R v. Secretary of State for the Home Department, Ex parte Halil Direk

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	5 March 1992
Citation / Document Symbol	[1992] Imm AR 330
Cite as	R v. Secretary of State for the Home Department, Ex parte Halil Direk, [1992] Imm AR 330, United Kingdom: High Court (England and Wales), 5 March 1992, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b625c.html [accessed 4 November 2019]
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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte HALIL DIREK

Queen's Bench Division

[1992] Imm AR 330

Hearing Date: 5 March 1992

5 March 1992

Index Terms:

Political asylum -- judicial review of Secretary of State's refusal to grant asylum to Turkish Kurd -- accepted that applicant had been persecuted some years before arrival in United Kingdom -- some subsequent ill-treatment -- flight from Turkey asserted to be in consequence of past persecution -- whether applicant entitled to asylum solely on the basis of past persecution -- whether Secretary of State entitled to look also at likely future treatment of applicant -- whether applicant had had opportunity to state his case fully and to rebut Secretary of State's conclusions unfavourable to his case. HC 388 para 75: United Nations Convention relating to the status of refugees 1951 (Protocol 1967) arts 1A, 33.

Held:

The applicant for judicial review was a Turkish Kurd to whom the Secretary of State had refused political asylum. He had arrived in the United Kingdom in 1989. It was accepted that he had been persecuted in 1980: he had suffered some ill-treatment after that date. Looking at more recent events and looking to the future, the Secretary of State had concluded that if returned to Turkey in 1990, the applicant would not have a well-founded fear of persecution.

Counsel argued that the Secretary of State's decision was flawed because the applicant, following Gaima, had not had a proper opportunity to rebut the adverse conclusions reached by the Secretary of State. He also argued that once the applicant had established that he had been persecuted in the past and it could be shown that his flight from Turkey was linked with that past treatment, the applicant was entitled to refugee status.

Held

1. On the facts, the case was distinguishable from Gaima. The applicant had had a full opportunity to put his case, and the Secretary of State's decision could not be faulted on Wednesbury principles.

2. Because a person has been persecuted in the past and even if there had been a measure of ill-treatment thereafter, it did not follow he could never be refused asylum in a country to which he went.

3. It was clear from Sivakumaran and ors that in assessing whether a person had a well-founded fear of persecution if returned to his country, it was necessary to look to the likelihood of his being persecuted in the future as well as taking account of events in the past.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Sivakumaran and ors [1988] 1 AC 958: [1988] Imm AR 147.

Marion Gaima v Secretary of State for the Home Department [1989] Imm AR 205.

Counsel:

R Scannell for the appellant; I Ashford-Thom for the respondent

PANEL: Macpherson J

Judgment One:

MACPHERSON J: The applicant in this case is Halil Direk. He comes from Turkey. He arrived in this country on 2 June 1989 and claimed asylum on his arrival.

The history of the matter is well set out in the documents, but shortly what happened was as follows. He was interviewed on 2 June 1989 at Terminal 2 at Heathrow. The form setting out all that he said on that occasion is before me, and of course it must necessarily have been before the Secretary of State. On page 6 of the form the applicant listed the details of his involvement in political activity and the details of the harassment and detention, and so on.

On 13 September 1989 the solicitors for the applicant, who had then come on the scene, indicated that they were to see their client on 10 October and would be sending further details. So that he was then in the hands of lawyers who know about immigration. They took from him a long and supposedly detailed statement of what he said had happened to him. It runs to 12 pages, and is of course in the bundle.

Independently there had come into existence a medical report from the Medical Foundation, which set out, through Dr Peter Smith, the findings in respect of examinations of him and indicated that there was support for some of the allegations. Again the medical reports are in the papers and can be seen by anyone who wishes to read them.

On 2 February 1990 there was what is called a "minded to refuse" interview. The details of that interview are also amongst the papers. On 16 February 1990 the solicitors wrote a very long letter making representations to the Home Office. I make no complaint about the length of the letter except that it is sometimes difficult to sort out the wheat from the chaff. Once that is done, however, it can be seen that the solicitors referred back to what this man had said in his statement, and in one or two instances referred directly to the allegations that he made as to what had happened. They used strong language in the letter indicating that they were appalled that so much weight had been given to a PAQ [political asylum questionnaire] interview conducted without legal representation, and they were amazed at the indisputable consistency of their client's evidence, and so on. The case was therefore argued in the fullest possible form by the solicitors for the applicant.

It appears that once that letter had been received the statement, to which I have referred, was not with the Secretary of State's papers. That was forwarded on 19 February, and then on 24 February, armed with all that information and with all the argument that had been put forward both by the applicant himself and by his solicitors, the Secretary of State through the refugee section refused the applicant's application for asylum.

I should say at once that, in my judgment, that decision cannot be assailed, and this application fails.

Mr Scannell raises four grounds of complaint against the decision. They are set out in the original case but Mr Scannell has encapsulated them in a skeleton argument. I propose to use the numbering and the lettering from that document, which will of course remain with the papers. At paragraph 6(a) he says that the decision is flawed because the Secretary of State has failed to take relevant matters into account. The submission is that the Secretary of State failed to take into account information given at the minded to refuse interview about the circumstances of his leaving Turkey and the interest shown by the authorities in the applicant's whereabouts since he left Turkey.

Mr Scannell argues that the decision letter, dealing with the matters which had been raised earlier, indicated that by the time all the documents were before the Secretary of State his conclusion was that the applicant had not intended to deceive the Secretary of State. That is perfectly true, because the letter states that in terms. I see no reason to conclude from the wording of the decision letter that the Secretary of State did not take into account everything that had been asked both at the PAQ interview and thereafter. The form setting out the answers given by this man on his arrival is a Home Office form, and is of course amongst the papers which the Secretary of State must have. In my judgment, there is no strength in the suggestion that the Secretary of State failed to take into account any matter which had been raised during the course of the interviews and the statement, and the representations made by the solicitors. I see no inconsistency or difficulty in interpreting the letter and no support for Mr Scannell's first argument.

Secondly, Mr Scannell argues that the Secretary of State reached an adverse view on the question whether the applicant was wanted for illegal TIKP political activities without giving him any opportunity of dealing with such matter. That has been called the Gaima point. It is based upon the application of a case called Gaima v Secretary of State for the Home Department [1989] Imm AR 205.

Mr Scannell argues that where a statement had in fact been sent to the Home Office before the minded to refuse notice had been prepared, and thereafter the Secretary of State had accepted that the applicant had not intended to deceive, it was unfair not to give the applicant the opportunity of commenting on this aspect of his statement before his application was finally refused. Again I see no strength in this argument in this particular case. It is perfectly true that Gaima established beyond any doubt that if some matter is raised, particularly doubting the credibility of an applicant, and fresh material is considered by the Home Office, an applicant must be given an opportunity to deal with it. But that does not seem to me to be the position in this case at all. Here the applicant stated what he stated at the interview. His long written statement sets out the details of what he wished to put before the Secretary of State. The solicitor's letter supplemented that. There was, in my judgment, no material in the conclusions reached in February in the Secretary of State's letter which shows that it was necessary for the applicant to be re-interviewed. All that the applicant could have said in respect of the matter of complaint is -- and I quote Mr Scannell -- "He would have said his name was put forward", that is to say by somebody else in connection with the allegation that he had sponsored a political march or rally in May 1989. That was what the applicant had already said, and I refer for confirmation of that to his own statement at page 11 of his typed statement where he says that two days before May Day 1989 he was taken to the police station by police who said that they were arresting him to prevent any possible demonstration on May Day. "I had been involved in organising the demonstration and my name had been on the application for permission to hold the demonstration on behalf of the Socialist Party. No permission was given by the public prosecutor. But my name was put forward as a kind of sponsor. Although the Socialist Party is a legal party the repression is still directed against members."

There was the statement which he made, and it was for the Secretary of State to decide whether there was validity in that statement or not. What he said in this connection at the bottom of the first page of the decision letter was, "However, this is a legal opposition party, and the Secretary of State does not believe that your name would have been put forward as a sponsor for legitimate legal political activity if you were indeed wanted by the authorities for illegal TIKP political activity". In my judgment, he was entitled to reach that conclusion and this case is not on a par with the decision in Gaima.

Thirdly, Mr Scannell argues that the conclusion that the applicant does not have a current well-founded fear of persecution is "irrational". He uses that word, and in argument he has used the word "perverse". In my judgment, that argument is impossible to sustain. It is of course always a matter for the Secretary of State to decide what weight is to be given to a case which is put before him. Here, as I have stressed several times already, the Secretary of State was in full possession of all that the applicant could say in respect of what had happened to him. He was not able to find that the scales were tipped in favour of a conclusion that there was a genuine and real well-founded fear of persecution. That was, in my judgment, a matter for him. In order to establish a Wednesbury unreasonable case, it is necessary to show that the decision of the Secretary of State was perverse or irrational. I am wholly unable to find on all the facts of this case that such a conclusion can be advanced.

Lastly, and perhaps it ties in with that argument, Mr Scannell argues in this way. He says the question that arises under article 1A of the Convention can be summarized as follows:

'Is a person who has suffered persecution, and who has left the country of his nationality because of such persecution, prima facie a refugee, or must such person in addition demonstrate that he has a well-founded fear of persecution".Mr Scannell submits on behalf of the applicant that if the applicant suffered persecution in the past and there can be demonstrated a nexus between the persecution and his flight, then he is a refugee within the meaning of article 1A and so remains, subject of course to the unscrambling provisions of paragraph (c) of article 1. That is a shorthand way of summarizing the argument which Mr Scannell has put before me. It can be put pithily in this way. Mr Scannell says effectively, "Once a refugee always a refugee, unless paragraph (c) applies". He points quite rightly of course to article 33, which prohibits the expulsion or return of a refugee in any manner whatsoever to the frontiers or territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a political or social group or political opinion.

The flaw in the argument seems to me to arise in connection with Mr Scannell's reference to article 1A. It can be illustrated, in my judgment, and the modern law can be set out and seen, by reference to the decision of the House of Lords in R v Home Secretary ex parte Sivakumaran & ors [1988] 1 AC 958. There is no need to deal with the facts of that case. The headnote aptly sets out the conclusion in these terms:

"Held, allowing the appeals, that whether an applicant for refugee status had a 'well-founded fear' of persecution within the meaning of article 1A(2) of the Convention and Protocol relating to the status of refugees was to be determined objectively in the light of the circumstances existing in the country of his nationality; that the applicant had to demonstrate a reasonable degree of likelihood that he would be persecuted for one of the reasons referred to in article 1A(2) if he were returned to that country; and that the Secretary of State had been entitled to conclude that there was no real risk of the applicants being persecuted for such reasons if returned to Sri Lanka."

The position to which the Secretary of State must look is the position should he return this applicant, or any applicant, to the country from which he says that he has fled. It is to be noted that the article itself is in two parts. Article 1A(2) reads, so far as is relevant, as follows:

"For the purposes of the present Convention, the term 'refugee' shall refer to any person who . . .

(2) . . . owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country . . .".

In my judgment, both the past and the present must be looked at. Unless a man can satisfy the Secretary of State that there is a reasonable degree of likelihood that he will be persecuted for one of the Convention reasons, then he fails in his application. Here it is perfectly true that the Secretary of State has concluded that in 1980, when he was arrested, he did suffer persecution on that particular occasion, now 12 years ago and nine years before the applicant left Turkey. In the interim, in parenthesis, it must be noted that the applicant gives in his statement a full account of his continued presence in Turkey throughout those nine years. He was working as a lorry driver and a taxi driver. All the details of his stay in his own country for that long period can be seen in the documents. Of course he indicated in his statement, and to the Secretary of State, that thereafter he was, in the words of the Secretary of State, "harassed and ill-treated". The Secretary of State refers to harassment and occasional ill-treatment that he had received since then. It is plain that the Secretary of State was thus taking into account all that there was available in the documents from the applicant as to what he said had happened to him between 1980 and 1989. The final incident was the May Day incident where no violence was said to have been shown to this man at all. The intervening incidents are quite shortly dealt with by the applicant, and it seems to me necessary to read the relevant paragraph, because I do note that there is very little chapter and verse of the intervening harassment and ill-treatment of which he complained. What he said at page 11 of his statement is this:

"After these arrests I was arrested many times for periods up to 24 hours. It would always happen when I was returning home from a driving job. On arrival at home I would be arrested, taken to the police station, beaten, questioned about my political activity and released. It became a matter of course that this sort of activity was directed against me.".

There are no details of the numbers of occasions when that happened, but the Secretary of State must have, and did, assume in the applicant's favour that he was ill-treated and harassed on a number of occasions. What the Secretary of State then has to do, however, in my judgment, is to measure the seriousness of the whole picture. He must take into account the fact that there was an occasion of persecution in 1980; he must take into account what has happened since; he must look at the whole picture; and he must decide whether the applicant has demonstrated a reasonable degree of likelihood that he would be persecuted were he to be sent back to the country.

It cannot be right, in my judgment, that because a man was persecuted in the past, even if there is a measure of ill-treatment thereafter, that he can never be refused asylum in a country to which he goes. That, in my judgment, cannot possibly be right. If it were so, this case would of course be at an end because the Secretary of State did accept in 1980 that there was an incident of persecution. But since he has to look both at the past and the present, and the future, the Secretary of State must take into account everything that is told to him and make his own value judgment of what occurs. Going back to the previous point, the Secretary of State must weigh the evidence, which comes in this case from the applicant himself, and reach his own conclusion. It is not for this court to reach a different conclusion. Even if I were to feel, but I make no finding on this matter, that I might have reached a different conclusion, that would be totally irrelevant. The decision is the Secretary of State's. Only if the decision is perverse or irrational, or if the law prohibits the Secretary of State from reaching a certain decision, could the court come to the applicant's aid.

I have looked with anxiety and care at this case. I have read all the papers more than once. I have had the benefit of long and informed argument from Mr Scannell. I hope that I have given to the case the attention which May LJ and many others have indicated must be given to asylum cases, because of course it is a serious matter to send somebody back to a country to which he does not wish to return. But the fact that he does not wish to return there is only part of the material upon which the Secretary of State must act. Primarily he must digest all that he has been told and reach his conclusion as to whether objectively there is a well-founded fear of persecution should the man be returned to the country to which he does not wish to return.

That the Secretary of State has done in my judgment. He has made his decision in accordance with the rules which govern him. I see no procedural impropriety. I see no illegality. I see no unfairness in the way he has reached his decision. Of course the applicant, and those who surround him, disagree roundly with the decision that is made, but that is not for me. That is a matter between the applicant and the Secretary of State, who has found against the applicant in all the circumstances and upon the facts put before him. I am unable to accede to any of the arguments put forward by Mr Scannell on this applicant's behalf.

This application fails.

I finally indicate that it is interesting to note that two judges have already considered this case. One concluded that there was no arguable case. Popplewell J, after argument, allowed the matter to go forward. The case has therefore had the fullest possible examination by judges. I am unable to find, although the matter has been fully explored, that there is any ground which would entitle me to send the case back for reconsideration. The applicant should of course realise that the court will in any event never be able to say that he should have asylum in this country. All that the court could ever do would be to send the case back for further consideration by the Secretary of State. I see absolutely no reason to believe that in the circumstances of this case there would be the material upon which the Secretary of State might reach a different conclusion. That is not the reason why I found against the applicant, but it is an additional test which it seems to me appropriate to apply at the end of the day.

This application must be dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

Jane Coker & Co, London N17; Treasury Solicitor