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

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

(Mr Justice Sedley) Royal Courts of Justice

Strand

London WC2

Wednesday, 14th May 1997

Before: LORD JUSTICE NOURSE, LORD JUSTICE EVANS, LORD JUSTICE WARD

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

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

MR I ASHFORD-THOM (instructed by the Treasury Solicitor) appeared on behalf of the Appellant Respondent.

MISS C FIELDEN and MRS J ROTHWELL (instructed by Messrs Singh & Choudry, London E8) appeared on behalf of the Respondent Applicant.

JUDGMENT

Wednesday, 14th May 1997

LORD JUSTICE NOURSE:

Shortly stated, the question on this appeal is whether the Secretary of State's refusal to treat a claim based on new evidence as a fresh claim for asylum ought to be reviewed on Wednesbury grounds; cf. Onibiyo v. Secretary of State for the Home Department [1996] Imm. AR 370 and R. v. Secretary of State for the Home Department, ex parte Ravichandran (No.2) [1996] Imm. AR 418.

The material events are stated in the judgment of Mr Justice Sedley in the court below and need not be extensively repeated. The applicant, Mr Coskun Boybeyi, is a Turkish Kurd who applied for asylum on his arrival here on 14th March 1994. On 7th April 1994 his application was refused. On 23rd August 1995 his appeal to a special adjudicator against that refusal was dismissed. Although the adjudicator did not make a specific finding to that effect, it is clear that he did not dissent from the Secretary of State's view that an arrest warrant produced by the applicant in support of his application was a forgery. The applicant continues to maintain that it was not a forgery. I should add that the fact that a forged document is submitted on one occasion does not of itself mean that a document of the same kind submitted on a later occasion is also a forgery.

On 11th April 1996, after directions for his removal had been given, the applicant's solicitors sent a fax to an immigration officer at Gatwick stating that they had received from his father in Turkey a faxed copy of another warrant for his arrest. That warrant purported to have been issued on 14th March 1996 in respect of an offence committed in 1992 and described as "Being a member of an illegal organisation and taking part in the organisation's activities". The subsequent events up to and including Home Office letters of 14th June and 2nd August 1996 are recounted in the judge's judgment. It was by the letter of 14th June that the Secretary of State refused to treat the applicant's claim as a fresh claim for asylum. On 5th July the applicant commenced proceedings for judicial review in respect of that letter. In the letter of 2nd August, which was written after leave to move for judicial review had been granted, the Secretary of State, having seen and considered the evidence filed in support of the application, confirmed his previous decision.

In his reserved judgment delivered on 24th January 1997, Mr Justice Sedley stated that the question was whether it was open to the Secretary of State to treat the new evidence produced by the applicant as anything other than a fresh claim for asylum. That question, being one which involved an application of the Wednesbury test - see Onibiyo and Ravichandran (No.2) - was indeed the question which the judge had to answer. In due course he answered it in the negative. Before he did so he examined earlier authorities, principally R. v. Secretary of State for the Home Department, ex parte Khawaja [1984] AC 74 and R. v. Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514, expressing concern on grounds of both practice and principle at the present state of the law on this topic. However, the judge recorded that both sides had accepted the decision in Ravichandran (No.2) as a correct statement of the law, which he proceeded to apply accordingly. We have not had to consider the anterior question.

Since, in regard to the point at issue, there is little in the judge's judgment with which I disagree, I can deal with the matter quite briefly. He summarised the applicant's case in four propositions, which were accepted on behalf of the Secretary of State:

"1.  The fundamental obligation, explained by Sir Thomas Bingham MR in Ex parte Onibiyo, is to give proper consideration to every potentially genuine asylum claim, even where the applicant has previously made such a claim without success.

2.   Rule 346 excludes mere repeat applications.

3.   But where there is evidence of a relevant and substantial change in circumstances (Rule 346), or where new evidence is advanced which could not reasonably have been advanced earlier (Ex parte Onibiyo), an obligation arises to entertain the newly made claim whatever the grounds for rejection of the previous one, unless the new evidence

(a)  is not intrinsically credible (see ex parte Ravichandran (No.2) or

(b)  is not capable, even if accepted, of producing a different outcome (Rule 346).

4.   These being the policy and objects of the legislation and rules, the Secretary of State cannot reasonably refuse to entertain an application for asylum to which none of the foregoing exceptions apply. Essentially the question is whether there is a real issue to be determined."

In R. v. Secretary of State for the Home Department, ex parte Habibi (11th April 1997, unreported) Mr Justice Sedley reformulated paragraph 3(a) of this summary by omitting the word "intrinsically".

The judge then came to the real difficulty in the case, which is occasioned by the Secretary of State's role as the judge of two questions: first, whether the new claim is indeed a fresh claim for asylum; second, if so, whether it ought to be acceded to or rejected. Having dealt with a passage in the judgment of Dyson J in Ravichandran (No.2) at p.432, on which Mr Ashford-Thom, for the Secretary of State, had relied, he continued:

"Mr Ashford-Thom accepts, as he must, that there is in law a point at which the Secretary of State is bound to entertain an application as a fresh claim. He submits that it comes `where the new evidence is on its face conclusive and is unchallenged.' This, with respect, cannot be right. It would mean that to have a fresh claim entertained at all an asylum-seeker would already have had to prove the claim in full. It would make the Secretary of State the arbiter of this dual question without recourse to an independent tribunal on contested issues of fact capable of founding a fresh claim for asylum.

If, on the other hand, the process is as the applicant submits it is, the Secretary of State has initially a more limited series of questions to determine: Does the claim relate to substantially the same circumstances as before? If so, is there nevertheless fresh evidence in support of it? If there is, is the evidence credible on the face of it and is there any good reason why it was not advanced previously? If these questions are answered favourably to the applicant, the new claim is one which the Secretary of State is required to entertain. It is then, in the applicant's submission, that the Secretary of State will embark upon the kind of inquiry which he embarked upon here and which led him ultimately, and perfectly tenably, to reject the claim. The difference, however, will be that the rejection is appealable to an independent tribunal, the Special Adjudicator.

It seems to me that the applicant's paradigm must be the correct one if the United Kingdom's obligation described by the Master of the Rolls in Onibiyo is to be respected."

Whilst I am in broad agreement with the judge's views as there expressed, I think that his statement of the series of questions which the Secretary of State must initially determine is not in every respect in accordance with "the acid test" propounded by Sir Thomas Bingham MR in Onibiyo, at p.381. In particular, the requirement that the evidence should be credible "on the face of it" ought, as in the earlier passage, to be reformulated by omitting those words. What the Master of the Rolls said was this:

"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."

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

I now return to the judge's judgment, taking it up at the point at which I broke off:

"While therefore the Secretary of State remains in law the single arbiter of whether material submitted to him by a formerly unsuccessful asylum-seeker amounts to a fresh claim for asylum, the criteria by which he must answer the question are necessarily a matter of law. In the present case the very need to make careful inquiries into the authenticity of the warrant, and the resulting conflict of evidence between the applicant and the Home Office, make the Secretary of State's conclusion that the application did not constitute a fresh claim untenable. It is he, on authority, who is the arbiter of this question, but he cannot answer it in the negative if both the proffered material and his own response, inquiries and conclusion are consistent only with an affirmative answer when gauged by the relevant criteria."

Again I am in broad agreement with that passage. The critical sentence is the second, in which it is made clear that the judge was applying a Wednesbury test. I agree with him that the Secretary of State's conclusion that the application did not constitute a fresh claim for asylum was untenable. I will express my reasons in my own words.

The applicant's claim is based on new evidence, essentially on the copy of the second arrest warrant. Unlike the first warrant, which was wholly typed, it consists of a printed form with the necessary details typed in, and it bears apparent signatures of a clerk and a judge and also a seal. Its authenticity is supported by a report signed by a Turkish solicitor and his clerk which, having said, amongst other things, that it is the kind of document issued by the Turkish courts, contains this passage:

"Sometimes the stamps are worn and therefore can be difficult to read. This particular stamp is correct in terms of design, but we cannot say for sure because it cannot be read."

CONCLUSION

We do not know the nature of the arrest warrant, but on 14/03/96 this arrest warrant seems to have been appropriate according to standard arrest warrant. Therefore, we cannot say that this arrest warrant is false and we did not have the opportunity of looking at the case, and there is a high probability that the content of the arrest warrant and the stamp are genuine."

As the judge pointed out, two genuine warrants were also tendered by way of comparison.

In my view that evidence, standing on its own, satisfies the second and third of the Ladd v. Marshall tests. Clearly, it would have an important influence on the result of the case, even though it might not be decisive, and, further, it is apparently credible, albeit not incontrovertible. Accordingly, unless any enquiries made by the Secretary of State established that it was not apparently credible, he ought to have treated the applicant's claim as a fresh claim for asylum.

The Home Office letter of 14th June 1996, having stated that the Secretary of State had considered the new evidence, continued:

"He remains satisfied that the document is not genuinely issued by the Turkish authorities. The reasons given in his letter of 23/4/96 are, in the Secretary of State's view, still valid. He has also caused enquiries to be conducted in Turkey about this document which have confirmed his view that the document is not genuine.

These enquiries were made without disclosing Mr Boybeyi's identity or that the case involved an asylum seeker. The Turkish authorities were simply asked whether there was a judge working at the Malatya State Security Court with the unique number as given on the document, and whether the court had ever issued an arrest warrant with the number given on the document.

Mr Sahin Kurt, the Chairman of No. 1 State Security Court in Malatya has stated that there was no judge working at either No. 1 or No. 2 State Security Court with the unique number that is quoted on your document. That is an indication to the Secretary of State that your document is not genuine.

The Ministry of Justice was also approached, specifically a Mr Turgit Aydin, Director General of the International Law and Foreign Relations Directorate, who advised that neither of the two State Security Courts in Malatya have issued an arrest warrant with the number 1992/178. Mr Aydin also stated that there was no judge working at either court with the unique number quoted on your document. This is further indication that the document is not genuine.

The Secretary of State remains satisfied that the document you have is not genuine. It cannot therefore be given any weight in connection with your client's assertion that he is outside of Turkey owing to a well founded fear of being persecuted. ...

The Secretary of State also does not consider that the new information you have submitted amounts to a fresh claim for asylum. The Special Adjudicator did not find your client (or his wife) to be credible. The new material supplied is not credible. Moreover, it is noted that the `arrest warrant' was supposedly issued in 1992 and could have been relied upon in the original claim."

The letter went on to state that, in evaluating any material submitted in support of a request that it be considered as a new claim, the Secretary of State had regard to the acid test in Onibiyo. Having quoted that test, the letter ended by stating that in the view of the Secretary of State, for the reasons stated, there was no such realistic prospect in this case and that he remained satisfied that the applicant was not a refugee.

In my view the evidence relied on by the Secretary of State in the letter of 14th June did not displace the apparent credibility of the applicant's new evidence. It was all directed to the subsequent inquiry whether it is in fact credible. If the letter had been directed to the second question, it would probably, as the judge appears to have thought, have been unimpeachable in proceedings for judicial review. It was not a permissible means of answering the first question, namely whether a fresh application had been made. It is very understandable that the dual role of the Secretary of State should, in circumstances such as these, have become merged into one. But as Mr Justice Sedley has rightly emphasised, the applicant's lack of a right of appeal to an adjudicator against an unfavourable determination of the first question makes it essential that it should be kept separate from the second.

Mr Ashford-Thom has submitted that the Secretary of State was not bound simply to accept the applicant's evidence as it stood and that he was, for the purposes of deciding the first question, entitled to make enquiries of his own. I accept that as a general proposition. But I repeat that the evidence on which he relied here did not displace the apparent credibility of the applicant's evidence. It is also important to emphasise that the requirement embodied in the acid test is that there should be a realistic prospect that a favourable view could be taken of the new claim. That sort of test is very familiar to all of us. It is not a very high test. On the facts of this case, which are not those of any other, it could not have been reasonably determined that there was no such prospect.

In my judgment Mr Justice Sedley's decision was correct. I would therefore dismiss this appeal and affirm his order of certiorari.

LORD JUSTICE EVANS:

I agree.

LORD JUSTICE WARD:

I also agree.

Order:

Appeal dismissed with costs; Sedley J's order of certiorari affirmed; legal aid taxation for the respondent applicant; leave to appeal to the House of Lords refused.