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

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

APPLICATION FOR LEAVE TO MOVE FOR JUDICIAL REVIEW

Royal Courts of Justice

Strand

London WC2

Thursday, 12th June 1997

Before: LORD JUSTICE SAVILLE, LORD JUSTICE THORPE, LORD JUSTICE JUDGE

Regina- v -Secretary of State for the Home Department ex parte Kabala

MISS C FIELDEN (Instructed by Gill & Co of London) appeared on behalf of the Applicant

MR R TAM (Instructed by Treasury Solicitor) appeared on behalf of the Respondent

JUDGMENT

(As Approved by the Court)

LORD JUSTICE JUDGE:

This is a renewed application for leave to move for judicial review of the refusal of the Secretary of State for the Home Department dated 26th March 1997 to accept a fresh asylum claim by Mehmet Kabala. Carnwath J refused to grant leave on 8th May 1997.

There is no need for a lengthy recitation of the facts. The applicant is a citizen of Turkey. He was born in May 1974. He is of Kurdish origin. He left Turkey in March 1994 and came to this country seeking asylum, asserting that he had been the victim of torture. On 20th June 1994 his application was refused. He appealed against the refusal. After a hearing in August 1996 at which he was represented by Mr Rintoul of the Refuge Legal Unit, on 21st October 1996 the special adjudicator dismissed his appeal on the basis that she was not satisfied that the applicant's fear of persecution, if he were to be returned to Turkey, was well founded. It is abundantly clear from the detailed determination that the special adjudicator was wholly unimpressed with the evidence of the applicant and in a number of respects she expressly found that his evidence was not credible.

In view of the matters raised before the Secretary of State and before us, amounting to fresh material relied on by Miss Fielden, two particular issues canvassed before the special adjudicator and dealt with by her in her determination require special attention. Those were a document purporting to be a warrant of arrest, or a document having similar effect, stamped 15th December 1995 and the applicant's claim that he had a conscientious objection to military service. So far as the conscientious objection was concerned, the special adjudicator said:

"…I believe the Appellant might face prosecution for failure to report for call-up to do his required military service, I do not believe his not wishing to do so was motivated by a conscientious opposition to carrying or using arms and I do not believe that any prosecution for failure to do military service would amount to persecution with[in] the Convention. The Appellant said that he did not want to do his military service because he did not want to fight against Kurds irrespective of whether they were PKK terrorists or not. He himself said that he was a supporter of the PKK and the TDKP and it does not appear to me that he does not wish to be conscripted (as is required by the government of Turkey), on grounds of conscience."

She also dealt expressly with the document dated 15th December 1995 which was mentioned during the course of the evidence-in-chief given by the applicant, but not actually produced until he was cross-examined. When it was produced the interpreter who was present at the hearing translated the document to the special adjudicator. In that context she said:

"I felt that all this" that is to say, knowledge of the names of people organising the local PKK and so on "was somewhat exaggerated", and, here come the crucial words "and I felt that he had engineered the sending of the official looking document relating to his being wanted ..... "

Leave to appeal the decision of the special adjudicator to the Immigration Appeal Tribunal was refused on 13th November. An application was then made for leave to move for judicial review which, as I understand it from the papers, was refused on paper. Thereafter the application was renewed on the basis that there should be an oral hearing but this was not pursued pending consideration of what was described as a fresh application for asylum made on 28th January 1997. This application was reinforced by a very large number of letters and documents, one of which is a letter from the War Resisters International dated 27th January 1997 which goes, so the argument on behalf of the applicant runs, to the issue of his conscientious objection; the second of which was a letter from Mr J D Norton, an expert in Turkish affairs, which deals with the document which I have described as a warrant of arrest and sets out the conclusions of Mr Norton on this subject. In relation to this matter Mr Norton's letter reads that the document

"gives instructions for [the applicant] to be brought in to the state prosecutor's office as soon as possible."

It is not a document which would "have been issued to a member of the public," but it is said "to appear to be authentic and looks completely typical of such documents" bearing the marks of an official stamp and signature. This material was considered by the Secretary of State on 26th March.

The Secretary of State rejected the suggestion that the applicant had made a fresh application for asylum within paragraph 346 of the Immigration Rules. He further decided that there was nothing in the material which had been sent to him which would lead him to change the conclusion that the applicant should be refused asylum. He examined the two-fold basis on which the application before him had been advanced. He considered first the question of the document, the warrant of arrest. He set out his concern that the document was a forgery. He expressed himself satisfied about it. He set out his reasons for coming to that conclusion and he decided that this was not credible evidence. He added that -

"given that this document was available to the Special Adjudicator at the appeal hearing ..... the Secretary of State considers that he can disregard the document."

He went on to note that the only aspect of the fresh material not available to the special adjudicator consisted of the report from Mr Norton which was obtained subsequent to the determination by the special adjudicator. It is clear therefore that the Secretary of State had in mind all the appropriate considerations when considering this document.

He turned to consider the issue of conscientious objection. He noted that an adverse view had already been taken of the applicant's credibility. He went on:

"In light of this lack of credibility, the Secretary of State does not accept that his [the applicant's] evidence as to why he himself is a conscientious objector is credible. Your correspondence and that is a reference to the letter from War Resisters "does not restore credibility to him."

He went on:

"The claim is not therefore considered to constitute a fresh application. Furthermore, this aspect of his claim was available to him to advance before the Special Adjudicator if he had chosen to do so."

The solicitor then acting for the applicant sought further information which was provided by Mr Norton in a subsequent letter. Mr Norton set out on 15th April 1997 a series of comments about the conclusion reached by the Secretary of State which had nothing whatever to do with his expertise in Turkish affairs. But then he added a further comment which is contained in paragraph (c) of that letter about the wording of the document and that he, accordingly, could not accept the conclusion by the Secretary of State on that point. The Secretary of State responded briefly. He concluded that he was not prepared to accept that this new material constituted a fresh asylum application. He referred to the reasons he had given earlier. He was satisfied that those reasons were appropriate. He added in relation to the specific point raised by the letter of 15th April 1997, Mr Norton's second letter, that he maintained his opinion that the document presented was "not genuine".

The submission to this court by Miss Fielden can be encapsulated in a short summary that fresh credible evidence had been submitted to the Secretary of State which gave rise to a reasonable prospect that a special adjudicator considering that material would have reached a different conclusion to that reached in October 1996. The Secretary of State had erred in concluding that this was not a fresh application for asylum and that this error is susceptible to judicial review on ordinary principles. In particular, in the context of applications for asylum she suggested that it was at least arguable that the application in its full rigour of the first principle in Ladd v Marshall in relation to fresh evidence should be reconsidered by this court. The difficulty for Miss Fielden is that the application principle has already been considered by this court on two separate occasions.

In Onibiyo v Secretary of State for the Home Department [1996] IAR 370 this court was considering an application for political asylum by a citizen of Nigeria. The application was refused by the Secretary of State. The appeal was dismissed by a special adjudicator. He was refused leave to appeal to the tribunal. It is not without significance that the appeal was dismissed by the special adjudicator following a hearing at which a representative for the appellant had conceded that the appeal was bound to fail. There was then a fresh application for asylum. The Secretary of State considered the representations. He concluded that the material before him did not amount to a fresh application. The representative sought to lodge an appeal to a special adjudicator. But leave to move for judicial review of the Secretary of State's refusal to issue a second formal notice of refusal of asylum or to refer the matter back to an adjudicator under Section 21 of the 1971 Act, which was the relevant legislation, was sought for that purpose. It therefore follows that Onibiyo was a case in which the problem of legal competence or lack of it was clearly before this court in the context of an asylum application. The Master of the Rolls, giving the first judgment, said under the heading of A fresh claim:

"It was accepted for the applicant that a fresh `claim for asylum' could not be made by advancing an obviously untenable claim or by repeating, even with some elaboration or addition, a claim already made, or by relying on evidence available to the applicant but not advanced at the time of an earlier claim. There had, counsel acknowledged, to be a significant change from the claim as previously presented, such as might reasonably lead a special adjudicator to take a different view. If the fresh claim depended on new evidence, then it had to satisfy tests, analogous to Ladd v Marshall, of previous unavailability, significance and credibility."

It is of course trite law that the failure of advisers either to present the appropriate case at court or to produce the necessary material to enable the case to be advanced with the force which the individual appellant would have desired does not fall within the category of previous unavailability, an approach adopted by the House of Lords in R v Secretary of State for the Home Department ex p Al-Medhawi [1990] 1 AC 876 in relation to immigration cases. In the most recent case on this topic - R v Secretary of State for the Home Department ex p Boybeyi - this court was again considering a case of an asylum seeker and the question of fresh material which was put before the Secretary of State. In his judgment Nourse LJ set out first the acid test formulated by the Master of the Rolls in Onibiyo:

"The acid test must always be whether, comparing the new claim with that earlier rejected, and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim."

Nourse LJ continued:

"Those observations must be read in the context of everything which the Master of the Rolls said under the sub-heading A fresh claim at pp.380-381, including his acceptance of the proposition that, if the fresh claim depends on new evidence, then it has to satisfy tests analogous to those in Ladd v Marshall [1954] 1 WLR 1489, of previous unavailability, significance and credibility. It follows that it is implicit in the concept of `a realistic prospect that a favourable view could be taken of the new claim' that the prospect may be manifested by evidence which satisfies the second and third of the Ladd v Marshall tests, namely that it would probably have an important influence on the result of the case though it need not be decisive, and that it must be apparently credible, though it need not be incontrovertible."

Nourse LJ added in parenthesis:

"(It has not been suggested that the first of the Ladd v Marshall tests is not satisfied in this case.)"

which clearly underlines that the first limb of Ladd v Marshall must be satisfied even in an asylum case.

In these circumstances and with those principles in mind, I can turn briefly to consider the fresh material. First, in relation to conscientious objection it is apparent that the primary issue canvassed in detail before the special adjudicator was this particular applicant's conscientious objection or otherwise. There is in reality nothing in the further information put before the Secretary of State from War Resisters which could not reasonably have been obtained and deployed before the special adjudicator. As to the document, the warrant of arrest itself, there can be no dispute that document was before the special adjudicator and translated to her. It is perfectly true that the evidence of Mr Norton was not available to her, but it self-evidently could have been.

Indeed, if, as now asserted, it was crucial to the applicant's case it is difficult to imagine how any representative could not have appreciated its possible importance. In those circumstances neither of the two areas of evidence put before the Secretary of State to persuade him to treat this case as a fresh submission amounted to fresh material at all. In any event, the question is whether the Secretary of State erred in such a way that this court could intervene. It is sufficient to say for the purposes of this judgment that no such error has, even arguably, been demonstrated. In the end, even with this fresh evidence, looking at all the evidence as a whole, there is no reason to conclude that a fresh hearing before a special adjudicator would lead to a different view being formed of the applicant's credibility or any other conclusion being reached than that he had not established within the appropriate principles a well founded fear of persecution for a Convention reason.

In those circumstances, in my judgment, this application should be refused.

LORD JUSTICE THORPE:

I agree.

LORD JUSTICE SAVILLE:

I also agree.

Order:

Application refused. Legal aid taxation.