The Queen v. Immigration Appeal Tribunal, Ex parte Binali Kandemir

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

(QUEEN'S BENCH DIVISION)

CROWN OFFICE LIST

Royal Courts of Justice

Friday, 8th November 1996

Before: LORD JUSTICE PETER GIBSON, LORD JUSTICE PILL

The Queen- v -Immigration Appeal Tribunal ex parte Binali Kandemir

MR. U. COORAY (Instructed by Messrs Michael, Amy & Partners, London, W1) appeared on behalf of the Applicant.

THE RESPONDENT did not appear and was not represented.

JUDGMENT

LORD JUSTICE PETER GIBSON:

Lord Justice Pill will give the first judgment.

LORD JUSTICE PILL:

This is a renewed application for leave to appeal against the decision of the Immigration Appeal Tribunal made on 24th June 1996, whereby the Tribunal dismissed the appeal of Binali Kandemir against the decision of a Special Adjudicator dated 31st October 1995. The Special Adjudicator dismissed the applicant's appeal against the refusal of political asylum by the Secretary of State for the Home Department and refused him leave to appeal to the Court of Appeal.

It is right to point out that on 25th March 1995 a decision of the Immigration Appeal Tribunal refusing leave to appeal was quashed. The matter came before the Immigration Appeal Tribunal for reconsideration. They have now refused leave to appeal against their reconsideration of the appeal from the Special Adjudicator.

The applicant is almost 34 years old. He was born in Turkey and is a Turkish national of Kurdish origin. He arrived in the United Kingdom on 8th September 1993 and later claimed asylum on a Convention ground. The Tribunal's finding was that the application for asylum was made in December 1993. It was followed by an interview on 5th February 1994. It was on 11th July 1994 that the Secretary of State refused the application for asylum made on the ground that the applicant was a refugee.

The Secretary of State in his decision letter noted that the basis of the claim was that the applicant had supplied PKK guerillas in Turkey with food. The circumstances are set out in the letter. The complaints made by the applicant, of ill- treatment in Turkey and the difficult position in which the applicant was placed by reason of the fact, if he is right, that he refused to act as a village guard in the village where he lived, are set out in the document. The Secretary of State stated:

"In your statement you claimed that you had given assistance to the PKK but that you had only helped them because, if you had not, they probably would have killed you and your family. From this, and from the vague and superficial answers you gave when you were interviewed and questioned about the PKK the Secretary of State is satisfied that you have no genuine commitment to the PKK and that, by your own account, you only supported them under duress. You said in your statement that you left Turkey because if you had continued to help the PKK it was only a matter of time before the authorities caught you. However, given your self-confessed lack of genuine commitment to the PKK, the Secretary of State does not accept that you would have had to continue supporting the PKK if you had remained in Turkey, and that if you had moved elsewhere in Turkey you would have ceased involvement with the PKK. You also claimed in your statement that your family would come to serious harm if you stopped helping the PKK. By leaving Turkey, you have in effect stopped helping the PKK, but you did not bring your family with you, and they apparently remain living in your home village in Turkey. The Secretary of State believes that if you had genuinely believed that your family would be in danger from the PKK, you would have attempted to bring them out of Turkey with you, or at the very least arranged for them to move elsewhere in Turkey. The fact that you allowed them to remain in your village undermines your claim to fear reprisals from the PKK if you stopped helping them. (The Secretary of State also considers that your decision to leave your wife and family in your home village significantly undermines your claim to fear persecution from the Turkish authorities, and that if your house had been raided as often as you claim, you would have moved your family away from your village).

Even accepting that there may have been some suspicion by the Turkish authorities that you had given food to PKK members near your village, the Secretary of State does not believe that this minimal level of involvement would lead to long-term interest in you by the Turkish authorities in all parts of Turkey. Before you left Turkey, you travelled to Istanbul, where there is a large Kurdish population, and the Secretary of State considers that even if you did have problems in your own village, you could have remained in Istanbul without problems."

I turn to the determination of the Immigration Appeal Tribunal against which it is sought to appeal. It is a detailed document. The chronology is set out and notes the claim that the applicant's troubles began in 1978 when he witnessed a mass attack on the Kurds by Sunni Turks. It is noted by the Tribunal that the adjudicator had heard no oral evidence. The applicant's representative before the adjudicator submitted a large bundle of documents by way of background material on Turkey. The applicant was not called to give evidence, on the ground, as stated by his representative, that she had not been able to get detailed instructions from him because he "becomes extremely stressed". There was a suggestion from the Tribunal that the case be remitted to another adjudicator for re-hearing, but the applicant's representative before the Tribunal, Mr. Nicholson, stated that if the matter were to be remitted, the applicant did not wish to give oral evidence. Not surprisingly, in those circumstances, the Tribunal decided that remission was not an appropriate course. The Tribunal proceeded to make its own consideration of the evidence which had been before the adjudicator. It included a consideration of the medical evidence which they believed to be the reason for the earlier High Court decision in that Dyson J. had concluded that the adjudicator had given insufficient consideration to the medical evidence.

Having set out the applicant's complaints, the Tribunal set out in full the grounds of appeal. The Tribunal also set out the submissions made on the applicant's behalf by Mr. Nicholson and the submissions made by the Home Office's presenter, Mr. J G Jones. The psychiatric report was considered in some detail by the Tribunal. I do not propose to quote it in full. It certainly kept open the possibility that the medical problems of the applicant did, at least in part, result from his treatment in Turkey, and there was post traumatic stress disorder. However, the medical report, not surprisingly, raised the possibility that the depression could also be caused or contributed to by the sense of insecurity and uncertainty of the applicant's present situation, as well as the guilt he might feel by becoming dependent on his sister. The doctor, Dr. Suman Fernando, consultant psychiatrist, accepted that the applicant was in a vulnerable emotional state. Having considered the report, the Tribunal concluded that the applicant may have been "subjected to harassment and ill-treatment as claimed by him."

The Tribunal's conclusions are, however, set out in the following paragraphs of their report and appear to me to be based essentially on the second full paragraph on page 24 of the bundle:

"The appellant agrees that he was not a member of the PKK and was only a reluctant supporter. On the evidence before us it does not appear that his involvement with the PKK was such that the authorities are likely to be looking for him. Even accepting that there may have been some suspicion by the Turkish authorities that he had given food to PKK members near his village, we do not believe this minimal level of involvement would lead to long term interest in him by the authorities."

On behalf of the applicant, Mr. Cooray has referred the court to reports upon the situation in Turkey from reputable organizations. Mr. Cooray submits that the evidence before the Tribunal established the relevant subjective fear, and also established, by reference, not only to the applicant's own complaints but to those reports, that it is a fear which is objectively justified. Mr. Cooray puts it in this way in his skeleton argument:

"There is a substantial body of evidence which demonstrates that the authorities in Turkey have little respect for internationally recognised human democratic rights and that they knowingly permit the use of torture and detention without trial and other forms of human rights abuses. If the IAT had paid proper regard to the evidence of the appellant's subjective fear and the evidence from internationally renowned human rights organisations about the objective situation that exists in Turkey, it could have only concluded that the appellant's fear was objectively justified."

The grounds of appeal do involve an assessment of the evidence and an invitation to this court to reconsider evidential matters which were properly before the Tribunal. Mr. Cooray submits that the conclusion of the Tribunal is not credible and is a "bare assertion that is unsupported by any evidence". Mr. Cooray relies upon the sequence of events involving the applicant in Turkey before he left, upon Dr. Fernando's report as to his mental state and the reports as to the current situation in Turkey.

This material was all before the Tribunal. It is the Tribunal which is the tribunal of fact and there can be an appeal from it only if the Tribunal has erred in law. Mr. Cooray submits that the Tribunal gave insufficient consideration to the relevant evidence and that its decision should be quashed on that ground, as well as on the ground that, upon the evidence, the conclusion that they reached was not justified.

Proper procedures have been followed in this case. I refer to the detailed nature, not only of the Secretary of State's decision letter, but the consideration given to the evidence by the Tribunal. Above all, the Tribunal has to consider, when making its findings of fact and reaching its conclusion, the particular case before it. Clearly, as my Lord pointed out in the course of argument, it is not enough to show that conditions in Turkey, or at any rate part of Turkey, are difficult. It must be shown that there is a fear of persecution, which is objectively justified, felt by the applicant himself in the particular situation in which he finds himself. When the papers came before the single Lord Justice, Lord Justice Simon Brown, he refused leave to appeal, stating that:

"No arguable point of law arises here. This is a thinly disguised attempt to re-argue the substantive merits again. Those matters were before the Immigration Appeal Tribunal who dealt with them very fully and carefully."

In my judgment, there is no arguable ground for appeal. The paragraph at page 24, which I have read in full, is the essential conclusion of the Tribunal, and it is one which cannot, upon the evidence, in my judgment, be said to be perverse or one which is not justified upon the evidence before the Tribunal. Mr. Cooray refers to the preceding paragraph and the paragraph following that paragraph, and submits that the Tribunal has given no or no sufficient consideration to evidential points that arose. The complaint is also made that the Tribunal had not considered certain of the grounds of appeal before it. In my judgment, there is no avoiding the conclusion stated in the paragraph I have read by way of an appeal on point of law. Other matters are peripheral to the central conclusion in that paragraph and do not nullify the effect of the conclusion stated. Mr. Cooray also refers to the Tribunal's acceptance of the adjudicator's finding in relation to the possibility of the applicant staying in Istanbul. Mr. Cooray submits that it was an irrational finding, in all the circumstances, and the refusal to confer refugee status upon him cannot be justified by reason of the applicant's short stay in Istanbul. Whatever the merits of that argument, it does not appear to me to impinge upon the central finding, which is that in the paragraph which I have already mentioned more than once. The separate finding in relation to the failure to stay in Istanbul, whatever its merits or demerits, does not destroy or render invalid the central finding of the Tribunal. This Tribunal reached a conclusion it was entitled to reach upon the evidence before it. There is no error of law and no ground on which this court can interfere. I would refuse leave to appeal.

LORD JUSTICE PETER GIBSON:

I agree. The application is dismissed.

Order:

Application dismissed; legal aid taxation.