R v. Secretary of State for the Home Department, Ex parte "K"

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	27 March 1990
Citation / Document Symbol	[1990] Imm AR 393
Cite as	R v. Secretary of State for the Home Department, Ex parte "K", [1990] Imm AR 393, United Kingdom: High Court (England and Wales), 27 March 1990, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b62d20.html [accessed 3 June 2023]
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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte "K"

Queen's Bench Division

[1990] Imm AR 393

Hearing Date: 27 March 1990

27 March 1990

Index Terms:

Political asylum -- refusal by Secretary of State -- applicant had given more elaborate accounts of his history at succesive interviews -- whether Secretary of State entitled to conclude that the applicant's credibility was thereby impaired -- whether there was an obligation on the Secretary of State to give the applicant further opportunities to explain the apparent anomilies in his accounts. HC 169 para 134.

Held:

On an ex parte application for judicial review it was argued that the applicant, an Alevi Kurd, a national of Turkey, had not been given the opportunity to explain the differences that were apparent in the accounts he had given, in successive interviews, of his history. Relying on Gaima, counsel submitted that the Secretary of State has acted unfairly in drawing adverse conclusions as to the applicant's credibility without his having that opportunity.

Held: 1. The present case was to be distinguished from Gaima. There a factual issue had been raised by the Secretary of State upon which the appellant had had no opportunity to comment: in this instant case the applicant had had a number of opportunities to put forward the matters on which he relied and had done so.

2. The Secretary of State on the basis of what the applicant had said concluded that the applicant's credibility was unsatisfactory: that was a conclusion to which he was entitled to come.

The application would be refused.

Cases referred to in the Judgment:

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

Counsel:

R Scannell for the applicant; The respondent was not represented.

PANEL: Kennedy J

Judgment One:

KENNEDY J: This is an application for leave to move for judicial review in respect of a decision of the Secretary of State dated 14 January 1990 when he rejected this applicant's claim for asylum.

The background is that on 23 April 1989 the applicant came to this country from Turkey and sought asylum. He is apparently Kurdish and an Alevite. He was interviewed on 25 April, a couple of days after his arrival, and re-interviewed on 4 September. At that stage he was served with a minded to refuse notice, but there were complaints about the interview made on his behalf and so he was further interviewed on 2 November 1989. At that stage he was refused asylum and proceedings for judicial review were initiated, but they were then withdrawn and the Secretary of State undertook to re-interview the applicant.

That re-interview took place on 19 December 1989 and during the course of that interview the ground was gone over insofar as it had not been explored already and this applicant had the advantage of representation. Much of the ground gone over was what the applicant was saying had happened to his brother in 1978.

He was served with a minded to refuse notice at that stage and some comment was made about the applicant being illiterate and therefore being unable to express himself as well as he otherwise might have done. Accordingly solicitors acting on his behalf very properly wrote a long letter on 2 January 1990 putting his case fully to the Secretary of State and that letter is copied in the bundle. It was acknowledged by the Secretary of State and on 14 January 1990 the application was then refused.

The particular passage in the letter of 14 January, to which Mr Scannell invited my attention, is that which appears on page 109 of the bundle. That paragraph reads thus:

The Secretary of State has carefully considered whether the events in 1978 and 1979 taken together with results of local elections in 1989 give rise to a well-founded fear of persecution."

He notes the claim made regarding someone called Hasan Balci . . .

"In particular that Balci led the group which killed your brother and that you witnessed this. He also notes, however, that you originally claimed that you did not know who murdered your brother since you were not present, and that no mention was made of Balci at your first interview, or the statement supplied at the second interview, or in your solicitors' letter of 15th September or 3rd November; and that it was not until your third interview, on 19th December, that this was mentioned. The Secretary of State has concluded that you have embellished the account of the circumstances of you brother's death to strengthen your asylum claim. The Secretary of State notes that the claim that your house was stoned every night for two weeks before you left Turkey was not mentioned until your solicitors' representations of 2nd January: if this claim was true the Secretary of State believes it would have been mentioned earlier. The Secretary of State notes the claim that the success of the right wing in local elections in March gives rise to fear that the events in 1978 will be repeated: he does not consider, however, on the evidence which has been provided that this gives rise to a well-founded fear of persecution in your case."

Mr Scannell's submission is simply this, that this applicant was not given a proper opportunity to deal with the Secretary of State's views in relation to his credibility. In other words, he was not asked why he was giving at each interview what might be described as an improved account. This was something to which the Secretary of State apparently attached considerable significance.

In support of that submission Mr Scannell invites my attention to the decision of the Court of Appeal in the case of Gaima [1989] Imm AR, 205. In that case May LJ was dealing with an application where the Secretary of State dealt with some letters which came into existence late in the day which raised the issue of credibility. That was not a matter which was considered to be of significance by the single judge, but the Court of Appeal clearly thought it was of significance.

At page 209 May LJ said this:

"I think that it would be wrong to pass over paragraph three of Mr Parson's affidavit as containing matter akin to obiter dicta. An important matter in a plea for asylum is the credibility of it and of the person making it. If, as I think, one must assume from the affidavit that the alleged delay and the fact that help was sought from the Sierra Leone High Commission was taken into account by the Secretary of State in assessing the appellant's truthfulness, genuineness and credibility, then in my opinion fairness required that these matters should be put to her and her comments thereon invited. Whether, in the event, the Secretary of State's decision may or may not be the same, for the reasons I have already given that is no present concern of mine."

May LJ on the same page said:

"The Minister of State's three letters of 9 January 1985, 7 October 1985 and 14 August 1986, which are the decision letters under attack, all deal with the question whether her fear is well-founded and assume, at least by inference, that she has such fears. The question whether she genuinly has such a fear is raised for the first time in paragraph three of Mr Parson's affidavit of 21 April 1988, to which my Lord has referred. In that paragraph for the first time doubt is cast on Miss Gaima's credibility. The issues which are briefly referred to in that paragraph which go to her credibility are matters upon which Miss Gaima has not had the opportunity to comment."

I cite those passages because it seems to me to be entirely clear that what happened in that case was that an issue was raised by the Secretary of State on which the applicant had not had a proper opportunity to comment, and that was considered by the Court of Appeal to be at least potentially material. In the present case nothing of that sort has occurred. This applicant simply on a number of occasions has been given the opportunity to put forward matters on which he relies. He availed himself of that opportunity and to my mind it is of considerable significance he has availed himself of the opportunity with the advantage of legal representation. If at the end of the day the Secretary of State comes to the conclusion, as he has in this case, that what has been said on those occasions of itself leads the Secretary of State to the view that this applicant's credibility is unsatisfactory, that is a decision which the Secretary of State is entitled to take. He does not have to go on and on, going backwards and forwards for further interviews and saying, "Now I want you to explain why on the last occasion you said something you did not say before." That in substance is really the application Mr Scannell is making.

In my judgment there is no substance in this application and accordingly it must be dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

Miller Wilson