R v. Special Adjudicator Immigration Appeal Tribunal, Ex Parte Mehmet Sefi

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

2 March 1998

Before

LORD JUSTICE BELDAM

LORD JUSTICE WARD

SIR CHRISTOPHER SLADE

REGINA - v -SPECIAL ADJUDICATOR IMMIGRATION APPEAL TRIBUNAL EX PARTE MEHMET SEFI

MS M. PHELAN (Instructed by Howe & Co., Craven House, 40 Uxbridge Road, London, W5 2BS) appeared on behalf of the Applicant

MR STEVEN KOVATS (Instructed by Treasury Solicitors, Queen Anne's Chambers, 28 Broadway, SW1H 9JS) appeared on behalf of the Respondent

JUDGMENT

LORD JUSTICE BELDAM:

The applicant, Mr Sefi Mehmet, is a Turkish national. He renews his application for judicial review after refusal of leave to move by Scott Baker J on 19 April 1997. The applicant was born in Southern Turkey on 15 July 1950. It appears that he is a married man with three children. He is a native of Kurdistan. He comes from farming stock and lived in a village in Turkey until 1977. During this period he says he was subjected on numerous occasions to detention because he was a follower of the Workers Party of Kurdistan (referred to as the "PKK"). So, in 1977 he went to Cyprus to avoid the violence and hoping for a better life. However, he only stayed there for two years and returned to Turkey in 1979. According to him nothing had changed, but he remained in Turkey until 1989 and then returned to Northern Cyprus. He left Northern Cyprus where he had been living in Famagusta in 1993. He said that in that year some refugee members of the PKK came to him and asked for help. In conseqence he was detained by the authorities for ten days. After his release, by bribery, he obtained a passport and arrived in the United Kingdom on 15 October 1993 by air, seeking leave to enter for a short visit. When he was further questioned by immigration officers he claimed asylum on the ground that he was a Kurd and a follower of the PKK. He had therefore a well-founded fear of persecution which made him unwilling to return to Turkey. His wife and three children had apparently been able to follow him to the United Kingdom but arrived on a different flight. He was given the appropriate application form which he completed. He was then interviewed. As a result of his interview, on 18 May 1995 the Secretary of State refused him leave to remain and rejected his claim to asylum. The Secretary of State in giving his reasons said that it appeared that the applicant's knowledge of the PKK was very limited and that any involvement he had had in that organisation was at a low level and was not such as would ordinarily attract the attention of the authorities. The Secretary of State did not accept his account that he had been persecuted because of his membership of the group and consequently considered that his unwillingness to return to Turkey was not well founded.

The applicant appealed to the special adjudicator and his appeal came before Mrs Farrall, as special adjudicator, at Wood Green on 6 February 1997. The applicant was represented by counsel. He had given his account in chief of the circumstances in which he had been treated in Turkey and was being cross-examined about his reasons for returning to Turkey and why he had left Cyprus when it occurred to the special adjudicator that as he had a passport for Cyprus it could have been the case that he was a citizen of Northern Cyprus and would be entitled to return there. Accordingly, after discussion with counsel and with the officer presenting the facts for the Secretary of State, she adjourned the hearing until 18 March so that the parties could consider whether a return to Northern Cyprus would represent a practical solution. In the event, after the adjournment neither the Secretary of State nor the applicant's counsel put before the adjudicator any concrete evidence whether the applicant could lawfully return to Northern Cyprus and so the hearing continued. The adjudicator, after further evidence, then reserved her decision. On 4 June 1997 she promulgated her decision, rejecting the appeal.

The applicant applied for leave to appeal to the Immigration Appeal Tribunal who, on 23 June, refused leave. The applicant then applied to the High Court to review and, having reviewed, to quash the special adjudicator's decision and the decision of the Immigration Appeal Tribunal. As I have said, that application was heard by Scott Baker J and on 19 November he refused leave to move.

In this renewed application Ms Phelan argues, first, that the adjudicator exceeded her jurisdiction in adjourning the hearing for the purpose of considering whether the applicant might return to Northern Cyprus. She says that the order before the special adjudicator was the decision of the Secretary of State in his letter and in the removal directions which he had given or proposed to give for the applicant's removal to Turkey. Consequently that was the only order the special adjudicator had jurisdiction to consider. Further, she says that as a consequence of the decision to adjourn the adjudicator lost full recollection of the evidence which had been given. The applicant had not had a sufficient opportunity to deal in full with the conditions in Turkey when he had returned there from Northern Cyprus in 1979 and during the period he had remained there between 1979 and 1989. Consequently, as she was considering the question of Northern Cyprus, and as the period over which this adjournment took place was from 6 February until they returned to consider the evidence afresh on 18 March, and subsequently she gave her decision on 4 June, the applicant was prejudiced and she says, in short, the point of law on which she seeks leave to move for judicial review and to quash the decision of the special adjudicator was that there was no power to consider return to Cyprus.

She referred to the case of R v Immigration Appeal Tribunal ex p. Hubbard in which Woolf J, as he then was, on 5 July 1985 made observations about the desirability of the adjudicator acting on facts different to those which were originally before him. She pointed to his observations at page 118 of the report where he said that:

"In the course of an appeal, in reviewing the facts on evidence wholly different from that which was before the Secretary of State, the adjudicator can be faced with a situation where the effect of the facts as found by him is clear and unequivocal: leave should be refused. This is not a situation where the applicant is entitled to enter this country. However, because on the facts which were before him, the Secretary of State based his decision upon a different part of a rule, he could have come to a decision which was the right decision, for the wrong reasons having regard to the facts found by the adjudicator. If the adjudicator was then to be circumscribed by the reasons for the decision given by the Secretary of State, because the case did not, on his finding of fact, fall within the grounds relied upon by the Secretary of State, he would have no option but to come to a decision which was contrary to the rules when viewed as a whole, although it would accord with a particular rule or part of a rule relied on by the Secretary of State. This would clearly be a result quite contrary to the intent of the Act."

Woolf J went on to point out that a preferable interpretation of that situation would be one which led to the result that the adjudicator having found the facts is entitled to apply the immigration rules applicable to the case having regard to the facts that he has found, subject to important provisos. The first important proviso is that it is necessary to make sure that the applicant before the adjudicator has a proper opportunity of fairly stating his case. Ms Phelan says that in this particular instance the applicant was prejudiced because he did not have a proper opportunity fairly to state his case. In fact what happened was that the special adjudicator, having adjourned and having heard evidence, came to a decision which accorded with the decision of the Secretary of State, namely that the applicant's account was one which was implausible. Dealing with the applicant's fear of persecution in Turkey she said:

"... I turn first to the issue of credibility. The appellant appeared to give a detailed and credible account of ill-treatment in his village before leaving in 1977 to go to Cyprus. On his return to Turkey in 1979 he stayed for 10 years. His account of ill-treatment then by the authorities is vague and lacking in plausibility. Though I recognise the problems of speaking through an interpreter I still find that some of his answers to questions asked of him underlined this lack of credibility. Asked why he left Turkey in 1989 he stated `I could not stand all this torture - I got fed up'. I find his account of alleged persecution in Turkey subsequent to the early episode to be extremely sketchy and thin and I find it also implausible that he should have remained for 10 years if nothing had changed in his village and he was being subjected to ill-treatment."

So her findings were that the account lacked credibility. That, as Mr. Kovats for the Secretary of State has pointed out, is essentially based on her opportunity to observe the applicant and to hear him give evidence. It is not a question of law for us; it is a finding of fact. Ms Phelan's argument that he did not have a full opportunity to state what had happened to him during the 10 years after he returned to Turkey is difficult to understand. He was represented by counsel. There was an interpreter present and the decision which was being called in question was the decision of the Secretary of State to reject his claim for asylum and to return him to Turkey.

The second point made by Ms Phelan was that during the period of the adjournment the special adjudicator might well have forgotten the evidence which had been given and she indicated that there is apparently a practice in the Immigration Appeal Tribunal to regard a period of four months as being a period over which there is likely in any event to be injustice if the hearing is adjourned. Mr. Kovats, however, says there is no reason for this court to infer forgetfulness or omission on the part of the special adjudicator over the period of adjournment and certainly her decision is full, careful and reasoned.

Coming next to the question whether she had jurisdiction to consider the situation in Northern Cyprus, no doubt this matter arose because the applicant had given evidence that even in Northern Cyprus he had been detained for 10 days when he was approached by refugee members of the PKK and asked to give them assistance. The adjudicator also considered whether the account given by the applicant of his ill treatment in the Republic of Northern Cyprus was credible and she came to the conclusion that this aspect of his story was incredible. She thus rejected as facts his assertions that he had been subjected to persecution both in Cyprus and in Turkey. Thus whatever might be the position (if, for example, she had promulgated a decision in which she had said that it was safe for the applicant to have been returned to Northern Cyprus) the fact of the matter is that she rejected his claim for asylum on the ground that his account of persecution was not credible. That is essentially a question of fact and, in my judgment, no question of law arises in this case. Accordingly, I would reject this renewed application.

LORD JUSTICE WARD:

I agree.

SIR CHRISTOPHER SLADE:

I also agree.

Order:

Renewed application for leave to move for judicial review refused; legal aid taxation of the applicant's costs.