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

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte ORAN

Queen's Bench Division

[1991] Imm AR 290

Hearing Date: 5 February 1991

5 February 1991

Index Terms:

Political asylum -- application refused -- notice of refusal failed specifically to record that the Secretary of State had not been satisfied that there was a 'reasonable likelihood' that the applicant would be persecuted if returned to her own country -- whether from that omission it could be concluded that the Secretary of State had applied the wrong standard of proof -- Secretary of State had drawn conclusions adverse to the applicant from facts contained in a letter from her representatives -- applicant had had no opportunity to explain those matters -- whether in that regard the decision was unfair. HC 388 para 75.

Held:

The applicant for judicial review was a Turkish Kurd. She was brought up in a Kurdish village where her family suffered harassment. She claimed to be politically active. The family moved to Istanbul: the applicant attended university: she asserted she remained politically active and was arrested. She left Turkey: she came to the United Kingdom where she applied for political asylum. The Secretary of State, after investigating the claim issued a notice of "minded to refuse". In coming to that conclusion the Secretary of State had rejected certain claims put forward, on the applicant's behalf, by her legal representatives. She had not been given the opportunity to explain some matters in that letter from which adverse inferences had been drawn. Counsel submitted that following Gaima, in that respect the decision had been unfair. The notice of refusal had not specifically stated that the Secretary of State had not been satisfied that there was a "reasonable likelihood" of the applicant being persecuted if returned to Turkey. Counsel argued that the omission of that phrase (the test adopted in Sivakumaran) indicated that the Secretary of State had applied too high a standard of proof. Held: 1. Reading the notice of refusal as a whole it could not be said that it had been shown that the wrong standard of proof had been applied. 2. Following Gaima however, and not ignoring the comments in ex parte 'K' and Yurekli, there had been unfairness in not giving the applicant an opportunity to comment on those matters from which adverse conclusions had been drawn.

Cases referred to in the Judgment:

Sivakumaran and ors v Secretary of State for the Home Department [1988] AC 958: [1988] 2 WLR 92: [1988] Imm AR 147. Marion Gaima v Secretary of State for the Home Department [1989] Imm AR 205. R v Secretary of State for the Home Department ex parte 'K' [1990] Imm AR 393. Celal Yurekli v Secretary of State for the Home Department [1991] Imm AR 153.

Counsel:

Miss F Webber for the applicant; J Burnett for the respondent PANEL: Potts J

Judgment One:

POTTS J: On 3 April 1990 Kennedy J granted the applicant leave to apply for judicial review in respect of a decision of the Secretary of State made on 13 January 1990 and communicated to the applicant in interview on the same day that the Secretary of State did not consider that she would face persecution in Turkey and he was not satisfied that she qualified for asylum. The background is that the applicant, who was born in 1968 and is of Turkish nationality and Kurdish ethnic origin, came to the United Kingdom in June 1989. Before that she had lived in a village called Turktaner Hozat in Tunceli from her birth until 1987. Her family was politically active. In 1980 her father and brothers were detained and tortured. In 1981 another brother was detained. In 1984 she deposes that she was detained by police on her way to school having helped distribute leaflets in support of an organization called Dev Yol. She deposes that she was taken to the police station and held for a day and beaten on her back with a baton. In 1986 her father and two of her brothers were detained for two days. Thereafter her father sold his land and moved to Istanbul and the applicant went with him. In 1988 the applicant attended a university called the Anatolian University. She also attended lectures in Istanbul University from October 1988. In March 1989 she supported a demonstration. She was arrested and taken to the police station and detained for a day. She deposes that she was accused of being a terrorist because of coming from Tunceli. She was beaten and pulled by her hair. She was asked questions about a brother who had fled the country. On 1 May 1989 she was involved in a May Day march which was dispersed by police using guns. She was taken to the police station and held for seven or eight hours. She deposes that she was beaten with a baton and her hair was pulled. She says in her affidavit that she was threatened that if she was caught again doing anything then she would not be let off lightly. On 5 May she was involved with a large group of students who, as she puts it, ransacked a police cubicle at the university. In the result the university was closed and she decided to leave Turkey. At paragraph 12 of her affidavit she says: "I managed to secure a passport because I had never been in prison. I applied for it on or about 15 May." She arrived in the United Kingdom on 20 June 1989 and applied for asylum. This application then took its course. There is in the papers a "minded to refuse" notice which is undated and which is to be found at page 42 of the bundle of documents. There is also to be found in the same bundle a refusal notice, likewise undated, which is to be found at page 74 of the bundle of documents. The applicant has, as I have indicated, sworn an affidavit in support of the application. This is dated 25 January 1990. I have also been referred to the affidavit of Mr Usher, senior executive officer in the Specialist Refugee Unit of the Home Office, dated 28 June 1990. On behalf of the applicant two points are taken by Miss Webber. The first is that in refusing the applicant asylum the Secretary of State applied a higher standard of proof than is laid down by law. The matter is put thus in paragraph 3 of Miss Webber's skeleton argument: "The wording of the refusal notice in this case suggests that a higher standard of proof than 'reasonable likelihood' was applied in this case" reasonable likelihood being a reference to the test laid down by Lord Keith of Kinkel in R v Secretary of State for the Home Department ex parte Sivakumaran [1988] 2 WLR 92 (see page 98): "In my opinion the requirement that an applicant's fear of persecution should be well-founded means that there has to be demonstrated a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country." Miss Webber submits that nowhere in the refusal notice does the Secretary of State say, "I am not satisfied that there is reasonable likelihood of persecution in the event of you returning to Turkey". She submits that the context of the notice leads to the conclusion that the wrong standard -- that is to say, too high a standard -- was applied. I am unable to accept this submission. Looking at the refusal notice as a whole and looking at and taking into account what is set out in the "minded to refuse" notice (see page 42 of the bundle), I am quite satisfied that the Secretary of State applied the correct test and the appropriate standard of proof in reaching his decision. The matters relied on by Miss Webber in her criticism of the Secretary of State under this head concern the Secretary of State's review of the evidence, which I am satisfied was a matter for him and him alone. The Secretary of State reviewed the evidence in the light of the standard of proof set out in Sivakumaran and quoted above. In any event I have been reminded by counsel for the respondent of the contents of the affidavit of Mr Usher. At paragraph three of that affidavit Mr Usher states: "As to the standard of proof in asylum cases, the Secretary of State has adopted the test laid down by Lord Keith in Sivakumaran. The Secretary of State did not consider that taken individually or collectively the representations made by and on behalf of the applicant indicated that she had a well-founded fear of persecution in Turkey. It was not considered that if the applicant was returned to Turkey there was a reasonable degree of likelihood that she would face persecution for reasons of race, religion, nationality or political opinions." Miss Webber's first ground therefore fails. The second ground advanced on behalf of the applicant is that the Secretary of State took a point against the applicant based on an adverse assessment of her credibility without giving the applicant an opportunity to explain the fact on which the adverse assessment of credibility was based. This submission relates to the view formed by the Secretary of State of the contents of a letter written to the Secretary of State by the applicant's solicitors. This letter, like other important documents in this case, is undated. However, there is evidence that it was received by the Secretary of State on 12 January 1990. It is to be found at pages 65-69 of the bundle. I quote from the first paragraph: "On the 10 January 1990 we interviewed our client who informed us that on the 6 January 1990 she spoke by telephone with the sister of a friend of hers in Turkey, Ms Selma Yildiz, aged about 17. Ms Yildiz had been tortured heavily by the police and that she had given the names of many people who were politically active to the police, including some who were politically active in the University. Ms Oran was warned that her name had been given to the police by Ms Yildiz." In the second paragraph reference is made to information given to the applicant that the police went to her parents' house and detained her father and brother for two days. "Ms Oran's father spoke to Ms Oran on the telephone and confirmed that Ms Yildiz had been taken by the police and tortured and Ms Oran's name had been given to the police. Ms Oran's father told her that he and Rizi Oran had been beaten and abused by the police. He was asked to supply information about Ms Oran, including her address in Britain. The police wanted to know how long she had been in Britain. Ms Oran's father informed Ms Oran that he had told the police that she would be back in Turkey." There are other passages which it is unnecessary to refer to in this judgment but which can be seen at the pages I have identified. In the letter of refusal (see page 75 of the bundle) it is stated: "The Secretary of State has also seen a letter from your solicitors (undated but received on 12 January 1990) which states that a friend of yours has given your name to the police and that your father has been asked about your whereabouts. The Secretary of State does not believe that given your limited political activities and the isolated incidents you have been involved in, the authorities would persecute you. He does not find it credible that six months after your departure from Turkey the authorities should suddenly express such an interest in you." Miss Webber submits on the authority of Gaima v Secretary of State for the Home Department [1989] Imm AR 205 that, on receipt of the solicitors' letter and before forming a view that the account quoted was not credible, the Secretary of State should have afforded the applicant an opportunity of explaining what was asserted on her behalf by her solicitors. The headnote in Gaima reads as follows: "The appellant was a long-time overstayer who, while detained pending removal on a deportation order as an overstayer, claimed political asylum. She was interviewed in prison. She subsequently claimed that she had been unable to put her case fully during that interview in the circumstances in which it took place. The basis of her claim was subsequently fully set out by her representatives, in letters to the Secretary of State. She was not however, re-interviewed. When the case came before the learned judge at first instance, there was an affidavit sworn on behalf of the Secretary of State which gave as an additional reason for the decision to refuse asylum, the adverse assessment of the appellant's credibility based, inter alia, on the time which elapsed between her claiming asylum and the occurrence of certain events on which she based her claim. At first instance the learned judge held that the Secretary of State's decision could not be impugned as irrational; her case had been fully put by her representatives and thus there had been no unfairness in not re-interviewing her: he also held that the issue of the lapse of time and her credibility so affected had not played a significant part in the Secretary of State's decision." The relevant parts of May LJ's judgment are to be found at page 208. The learned Lord Justice on that page says: "However, Mr Macdonald also drew our attention to paragraph three of an affidavit sworn by a Mr Parsons on behalf of the Secretary of State on 21 April 1988. There, "by way of amplification", that is of filling out the reasons for the Secretary of State's decision, he, Mr Parsons, referred to the overall lack of credibility surrounding the applicant's application for asylum, referring in particular to the delay that had occurred and to the fact that the applicant, as he put it, had been willing to approach the Sierra Leone High Commission in London for assistance with her applications in 1975 to extend her leave to stay in the United Kingdom for a further year. Mr Macdonald submitted these points should have been put to the applicant and her comments on them invited. It was unfair, he suggested, if the question of credibility was truly involved, for the Secretary of State not to do so." May LJ goes on to refer to the submissions made on behalf of the Secretary of State. "In his judgment, the learned judge said that he did not believe that the delay formed any part of the Secretary of State's decision, though he went on to comment that it would be unrealistic not to have it in mind. Further, he paid little attention to the appellant's use or the use by others on her behalf of the good offices of the High Commission in 1975, but he thought that this was a point which Mr Parsons had been entitled to ask the court to make on behalf of the Secretary of State. On these points I respectfully disagree with the learned judge. I have no doubt that the wording used by Mr Parsons in his affidavit was carefully chosen and, as I have already said, in these refugee asylum cases the court is entitled to, and should, subject administrative decisions to rigorous examination. The court should ensure that the decision-making process has been wholly fair throughout. Further, it is not for the courts to say whether this factor or that would be likely to have affected the decision of the department concerned. That is a matter for the administration. I think that it would be wrong to pass over paragraph 3 of Mr Parsons' affidavit as containing matters akin to obiter dicta. An important matter in a plea for asylum is the credibility of it and of the person making it. If, as I think, one must assume from the affidavit that the alleged delay and the fact that help was sought from the Sierra Leone High Commission was taken into account by the Secretary of State in assessing the appellant's truthfulness, genuineness and credibility, then in my opinion fairness required that these matters should be put to her and her comments thereon invited." I have cited May LJ's judgment at some length because it obviously bears on the submmission made by Miss Webber on behalf of this applicant. It is submitted on behalf of the respondent that Gaima does not support the applicant's contention. Mr Burnett has furthermore referred me to passages in the judgment of the Court of Appeal in R v Secretary of State for the Home Department ex parte Yurekli (given on 9 July 1990) and the decision of Kennedy J in R v Secretary of State for the Home Department ex parte "K" (given on 27 March 1990). I have what is said by McCowan LJ in the former case and by Kennedy J in the latter well in mind. Mr Burnett's submission is that the matters raised by the applicant's solicitors in the letter to which I have referred, and commented upon in the refusal notice, are not matters of the applicant's own making about which the applicant could give any possible further explanation. It is submitted further that when the letter is looked at in context and as a whole it is perfectly clear that the events referred to took place shortly before the conversations which it is alleged on the applicant's behalf she had with her father and Ms Yildiz and that therefore the assertion in the refusal notice that he "does not find it credible that six months after your departure from Turkey the authorities should suddenly express such an interest in you" is a perfectly reasoanble one. Miss Webber submits that there are matters raised by the solicitors' letter which are capable of explanation. She submits, for example, that when one looks at the letter as a whole it cannot be assumed, as the Secretary of State appears to have assumed, that the incidents referred to took place six months after Miss Oran's departure from Turkey. Miss Webber submits that before reaching a conclusion adverse to the applicant, and certainly before concluding that the applicant fabricated the information set out in the solicitrs' letter, the Secretary of State should have given the applicant an opportunity of explainaing herself and the circumstances in question. I have given anxious consideration to this submission. I remind myself again of the words of May LJ in Gaima: ". . . in these refugee asylum cases the court is entitled to, and should, subject administrative decisions to rigorous examination. The court should ensure that the decision-making process has been wholly fair throughout." I have reached the conclusion that there is force in the submissions made by Miss Webber on this applicant's behalf in relation to the second ground. In my view the submissions on that ground succeed and the application must be allowed.

DISPOSITION:

Application granted

SOLICITORS:

Harman Garfinkel & Co; Treasury Solicitor

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