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

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

Queen's Bench Division

[1994] Imm AR 28

Hearing Date: 29 June 1993

29 June 1993

Index Terms:

Political asylum -- refusal -- application for judicial review -- withdrawn on undertaking by Secretary of State to reconsider application -- refusal subsequently maintained -- no further interview accorded to applicant -- whether failure to do so unfair -- whether Secretary of State's conclusions Wednesbury unreasonable -- whether chronology of events showed Secretary of State had not fully and properly reconsidered the application.

Held:

The applicant was a citizen of Turkey, an Alevite Kurd. He sought judicial review of the refusal of the Secretary of State to grant him asylum. When originally refused, the applicant had sought judicial review: the representatives were invited to withdraw those proceedings when the Secretary of State undertook to reconsider the application. The Secretary of State did review the application but again refused it. Judicial review was sought of that second refusal. The applicant was not re-interviewed before the second refusal, the Secretary of State considering that be had sufficient information on which to assess the application. In refusing that application the second time, the Secretary of State doubted the credibility of the applicant. Counsel argued, following Gaima, that it was unfair for the Secretary of State to reach those adverse findings on credibility without, in an interview, giving the applicant an opportunity to explain further the incidents on which those adverse findings of credibility were based. Counsel further submitted that the Secretary of State's findings on credibility were unreasonable. He also argued that the speed with which, it seemed, the case was reviewed and a conclusion reached suggested that further consideration had not been given to all the relevant facts. Held 1. Following Gaima it was not necessarily unfair for the Secretary of State not to re-interview an applicant. The Secretary of State had stated that he had adequate information on which to assess the claim and counsel had been unable to indicate any further evidence that might have been put to an immigration officer in a further interview. 2. The Secretary of State on reviewing the evidence had concluded that the applicant had not been truthful: that was a conclusion to which he was entitled to come. 3. At first sight the speed with which the second refusal was made after the undertaking to review the case, was disturbing, but albeit the timing was unfortunate, on an analysis of the events, it could not be held to be improper.

Cases referred to in the Judgment:

Bugdaycay & ors v Secretary of State for the Home Department [1987] 1 AC 514: [1987] Imm AR 250. Marion Gaima v Secretary of State for the Home Department [1989] Imm AR 205. Secretary of State for the Home Department v Sittampalam Thirukumar and as [1989] Imm AR 402.

Counsel:

S Vokes for the applicant; M Gill for the respondent PANEL: Owen J

Judgment One:

OWEN J: Niyazi Duymus, the applicant, is a Kurdish Turk and an Alevi. It is common ground that such persons are and were not highly regarded by many of the majority population in Turkey. Mr Duymus, however, claims that this is a gross under-statement and that he was persecuted in Turkey and now has a well-founded and justifiable fear of persecution should he return to Turkey. It was, he says, because of this fear that he left Istanbul and arrived in the United Kingdom with his wife and two of his four children on 1 June 1989. Mr Duymus is in his forties, Mrs Duymus is in her thirties and those of their children -- two out of four -- who came to the United Kingdom are under ten years of age. Certain it is that on his arrival in the United Kingdom Mr Duymus immediately claimed asylum as a refugee. The subsequent history has been, at most times, leisurely. On 17 October 1989 Mr Duymus was interviewed through an interpreter and a political asylum questionnaire was completed. He gave a history that he had not been involved in politics in any way and knew nothing about politics but, nevertheless, he had been persecuted at the hands of the majority Sunni population and at the hands of the police. The persecution was such, he said, that he and his wife suffered injuries. He explained that he had spent some time in 1979 seeking asylum in Germany but as that country would not give asylum to his family he returned to Turkey after eighteen months. Then he kept a coffee shop for a time but the police beat him up on two occasions and beat up his family on several occasions so that he had to give up the cafe. It seems from page 28 of the bundle that for the period after 1986 he complained that "we were taken to the station and they beat us. They used to beat us one after another." Of 1988, he said: "I was taken on two occasions to a police station at Nanik Kemal. On one occasion on the way to the police station they told me I have nothing to do with religious festivities the next day as I'm Alevi and told me I was being taken to the police station to celebrate it the next day there. On the second occasion they took me -- central police station -- me and accused me of insulting someone. I was taken to court but there was no-one there to press charges. The judge said I was there for insulting someone but there was no-one to press charges. But as I had no previous court convictions he released me." On 8 December 1989 Mr Duymus was served with a "minded to refuse" notice. There seem to have been two mains reasons given for the decision. They were: 1. "Such incidents -- those up to and including 1978 -- would appear to have occurred during a time of general civil unrest in Turkey and such treatment does not necessarily amount to persecution within the terms of the Convention." 2. "However, you have admitted that you have not been involved in politics in any way, it is therefore unlikely that the police have ever had any interest in you. If the incidents you have described did actually occur, it seems likely that they would have been isolated incidents of racial prejudice not tolerated by the authorities in Turkey and against which you could seek justice through the Turkish legal system or police disciplinary measures." From this it will be seen that this notice casts some doubt as to whether the incidents did actually occur. At this interview Mr Duymus gave further information, it being said on his behalf that in his questionnaire he had only summarised his experiences and that he understood that he was now being sought in Turkey by the police. He also said -- contrary to his earlier assertion -- that in 1984 he had been forced to join a legal party, The Motherhood party, the party currently in power. At the end of the interview the representative for Mr Duymus said that there were further details which would be worth exploring but the immigration officer said that these could be dealt with by further submissions. Accordingly, on 14 December 1989, Mr Duymus' solicitor wrote detailed submissions to the Home Office. He claimed, firstly, that Mr Duymus had been beaten on virtually every occasion that he had been taken into detention and "further, he had been stopped on the streets by the police and taken to deserted areas of Maras and beaten in a wholly gratuitous way. Secondly, that the record in the questionnaire that he knew nothing about politics was not an accurate account of what he said. The solicitor's letter stated that: "We are instructed that he was explaining that he was a democratic and left-wing person in his sympathies, that the political parties with which he sympathises are illegal and it is not possible for him to be actively engaged in politics". He further stated that during his "minded to refuse" interview Mr Duymus had made it plain that the described detentions in 1988 were given by way of example only and he had tried to summarise his previous experiences as well as he could manage. Various other matters were raised but it is not necessary to repeat them in this judgment. On 15 December 1989 Mr Duymus was served with a notice of refusal and was interviewed yet again. In the notice of refusal the Secretary of State is said not to consider that there is any new information in the letter of 14 December which should cause him to believe that Mr Duymus had a well-founded fear of persecution. Mr Duymus' solicitor has been industrious in his attempts to help him. On 29 January 1990 he wrote again enclosing a letter which had been obtained from Amnesty International. That letter stated that: "Amnesty International believes that the Home Office Minded to Refuse Notice issued to the applicant contained serious errors of fact. These errors of fact suggest that the writer of the Notice is singularly ill-informed as to the political and legal situations in Turkey and must lead to serious doubt as to the thoroughness of the decision to refuse asylum." There was thus at this time an apparent factual dispute between the Secretary of State and Amnesty International. The letter of 29 January 1990 not producing the answer sought by Mr Duymus, application was made for leave for judicial review. This was granted on 21 February 1990, the judge held that Mr Duymus had an arguable case that the Secretary of State's decision might be flawed in that it was arguably based on a fundamental misconception as to his legal rights in Turkey. On 9 May 1990 the Treasury Solicitor wrote to the defendant's representatives informing them that the Secretary of State had decided to "reconsider this matter and reach a fresh decision" but not explaining why this was deemed appropriate. The letter invited Mr Duymus' representatives to withdraw the application for judicial review and looked forward to hearing from them shortly, presumably as to this suggestion. However, on 10 May 1990 the Home Office wrote to Mr Duymus' solicitor setting out detailed reasons for the continued refusal of asylum by the Secretary of State. Those reasons were: "1. The Secretary of State considers that he has sufficient information for him to reach a final decision in Mr Duymus' case; 2. The Secretary of State considers it unlikely and does not accept that Mr Duymus was frequently detained and beaten over a substantial period. He believes that Mr Duymus gave a reasonably complete account of his experiences, and that he mentioned 1988 detentions because they are in themselves central to his wish not to return to Turkey; 3. In the summer of 1982 when Mr Duymus returned from Germany to Turkey this indicated that he did not have a fear of persecution in Turkey at that time; 4. The Secretary of State has decided that Mr Duymus does not have a well-founded fear of persecution under the terms of the 1951 Convention and therefore he refuses his claims to asylum." Mr Duymus applied for leave to apply for judicial review of the decision on 10 May 1990. This leave was granted on 28 June 1990. By letter dated 11 July 1990 Mr Duymus, through his solicitor, in addition sought a review of the decision of 10 May 1990 on compassionate grounds, those grounds being very largely the distress caused to the whole family by the uncertainty and anxiety relating to litigation. On 10 August 1990 the solicitors for Mr Duymus sent a medical report which indicated that Mrs Duymus was a psychiatric patient at the Medical Foundation caring for Victims of Torture. The report is in strong terms indicating Mrs Duymus to be at risk of suicide and Mr Duymus to be "slowly recovering from the effects of his torture and harassment over the years". Not having received any answer the solicitors wrote again on 12 July 1991 and seemingly again on 12 December 1991. I have no copy of this last letter but it seems to have been accompanied by an undated letter from the Kurdish Workers Association stating that Mr Duymus "has attended demos, marches, media conferences and been shown on film as a member attending Kurdish Workers Association premises." A letter dated 1 April 1992 indicated receipt by the Secretary of State of earlier letters in 1991 and also the decision of the Secretary of State that he saw no reason to alter his decision. Now Mr Duymus seeks an order quashing the decision of 10 May 1990. He must and does recognise that Parliament has provided that whether he is granted asylum or not is to be decided by the Secretary of State and not by Amesty International or by the courts. The courts would be ill-equipped for such a task. Amnesty International is a reputable and informed body, the opinions of which are no doubt taken into account by the Secretary of State. Mr Duymus argues that there are good reasons why the decision should be quashed thereby allowing the Secretary of State to reconsider the application in a proper manner. These reasons are, he says; 1. The decision-making process was unfair in that the decision rested on the Secretary of State's disbelieving his assertion that he was frequently detained and beaten over a substantial period but at no stage, prior to this expression of this disbelief, was he given any opportunity to comment on the matters giving rise to the disbelief; 2. That the Secretary of State's disbelief was unreasonable and 3. That the decision was unfair in the context both of its timing and the failure of the Secretary of State to re-interview the applicant or to give him or his representative any meaningful opportunity of dealing with the considerations which, as the matter then stood, would defeat his claim for asylum. As to the first of these reasons, factually it is correct. The foundation of the argument must be the claim -- that in the circumstances of this case it was necessary for the Secretary of State, if he was to act fairly, to inform the applicant of his disbelief of the assertion that the applicant was frequently detained and beaten over a substantial period so that the applicant might comment on this disbelief and might, if possible, bring further evidence to the attention of the Secretary of State. It is clear that "asylum decisions are of such moment that only the highest standards of fairness will suffice". For example, Bingham LJ (as he then was), in Secretary of State for the Home Department v Thirukumar and ors [1989] Imm AR 402, at 414. The possibility of there being a necessity for re-interview, although in different circumstances, was considered in Marion Gaima v The Secretary of State for the Home Department [1989] Imm AR 205. From the reasoning in this latter case it is apparent that the starting point is "that the resolution of any issue of fact and the exercise of any discretion in relation to the application for asylum as a refugee lie exclusively within the jurisdiction of the Secretary of State subject only to the court's power of review." See for example R v Home Secretary ex parte Bugdaycay [1987] 1 AC 514 at p 531E. There Lord Bridge, having stated this already, continued: "The limitations on the scope of that power are well known and need not be re-stated here. Within those limitations the court must, I think, be entitled to subject an administrative decision to the most rigorous examination to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny." It was held in Gaima that the considerations of fairness or reasonableness did not of themselves require the Secretary of State to arrange any further interview of the appellant in the circumstances of that case. Bearing in mind that the function of interviewing officers is not to assess the credibility of an applicant for asylum, but to discover the complaints which he makes and bearing in mind the number of occasions upon which Mr Duymus was interviewed and letters were sent on his behalf I see nothing unreasonable or unfair in the statement in the letter of 10 May 1990 that the Secretary of State considers that he has sufficient information for him to reach a final decision in the case of Mr Duymus. The Secretary of State had the whole history of complaints and at that time no more information could have been given by the applicant. In deciding credibility the Secretary of State cannot rely on demeanour. He will assume credibility unless the contrary is shown. No doubt he must bear in mind the nature and content of the complaints against his knowledge of conditions in Turkey. However, here the reason for rejection did not depend on such a comparison. The complaint which the Secretary of State rejected was that the applicant was detained in police stations on many many occasions and was beaten on virtually every occasion. The reasons for rejection of this statement are given in paragraph 7 of the letter of 10 May 1990. Having stated that this claim was not related in the questionnaire, even in summarised form, the Secretary of State's letter points out that to the contrary in his interview on 17 October the applicant gave some prominence to an incident several years before 1986 and to two detentions in 1988, during neither of which was he apparently ill-treated. The conclusion then drawn was expressed as the Secretary of State believes that Mr Duymus gave a reasonably complete account of his experiences and that he mentioned 1988 detentions because they are central to his wish not to return to Turkey." Given that Parliament has intended the Secretary of State to make these decisions in the manner indicated I cannot see that the Secretary of State was unfair in not giving the applicant an opportunity to comment further or in not giving him an opportunity to have a further interview. In this connection it is noteworthy that counsel for Mr Duymus could not suggest any further relevant comment or evidence which might have been given had such an invitation been extended. Accordingly, I must reject this complaint. Next, it is alleged that the Secretary of State was unreasonable in finding that Mr Duymus gave a reasonably complete account of his experiences in the questionnaire. As a consequence of this assertion it is also argued that the Secretary of State was unreasonable in his disbelief. The fact, if it be the fact, that at the political asylum questionnaire interview Mr Duymus summarised his experiences is not inconsistent with him having given a reasonably complete account. If, in fact, Mr Duymus was beaten on virtually every occasion that he had been taken into detention, and if, in fact, he had been stopped on the street by the police and taken to deserted areas of Maras and beaten in a wholly gratuitous way, it is difficult to understand how his summary of his treatment made in a political asylum questionnaire through an interpreter, failed to mention that behaviour but did mention two incidents when there was no violence. I see nothing unreasonable in the decision made by the Secretary of State. In more explicit terms it amounts to saying that Mr Duymus did not tell the truth. If the truth had been frequent violence and persecution he would have said so. In my judgment, that reasoning cannot be faulted. Since the timing of the decision gives some initial cause for concern the third ground requires even more careful consideration. On 9 May the Treasury Solicitor gave notice that the Secretary of State intended to reconsider. There was no suggestion that more evidence or comments were required. On 10 May the letter of decision was written. On a superficial consideration of these dates a failure to reconsider properly might be suspected. However, this calender does not necessarily imply that the decision to reconsider was made on 9 May nor is this suggested. What is suggested on behalf of Mr Duymus is that there was an element of unfairness in that there was no invitation for further submissions or interviews. As I have already stated I see no necessity for the Secretary of State to have so invited the applicant. This conclusion is somewhat supported by the admission that neither further comments nor a further interview would have produced any new material. In the circumstances, although the timing was unfortunate in that it might well have caused Mr Duymus to suspect unreasonableness, I reject this complaint. It follows that this application must be dismissed. No doubt, the Secretary of State will be asked to consider any further compassionate grounds which may exist or be alleged before ordering a return to Turkey.

DISPOSITION:

Application dismissed

SOLICITORS:

Leicester Rights Centre, Leicester; Treasury Solicitor