Yurekli v. Secretary of State for the Home Department

YUREKLI v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (CIVIL DIVISION)

[1991] Imm AR 153

Hearing Date: 9 July 1990

9 July 1990

Index Terms:

Politcal asylum -- application refused -- Secretary of State accepted that appellant had been physically maltreated when living in home village -- concluded that disabilities under which he subsequently lived in Istanbul did not give rise to a well-founded fear of persecution -- whether Secretary of State's approach reasonable -- whether Secretary of State should have made further enquiries of the appellant after late information received of harassment affecting appellant in Istanbul. HC 169 para 73.

Held:

The appellant was a Turkish Kurd who had suffered harassment in his home village. He had subsequently moved to Istanbul where although he suffered discrimination, on the evidence in his asylum interview he was not subject to physical violence. The Secretary of State refused his application for political asylum, concluding that in Istanbul or elsewhere in Turkey other than his home village, the appellant had no well-founded fear of persecution. His application for judicial review was dismissed. On appeal counsel argued that following the definition of persecution in Jonah, the Secretary of State had adopted too narrow an interpretation of persecution. He had also erred in not seeking from the appellant a further explanation of events in Istanbul which had caused harassment to the appellant: information on those events had been given to the Secretary of State by his representative, after the date of two asylum interviews with the appellant, during neither of which had any mention been made of those events. Held: 1. The Secretary of State's decision, and his approach to the circumstances under which the appellant lived in Istanbul could not be held, on Wednesbury principles, to be irrational, albeit per Neill LJ, initially "this aspect of the matter troubled me." 2. There had been no miscarriage of justice in the Secretary of State not questioning the appellant further about the late evidence. It was not a case in which the Secretary of State had introduced a new element. He had considered everything put to him: "it would be quite wrong for this court to introduce yet another stage in the whole procedure."

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Daniel Jonah [1988] Imm AR 7. R v Secretary of State for the Home Department ex parte Celal Yurekli [1990] Imm AR 334.

Counsel:

A Nicol for the appellant; D Pannick for the respondent PANEL: Neill, Ralph Gibson, McCowan LJJ Judgment By-1: McCOWAN LJ

Judgment One:

McCOWAN LJ: This is a renewed application for leave to move for judicial review of a decision of the Under Secretary of State for Home Affairs dated 7 December 1989 in which he refused the applicant's application for asylum. The application is renewed before this court following the refusal of leave by Otton J on 15 February 1990. The applicant is a Kurd who arrived in this country from Turkey on 12 June 1989 and applied for political asylum. He comes from a village in Turkey called Becekli. That village, we have learned, is entirely Kurdish and Alevi, but is surrounded by Turkish villages. It is said that while the applicant lived in that village, which he did up to 1987, an army unit based not very far away from the village regularly visited it, rounded up the young men in the village, detained and tortured them. It is further said that the applicant is a sympathiser with a banned revolutionary workers' party. It has not really been in dispute that while he was in that village he was subject to arbitrary detainment, torture and prejudice. But the question arises as to what happened after he left there, which he did in 1987 to go to Istanbul. The argument of Mr Nicol for the applicant has been that it was wrong for the Minister to look at the last date when torture occurred (that is in 1987) and then to say that because two years followed during which there was no detainment or torture, therefore he should be refused entry. There does not, he submits, have to be torture for there to be persecution. The applicant's account is that during those two years in Istanbul he was sacked from various employments when his religion and origin were discovered. He did not register as a worker in the municipality for fear of being discovered. He was separated from his wife and family because of his fear of returning to his native village where they were, and, effectively, he was in hiding for this period of time. The real question therefore, it is submitted, is whether what happened to him during those two years could amount to persecution within the Convention. The "minded to refuse" letter said that since he went to Istanbul ". . . you have experienced no harassment from the authorities although you have not been able to find regular work." The decision letter put it: ". . . you have lived in Istanbul for the last two years without suffering persecution (the harassment you experienced cannot be said to amount to persecution)." Mr Nicol has relied on the case of ex parte Jonah [1985] Imm AR 7, in part because, he says, of the similarity of the facts of that case to the present case and in part because of Nolan J's definition of persecution in that case as amounting to being subjected to injurious action and oppression. Mr Nicol said that what happened to the applicant during those two years in Istanbul amounted to injurious action and oppression. However, as Mr Pannick for the respondent has pointed out, there is no suggestion of physical ill-treatment while in Istanbul. What, therefore, the Minister had to do was to form a judgment as to whether the alleged harassment suffered by the applicant during that period gave rise to a well-founded fear of persecution. Mr Pannick put it that this court might think it went over the line. But that is not the test. We must beware of substituting our decision for that of the Minister. This aspect of the matter troubled me, but in the end I am persuaded by Mr Pannick that it is not possible to say that the Minister's determination of this matter was an irrational one. That disposes, for my part, of Mr Nicol's first point. However, he takes a second point. The applicant's interests were looked after by a body called Rights and Justice. In the second letter written by them, a letter dated 3 December 1989, they brought to light that there had been a large anti-government demonstration on May Day 1989 and that following that demonstration the police raided all houses in Istanbul where Kurds were thought to be. In consequence it is said by Rights and Justice that the applicant was alarmed by those raids, he feared that he might be arrested and tortured again, and that is what triggered him into coming to this country. This was the first time that the Minister had heard that that was the trigger of the applicant's action. What he wrote in his decision letter of 7 December on that aspect of the matter was this: "You did not mention these matters at your interview on 10 October and the Secretary of State therefore concludes that, if there were any truth in the claim, it is not regarded by you as a reason for fleeing Turkey." The explanation which is relied on by Mr Nicol is that the applicant was never asked the question: "What prompted you to leave Turkey when you did?" Included in the bundle before this court is a list of questions called list A. No 8 contains that very question. No answer is recorded, and therefore it is a reasonable interpretation of the matter that the question was never asked. If it had been asked, urges Mr Nicol, the answer would have been the May Day demonstration and its consequences. He proceeds to argue that the Minister should have put before the applicant his provisional conclusion and asked him for yet further comments. It is necessary, however, to look at the whole history of the matter. The applicant was interviewed first of all on 10 October and made no mention then of the May Day rally or its consequences. On 30 November he was given the "minded to refuse" letter. He was then asked: "Is there anything else that has happened to you that you wish to tell us about not already in your application?" to which he replied "No". He then said that he could not understand why the Secretary of State was minded to refuse his application, and added: "I have given you all the facts." It seems to me that it was not unreasonable in those circumstances for the Minister to feel that if in fact the trigger of this man's action in coming to this country was the May Day rally and its consequences, it is very strange that he did not mention that at all in either interview, particularly when asked the question to which I have just referred. Moreover, as I have said, the letter from the organisation looking after his interests, which did bring this matter to light, was the second letter which they had written. Nonetheless, says Mr Nicol, the Minister should have gone back to the applicant and asked him for yet further observations. In conclude for my part that Mr Pannick is right in saying that there was no breach of natural justice here. The Minister has not introduced a new factor upon which the applicant had had no opportunity to comment. He had listened to everything that had been said and had reached a conclusion. It would be quite wrong for this court to introduce yet another stage into the whole procedure. I am therefore unpersuaded by Mr Nicol's second point, and I would refuse this application.

Judgment Two:

RALPH GIBSON LJ: I agree.

Judgment Three:

NEILL LJ: I also agree.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Simons, Muirhead & Burton; Treasury Solicitor