answer: Only on knee / shin.

L15 Question: When last beaten?

L16 Answer: 4/3/04. torture 3 days.

Paragraph 13 of the Determination:

Para 13 I asked just a few questions in order to clarify the issues in my own mind and, as I expressed it in court, in order to give the appellant a greater opportunity to explain his case.

Paragraph 16 of the Determination:

Para 16 I asked the appellant to describe precisely the nature of the ill-treatment that he said he received. I told him that I was very sympathetic to people who had suffered from torture and recognised that it was such a dreadful experience that sometimes it was not possible to give a coherent account of torture which was both a physical and mental degradation of an individual.

Questions by Adjudicator, on alleged torture:

L17 Question: I am familiar that torture takes police? 3 days beaten?

L18 Answer Yes.

L19 Question: What beaten with?

L20 Answer: First took all of my clothing put pressurised water on body. Like pipe of fire engine, 2 of them make me lie down and hit me with stick round and long about 3 feet.

L21 Question: Day 1 – how treated regarding beating?

L22 Answer: First day put in falaka, hit with stick and truncheon. When fainted, put water on me.

L23 Question: How many times hit on feet on first day?

L24 Answer: To be honest I can't remember up until midday hit me frequently

L25 Question: How many times guess? On first day e.g. 50, more less

L26 Answer: I could say 100 to 120 times on foot.

Interrupted and objected to Adj but continued.

L27 Question: 120 times a day was that in evening as well?

L28 Answer; From am to midday about 120 times falaka but it was not just 120 hits or falaka. After that take me punch me and left me. After that pm torture not as severe no falaka.

L29 Question: Day 2 and 3

L30 Answer falaka pm as fell

L31 Question: 120 am and 120 p.m.

L32 Answer: That day was falaka and punching and kicking.

L33 Question: Was it 120 in am and 120 pm. Got story right.

L34 Answer: During 2^nd same system. After midday, putting pressurised water, 120 strokes, water, other torture.

L35 Question: Afternoon 120 strokes as well …. in pm?

L36 Answer: Second day hit me near 120 times pm after torturing

L37 Question: Same routine day 3?

L38 Answer: Sir. On third I had already suffered I can't remember clearly what did.

L39 Question: Do you think it was same?

L40 Answer: No falaka on day 3, hitting with truncheon, and stick….. Then pressurised water + punching.

L41 Question: I have studied torture been on courses. Goes on in countries including Turkey. Falaka is a horrendous torture? I have to put it to you. You would not be walking. The very least I would have is a medical report to show what injuries have.

"objected again but Adjudicator continued".

L42 Answer: I said to you I can't remember hit a lot.

12. .1 At the hearing before us, Mr. Rossier confirmed that there was no allegation of improper conduct or bias on the part of the Adjudicator. It is not being alleged that the Adjudicator adopted an attitude of hostility towards the Appellant. Although initially Mr. Rossier asserted that the Adjudicator had asked too many questions, he subsequently confirmed that he was not saying that the Adjudicator asked the Appellant too many questions about the alleged ill-treatment in detention. The objection is taken to the persistence with which the Adjudicator had questioned the Appellant about the alleged falaka he endured – specifically, the persistence in asking the Appellant about the number of times he had been beaten on his feet, despite the fact that the Appellant had said that he could not remember.
13. .2 Mr. Rossier drew our attention to the fact that, at questions 62 and 63 of his interview (page E19 statutory appeal bundle), the Appellant had given details of his alleged ill-treatment. He had said at his interview that he could not walk for a week after the ill-treatment by the falaka method. Paragraph 20 of the refusal letter refers to the Appellant's account at his interview that he was beaten by 3, 5 and 10 people throughout the period of his detention, that he was beaten with truncheons, hosed with pressurised water and been subjected to falaka. Mr. Rossier submitted that paragraph 20 referred to the Appellant's account at his interview that the torture had lasted for 15 minutes to 20 minutes. Accordingly, clarification of the Appellant's accounts would have led the Adjudicator to ask the Appellant the proportion of this time which related to the falaka ill-treatment and the proportion which related to other sort of ill-treatment. In his submission, the Adjudicator's line of questioning about the Appellant's ill-treatment had deviated quite far from the questions the Appellant had been asked at interview. In other words, the refusal letter raised the subject as to how long the ill-treatment lasted each day, whereas the Adjudicator questioned the Appellant about the number of times he was beaten.
14. .3 Whilst Mr. Rossier acknowledged that the Adjudicator had stated in the Determination at paragraph 31 that he did not expect the Appellant to have remembered the precise number of times he had been beaten with a cane on his feet. An independent observer would have been left with a great sense of unease in his mind about the Adjudicator's questioning on the subject of the Appellant's ill-treatment. In his submission, an independent observer would not have concluded that the Appellant had had a fair hearing.
15. .4 In Mr. Rossier's submission, it was also questionable whether the Adjudicator was entitled to have referred to his own knowledge gained in a training course about ill-treatment by the falaka method. However, he acknowledged that this was not part of Ground 1 and therefore not before us.
16. In response, Mr. Ouseley relied on the comments in the Respondent's Notice in relation to Ground 1. The refusal letter disputed the Appellant's alleged ill-treatment, as well as raising other credibility issues. Although the Appellant had responded to the refusal letter by way of his witness statement, he did not provide details in his statement about the alleged ill-treatment. Furthermore, these alleged events were not historic events, in the sense that they had not taken place some time ago. They were all alleged to have taken place recently, on 1^st March 2004. The Appellant had only one scar on his shin as a result of the alleged ill-treatment. The Adjudicator was provided with no medical evidence. He noted that the Appellant had not sought medical treatment in detention in the United Kingdom. The Adjudicator was therefore only asking questions which would enable him to determine the appeal fairly. In other words, he was trying to seek out the truth. He was attempting to find out the exact nature of the ill-treatment, given that the Appellant had no scars other than the one scar on his shin. He made it clear that he did not expect the Appellant to remember the exact number of times he had been beaten. In Mr. Ouseley's submission, the Adjudicator was only clarifying the evidence, and not cross-examining. The real issue is whether the Appellant was believable. The Adjudicator did not believe him.
17. .1 In response, Mr. Rossier submitted that the Adjudicator had gone beyond merely giving the Appellant a further opportunity, at the end of cross-examination, to address him on issues which concerned him. Pages 15 to 17 of the Appellant's ROP show that, rather than giving the Appellant an opportunity to rescue himself, there was "dogged pursuance" on the part of the Adjudicator of an answer from the Appellant as to the number of times he had been beaten. It was only after that evidence had been elicited that the Adjudicator said that he was aware of the horrendous nature of such ill-treatment.
18. .2 The Adjudicator's rejection of the Appellant's alleged ill-treatment led him to reject his account of his detention and that in turn led him to reject the claim that the Appellant had come to the adverse attention of the Turkish authorities. In response, Mr. Ouseley submitted that this was because the Appellant's claims about his alleged ill-treatment in detention was the core of his claim.
19. .3 In conclusion, Mr. Rossier submitted that the real issue was whether an independent observer sitting at the back of the hearing room would have considered that the hearing was unfair. The question was whether the Adjudicator's questions were hostile in nature, although it was not being alleged that the manner in which they were asked was hostile.
20. We pointed out that the Adjudicator had asked 10 questions about the Appellant's delivery of newspapers/magazines for EMEP, as compared to 13 questions on the alleged ill-treatment. We asked why there had been no assertion in the grounds that the Adjudicator's questioning of the Appellant about his delivery of newspapers/magazines for EMEP amounted to cross-examination and whether this means that there was no objection to the number of questions the Adjudicator had asked about the ill-treatment. Mr. Rossier confirmed that the objection was to the Adjudicator's persistence in asking the Appellant about the number of times he was beaten on his feet.
21. We reserved our determination.

Determination and reasons

22. We have decided to dismiss this appeal. We now give our reasons for doing so.
23. Although we have quoted paragraph 16 of the Adjudicator's Determination immediately before the extract from the Appellant's ROP of the Adjudicator's questions on the alleged torture, we recognise that it is not entirely clear that the Adjudicator told the Appellant what is summarised at paragraph 16, before questioning him about the alleged torture, or only at the end of that series of questions. The placing of paragraph 16 in the Determination suggests the former; there is some slight support for this in the way the question at L17 is phrased. However, the question at L41 may suggest the latter. The Adjudicator's summary of the proceedings is set out at paragraphs 8 to 23 of the Determination. It is clear from these paragraphs that he progressed from summarising the evidence in examination-in-chief, to his evidence under cross-examination, then the evidence in response to his own questions, re-examination, and finally submissions. We are therefore satisfied that he informed the Appellant of his sympathy and understanding before he began his questioning as to the alleged torture. However, we make it clear that, even if this is not the case and he only told the Appellant of his sympathy and understanding at L41, it would not have affected the outcome of this appeal.
24. Although proceedings in asylum and immigration appeals are adversarial, it is clear from a long line of decided cases (see, for example, [2004] UKIAT 00061 K (Cote d'Ivoire), [2004] UKIAT 00044 M (Chad) and [2004] UKIAT 00048 Y (Turkey)) that there is no objection in principle to Adjudicators' questioning of appellants. The issue we have to determine is whether the Appellant has had a fair hearing. Would an independent and fair-minded observer sitting at the back of the hearing room who is in possession of all of the material facts and circumstances conclude that the Appellant had had a fair hearing, or not? Where a refusal letter challenges credibility in specific terms (as in this case), the appellant knows the issues he needs to address. It is for him to address those issues. Some appellants may choose to address those issues straight on, whilst others may hope that "least said, soonest mended" (see paragraph 5 of the Court of Appeal's judgement in the Secretary of State for the Home Department v. Maheswaran [2002] EWCA Civ 173).
25. It is important to note that, in this case, there is no allegation that the Adjudicator was biased. Nor is there an allegation that he conducted his questioning of the Appellant at any point in a hostile manner. Nor is there an allegation that he asked the Appellant too many questions on the subject of the alleged ill-treatment. The only objection raised is with regard to the Adjudicator's questioning about the number of times the Appellant was subjected to falaka – Mr. Rossier describes this as the Adjudicator's "dogged pursuit" of the issue. He says that these questions were hostile in nature, although not in the manner in which they were put.
26. In the instant appeal, the refusal letter puts credibility in issue very clearly. There are clear and specific challenges to the Appellant's accounts in core respects. Paragraph 20 of the refusal letter does not only call into question the severity of the ill-treatment alleged. Paragraph 20, read as a whole, makes it clear that the Respondent disputed that the alleged ill-treatment took place at all. Paragraph 20 of the refusal letter called for an answer from the Appellant.
27. Mr. Rossier incorrectly stated that the refusal letter refers to the duration of the alleged ill-treatment being for 15 to 20 minutes – paragraph 20 refers to "15 minutes up to 1 hour". Furthermore, it is not the case that the Appellant had said at his interview that the total duration of the ill-treatment over the three days was between 15 minutes to one hour – see questions 59 to 63 on pages E18 to E19 of the statutory appeal bundle. The Appellant said that he was tortured "sometimes for half an hour, sometimes for an hour, sometimes 15 minutes". In terms of the severity of the alleged ill-treatment, the answers given at interview raise quite a broad spectre. The severity of the alleged ill-treatment would affect the weight to be given to the lack of any medical evidence and the limited scarring in this case An assessment of how severely the Appellant was ill-treated would depend on the duration of the sessions and the number of such sessions of ill-treatment over the three days. We do not agree with Mr. Rossier that, simply because the refusal letter refers to the alleged ill-treatment having taken place for about 15 minutes to one hour, this means that the Adjudicator's questioning should have been limited to finding out what proportion of this time related to ill-treatment by falaka and what proportion of the time to other methods of ill-treatment.
28. It cannot be said that the Appellant's answer (as contained at paragraph 19 of his statement) was an adequate response to the first point raised in paragraph 20 of the refusal letter. The second and third sentences of paragraph 19 of the statement are intended to address the second point raised in paragraph 20 of the refusal letter – namely, the alleged discrepancy referred to in paragraph 20 of the refusal letter. Accordingly, it is only the first sentence of paragraph 19 of the statement which appears to be an attempt to address the first point in paragraph 20 of the refusal letter. We would say that it falls far short of being an adequate response.
29. In examination-in-chief, the Appellant was merely asked to adopt his statement. There was no obligation on the Presenting Officer to cross-examine the Appellant on the issue of his alleged ill-treatment. He would have been entitled to take the view that the Appellant had not met the case against him. However, he did cross-examine the Appellant on the issue in question. The Appellant's answers in cross-examination elicited the evidence that blood had been drawn from the Appellant's foot during the course of the alleged ill-treatment by falaka. It is clear from the question at L41 that the Adjudicator was concerned about the lack of medical evidence given the ill-treatment which was being alleged (see questions 59 to 63 on pages E18 to E19 of the statutory appeal bundle). He would also understandably have had concerns about the fact that the Appellant only had one small scar on his shin below the knee.
30. Whilst the Adjudicator was not obliged in the circumstances of this particular case to give the Appellant a further opportunity to address his concerns (the Appellant had already had that opportunity), he did so. No doubt he was aware that this matter was of such importance to the Appellant's case that, if it was not adequately addressed, the Appellant's case would (as he puts it at paragraph 34 of the Determination) "fall apart". There were already real issues raised as to the credibility of the Appellant's claims about the circumstances which led to his alleged detention. If the claims as to his alleged ill-treatment in detention were not credible, there was nothing left of his case.
31. As we have said, the weight to be given to the lack of medical evidence and the limited scarring depends on the severity of the alleged ill-treatment. It is clear, from the Adjudicator's questioning, that this is the point he focused on. Rather than "doggedly pursuing" the point, we are satisfied that he was trying to get some idea of the overall severity of the alleged ill-treatment in order to assess the weight to be given to the lack of medical evidence (as he mentions at L41), the lack of any serious medical treatment and the limited scarring (see paragraph 33 of the Determination). We agree that, on one view, the Adjudicator's questioning concerning the alleged ill-treatment by falaka may be seen as persistent, but there is no objection in principle to this because, seen in context, it is clear that the persistence was directed towards obtaining an overall view of the alleged ill-treatment over the three days of the Appellant's alleged detention. Indeed, by questioning the Appellant separately about each day, he was guiding the Appellant to focus on each day in turn, so that the evidence could be clearly understood.
32. It is also important to bear in mind that the Adjudicator's questioning took place within the context of the statements by the Adjudicator as summarised at paragraphs 13 and 16 of the Determination – that he was only clarifying issues in his own mind, that he was giving the Appellant a greater opportunity to explain his case, that he had sympathy towards persons who had been tortured and that it was sometimes not possible to give a coherent account of torture.
33. We are satisfied that the Adjudicator's questions were not hostile in nature. It is important in this case that it has been accepted that the Adjudicator did not display a hostile attitude. Whether questioning is hostile in nature is not to be equated with the discomfort a witness might feel or difficulties he might have in answering questions. An untruthful witness might experience the same problems. A representative may feel questioning is hostile. This is, of course, the reason why Mr. Ali objected twice to the Adjudicator's questioning. However, the fact that Mr. Ali made these objections does not mean that there was anything improper or hostile about the Adjudicator's questioning.
34. Although this issue is not before us (as it is not part of Ground 1), we consider that the Adjudicator was entitled to rely on his knowledge about ill-treatment by the falaka method. As he is required to do, he made the parties aware that he had such knowledge.
35. We are satisfied that an independent observer fully informed of all of the above facts would have concluded that the Adjudicator was doing no more than giving the Appellant a further opportunity to address his concerns and that the Adjudicator was merely obtaining clarification as to the severity of the ill-treatment allegedly endured in order to fairly determine the appeal. We are satisfied that the Adjudicator's questioning did not amount to cross-examination, We are satisfied that the Appellant's hearing before the Adjudicator was a fair one.
36. It follows that we must dismiss this appeal.

Decision

The appeal is DISMISSED.

Ms. D. K. GILL

Vice President Date: 27^th May 2004