R v. Secretary of State for the Home Department, Ex parte Celal Yureki

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte CELAL YUREKLI

Queen's Bench Division

[1990] Imm AR 334

Hearing Date: 15 February 1990

15 February 1990

Index Terms:

Political asylum -- refusal by Secretary of State -- Alevi Kurd -- Turkish national -- applicant persecuted in home village -- not persecuted on removal to Istanbul albeit still disadvantaged -- whether Secretary of State entitled to take amelioration of applicant's circumstances in Istanbul into account -- whether refusal unreasonable. HC 169 para 134. United Nations Convention relating to the status of refugees (1951), Protocol (1967) art 1A(2)

Held:

The applicant was an Alevi Kurd, a national of Turkey who had been refused political asylum, for which he had applied on arrival in the United Kingdom. The Secretary of State accepted that in his home village, the applicant had been persecuted. However he had moved to Istanbul, leaving his wife and children in the village. In Istanbul he had not been persecuted, although he had been unable to secure permanent employment, being it was said dismissed whenever his origins were discovered. The Secretary of State concluded that the harassment to which the applicant had been subjected in Istanbul did not amount to persecution. Counsel argued, relying on Jonah that the Secretary of State had taken too narrow a view: moreover, it was not necessary for a person to show that he would be or had been persecuted in all parts of his native country to qualify as a refugee. The Secretary of State had also treated the applicant unfairly, following Gaima, in that he had not afforded the applicant an opportunity to comment on facts from which the Secretary of State had drawn adverse conclusions as to the appellant's credibility. Held: 1. On the facts, there had been no unfairness. It was clear, distinguishing this case from Gaima, that credibility had played only a minor part in the assesssment which had led to the Secretary of State's decision. 2. If it were possible for the applicant to live in another part of his country without persecution that was a factor the Secretary of State was entitled to take into account. 3. The Secretary of State's decision was not flawed by unreasonableness or otherwise.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Jonah [1985] Imm AR 7. Marion Gaima v Secretary of State for the Home Department [1989] Imm AR 205.

Counsel:

A Nicol for the appellant; Miss A Foster for the respondent PANEL: Otton J

Judgment One:

OTTON J: This is an application for leave to move for judicial review of the 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 applicant is a Kurd: he arrived in the United Kingdom from Istanbul, Turkey, on 12 June 1989 and applied for political asylum. The matter was considered and he had the assistance of the impressive Rights and Justice Group. He was, having been interviewed on 10 October, seeking political asylum in this country. It is quite clear from the record of that interview that he was given every opportunity to state his case. The record has been placed before me and the material parts of it most helpfully pointed out to me by Mr Nicol. A day earlier Rights and Justice had written a letter in which they had set out the merits of the application. They are of such a nature that I think even on an application they should be read. It was stated: "Mr Yurekli comes from Becekli Village, Zara, in the province of Sivas. The village is entirely Kurdish and Alevi, but is surrounded by Turkish villages. An army unit is based 3 km away and soldiers come to the village on average once a week, round up the yound men in the village on the pretext of seeking political activists, and regularly detain and torture them. On 24 March 1982 there was an incident in the village in which the army fought members of the Dev-Sol organisation, two of whom were wounded. Mr Yurekli is a sympathiser of Dev-Sol, which is a banned revolutionary workers party. Mr Yurekli was introduced to the party in 1977, since when he has regularly provided food, shelter and money to Dev-Sol activists in the village. In addition to this, the fact that he is Kurdish and Alevi has meant that he has consequently been the victim of arbitrary detainment, torture and prejudice. On 2/4/1982, 8/4/1985 and 20/5/1987 he was taken into custody and interrogated on the whereabouts of Dev-Sol elements in the village, on each occasion for a week. At three or four hourly intervals (day and night) he was taken, blindfolded and beaten on his body and hands. Falaka was administered. He was interrogated on these occasions with his cousin, Gursel Inci, who is currently seeking asylum in France." Pausing there, it is not contested by the Home Office that those serious incidents occured or that there was not a violation of his body and human rights. The letter continues: "Whilst doing military service, Mr Yurekli suffered continual discrimination both from his officers and Sunni fellow soldiers. He was victimised by his NCO, who beat him up in his own office in July 1979 and gave him a week's disciplinary confinement for no special reason. After completing the summer work on his farm in 1987, Mr Yurekli left his village, wife and child to seek work in Istanbul, finding casual work on building sites. Whenever it was discovered that he was an Alevi and a Kurd he was immediately fired; he consequently stayed no longer than 10 days on any one job. He purchased a passport in May 1989 in Sivas by bribing a policeman . . . and left for the UK. His is afraid to return to Turkey for fear of further discrimination, detention and torture." In addition to that catalogue of disturbing events I am told by Mr Nicol (and it appears from other parts of the papers) that the applicant was arrested on at least ten other occasions and taken into custody and questioned. This is not mentioned in this description because it is said that this is so regular an occurence for Kurds in areas where discrimination takes place that it is a matter which was not recorded at that stage. It is not disputed that that in fact occured. I shall assume, as I think I must, that although that letter was dated 9 October 1989 it was not available to the immigration official who carried out the interrogation on 10 October. It seems to me to be asking too much of the administration that a letter posted on 9 October would have been in the hands of the immigration officer before the interview. It is to be noted that in the record there is a supplementary part under list A. There appears a significant question: "If there was a time lag between the applicant's last involvement or difficulties in Turkey please ask 'what prompted you to leave Turkey when you did?'." There is no answer recorded. On 30 November the Home Officer served upon the applicant a "minded to refuse" letter. After the formal parts there appears the following passage: "You claim that you are a sympathiser of Dev Sol, an illegal party in Turkey, and that you have given food and money to Dev Sol members every month since 1982. As a result of your activities you have been detained on 3 occasions . . . [details given] although your representatives, Rights and Justice, claim that it was in fact 1 week. During your detentions you were questioned about Dev Sol and beaten. Despite these detentions Rights and Justice say that you left your village in order to seek work in Istanbul in July 1987, since when you have experienced no harassment or persecution from the authorities although you have not been able to find regular work there. On the basis of the evidence presently available, the Secretary of State is not satisfied that you qualify for asylum and is minded to refuse your application." Pausing there, as the author of the subsequent Rights and Justice letter rightly points out, the use of the word "despite" is inappropriate and themore apt word is "because of these detentions" etc. I read the passage accordingly. After the letter was handed to the applicant there was a short interview in which he was asked, "Is there anything else you wish to say not in your application?" and it is recorded that through an interpreter he said that, "there is great pressure against Alevis and Kurds in Turkey and my village has been raided four times a week. I had animals, a tractor and 200 acres of land. I was financially secure in Turkey but my life was not peaceful. I was not relaxed in Turkey. That is why I left". The Rights and Justice organisations wrote an impressive two and a half page letter on his behalf seeking to meet the points in the "minded to refuse" letter. The points are explained meticulously by the author of the letter and I have no doubt because it is impressive it was given proper consideration by the Home Office. That letter was dated 3 December, on 7 December the Immigration & Nationality Department handed to Mr Yurekli the letter indicating that his application had been refused and a notice of removal was served with it. After the formal parts, it is stated: "You have nothing further to add to the details you have already given. The Secretary of State has seen representations from Rights and Justice but these do not contain any information which would cause him to change his view in your case. In particular, the Secretary of State notes that you have lived in Istanbul for the last two years without suffering persecution (the harassment you have experienced cannot be said to amount to persecution). He notes Rights and Justice's claim that you were prompted to leave by events following May Day 1989, which they say alarmed and frightened you: however you did not mention these matters at your interview on the 10th 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. Your representatives intend that you should be examined by the Medical Foundation . . . [not relevant]." On 12 December the removal directions were made but by virtue of the application to this court that direction has been suspended. Mr Nicol on behalf of the applicant today contends that the Secretary of State in the letter of 7 December misdirected himself as to the proper meaning of the word "refugee" as defined by article 1A(2) of the 1951 Convention which he cites in the written grounds. He submits primarily that the 1951 Convention does not require the refugee to establish that he has been persecuted in all areas of his country of nationality and that any such construction of the Convention is unreasonably restrictive. The Secretary of State, he submits, erred in concluding that "the harassment you experienced cannot be said to amount to persecution". The applicant has taken this to refer to the period in which the applicant lived in Istanbul between 1987 and 1989 when he regularly and frequently lost his employment as a labourer whenever his ethnic origins were discovered. Consequently, it is said that in considering whether or not the applicant's fear of persecution makes him unable or unwilling to avail himself to Turkish protection the Secretary of State failed to take account of the fact that the applicant was unable to register with the municipality for employment in Istanbul and to send his child to school for fear of discovering his whereabouts. In support of that contention he cited to me the well-known authority of ex parte Jonah [1985] Imm AR 7, and in particular the passage at page 12 where Nolan J considered the precise meaning of the words 'persecution' and 'well founded fear of persecution', when he says as follows: "There remains the question whether upon the facts found by the adjudicator he correctly as a matter of law applied and interpreted the words of paragraph 134. That depends upon the meaning of the phrase 'a well-founded fear of being persecuted'. In particular, it depends upon the meaning of the word

'persecution'. Clearly, as Mr Pulman accepts, there was evidence called by and on behalf of the applicant which, if the adjudicator had been satisfied by it, would have amounted to a well-founded fear of persecution in the fullest sense of those words."He then goes on to consider the particular circumstances of the case, and later he said:

"Even so, says Mr Pulman, the courts must remember that the test of persecution is and must be kept at a high and demanding level." There is reference then to Mr Ian Macdonald's well-known authoritative textbook on these matters. Mr Pulman says: ". . . it really becomes a question of fact and degree whether what is the subject of a well-founded fear, amounts to a fear of being persecuted within the meaning of the Article. That, broadly, is common ground, but what is meant by persecuted? The dictionary definition, according to the Shorter Oxford English Dictionary, has under 'persecute' the meanings: 'To persue, hunt, drive' firstly, and secondly: 'To pursue with malignancy or injurious action; esp to oppress for holding a heretical opinion or belief'. I find this by no means an easy matter to judge, but to my mind the proper approach must be to apply to the word 'persecution' its ordinary meaning as found in the dictionary." He then applies that approach to the particular facts of the case. Mr Nicol submits that the circumstances in the present case were very similar in merit to those in the case of Jonah and, therefore, in applying that test the Secretary of State must have misdirected himself on that meaning and, as he put it, appears to have adopted a mechanistic approach. It was wrong for him to look at the last date when torture appeared and then to say that because two years had elapsed during which there was no persecution, therefore, he should be refused entry for not having satisfied the test of a well-founded fear of persecution if he were to return to Turkey. Mr Nicol also advances a second ground that the Secretary of State has not treated the applicant fairly in making an adverse finding as to his credibility without giving him an opportunity to comment on the material on which he came to his conclusions. In support of that he relies upon the passage in the decision letter, which reads: "He notes Rights and Justice's claim that you were prompted to leave by events following May Day 1989, which they say alarmed and frightened you: however you did not mention these matters at your interview on the 10th 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." Thus, he says that the basis of the decision in this case was a disbelief or an adverse inference against the credibility of the applicant's case and the bona fides of the case that he was advancing. He referred me to the case of Gaima v Secretary of State for the Home Department [1989] Imm AR 205 where, and I need only read the passage from the headnote, it was held that: ". . . it was unfair for the appellant not to have the opportunity of giving her explanation of the facts on which, in the late affidavit, her credibility was the first time questioned." Mr Nicol submits that question 8 on part A of the form is of vital significance. If an adverse inference was draw then it should not have been in the absence of any answer. If the question had been asked, he submits, then the necessary explanation would probably have been given. He asks me to draw the inference that the question was not even asked. Miss Foster on behalf of the Home Office submits quite shortly that this was a decision which the Home Secretary could properly have reached given the relevant circumstances; it was not a flawed decision. She also submits that there was ample evidence for the Secretary of State to conclude as he did. She further submits that there was an opportunity for the applicant to give an explanation as to the two-year gap between the last act of torture and his departure from Istanbul. I have considered these matters, as I must, with the utmost care because the freedom and rights of a vulnerable man are at stake. One would wish one's heart to open and to be able to take some step which would permit this man who has clearly suffered to remain in this country. However, the matters are not as simple as that. The Home Secretary is under an obligation to consider the case on its merits, to take every fact into account and then to reach a decision. In my judgment, this is a decision which he could properly reach on the evidence which had then been adduced and placed before him. It was not such a surprising outcome or decision that suggests that it was a flawed decision. It is clear that he did not base his final decision on the lack of credibility of the applicant, which really played a very minor part indeed if any part. The basis of the decision was the fact that he was able and had been shown to be able to live in his country for a period of two years a substantial period of time in a part where he was not persecuted in the way that he was when he was living at home. It is true that this meant that he lived away from the family and that he was unable to obtain regular employment when he was discovered to be a Kurd. I have no doubt that this pattern of events was clearly laid before the Secretary of State and he took it into account. If it was possible for the applicant to live in another part of his country without persecution that was a factor which the Home Secretary was entitled to take into account when he came to his decision. These cases, grievous and sad as they are, must at the end of the day be matters of fact and degree. I bear in mind the approach adopted by Nolan J in the case of Jonah. Applying that test to the facts of this case I cannot say that there has been an error on the part of the Secretary of State of that he has misconstrued the word "refugee" or adopted what is said to be a "mechanistic approach" so as to flaw the decision-making process and the decision itself. He plainly applied the proper test and in the light of the circumstances which were before him it is clear to my mind that the decision was one which he could arrive at and which it was open to him to arrive at on the evidence before him. As to the second point I am not satisfied that this case is akin to the situation which emerged in Gaima. In that case the reason why the applicant was refused asylum was because her credibility first came into question on the occasion when the decision was taken to refuse. The Court of Appeal considered that in such a situation the applicant should have the opportunity to give an explanation of the facts on which her credibility was questioned before the final decision was taken. That is not the situation here. This point is based on the absence of an answer to a single question after he had been handed the minded to refuse letter. I am satisfied when one looks at the record of the interview of 30 November as a whole he was asked if he wished to say anything else, he was given every opportunity to deal with the matter which was troubling the Home Secretary and upon which he was minded to refuse leave. Thereafter the Secretary took all the recorded matters and the Rights and Justice letter into account before coming to his final decision. In those circumstances I am satisfied that no injustice has been done and sad as it must be this application for leave for judicial review must be refused.

DISPOSITION:

Application dismissed

SOLICITORS:

Simons, Muirhead & Burton; Treasury Solicitor