Doldur v. Secretary of State for the Home Department

IN THE SUPREME COURT OF JUDICATUREIN THE COURT OF APPEAL (CIVIL DIVISION)

APPLICATION FOR LEAVE TO APPEAL

2nd July 1998

Before:

LORD JUSTICE KENNEDY

LORD JUSTICE MORRITT

DOLDUR - v - SECRETARY OF STATE FOR THE HOME DEPARTMENT

MR ANDREW NICOL QC (Instructed by Gill & Co of London) appeared on behalf of the Appellant

The Respondent was not represented and did not attend

JUDGMENT

LORD JUSTICE KENNEDY:

This is a renewed application for leave to appeal from a decision of the Immigration Appeal Tribunal, leave having been refused on paper by Sir Anthony McCowan.

The applicant arrived in the United Kingdom at Dover on 4th August 1996. He is a Turkish Kurd. He claimed political asylum. He was interviewed on 19th August 1996. He then was refused asylum on 12th September 1996. It is interesting to note that at that stage his claim was put in this way as reflected in the Secretary of State's decision:

"Your application for asylum is based on the difficulties you claim to have experienced in Turkey as a result of your Kurdish ethnic origin, your Alevi beliefs and your reluctance to participate in the village guard system."

However, the Secretary of State noted that he did not come from the area currently under the state of emergency; the Secretary of State, at that stage, was not satisfied that he would have to go there unless he chose to do so. He was not satisfied that being an Alevi Kurd was, by itself, enough to give rise to a well founded fear of persecution.

The applicant then appealed. The way in which he put his case was that he feared persecution were he to be returned to Turkey. The appeal was considered by the special adjudicator in the normal way. The special adjudicator heard the applicant's evidence. He was not in the least impressed by it. He found the applicant to be a complete liar. He found him to have produced documentation which was wholly unreliable. He said this:

"Let me say first of all that I accept immediately that Kurdish people in Turkey are discriminated against.

I do not accept that the discrimination against Kurds in general amounts to persecution, although I accept immediately that it must be extremely difficult for most Kurds, and their family, to live in or under the regime at present in Turkey."

The adjudicator, as one would expect, was fully alive to the difficulties which were sought to be put before him. He continued: "In the final event or analysis, one must always see how the events portrayed in the background information, affects or applies to the appellant, and make a finding on credibility, which in a case such as this I think is very important indeed."

At page 50 of the bundle, a little later in his decision, the adjudicator said:

"If the appellant has been assisting the PKK, which is a militant organisation, designed to carry out guerilla attacks upon the security forces and government buildings, then of course the security forces would be entitled to have an interest in the appellant. The appellant himself made it clear that he has given food and shelter and clothing to these militants who are armed with guns."

That is a sentence on which Mr Nicol QC particularly relies because he says that it is something on which the adjudicator did not express any dissent. The adjudicator went on:

"He has also directed them to certain places that they wanted to go, presumably to carry out their activities. If as a result the appellant was arrested by the security forces, although I do not accept that he would have been entitled to have been tortured, nevertheless, the appellant must have known that in helping and providing support for the PKK guerillas he was actively encouraging them in their penetration of the terrorist acts, some of which have led to a considerable loss of life."

The adjudicator goes on to set out further claims of the appellant. At page 52 he expresses his conclusions in this way:

"It was quite clear to me as this case progressed that this appellant was saying whatever he thought was expedient, with little regard to the truth. He was prepared to blame anybody else, mainly the interpreter for any shortcomings.

I accept that this appellant may well have been put under some pressure to become a village guard. I do not accept that he was arrested between fifteen and twenty times and was tortured in the way that he has described. I do not accept that he and his family were forced to evacuate the village for a period of a year or more as he claimed at one time but not every time. I do not accept the genuineness of the documents that have been put before me and which the appellant admits may have been doctored by his uncle. I do not accept that they were sent from Turkey to a relative in the United Kingdom, who, without any reference to the appellant, simply gave them to the solicitor, or that the appellant had never even seen some of the documents, if that be true, it is even worse, because it would appear that others have managed to have sought to produce documents about the authenticity of which I am not prepared to accept, on the appellant's behalf. I do not accept that the appellant gave the agent the passport back. I do not accept that the appellant did not know where he was en route to the United Kingdom.

I take the view that this was a carefully thought out and planned exit from Turkey to join other members of his family in the United Kingdom. The reasons may be economic, there may be other reasons. It is not for this court to conjecture about the true reasons, but I am satisfied it is not because the appellant has a well-founded fear of persecution in Turkey, for a reason that comes within the United Nations Convention of 1951."

In those circumstances it is not surprising that the adjudicator came to the conclusion that the decision of the Secretary of State would have to stand.

There is an appeal from the decision of the adjudicator to the Immigration Appeal Tribunal. The Immigration Appeal Tribunal came to very much the same conclusion as the adjudicator, not surprisingly, on the question of credibility because it had to act on his assessment of the applicant. Mr Nicol submits that insufficient attention was paid to the fact that the adjudicator, despite what he said in passages to which I have referred, did appear to accept two propositions. One was that some support had been offered by the appellant to the PKK. He had given food, shelter and clothing to militants who were armed with guns. Second, that the appellant may well have been put under some pressure to become a village guard.

That, he submits, had to be viewed in the context of what appeared in the 1994 Amnesty International Report which was before the tribunal and before us. A particular passage in the report reads:

"The current situation in Turkey leads Amnesty International to be gravely concerned about any cases where the authorities in asylum countries propose to return Kurdish asylum-seekers to Turkey. Those who would be at the most extreme risk if returned to Turkey, and whose forcible return [Amnesty International] would certainly oppose, include:

people suspected (rightly or wrongly) of having links with the Kurdish Workers' Party (PKK);

people from villages which have refused to join the village guards scheme or from villages which have in the past been subject to security operations by the authorities."

Mr Nicol submits that what was apparently accepted from what he said should have led to the conclusion that he would be particularly at risk if he were to be returned. The matter was put to the Immigration Appeal Tribunal when the matter was being considered by them. At the end of the determination the tribunal said:

"Each case must be decided on its own facts. The background material can of course assist in assessing the credibility of a particular story put forward and if that story be accepted, then that material will be of great assistance in assessing the likely consequences for an appellant. What that background material cannot, in our view, do is to establish a case for an appellant whose account of material events in his past is not accepted because his story is found not to be credible. In the instant case that was the finding of the adjudicator and it is, as we note above one which our reading of the file supports."

There is a quotation from the decision of the adjudicator, and the tribunal went on:

"The appellant cannot, in our view, claim asylum solely because he is an Alevi Kurd. On the findings that the special adjudicator made and we endorse, the appellant did not leave Turkey because of a well-founded fear of persecution, and we do not accept that on return he would be at risk or would be of interest to the authorities on account of anything in his past history."

That, it is submitted, does not deal sufficiently with the two items of evidence to which we have drawn attention.

In my judgment, it deals with them entirely adequately because the situation there was that the applicant was found to be a wholly unreliable witness. The matter of giving food and shelter was all part and parcel of evidence which the adjudicator found to be wholly unreliable. The same here applies to the question of being put under pressure. The adjudicator accepted that he may have been put under some pressure but how much it is impossible to say, having found that he was a wholly unreliable witness.

In those circumstances I do not consider that there is any arguable point arising out of the determination of the Immigration Appeal Tribunal which is worthy of consideration by the full court. I would, therefore, dismiss this renewed application.

Mr Nicol drew to our attention the fact that, in turning down the application for leave, the tribunal made reference to the distinction between the Amnesty Report of 1994 and the circumstances of 1997. I think that was, perhaps, an unfortunate observation. But nothing, in my judgment, turns on that.

LORD JUSTICE MORRITT:

I agree.

Order:

Application dismissed