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

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

Queen's Bench Division

[1991] Imm AR 417

Hearing Date: 2 May 1991

2 May 1991

Index Terms:

Political asylum -- Alevite Kurd -- refusal of application -- Secretary of State had concluded from discrepancies in applicant's statements that he was not credible -- whether Secretary of State had acted unfairly in not giving the applicant an opportunity to explain the discrepancies -- the court's approach to findings on credibility -- whether the Secretary of State had taken account of all relevant facts. HC 388 para 75.

Held:

The applicant for judicial review was a Turkish national, an Alevite Kurd whose application for political asylum had been refused by the Secretary of State. The decision had been taken on the basis that the applicant was not credible, a conclusion derived from significant discrepancies in various accounts of events on which he founded his claim to be a refugee. Before the court it was argued, following Gaima that the Secretary of State had acted unfairly in failing to give the applicant an opportunity to explain those discrepancies. It was also alleged that the Secretary of State had failed to take account of all the relevant facts. Held: 1. The Secretary of State had not overlooked any material facts, nor was his decision Wednesbury irrational. 2. The case could be distinguished from Gaima, where an adverse finding on credibility had been introduced as late as in an affidavit sworn in judicial review proceedings. The case was more closely akin to ex parte 'K'. 3. In ex parte 'K' it had been held that the Secretary of State had been entitled, without further enquiry, to draw adverse inferences from a series of increasingly inflated accounts of alleged ill-treatment. By the same reasoning he was entitled witout more, to draw adverse conclusions from widely discrepant statements.

Cases referred to in the Judgment:

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.

Counsel:

A Nicol for the appellant; J Laws for the respondent PANEL: Henry J

Judgment One:

HENRY J: The applicant in this matter is a 30 year old Turkish national. He is of Kurdish ethnic origin and Alevi by religion. On 19 May 1989 he sought political asylum here on the basis that he feared persecution in Turkey because of the political opinions and beliefs that he held. He was the last of his family to come to the United Kingdom claiming asylum. In the fifteen months previous to his arrival his parents, his brothers and sisters and his brothers' wives had come, a total of fifteen individuals in all, all claiming political asylum on the basis of the separate political activities of the applicant and his brother. His application was rejected by a decision letter of 11 February 1990, a letter which went into some detail. It essentially concluded, first, that he had not been truthful in his claims of political involvement in Turkey, he had not been truthful as to when he left Turkey and he had not been truthful as to what had happened in Turkey and, in particular, the Secretary of State did not believe that he was wanted in Turkey. The letter concludes by saying: "The Secretary of State accepts that some Kurds and Alevis from Turkey are refugees but does not accept that all are refugees irrespective of the merits of their claims", so that is has to be looked at individually in each case. Having done so, the Secretary of State concluded that the applicant did not qualify for refugee status. A challenge is mounted to that document. That document and the reasoning in it have been supported by an affidavit from Mr Usher, a senior executive officer in the Refugee Unit of the Immigration and Nationality Department of the Home Office. The arguments before me have gone into unusual detail of all the material available to the Secretary of State when he took this decision. There are two basic attacks made on the decision. The first is of procedural unfairness and the second relates to Wednesbury errors. We are dealing, of course, with a refugee claim. Such a fateful decision is clearly of great importance and requires a rigorous examination of the administrative process, both relating to fairness and to the presence of any other error of law that would allow it to be reviewed under the Wednesbury principles. But not even the seriousness of the subject matter can turn a public law review of the Secretary of State's decision into an appeal by way of re-hearing. That is something of which it is necessary for the court to remind itself. The basic claim put forward on behalf of this applicant was that he was involved in Turkey in an unlawful revolutionary party. He was first a supporter and latterly a member of that party. As a member he went to meetings held in private houses. He distributed leaflets and he made speeches. He was detained in police custody for one week and beaten whilst in police custody. After that he went on the run. He then heard later that he had been sentenced to two years' imprisonment in his absence. After that he escaped from Turkey and presented himself in the United Kingdom, claiming refugee status. The material on which the Secretary of State had to consider his claim was as follows. He had no documentary evidence from Turkey. Perhaps that was not to be expected. He knew, as his decision letter sets out, that some but not all of Kurds and Alevis had been the subject of persecution in Turkey. The material he had before him was the notes of answers given in interviews by the applicant and of several of his various relatives. He had their accounts of events. It is clear from their accounts that this was a peasant family and that the applicant and his wife were illiterate. The interpreter cast some doubt on the applicant's wife's ability when it came to dates and there was a further potential cause of difficulty, namely, that all the evidence had to be given through an interpreter. Additionally, there are apparently a large number of revolutionary left-wing parties in Turkey with initials sometimes confusingly similar. The applicant, first in an interview and then in a statement that his solicitors put in, gave a clear account separating them. On any view of it, the Secretary of State had a difficult task on limited material to reach an important and possibly fateful decision. In reaching such a decision on this material, it is clear that a central point must be the applicant's credit. When one looks to see what that is to be tested against, clearly the most obvious source for such a test is what his family and supporters, who are themselves claiming asylum on the basis of what he says, are saying about it. The Secretary of State, if there is an apparent conflict between them, has to form a view as to the significance of that conflict, as to whether that conflict is explained by any of the difficulties that were present in the task itself, and he has to form a view as to where the truth lies, considering in particular the applicant's own statements. Even where the appeal process is one of re-hearing, as in statutory appeals in civil cases, appeal courts are reluctant to interfere with the views of the judge at first instance. Such categories of cases are different where witnesses have given evidence in person to those where the documents alone, albeit notes of interviews, are considered. But it remains the fact that where a view as to credit has been taken, the circumstances in which the court will interfere by way of judicial review are limited. That applies, of course, to all the so-called Wednesbury errors. That would not apply to the basic fairness point. In this case complaint is made -- this is in relation to when and how the applicant discovered he was wanted by the Turkish authorities and would be required to serve a sentence of two years' imprisonment -- as to when and how that emerged. What happened was that in the last interview the applicant had, namely on 21 December 1989, the occasion on which he was given his minded to refuse letter, he said: "In 1986 was detained for a week. Released on bail because of solicitor. Later he received letter from solicitor saying if he was arrested he would be imprisoned for 2 years. And so he ran away. (Q) When did you get solicitor's letter? (A) Got it via his wife on 23/12/86." I read the passage dealing with that in the decision letter: "Your said that in 1986 you were detained and released on bail a week later. Your said that on 23 December 1986 you received a letter from your solicitors saying that if you were arrested again you would be imprisoned for 2 years. You said that after your release there was a court case in which you were found guilty of being a communist and distributing leaflets. It is noted however that in a letter dated 2 August from your solicitors it is claimed that following your release from detention some friends were arrested and gave statements to the authorities incriminating you and that in February 1987 you were given the information that 2 years sentence had been imposed. The Secretary of State considers that this discrepancy casts doubt on your claims of what occured after 1986 and he does not believe your claim to be wanted in Turkey." In relation to this matter it is contended on behalf of the applicant that fairness on the principles set out in Gaima v Secretary of State for the Home Department [1989] Imm AR 205 requires he should have had the opportunity to comment on that discrepancy before a final decision was made against him. Mr Laws, on behalf of the Secretary of State, meets that by pointing out that in Gaima the point as to credibility was taken for the first time in the judicial review affidavit. It had not emerged in the decision letter or at any earlier stage in the inquiry. It was a point thrown in by way of amplification and addition in that case. He seeks to distinguish that from a case where there are inconsistencies existing in the account given by the applicant. In support of that proposition he relies on certain dicta of Kennedy J in R v Secretary of State for the Home Department ex parte "K" [1990] Imm AR 393. That was a political asylum case where the applicant for political asylum had given in successive interviews different and improved accounts of his activities, improved in the sense that there were greater details in the successive accounts. The Gaima point was there raised on an ex parte application. The judge dealt with it in this way. He cites the passages from Gaima and then says at page 395: "I cite those passages because it seems to me to be entirely clear that what happened in that case was that an issue was raised by the Secretary of State on which the applicant had not had a proper opportunity to comment and that was considered by the Court of Appeal to be at least potentially material. "In the present case nothing of the sort has occurred. This applicant on a number of occasions has been given the opportunity to put forward matters on which he relies. He availed himself of that opportunity and to my mind it is of considerable significance he has availed himself of the opportunity with the advantage of legal representation. If at the end of the day the Secretary of State comes to the conclusion, as he has in this case, that what has been said on those occasions of itself leads the Secretary of State to the view that this applicant's credibility is unsatisfactory, that is a decision which the Secretary of State is entitled to take. He does not have to go on and on, going backwards and forwards for further interviews and saying, 'I want you to explain why on the last occasion you said something you did not say before.' That in substance is really the application which Mr Scannell is making." The judge concluded that there was no substance in the application and dismissed it. That was said in relation to an improving account but, in my judgment, it applies equally to inconsistent accounts given by the same person. I would apply the same reasoning here. For that reason, the unfairness point fails. There then comes the Wednesbury points, which are divided into allegations that there has been a failure to take into account certain matters and in relation to certain matters that they were irrational. It is clear that matters of weight and significance must be the responsibility of the tribunal that Parliament has entrusted with the examination of them. That is the Secretary of State and not this court, provided that the Secretary of State stays within the ambit of his discretion. In relation to the allegations of failure to take into account the matters set out in paragraph three of the applicant's grounds of application, going to the question as to whether the applicant had been in Turkey all the time after his account of his detention or in France, his father on admission having originally given his son's current address as being in France, or possibly in Greece, there were before the Secretary of State accounts different to his put forward by his relatives. It is said by way of criticism that the Secretary of State failed to take into account that he had not seen his family for some time when he came here, that his family would have been fed by rumour, and that when one looks at the source documents, one sees his family's answers qualified by doubts that are not expressed in the summary version of those answers given in the letter itself. Further, it is said that the discrepancy does not matter. In answer to those points, Mr Laws has made the point that there is simply no evidence that the Secretary of State did not take into account any of those matters. The material was there on the file before him. That the file was considered in some detail is clear both from the decision letter and from the affidavit. There is nothing in the reasons set forward that raises, in my mind, doubts as to whether the Secretary of State had taken these matters into account. They were there before him to be taken into account. The decision letter is quite consistent with them having been taken into account. It would have been surprising had they not been taken account and there are adequate reasons in the decision letter. It is said that these matters, individually and cumulatively, are such that they were crying out for mention and they were not mentioned. I am not persuaded by those submissions. It does not seem to me that there are any obvious gaps in the decision letter. It seems to me there is nothing to suggest that the Secretary of State in not dealing specifically with these possible grounds of qualification ignored them. When one comes to the grounds set out in paragraph four, the question arises whether the applicant was truthful about his political involvement. This arises because there was no consistency among his relations as to which party he was a member of. It is alleged in relation to that that the Secretary of State failed to take into account that his father was not politically minded, and so might not have been well informed, that when one is dealing with unlawful parties secrecy as to the party might be understandable, these matters might be conducted on a need-to-know basis, and also the relatives might have been confused by the fact that the applicant read leaflets from other parties. Those points are all points that either emerge on the documents or would occur naturally to any decision making tribunal. There is nothing to show they were not taken into account by this tribunal. It is a matter for the tribunal. The weight to be given to the inconsistencies is a matter purely for the tribunal. Finally, there is a cumulative claim, that in all the circumstances the decision was irrational; that is to say, unreasonable verging on absurdity or one that confounds all logic. I do not find there to be anything surprising in the decision reached on the information before the Secretary of State on the entirety of the archieve. It seems to me that the decision he reached was one well within his discretion, and so one with which this court cannot interfere.

DISPOSITION:

Application dismissed

SOLICITORS:

Wilson & Co; Treasury Solicitor

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