R v. Secretary of State for the Home Department, Ex parte Murat Akdogan

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte MURAT AKDOGAN

Queen's Bench Division

[1990] Imm AR 341

Hearing Date: 21 February 1990

21 February 1990

Index Terms:

Political asylum -- Alevite Kurd -- whether Secretary of State had taken all relevant matters into consideration -- whether refusal of asylum was unreasonable -- whether proper consideration had been given to the applicant's circumstances as a member of the Alevite sect -- whether the refusal was made after attaching undue weight to evidence going to the applicant's credibility. HC 169 para 73.

Held:

Application for leave to move for judicial review. The applicant was an Alevite Kurd who arrived at Heathrow in June 1989 and claimed asylum. His application was ultimately refused. On moving for leave to apply for judicial review, counsel contended that the Secretary of State had taken the decision without full consideration of the additional evidence produced after the "minded to refuse" letter had been handed to the applicant: the Secretary of State had failed to take into account the special circumstances of the applicant as a member of the Alevi sect: he had also been unduly influenced by his conclusion that an indictment put in as evidence of the authorities' interest in the applicant was probably not genuine. Held: 1. Although no proper affidavit evidence was before the court, it was prepared to accept the relevant parts of the Home Office internal record put before it and to draw the inference "somewhat reluctantly" that the appropriate officials did examine and take into account the late evidence. 2. It followed that the special circumstances of the applicant as an Alevite Kurd had not been overlooked. 3. The Secretary of State was entitled to take into account the matter of the indictment, and leave to move could not be granted merely on the basis of questioning the weight the Secretary of State had attached to it. Leave to move would not be granted.

Cases referred to in the Judgment:

No cases are referred to in the judgment

Counsel:

MS Gill for the applicant; R Jay for the respondent PANEL: Otton J

Judgment One:

OTTON J: This is an application by Murat Akdogan for leave to move for judicial review of the decision made on 12 December 1989 on behalf of the Secretary of State whereby he was refused his application for political asylum. It is said that the final decision was made on 12 December by the chief immigration officer at Heathrow and on that date fresh matters came to light which it is alleged were never reconsidered by the Secretary of State. This matter first came before the single judge on a paper application and it is as a result of his query on this point that the matter has been renewed before me today and the Home Office have attended. The applicant is an Alevite Kurd. He arrived from Turkey at Heathrow Airport on 19 June 1989. He applied for political asylum. He was given temporary admission. On 29 July he attended for a formal interview and a copy of the notes made by the immigration officer on that interview has been produced. The interview was recorded and the matter was then considered by the appropriate authorities. It is clear that he disclosed the matters which he sought to rely upon in support of his application for political asylum, including the fact that he was not merely a Kurd but a member of the Alevite sect. On 18 August 1989 he was handed the latter which indicated that the Secretary of State was minded to refuse his application for asylum. It was recorded on that document as follows: "You were interviewed on 29 July 1989 and claimed to have been involved with partisans from 1979 to 1983. You produced an indictment dating back to 1981 which stated that you had to appear before a court because of your partisan activities. You also claimed to have been detained and tortured in 1978 -- this was the only occasion. You have however lived in Turkey without difficulty since 1978 and although you claim that the police are looking for you this is most unlikely. Since 1978 you have carried out your military service, (1984-85) and since 1986 have worked as a technician. If the authorities had any interest in you they would have arrested you by now. Furthermore you do not claim to have been politically active since 1983 and there is no reason to believe that you will come to the adverse attention of the authorities. The Secretary of State is not satisfied on the basis of the information currently available that you have a well-founded fear of persecution in Turkey . . .". There then followed a further lengthy interview in which he sought to amplify what had already been said. The matter was again reconsidered. On 12 December he was called for a further interview. This was recorded in the form of a contemporaneous question and answer document on form ISCP4. Mr Gill is, I think, right when he says that there were several matters which were disclosed on this occasion which had not been placed before the Secretary of State when the "minded to refuse" letter was served. They do disclose substantial involvement in political matters which were clearly relevant to the issue as to whether or not he had a well-founded fear of persecution. It is true that on the face of that document at the end, there is recorded the following; "Reference to CIO, who authorized RLE" which means or is taken to mean Refusal of Leave to Enter in accordance with paragraph 76 of HC169. Then the removal directions are set for 15 December at 8.30, that is three days later. On the face of it, Mr Gill rightly takes the point that it does not appear that the Secretary of State or his appropriate officials ever did reconsider the application for political asylum in the light of the significant and substantial information which was revealed and recorded in the interview on 12 December. If that had been the position, I would not have hesitated to interfere because it would seem to me that there was a sufficient procedural irregularity to justify the court granting leave to apply for judicial review. However, Mr Jay has appeared today on behalf of the Home Office. It is true, and Mr Gill makes heavy comment on the fact, that what is advanced is not in affidavit form. But there has been produced to me and Mr Gill did not raise objection to this -- the relevant parts of the internal record to show what steps were taken. It is clear without going into detail that the matters recorded in that interview were relayed to the relevant officials. Mr Gill takes the point -- with some justification, I feel -- with the words recorded as follows: "From the report aside, the PAX (that is the applicant) has been refused and has added only general accounts to his previous claim. The refusal should stand.' On the face of it, the words "general accounts", Mr Gill suggests, do not do justice to the detailed account of his activities set out in that record. There is no reference to that interview as such. However, I am prepared to draw the inference, somewhat reluctantly, that the appropriate officials did in fact examine the contents of that document after 12 December, and probably by 14 December, where there is a signature which appears to be in the same handwriting as the endorsement upon the "minded to refuse" letter. If the matter had stood there, there might have been grounds for granting leave to apply: but I am satisfied that that is not the whole story. I reject the suggestion that the chief immigration officer himself refused leave on that occasion. I find that the appropriate authorities did reconsider the appropriate information, namely the questionnaire and the answers. I therefore reject that ground upon which this application is based. The matter goes further. On 20 December solicitors acting for the applicant, who were no doubt concerned about the way that the events were moving, wrote a very careful letter to the immigration department setting out the fact that he was an Alevite Kurd and asking for the matter to be reconsidered. They included in the letter a document which is distributed by the Minority Rights Group entitled "The Alevite Kurds, a briefing on Alevite Kurd asylum seekers". That is a most impressive document and sets out in remarkable detail and most powerfully the conditions of persecution which Kurds suffer on account of their political beliefs. Thus the matter was in the hands of the immigration authorities and it was incumbent upon them to reconsider the matter. On the following day the Immigration and Nationality Department replied to that letter, acknowledging also receipt of the copy of the report. The letter continues: "The Secretary of State has carefully considered your representations, but is not persuaded that you have presented any new information not considered in reaching the decision to refuse asylum. The decision is therefore maintained." In answer to a request, the arrest warrant or a copy of it, submitted by the applicant on his arrival, was sent to those solicitors. The solicitors reconsidered the matter from their end. One cannot but fail to be impressed by the obvious care and energy which the solicitors have applied to this particular case. They wrote back on 4 January a long letter, from which I shall read the relevant parts because it is a very significant document: "Further to your letter of the 12th December; in which you stated that Mr Akdogan had not been politically active since 1983. From our clients instructions this is incorrect, but rather Mr Akdogan has been continuously active since 1972" I think that must be 1979 -- "up until his arrival to the UK. In the same letter you also mentioned that there had been a warrant issued against our client. (See enclosed copy of warrant . . .) This warrant is still in existence and states that Mr Akdogan has been charged with distributing illegal leaflets, and for being a member of TIKKO. And therefore whenever seen he is to be detained and punished. Since its issue in 1985 Mr Akdogan has been sought after by the police. The fact that our client has escaped detention has had little to do with him being of no interest to the Turkish authorities. But rather because he has been hiding for a number of years has he escaped being arrested by the police. In the event of our client being returned to Turkey he will most certainly come to the attention of the authorities, and fears for the safety of his life. If your minded to refuse notice . . . you stated that he had only been detained and tortured once in 1978. Although he had been detained in 1978 he was again detained and tortured in 1984, for a period of 20 days, whilst doing his military service. During which he sustained a number of injuries, as shown in his medical report, (a copy of which was sent to you on 14 December 1989." I pause to interpolate that that report was from the medical foundation who examined him for signs of torture. I continue: "Throughout his life in Turkey our client has suffered much oppression and harassment, and has continuously lived under the fear of being detained and tortured, as have a number of close friends and relatives who are also politically active. One such friend was Mustafa Sahin, with whom Mr Akdogan was arrested with in 1978. Although Mr Akdogan was released Mr Sahin was tortured and later found dead. Since our client's arrival to the UK his brother has been detained and his mother has also been questioned as to his whereabouts." There was sent with the letter a number of articles relating to the general state of oppression and harassment of the Kurdish Alevites in Turkey. As one would expect, the solicitors ask pointedly, "In the light of what has been put before you, will you please reconsider Mr Akdogan's case?" By that stage, of course, the most powerful case had been advanced on behalf of the applicant. All the matters and everything that could have been said on his behalf were laid before the relevant authorities. On 5 January the authorities replied as follows: "Thank you for your faxed letter . . . The Secretary of State has now carefully considered your representations. You state that Mr Akdogan's political involvment continued after 1983, but at all his interviews with regard to his asylum application, Mr Akdogan has maintained that he was unable to engage in any political activities after his organization was disbanded in 1983. Furthermore, even if your unsubstantiated account of subsequent involvement on his part is true, there is no reason to believe that it has come to the notice of the Turkish authorities or that Mr Akdogan is at risk of persecution in Turkey now. The Secretary of State is not persuaded that you have otherwise presented any new information not previously considered in reaching the decision to refuse asylum. The decision is therefore maintained." That is the decision which forms the subject matter of this application. I have considered the submission made on behalf of the applicant by Mr Gill that, apart from the procedural irregularity, the Secretary of State did not take into account all the matters which should have been taken into account and therefore his decision is unreasonable or flawed under the well-known Wednesbury reasonableness principles. I am unable to accede to that submission. It seems to me that there was no procedural irregularity. The final decision was made on 5 January and not on 12 December. By 5 January, those acting on behalf of this applicant had done everything in their power to produce every piece of evidence and argument in his favour. I am further satisfied that those matters were taken into account by the Secretary of State and fully considered by him before he reached his decision. It is quite impossible for me to say that his decision was unreasonable. Even if it was a decision with which I personally might not have agreed, that is neither here nor there. The weight to be attached to these matters is exclusively a matter for the Home Secretary and does not fall for review within these courts. The applicant has not persuaded me that the decision was unreasonable. It was a decision which it was open to the Secretary of State to arrive at on the basis of all the information before him. It cannot be said that the decision was flawed, capricious or perverse. Thus that ground must be rejected. Two other points have been taken by Mr Gill. First, he says that the Secretary of State when giving his decision appears not to have made it clear that he was identifying the correct political group from which this applicant hails. He submits that the Secretary of State appears to have treated him as one of the many Kurds who apply for political asylum. He did not, it is submitted, take into account the particular feature that he was an Alevite Kurd or a member of the Alevite sect. I consider there is no substance in that ground for criticism. It is clear that from a very early stage it was recorded in the interviews that he was not merely a Kurd but a member of the Alevite sect. It was made clear in the letter from the solicitors dated 18 December to the Secretary of State that he was an Alevite Kurd. The report from the Minority Rights Group clearly refers to the particular plight of the Alevite Kurd asylum seekers. There is thus no substance in that suggestion. Finally, Mr Gill submitted that there is an unfortunate reference in the documents disclosed this morning, which gives cause for concern that the applicant's case was prejudiced from a very early stage because his credibility was impugned by virtue of an entry at the bottom of the first page which reads as follows: "The indictment he has produced retained on port file is clearly much more recent than 1981 and although it seems to bear official stamps, its authenticity must be in doubt. Even if it is genuine, it is now not really of much relevance given its age." Thus Mr Gill, not surprisingly, said that from that moment on the Home Office would inevitably have been approaching the case with their judgment clouded by the doubt which had been raised as to the authenticity of the indictment. Thus when it came for the Home Secretary to consider the credibility of the detailed accounts which he gave subsequently of his political involvment in Turkey, the account was unlikely to have been accepted and was indeed rejected by the Secretary of State and those who were considering this matter. If that had been the case, then that would have been a matter which would have disturbed me and would certainly have warranted further investigation by this court. However, I consider that that document did not play the part that Mr Gill suggests. When the "minded to refuse" letter was served on 18 August, there is a clear reference to the indictment and it is quite plain that the fact that there was an indictment was put into the scales in his favour. It was not rejected because of the doubts as to its provenance. Therefore, it seems to me that the inference which Mr Gill invites me to draw is without substance. I think the more likely weight that was given to this particular document was very little either one way or the other, either in his favour or against him, because it is recorded in the last sentence of the note to which I have referred: "Even if it is genuine, it is now not really of much relevance given its age." Thus I infer from that that the Home Office proceeded on the basis that it was a genuine document but, because it was of such antiquity and related to activities in 1981, then it was of little relevance when considering whether there was a real risk of persecution in Turkey if the applicant were to return to that country. Mr Gill in his final submission says one must not underestimate the effect of the indictment. It is still a lifeline and if he were returned to Turkey, under the directions for removal, then the probability is that he will be arrested and tried on that indictment and that the charges in it are clearly of a political nature. That may be so; but I am satisfied that that was a matter which must have weighed with the Secretary of State. It is a matter of weight for him as to the importance he attached to it. I cannot in any way interfere with the decision-making process or allow the decision to be questioned on a matter of weight alone. The final decision is within the jurisdiction of the Home Secretary only. As with all these cases, I come to the final decision with a heavy heart because I realise that my decision is probably the end of the road for Mr Akdogan; his application for leave to move for judicial review must be refused and that in all probabilities will mean that he will have to be removed and returned to Holland. What happens to him after that is a matter upon which I cannot speculate. But in those circumstances, with a heavy heart as I say, I must come to the conclusion that this application cannot be sustained and it must be refused. Mr Gill, I would like to say that you and your solicitors have done everything possible for this young man. Nobody could have done more. I only regret that I could not help you.

DISPOSITION:

Application refused

SOLICITORS:

Ronald Fletcher Baker & Co; Treasury Solicitor