PETITION OF KEMAL KARA FOR JUDICIAL REVIEW v. SECRETARY IF STATE FOR THE HOME DEPARTMENT
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 169 |
| P665/05 | OPINION OF LADY DORRIAN in Petition of KEMAL KARA Petitioner; for Judicial Review of a decision of the Immigration Appeal Tribunal ________________ |
Petitioner: Nicoll; Allan McDougall & Co., S.S.C.
Respondent: Carmichael; Solicitor to the Advocate General for Scotland
14 December 2005
Background
[1]The petitioner is a Turkish national who entered the United Kingdom on 20 January 2003, claiming upon arrival asylum under the United Nations Convention Relating to the Status of Refugees 1951, as amended by the 1967 Protocol ("the Refugees Convention"). By letter dated 5 February 2003 the Secretary of State for the Home Department refused this claim and also concluded that the return of the petitioner would not be in breach of the United Kingdom's obligations under the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"). The petitioner's appeal to an adjudicator was refused by letter dated 8 May 2003, and on 1 July 2003 the Immigration Appeal Tribunal refused leave to appeal from the adjudicator's determination.
[2]The petitioner claims that if returned to Turkey he would be subject to a real likelihood of persecution for a relevant reason under the Refugees Convention and that furthermore he would be subject to a real risk of a breach of Article 3 of the ECHR in that he would be tortured or treated in an inhuman or degrading manner if returned to Turkey. He claims that the risk of persecution or breach of his human rights arises from his Kurdish ethnicity, his minority Alevi faith and his support for the pro-Kurdish Nationalist Party HADEP. It is clear from the determination of the adjudicator and the grounds for leave to appeal that the petitioner did not maintain that either his ethnicity or his faith in themselves would be sufficient to invoke the protection of the Convention. His case was that it was the cumulative effect of these along with his support of HADEP which had led the authorities to perceive him as having links with a separatist organisation, the PKK. It was the imputed support for this organisation which led to a risk of persecution or torture.
[3]The petitioner asks for judicial review of the decision of the Immigration Appeal Tribunal seeking (i) declarator that the Tribunal erred in law in refusing leave to appeal; and (ii) reduction of the refusal to grant leave to appeal. A further application for an order requiring the Tribunal to grant leave to appeal was not insisted on.
Submissions
[4]Counsel for the petitioner first made submissions in relation to the legal principles which applied to the case. Under reference to the cases of R v Secretary of State for the Home Department ex p Sivakumaran 1988 1 A.C. 958 and Kacaj v Secretary of State for the Home Department [2001] I.N.L.R. 354 he submitted that the question of whether there was a well-founded fear of persecution was to be determined objectively in the light of the circumstances existing in the country of nationality. The applicant had to demonstrate a reasonable degree of likelihood that he would be persecuted for a Convention reason if returned. The same test applies in relation to the risk of a breach of his human rights. Claims for refugee status must be considered globally. Sivakumar v Secretary of State for the Home Department [2003] 1 W.L.R. 840 and Karanakaran v Secretary of State for the Home Department [2000] 3 All.E.R. 449. He submitted that the reasoning of the adjudicator or Tribunal must satisfy the reviewing court that anxious scrutiny had been given to the case by the decision-maker and that same scrutiny required in turn to be given by the reviewing court. Reference was made to R v Secretary of State for the Home Department ex p Bugdaycay [1987] 1 A.C. 514. Under reference to Daviila-Puja v Secretary of State for the Home Department [2001] ECWA Civ. 931 he submitted that it was not legitimate to take a compartmentalised approach to the evidence. Counsel also referred to the case of R v The Secretary of State for the Home Department ex p Daly [2001] 2 A.C. 532 at p.548H from which he submitted that a respondent could no longer say that in Convention cases the test for review is a high one for a petitioner to meet and that a high degree of unreasonableness is required for judicial intervention.
[5]Counsel submitted that the adjudicator and the Tribunal had both fallen into material errors of law which enabled him to submit that the petitioner had a real prospect of success in his appeal if allowed to proceed or that there were compelling reasons why leave should be granted. He submitted that there were misdirections regarding the evidence in the case which amounted to an error in law. He submitted that the principal basis for refusal were the adverse credibility findings by the adjudicator. He submitted that there were six challengeable steps in her treatment of the evidence. (1) She did not accept any one of the three reasons advanced as a basis for a well-founded fear of persecution. This was a complaint of compartmentalisation. The submission was that she had rejected individually as reasons his Kurdish ethnicity, his faith and his support (actual or imputed) of separatist political groups without considering the cumulative effect of these as a whole. (2) She disbelieved his evidence about being detained twenty five times over the previous ten years. (3) She did not believe he was of any interest to the authorities as a supporter of HADEP or would be suspected as a supporter of the PKK. Counsel submitted that these two points showed a flawed approach to the evaluation of the evidence. They are further examples of the compartmentalised approach. She did not give adequate reasons in relation to points (2) and (3). Having concluded that she did not believe he was persecuted because of his ethnicity, his religion or his low level support of HADEP that became the reason for her decision and avoided the need for giving reasons for rejecting his evidence on other points. (4) Faced with a medical report (6/7 of process) relating to injuries sustained by the petitioner, and which stated that there was "a serious possibility" that he was mistreated in the way he claimed, she rejected as "extremely unlikely" the claim that they had been sustained while detained. This showed a flawed and illogical approach to the medical evidence. There was no basis, in the face of that medical report, for reaching the view that it was "extremely unlikely" that his injuries had been sustained while detained. (5) She speculated that if he was detained for supporting the PKK he would have been charged and deduced that since he was not charged he had not been detained. This was reverse logic and could not be supported. It is in the nature of oppressive regimes that detentions are on the basis of suspicion and not proof and therefore charges which require to be proved, if proceeded with, are never taken. (6) The adjudicator speculated in reasoning that the explanation from the petitioner for remaining in Turkey from 1994 to 2002, namely that he was waiting for things to get better should be rejected as a statement which is not believable. This was described as unfounded speculation. Asked to explain why this should be categorised as speculation counsel said it was difficult to assess whether this was a rejection of evidence following from point (1), in other words a further example of compartmentalisation or whether it was speculation in the form of importing some internally held belief of her own that people did not behave in that way.
[6]Counsel submitted that the adjudicator erred in law and acted irrationally in her approach to the evidence. She adopted a compartmentalised treatment of the claim. Having decided that the evidence of detention was implausible she formed an adverse view of his credibility on that issue and this dictated the remainder of her approach to the petitioner's evidence. She failed to meet the requirement of anxious scrutiny in that she failed to have regard to all of the components as signposts leading to a conclusion. Instead she started with a conclusion based on the implausibility of detention causing her to fail to take into account other factors in the case. Having reached a conclusion on one matter - the implausibility of detention - she was driven from that conclusion to a flawed consideration of the medical evidence. Counsel submitted that this amounted to irrationality in the Wednesbury sense having excluded any proper evaluation of the medical report.
[7]At this point it seemed to me that there was some inconsistency in the petitioner's approach. He appeared to be suggesting that the adjudicator had taken a blinkered approach by reaching an adverse view of credibility on one issue which led her to an unfounded and unreasoned rejection of credibility in relation to other matters. However, it was not clear to me whether it was the rejection of the individual components of ethnicity, faith and political involvement which was said to be the starting point for this or, as the last noted submission suggested, the rejection of his evidence about being detained. Counsel submitted in answer that if the adjudicator had been prepared to accept an approach taking the three items of faith, ethnicity and political support collectively as being a basis giving at least a risk of persecution from the authorities, then she would not have been predisposed to reject his history of detentions over the past decade; to disbelieve his evidence that he was of interest to the authorities for suspicion of PKK support; and as a result she would have been disposed to accept the medical evidence rather than being driven to reject it simply because it did not fit with a picture she had already drawn. Her approach to the points enumerated as (5) and (6) above would also have been different.
[8]Counsel then went on to attack the adequacy of the reasons given by the adjudicator. In paragraph 65 the adjudicator concludes that the petitioner's statement that the military believed he was helping the PKK was not credible and that she did not believe that he was detained on almost twenty five occasions because of this. She went on to say "if this is why he was detained he would have been charged and he was not charged". Counsel submitted that there was no basis in evidence for this last comment and that it was unfairly used to reject his evidence in relation to detention. In the same paragraph the adjudicator refers to and relies on the fact that the PKK was almost completely inactive during the years 2000-2001. It was unfair to select that period only and not to have regard to the ten year period relied on by the appellant.
[9]In relation to the medical evidence, the medical report 6/7 recorded that the petitioner gave a history of having suffered injuries during detention in 2000 when he was hit behind his right ear causing a scar and when his left hand was jammed in a door which was slammed closed. The ends of his middle and ring fingers were lost. The report records that the injury to the middle finger has a typical appearance of a crush injury and that the scar on the back of the head was clearly produced by a direct blow. The writer in his summary of the report stated, "I believe there is a serious possibility that he has been mistreated in a manner described". In paragraph 63 the adjudicator rejected the petitioner's evidence that he was detained. She went on to say,
"He has produced medical evidence that he damaged his hand and he has a scar on his head, but I have taken into account the medical report and although these injuries could have been caused in the way that the appellant says they were, I find that it is extremely unlikely that these injuries were caused to the appellant while he was in detention because he is a Kurdish Alevi who supported HADEP in a low level way."
Counsel submitted that there was no basis for rejecting the medical opinion that there was a serious possibility that he had been mistreated in the manner described. This was prima facie supportive evidence which was rejected without adequate reasons. Reference was made to Koca v Secretary of State for the Home Department 2005 S.C. 487.
[10]At paragraph 5 of her determination the adjudicator records evidence from the petitioner that he had kept touch with his family in Turkey and had been told that the gendarmes had raided their house twice looking for the petitioner and that his brothers were taken away and tortured. Asked why he had left Turkey and his brothers had not, he said that he had always spoken out about his views and the family had decided he should be the one to leave. He said he was more politically active than his brothers. Counsel submitted that this was simply evidence which was ignored by the adjudicator and was a material consideration simply left out of account.
[11]Having regard to all these matters, counsel submitted that the appeal had a real prospect of success and that the Tribunal therefore erred in refusing leave. He accordingly asked me to sustain his first plea-in-law.
[12]For the respondent Miss Carmichael asked me to dismiss the petition and sustain the first and third pleas-in-law in the answers for the respondent. Miss Carmichael approached her submissions in five sections, namely the statutory framework, the petitioner's authorities, the authorities regarding reasons, the particular deficiencies alleged to exist and, finally, remedy.
[13]In relation to the first of these she drew attention to Rule 18 of the Immigration and Asylum Appeals (Procedure) Rules 2003 (S.I. 2003/652). She drew attention to Rule 18(4) which provided that the Tribunal may grant permission to appeal only if satisfied:
"(a)the appeal would have a real prospect of success; or
(b)there is some other compelling reason why the appeal should be heard."
She submitted that although reference had been made to paragraph (b) by counsel for the petitioner no submissions in support of that had been advanced. She referred to sub-paragraph 6 which provides that the Tribunal's reasons may be in summary form and paragraph 18(2) which provides that the Tribunal is not required to consider any grounds of appeal other than those included in the application. She submitted that in this case some complaints are foreshadowed in the grounds of appeal and some are not. In this regard she referred to Barr v Secretary of State for the Home Department ex p Robinson 1998 Q.B. 929 at pps.945 and 946. She also referred to the Opinion of Lord Reed dated 2 July 2004 in the Petition of Mutas Elabas for the proposition that if a point was not foreshadowed in the grounds of appeal to the Tribunal, it required to be obvious before it could be taken into account.
[14]Turning to the petitioner's authorities, she took little issue with the propositions advanced by the counsel for the petitioner save in relation to the case of Daly if, in reference to that case, counsel was intending to submit that the Wednesbury test no longer applied. In deciding whether to interfere with the Tribunal's decision she submitted the Wednesbury principles still applied. In relation to the case of Daviila-Puja she accepted that a compartmentalised approach was not legitimate in the sense that one cannot foreclose consideration of one part of a case by a view taken on another. However questions of weight remained squarely within the realm of the adjudicator. An adjudicator could allow his view on one matter to carry weight in consideration of other matters as long as all matters were properly considered.
[15]In relation to the stating of reasons she referred to Daljit Singh v Secretary of State for the Home Department 2000 S.C. 219 at 222 and 223 and Diamond v PJW Enterprises Ltd 2004 S.C. 430 at para.31 for the proposition that the basic test remains that expressed by Lord President Emslie in Wordie Property Co Ltd v Secretary of State for Scotland 1984 S.L.T. 345 at 348 that
"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".
She also referred in Singh to the endorsement of the view (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."
In that regard she referred also to the case of R (Iran) v Secretary of State for the Home Department 2005 EWCA Civ. 982 in which the Court of Appeal repeated that there is no duty on an adjudicator to deal with every argument presented by an advocate in support of his case. They repeated with approval the comment by Griffiths L.J. in an earlier case that
"it is sufficient if what he says shows the parties and, if need be, the [IAT], the basis on which he has acted, and if it be that the [adjudicator] has not dealt with some particular argument but it can be seen that there are grounds on which he would have been entitled to reject it, [the IAT] should assume that he acted on those grounds unless the appellant can point to convincing reasons leading to a contrary conclusion."
[16]In relation to the petitioner's arguments, Miss Carmichael suggested that these were ill-founded. What the adjudicator did was to say that she was unable to find the petitioner credible and then set out a series of reasons for coming to that view. That is not compartmentalisation, it is setting out the reasons for reaching the conclusions which she did. In paragraph 62 she addresses the issue of ethnicity and its relevance. She looks at this matter both on the basis purely of ethnic identity but also in the context of politically asserting such an identity. That is shown by a reading together of paragraphs 62 and 63 of her report. Paragraph 64 deals with the issue of faith in a properly reasoned manner, and must be read in connection with paragraph 11 in which the petitioner stated that he could not give any instances of being detained because of his Alevi religion. She also pointed out that this paragraph was not the subject of complaint in the grounds seeking leave to appeal. In relation to paragraph 65, and in particular the reference to his not being charged, she drew attention to paragraph 6.183 of the Home Office CIPU Report on Turkey 2002, No.6/9 of process, which stated: "Whoever can be shown to be a member of the PKK... will be prosecuted...". She also referred to paragraph 42 of the adjudicator's decision which records a submission made on behalf of the appellant relying on the passage at 6.183 of the CIPU report. The criticism of paragraph 67 where the adjudicator says that she did not believe that the appellant was persecuted for ten years in Turkey but kept waiting for things to get better so did not leave before, was not raised in the grounds of appeal and is an example of a point which should not be allowed to be advanced. In relation to the alleged treatment of the appellant's family in Turkey, referred to in paragraphs 5 and 51, she noted that paragraph 5 which states that during raids the police were looking for the petitioner, is not consistent with paragraph 31 of the petition, which refers to other members of the family being suspected PKK members or supporters. Paragraph 5 is predicated on his own involvement, a premise which was rejected by the adjudicator. Having rejected that, the matter in paragraph 5 is not an issue for consideration.
[17]Turning finally to the issue of remedy, she drew attention to Article 9(4) of the Asylum and Immigration (Treatment of Claimants Etc.) Act 2004 (Commencement No.5 and Transitional Provisions) Order 2004 and paragraph 30 of Schedule 2 to the Asylum and Immigration (Treatment of Claimants Etc.) Act 2004 the combined operation of which is to provide a mechanism, where a decision of the IAT refusing leave to appeal has been reduced, for the case to be referred afresh to a member of the Asylum and Immigration Tribunal. The result is that where a petition is successful the court need pronounce only an order for declarator and reduction.
[18]Counsel for the petitioner sought to make two points in reply. First in relation to the C.I.P.U Report he drew attention to paragraph 6.151 which referred to the implicit suspicion on the part of security forces that Alevis are likely to be leftwing. This highlighted the fact that it was a combination of factors put forward which were relied on. In relation to paragraph 65 of the determination he submitted that whether the petitioner was a member of HADEP or whether he was in fact involved with the PKK was entirely beside the point. It is the State assumption that as an Alevi, a Kurd and a supporter of HADEP, he is likely to be a PKK supporter which leads to the risk of persecution in his case.
Discussion and Conclusions
[19]I do not consider that the petitioner is well founded in submitting that the adjudicator took a compartmentalised, blinkered approach to his claim. I do not consider that she allowed her views on one aspect of the case to foreclose consideration of other matters. The fact that to some extent the issues of ethnicity, faith and political support are addressed in different paragraphs does not mean that she did not approach the claim as a whole or consider the cumulative effect of these factors. At paragraph 62 she considers the issue of ethnicity not only as a matter of ethic identity but in the context of political assertion of that ethnicity, a factor which is considered in greater depth in paragraphs 63 and 65. To some extent consideration of his alleged support for HADEP and ethnicity are interlinked in any event because HADEP is a pro-Kurdish Nationalist Party. A rejection of the argument that his injuries were caused when he was in detention "because he is a Kurdish Alevi who supported HADEP in a low level way" clearly shows that she was considering the potential combined effect of these factors. She clearly records in paragraph 43 that the submission for the petitioner was that it was the cumulative effect of ethnicity, faith and political support which required to be considered and I do not think she ignored that submission.
[20]The last sentence of paragraph 65 where she states, "If this is why he was detained, he would have been charged and he was not charged" reflects the submission made to her for the petitioner at paragraph 42 in which the CIPU report comment that PKK members "will be prosecuted" is advanced and I do not think that she can be criticised for taking it into account. In any event, this was only an incidental part of her reasoning. There was a perfectly good basis for her singling out the years 2000-2001 in that paragraph because that is the period during which the petitioner claimed to have sustained injuries when in detention. Her reference to his claim that he had been detained on twenty five occasions and the content of paragraph 67 show quite clearly that she was addressing this in the overall context of a claim to having been subjected to persecution over a ten year period.
[21]She explains that she did not believe the petitioner and sets out a series of factors which led her to that conclusion. It would no doubt have been better had she stated in terms that she rejected the evidence in paragraph 5 or the submission made in paragraph 51 but the mere fact that she did not do so, does not mean that she ignored or forgot these matters. The simple fact is that she rejected as incredible the premise on which these submissions were based and she thus would have reasonable basis for rejecting the submission at paragraph 51. It is a reasonable inference that she did so.
[22]The medical report relied on by the petitioner records that the injuries were consistent with the mechanism of injury advanced by the petitioner, namely a blow on the head and a crushing injury to the hand. The medical report cannot advance the petitioner's case beyond that and in particular, does not lend the support to the contention that the injuries were inflicted when he was in detention.
Decision
[23]I do not think that the petitioner has established that his appeal would have any real prospect of success. I shall therefore sustain the first and third pleas-in-law for the respondent and dismiss the petition.