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

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte KEMAL ONAY

Queen's Bench Division

[1992] Imm AR 320

Hearing Date: 24 February 1992

24 February 1992

Index Terms:

Political asylum -- whether refusal by Secretary of State unreasonable -- Alevite Turkish Kurd -- persecuted in periods before 1984 -- subject of isolated attacks by non-government groups thereafter -- whether Secretary of State wrong to discount those incidents as not amounting to persecution -- whether unreasonable to conclude that applicant could live safely in Turkey elsewhere than in his home village -- whether Secretary of State erred in failing to recognise cumulative significance of a series of minor incidents. United Nations Convention relating to the status of refugees 1951 (Protocol 1967) art 1A: UNHCR Handbook on procedures and criteria for determining refugee status paras 65, 91, 201.

Held:

The applicant for judicial review was a Turkish Alevite Kurd. He challenged, as unreasonable and irrational, the decision of the Secretary of State to refuse him political asylum. It was accepted that he had been persecuted on occasions up to 1984. The Secretary of State however did not accept that isolated attacks upon him in later years by non-government agents constituted further persecution. The Secretary of State also concluded that the applicant would be able to live safely in Turkey other than in his home village. Counsel, by reference to the relevant paragraphs of the Handbook, argued that those conclusions by the Secretary of State were unreasonable. He submitted that the Secretary of State had also failed to recognise that a series of relatively minor events could, cumulatively, give rise to a well-founded fear of persecution. Held 1. On the facts, the Secretary of State's decision could not be held to be irrational. It was in the end a matter of the reasonableness of the applicant's conduct that had to be assessed. 2. There was no error of law in the Secretary of State's approach. It was not the function of the court to substitute its own interpretation of the facts for that of the Secretary of State.

Cases referred to in the Judgment:

Bugdaycay and ors v Secretary of State for the Home Department [1987] AC 514: [1987] Imm AR 250. Secretary of State for the Home Department v Sivakumaran and ors [1988] AC 958: [1988] Imm AR 147.

Counsel:

A Riza QC for the applicant; Miss A Foster for the respondent. PANEL: Kennedy J

Judgment One:

KENNEDY J: This applicant moves for judicial review of a decision of the Secretary of State for the Home Department taken in May 1990, to refuse him political asylum. He is a Turkish Alevi Kurd who arrived in the United Kingdom on 2 June 1989 seeking political asylum. Thereafter, he was interviewed on four occasions, and solicitors acting on his behalf wrote letters to the Secretary of State before the decision was finally taken of which complaint is made. On 26 July 1990 I gave leave to move for judicial review on the basis that prior notice would be given to the respondent if the applicant should wish to argue any ground other than the last ground on which relief was then sought, namely: " . . . the decision that there is no reasonable degree of likelihood that the Applicant will be persecuted in the future is in the circumstances of this case, an irrational decision." That ground is based on an important sentence on the second page of the Secretary of State's letter of May 1990 which reads: "You have claimed to be an active supporter of Dev Yol but you have not suffered any persecution on account of any political involvement since 1981 and the Secretary of State does not consider that there is evidence that there is a reasonable degree of likelihood that you will be persecuted on this account in future." The applicant contends that in the circumstances of his case that conclusion was irrational. For present purposes it is unnecessary to explore in detail the applicant's history prior to 1984, because for the Secretary of State Miss Foster concedes that for the period up to 1984 there is acceptable evidence of persecution, but, as later events do have to be viewed in the light of what went before, it is necessary to say a little about the earlier history. The applicant was born in 1961 and living in a country district first encountered significant problems in 1972 when, at the age of 11, he went to secondary school. He was attacked by Sunni students, one of whom stabbed his left hand. The school authorities, he says, did nothing so, after only two months, he left and went to work on his father's land. When working as a shepherd he was often attacked by Sunnis suffering injury and bruising. Complaints were made but they had no effect. In time he became an active supporter of Dev Yol. In 1978 there was an incident known as the Maras massacre when petrol bombs were thrown. One landed on his foot, and he was hit and beaten by gendarmes. He also had an abdominal operation but it is not clear what was the cause of his intestinal trouble. In 1980 he was arrested because of his involvement with Dev Yol and the massacre, and was seriously assaulted whilst in custody. Eventually he was released and returned to his village. In May 1981, when he was 20, he was detained again, this time for two months and again he was tortured. Between 1981 and 1983 he did military service. During that period he had 15 days on bread and water but otherwise seems to have had no serious problems. In 1983 he returned home and found that his father had been tortured. The applicant himself was taken away and tortured again, and after two months was released on the basis that he report weekly and give information about other members of his family. At that stage in 1984 he left home and for two years worked as a shepherd in villages within a radius of about 100 kilometres, staying for a short time in one place and then moving on. In 1986 he was returning to his home village of Kirikillise when he was attacked by Sunnis from one of the neighbouring hamlets. They used an iron bar and sticks and left him unconscious. After staying 15 days with neighbours he then went to Istanbul where he did casual work, kept moving address and avoiding trouble spots. Nevertheless, on two occasions in 1988 he says that he was beaten by right-wing Sunnis on a building site and on one occasion his finger was badly damaged. In October 1988 his father died and he returned to Kirikillise for the funeral. He then decided to leave Turkey and eventually, with the help of a friend who got a passport, bribed his way out and came to the United Kingdom. In October 1989 he was examined by Dr Hinshelwood of the Medical Foundation for the Care of Victims of Torture, and her report gives some support to his complaints of torture. The approach adopted by the Secretary of State to this application for political asylum can be seen in the minded to refuse letter served in January 1990 which is at page 53 in the bundle, and which, being paraphrased, suggests that apart from being attacked by criminals, the applicant had not had much trouble in recent years. That provoked an extensive response from the applicant's solicitors, part of it directed to the manner in which interviews had been conducted, a matter with which I am not now concerned, and then in May 1990 the Secretary of State wrote the letter from which I have already quoted the sentence which gives rise to this claim. Earlier in the letter the Secretary of State said: " . . . the Secretary of State notes that you had no problems with the authorities after 1984. In 1986 and 1988 you claimed to have been beaten by Sunnis in 2 unrelated incidents, but this does not amount to persecution. Although you claim to have been in hiding after 1986 you were living and working in Istanbul and you made no attempt to obtain a passport until after your father's death in October 1988: these are not the actions of someone with a well-founded fear of persecution." A little later: "The Secretary of State has considered all the evidence placed before him. He does accept that you were a sympathiser of Dev Yol and that you have been detained on a number of occasions up to 1984. You have said that your life has been in danger since 1986, but the Secretary of State does not accept that the incident with Sunni villagers which occurred in 1986 would lead you to this view. If it did he considers that you would have made plans to leave Turkey well before 1988." The Secretary of State then refers to what has happened to applications by other members of the applicants' family and to what Amnesty International has said about the risk to Dev Yol members and sympathisers before there appears the sentence which I have already quoted at the start of this judgment. That paragraph concludes: "Just because your brother may have been politically active in Turkey or have been granted refugee status or exceptional leave in the United Kingdom does not necessarily mean that you will be persecuted. It is noted that you claim to have been detained and ill-treated in relation to your brother and cousin in 1984 but have not suffered harassment or ill-treatment because of this since. Your solicitors have attributed your lack of detention to your 'skill and care in hiding and avoiding trouble', however the Secretary of State believes that your experience in Turkey have not been such as to give rise to a well-founded fear of persecution." The Secretary of State then says that having considered the application carefully on its merits, he has decided that the applicant does not qualify for refugee status and the claim for asylum is therefore dismissed. Mr Riza for the applicant submits that the decision of the Secretary of State can be shown to be irrational for three main reasons. First, the Secretary of State, he submits, makes a false distinction between persecution by Sunni Muslims and persecution by the State, and in this context Mr Riza invites my attention to paragraph 65 of the United Nations High Commissioner for Refugees' Handbook on procedures and criteria for determining refugee status, which points out that persecution can emanate from sections of the population that do not respect the standards established by the laws of the country concerned. That proposition is not in fact disputed on behalf of the Secretary of State, as is made clear by the affidavit of John Usher, which states that the Secretary of State accepted: "that a well-founded fear of persecution on Convention grounds by persons who are not the agents of Government may entitle a person to claim asylum. However on the facts of the present case, (the Secretary of State) did not think that the two incidents in 1986 and 1988 gave rise to a well founded fear that if returned to Turkey, the applicant would be persecuted on Convention grounds." Mr Riza submits that in order to arrive at that conclusion the Secretary of State must have failed properly to appreciate that after active persecution ended in 1984, this applicant did not live freely in Turkey until 1989. He was in effect hiding, constantly moving on and nevertheless in 1986 and again in 1988 he was attacked. Mr Riza reminds me that in paragraph 201 the Handbook states: "Taking isolated incidents out of context may be misleading. The cumulative effect of the applicant's experience must be taken into account. Where no single incident stands out above the others, sometimes a small incident may be 'the last straw'; and although no single incident may be sufficient, all the incidents related by the applicant taken together, could make his fear 'well-founded' . . ." This is, he submits, a cumulative effect case where what caused the applicant actually to decide to leave Turkey may not of itself have been so significant, but it was the last straw. Mr Riza's second submission is that the Secretary of State falsely gave weight to the applicant's ability to move about within Turkey, away from his village area to the relative safety of Istanbul. As is stated at paragraph 91 of the Handbook: "The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality." But that paragraph does continue: "Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the country, if under all the circumstances it would not have been reasonable to expect him to do so." That paragraph, as it seems to me, deals with rather a different problem to the problem which confronted the Secretary of State in the present case. All that can really be said is that, as Mr Riza accepts, at the end of the day it is the reasonableness of the applicant's conduct which is in issue. Mr Riza's third submission relates to the attitude adopted by the Secretary of State in relation to the applicant's relatives. He accepts that it was not open to the applicant to contend that just because a brother had been granted asylum and other brothers had been given leave to remain, therefore, the applicant must have been persecuted, but Mr Riza submits that the Secretary of State should have realised that what happened to his family impinged upon and reinforced this applicant's fears. Basically, Mr Riza submits that here the Secretary of State was faced with an applicant for political asylum who was telling a consistent story, and that once it was accepted that he was persecuted until 1984 and that the history thereafter was as I have indicated, there was no reason to conclude that in 1990 he did not have a well-founded fear that if returned to Turkey he would be persecuted on convention grounds. Mr Riza, whilst recognising its limitations, also invites my attention to the letter written to the applicant in April 1990 by a brother who is still in Turkey, in which the brother tells the applicant that he is still in danger and to keep away. For the respondent, Miss Foster submits that the approach adopted by the Secretary of State was a two stage approach, the first stage being that what happened prior to 1984 happened too long ago to give rise now to a well-founded fear of persecution, bearing in mind that the applicant remained in Turkey until June 1989. The second stage of the approach is that the incidents which occurred after 1984 were insufficient to amount to persecution. That approach, she submits, may have led to what may seem to be a harsh conclusion but, nevertheless, the approach was not perverse. The approach in the decision letter can be seen to be correct in law and the attack now being mounted is no more than an attempt to challenge the Secretary of State's interpretation of the facts. In order to reach a conclusion in relation to this matter I start by reminding myself that it is for the Secretary of State and not for the court to decide whether a person is a refugee. It is an important administrative decision which may put an applicant's life at risk, so the basis of the decision does call for the most anxious scrutiny (as Lord Bridge said in R v Secretary of State for the Home Department ex parte Bugdaycay [1987] AC 514, 531). But if there is no irrationality the court has no right to substitute its own view for that of the Secretary of State. I notice with interest that although Mr Riza helpfully reminded me of the importance in relation to this branch of the law of the decision of the House of Lords in R v Secretary of State for the Home Department ex parte Sivakumaran [1988] AC 958, he has not been able to point to any specific error in the approach adopted by the Secretary of State. His case, as he said in reply, is that looking at the circumstances in the round and recognising that a final incident may be no more than the last straw, the conclusion here is irrational. That submission is, I confess, tempting, but having looked at the matter with what I hope is a proper degree of care, I cannot go that far. The application therefore fails and is dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

Jane Coker & Co, London N17; Treasury Solicitor