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

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	17 May 1991
Citation / Document Symbol	[1991] Imm AR 526
Cite as	R v. Secretary of State for the Home Department, Ex parte Gulbache, [1991] Imm AR 526, United Kingdom: High Court (England and Wales), 17 May 1991, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b63237.html [accessed 3 June 2023]
Disclaimer	This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte GULBACHE

Queen's Bench Division

[1991] Imm AR 526

Hearing Date: 17 May 1991

17 May 1991

Index Terms:

Political asylum -- Turkish Alevite Kurd -- whether Secretary of State's refusal of asylum unreasonable -- whether Secretary of State had erred in taking into account the fact that the applicant had not been singled out for persecution -- the approach required by Jeyakumaran explained -- whether the Secretary of State's approach was flawed by an element of circularity. HC 169 para 73. UNHCR Handbook on procedures and criteria for determining refugee status paras 196, 203.

Held:

The applicant for judicial review was a Turkish Alevite Kurd whose application for political asylum had been refused by the Secretary of State. The Secretary of State had ultimately accepted medical evidence which tended to show that the applicant had been ill-treated in 1982. In the light of the evidence generally he had however concluded that the applicant's account of events after 1982, up to 1989, was not credible. In reaching his decision he had also taken into account his conclusion that the applicant had not been singled out for persecution.

Counsel argued that the Secretary of State had erred in law in his approach. Following Jeyakumaran the fact that a person had not been singled out for persecution did not ipso facto invalidate a claim for asylum. In his approach to the facts the Secretary of State's conclusions were flawed by an element of circularity.

Held

1. Although following Jayakumaran, it was not necessary for a person to have been singled out for persecution for a claim for asylum to succeed, it did not follow that the Secretary of State was not entitled to take that circumstance into account in assessing a claim.

2. It could not be said that the Secretary of State's conclusions were flawed by an element of circularity.

3. There were no grounds on which the Secretary of State's findings of fact could be assailed in the court.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Jeyakumaran (unreported, QBD, 28 June 1985).

R v Secretary of State for the Home Department ex parte Coomaraswamy (unreported, QBD, 28 June 1985).

FR v Secretary of State for the Home Department (unreported, CA, 3 June 1987). Secretary of State for Home Department v Sivakumaran and ors [1988] 1 AC 958: [1988] Imm AR 147.

Counsel:

G Warr for the applicant; M Kent for the respondent

PANEL: Roch J

Judgment One:

ROCH J: The applicant, Mr Ayhan Gulbache, is 25 years of age. He is a Turkish national of Kurdish ethnic origin. He is an Alevi Muslim. Mr Gulbache was born in a small village in eastern Turkey and had lived there all his life with the exception of one year's military service with the Turkish Army in 1986 to 1987. His family had a sizeable farm near the village and he farmed that farm. He came to this country on 19 June 1989 and claimed political asylum. He travelled to this country on a passport obtained in April 1989 in Istanbul which describes him as a panel beater. Mr Gulbache says that that description was used because if he had described himself as a farmer he would have aroused suspicion. He had made earlier unsuccessful attempts to obtain a passport in eastern Turkey where his village is. The event which triggered his leaving Turkey was the gaining of political control of the nearest large city to his village by the fascists in March 1989.

His appeal for political asylum was that that part of eastern Turkey was, and is, an area in which the Kurdish separatist movement was active and because of this his village, which was suspected of giving assistance to that separatist movement, came in for a large amount of harassment from the Army and local police.

In 1975 his father had left the village and gone to live in Istanbul. Two years later, in 1977, his brothers followed his father. The papers disclose that he has a sister who lives and has a business in this country. He stayed to farm the farm and to look after his mother.

In 1987 he was himself married and now has children. He says that in 1975 when his father left the village there were fifty families living there, whereas in 1989 when he left the village, the number of families had reduced to three.

Mr Gulbache told the immigration authorities that his first experience of violence was in 1982. All the youths of the village were rounded up and taken to a police station some distance away where they were slapped, punched and beaten. The soles of their feet were beaten, what is known as "falaka". They were beaten with rifle butts and truncheons. In all, they were detained for fourteen hours. That treatment was repeated a short while later. On that second occasion they were made to run barefoot over thorns. Mr Gulbache told the immigration authorities that he was not detained again after those incidents but he was frequently beaten when the police came to the village. Eventually he adopted the practice of going to the mountains during the day and returning to farm after dark.

Just after the completion of his military service in 1987 Mr Gulbache said to the immigration authorities that he was one of four men beaten unconscious in the village square by police officers with truncheons, fists and rifle butts. Following that incident, and prior to April 1989, he was beaten about thirty times by the authorities.

As I have already indicated, he told the immigration authorities that the gaining of political control by the fascists of the city nearest his village was the final straw and he fled from Turkey because he feared for his life.

When he was first admitted to this country Mr Gulbache was seen by a port medical inspector. The brief record of that examination is that Mr Gulbache had possible burns on the feet. It was impossible to tell about damage to his back without an x-ray. On 2 October 1989 a Dr Tounjer prepared a short medical report on Mr Gulbache which reads:

"This patient is suffering from lumbosacral pain. He told me he was assaulted in Turkey. He is also suffering from athlete's foot".

On 13 October 1989 Mr Gulbache was examined by Dr Landau on behalf of the Medical Foundation for the Care of Victims of Torture. That report began by setting out an account taken by the doctor from Mr Gulbache as to the treatment Mr Gulbache had suffered in Turkey. Then it recorded Mr Gulbache's present complaints which included pain in the region of his thoracic spine, pain in the soles of both feet on walking and discomfort in both shoulders. It also recorded that Mr Gulbache had difficulty in getting to sleep and wakes frequently during the night because of his back pain.

Physical examination showed that there was a one and a half inch by one inch, roughly, circular scar in the region of the thoracic spine with a three inch linear scar extending downwards from it. That was consistent with injury from beating with a truncheon or other blunt instrument, that flexion, extension and rotation of the neck to the left were painful with radiation of the pain and that there was a one inch deep depressed scar on the ball of the right foot, and a one inch similar scar on the ball of the left foot consistent with injury resulting from falaka. There was tenderness on palpation of the soles of both feet. Dr Landau expressed this opinion:

"Mr Gulbache gives a history of persistent harassment and ill-treatment and there appears to be sufficient clinical evidence to substantiate his story".

Dr Landau went on to say that the pain and radiation of pain suggested a cervical prolapsed intervertebral disc with root compression which, in a young man, would almost certainly be the result of trauma. The other clinical signs were consistent with a lumbosacral disc lesion which again, in a man of Mr Gulbache's age, would almost certainly be traumatic in origin. The doctor observed that Mr Gulbache had made no attempt to describe all his scars as the result of ill-treatment.

The Secretary of State received that report in late October 1989. On 7 February 1990 the Secretary of State sent a minded to refuse letter to the applicant. In that letter these passages appear:

"The Secretary of State further notes that you have stated that your family had never seen you being beaten, whereas the Medical Foundation report states that bearings took place in public and that your family saw you being beaten and being subjected to falaka.

The Secretary of State notes the opinion in the Medical Foundation reports and that 'there appears to be sufficient clinical evidence to substantiate his story'. However, he had also considered the opinion of Dr Tounjer, which was submitted by your representatives. Dr Tounjer concluded that you were suffering from athlete's foot and ulcers on the feet, but that there was no evidence to support your claim to have been assaulted. In the circumstances, the Secretary of State is unable to accept that you show conclusive clinical signs of ill-treatment".

The subsequent history of the application for political asylum is this. On 14 February 1990 Rights and Justice wrote a letter to the Home Office. On 23 February the Home Office refused the asylum application. On 2 March the Joint Council for the Welfare of Immigrants made representations on the applicant's behalf. On 8 March the refusal of asylum was maintained. In that letter, confirming the refusal, this passage appears:

"We note your comments about Dr Tounjer who reported following his examination of Mr Gulbache that he had lumbrosacral pain and athlete's foot. We have considered the Medical Foundation's report which notes among other things a scar in the region of the thoracic spine and scars on the balls of Mr Gulbache's feet. We accept that Mr Gulbache was ill-treated in 1982 as has been described in some detail but given the discrepancy between accounts of subsequent ill-treatment and the lack, in our view, of evidence of such ill-treatment we do not believe Mr Gulbache was ill-treated between 1982 and 1989 as has been claimed".

On 15 March the Joint Council lodged an application for leave to move for judicial review of the decision to refuse Mr Gulbache political asylum. On 4 April that application was refused on the papers. The application was renewed and came to an oral hearing on 4 July. Again, it was refused. On the same day further representations were made to the Home Office. On 13 July the refusal of asylum was maintained. Application for leave to move was made to the Court of Appeal on 27 July who granted the application and ordered a stay of the applicant's removal from this country. It appears that the Secretary of State had, prior to that, made an order for the applicant's removal from this country to Turkey.

The application sets out several grounds, and since the original application was made additional grounds have been submitted. Mr Warr relies solely on those matters set out in the skeleton argument which he has helpfully provided. It is not necessary for me to go through all the grounds and additional grounds. Before coming to the matters on which Mr Warr relies, I observe that there is no suggestion of procedural irregularity in this case, although that was one of the grounds in the original application and was one of the grounds relied upon when the case came before the Court of Appeal. What was being said then was that the applicant had not been issued with the notice of refusal. Indeed, the applicant deposed to that effect in one of his affidavits. However it is clear that the applicant was issued with a notice of refusal and that point has been abandoned by Mr Warr.

Turning to the matters on which Mr Warr relies, the first is this. In the passage in the minded to refuse letter the Secretary of State has armed himself with the wrong standard of proof when he says, "the Secretary of State is unable to accept you show conclusive clinical signs of ill-treatment". What is submitted is that the Secretary of State has required the applicant to do more than demonstrate a reasonable degree of likelihood that if returned to Turkey he would be subject to persecution, the test laid down by Lord Keith of Kinkel in R v Secretary of State ex parte Sivakumaran [1988] 1 AC 958 at 994G.

Further, Mr Warr says that the Secretary of State has disregarded the handbook on procedures and criteria for determining refugee status which, particularly at paragraph 196 and again at paragraph 203, speaks of the difficulty that a political refugee has in establishing or producing the concrete evidence to support his claim, and saying that good practice is for the person consdiering a claim for political asylum in such cases to give the applicant the benefit of the doubt.

Mr Kent, for the Secretary of State, replies to that criticism first that the Secretary of State was, in the passage relied on, quite correctly saying that the clinical signs did not show conclusively that the applicant had been ill-treated; still less that he had been ill-treated by the Turkish police or the Turkish army but, in any event, submits Mr Kent, the Secretary of State changed his view of the medical evidence and accepted that the applicant had been maltreated by the police in 1982 in the way he claimed. Thus, submits Mr Kent, that passage in the minded to refuse letter cannot be a ground for overturning the Secretary of State's decision.

I accept those arguments advanced by Mr Kent. Mr Warr has not sought to attack the Secretary of State's decision of 23 February 1990 as affirmed on 8 March on the ground that it was Wednesbury unreasonable. It is clear that the Secretary of State changed his view of the medical evidence between the minded to refuse letter on 7 February and the decision to refuse on 23 February. In my judgment, because it can be demonstrated that his view of the medical evidence on 7 February was erroneous, that cannot upset the decision where that erroneous view did not form part of the Secretary of State's reasoning.

The second ground is that once the Secretary of State accepted the medical evidence he was obliged to find that the applicant has injuries to his spine, both cervical and thoracic, which are traumatic in origin, and to the soles of his feet, which are due to falaka, and that the applicant is presently experiencing pain from those injuries. Mr Warr submits that it is not open to the Secretary of State to explain away that medical evidence by saying that the injuries occurred in 1982 without cogent medical evidence to support such an explanation.

Alternatively, if the Secretary of State is entitled to conclude that in 1982 the applicant suffered injuries which nine years later still cause him pain, the Secretary of State should consider whether it is reasonable to return a person to a country where he has been so severely ill-treated that he still suffers pain from that ill-treatment nine years later. The applicant should have been given the benefit of doubt that his pain was due to injuries he has suffered from being maltreated by the authorities from 1982 through to 1989.

The Secretary of State's reply to that submission is that the issue, he had to decide is whether Turkey is a country to which Mr Gulbache is unwilling to go owing to a well-founded fear of being persecuted for convention reasons. Has the applicant demonstrated a reasonable degree of likelihood that he will be persecuted for such a reason if returned to his own country? The conclusion that the Secretary of State has reached is that in 1982 the applicant was ill-treated, that the injuries to his back and feet were probably caused then,

that the applicant's story of being persecuted since that time is incredible for reasons which the Secretary of State has given, and that the medical evidence does not invalidate the Secretary of State's conclusion on the applicant's credibility. Indeed, the medical evidence of torture is somewhat slender, if truly, the applicant had been subjected to thirty or more beatings between 1987 and April 1989.

In reaching that conclusion, that the applicant's account of events after 1982 was either untrue or grossly exaggerated, the Secretary of State relied upon such matters as the fact that the applicant had not, even on his own story, been taken into custody after 1982, that the applicant had not gone to join his father and brothers in Istanbul which, says the Secretary of State, is very surprising if he was being subjected to frequent beatings, and the inconsistencies between the accounts given by the applicant at the various interviews; both the interviews with the immigration authorities and those with the medical foundation and the joint council. The Secretary of State says that he was entitled to conclude that the applicant's stories post 1982 were either fabricated or greatly exaggerated.

Mr Warr countered the point about the applicant not going to Istanbul to join his father and brothers by submitting that in advancing such an argument the Secretary of State was acquiescing in conduct by the Turkish authorities which would have the effect of depopulating the Kurdish provinces of Turkey. The applicant had, very reasonably, stayed in his village in order to farm the family farm. This counter argument underlines, in my judgment, that these issues are issues of fact of which the Secretary of State is the judge. As it cannot be said, and is not being said, that the Secretary of State's conclusion about the applicant's story of events post 1982 was perverse or unsupported by any evidence, this ground of application fails.

The most substantial ground is the next ground advanced by Mr Warr. It is this, that the Secretary of State erred in stating in his letter of 13 July 1990 that in reference to raids on the applicant's village by the army and others (and then this is a quotation from that letter):

"However, this would seem to be a reflection of the concentrated military activity in the South Eastern part of Turkey which has caused hardship to many Turkish and Kurdish villages, and for reasons already given, the Secretary of State is not satisfied that there is any reason to believe that the Turkish authorities have a specific interest in Mr Gulbache. Nor is he satisfied that the general situation in South Eastern Turkey amounts to persecution, from which the local population could not seek refuge elsewhere in that country".

Mr Warr started his criticism of that passage in that letter by taking me to the judgment of Taylor J, (as he then was), in the case of R v Secretary of State ex parte Jeyakumaran (unreported) which was decided on 28 June 1985 and of which I was provided with a transcript. Mr Warr read the judgment from page 6D through to para 8B. Mr Warr submitted that in the passage of his letter of the 13 July, the Secretary of State was falling into the same error as he had fallen into in the Jeyakumaran case. That is to say, the fact that the applicant for political asylum had not been personally singled out for persecution meant that he did not qualify for political asylum. That approach, Mr Warr said quite rightly, has always been knocked down by the courts. Indeed, in his skeleton argument Mr Warr referred to two further decisions; one of the Court of Appeal and another of Taylor J, neither of those are reported, but I have transcripts of both of those.

In the Jeyakumaran case, it is clear that what the respondent was saying was that Mr Jeyakumaran was not being persecuted as an individual in Sri Lanka but as a member of the Tamil community and that therefore he failed to satisfy the criteria for being granted political asylum. Mr Jeyakumaran could not have a well-founded fear of being persecuted if he was returned to Sri Lanka because the attacks had not been directed at him as an individual. Taylor J pointed out the falsity of that reasoning. However, giving careful consideration to that judgment, I do not understand the learned judge to be saying that the fact that the claimant for political asylum has not been personally singled out for persecution and does not claim to have been personally singled out, that is to say, he does not claim to have done some act or to have been thought by the authorities to have behaved in a particular way so that it has come to their attention and they have a reason to persecute him, is not a factor that the Secretary of State is entitled to take into account when considering whether the applicant has in fact been maltreated in the way he claims.

Mr Kent pointed to the standard opening of the minded to refuse letter which applies in cases of Kurdish Turkish applicants for political asylum. It reads:

"Although Kurds in parts of Turkey cannot be said to enjoy cultural or political freedom, evidence does not suggest that the majority of Kurds in Turkey are persecuted and have a claim to refugee status under the terms of the 1951 United Nations Convention relating to the Status of Refugees. However, the Secretary of State is prepared to consider individual cases to see if they fall within the 1951 Convention. This depends on the individual circumstances of the case".

In the passage of the Secretary of State's letter of 13 July relied upon by Mr Warr, submits Mr Kent, the Secretary of State is repeating this view of the present state of the Kurdish population in eastern Turkey and adding that he is not satisfied that there is any reason to believe that the Turkish authorities have a specific interest in the applicant. That is the background against which the Secretary of State considers the individual case of this applicant. Despite having no specific interest in the applicant, the Secretary of State asked himself whether the evidence showed that the authorities were persecuting Mr Gulbache by beating him regularly and frequently. Those are all matters of fact for the Secretary of State submits Mr Kent. Again, it is not asserted that his findings on those issues were perverse. Consequently, there is nothing in that passage of the letter of 13 July which would lead to the Secretary of State's decision being overturned by this court.

I have given careful and earnest consideration to the submissions advanced by Mr Warr but, in my judgment, the answers of Mr Kent must prevail that in that passage the Secretary of State was not falling into the error that he had fallen into in the Jeyakumaran case and the other two cases to which I have been referred.

The last ground is this. In the Secretary of State's decision letter of 23 February last year there was an element of circularity in these two paragraphs and I cite them:

"You repeated your other previous claims that you had been harassed and ill-treated by the authorities in Turkey because you had been giving food to

PKK activists. You also added that you knew of people who had been killed by the PKK for refusing to give them food. The Secretary of State has carefully considered the medical reports submitted in support of your claim and representations by Rights and Justice.

If, however, the authorities in Turkey had genuinely suspected that you were involved with the PKK the Secretary of State considers that you would surely have suffered detention since 1982 and he does not therefore accept your claim that you felt unable to join members of your family who were living without persecution in Istanbul because the authorities would persecute you there. So far as your claimed fear of the PKK is concerned the Secretary of State considers that if this fear were substantial and well-founded you would have left the area before you did".

Mr Warr says, about that, that one has merely to read those passages to see the limitations in the argument being put forward. Mr Warr says that the possiblity of the applicant being pursued by both the Government and by terrorists is conveniently not examined. I read those passages in this way; that what is being said there is that if the applicant's story were true he would either have been arrested or he would have fled from the area well before April 1989 and that because his father and brothers were living without persecution in Istanbul, there was an obvious place to which he could have gone.

With great respect to Mr Warr and the persuasiveness of his argument I see no element of circularity, but more important I see no ground in that passage which would invalidate the decision of the Secretary of State. I certainly do not see from that passage that the possibility of Mr Gulbache being pursued both by the Government and by terrorists has been ignored by those considering his case. It is always a cause for concern to the court when the court is asked to review a decision which is unfavourable to an applicant for political asylum, but the decision must be that of the Secretary of State and provided the Secretary of State has followed proper procedures so that the applicant's case has been fully and fairly heard by the Home Office, and provided the decision reached was one which on the evidence the Home Secretary was entitled to reach; that is say that it was reasonable on the material before him, this court cannot interfere. Consequently, I dismiss this application.

DISPOSITION:

Application dismissed

SOLICITORS:

Iain J Kennedy & Co, Farnham; Treasury Solicitor