R v. Immigration Appeal Tribunal, Ex parte Mustafa Arslan

R v IMMIGRATION APPEAL TRIBUNAL
ex parte MUSTAFA ARSLAN

CO/2540/96 24 September 196 Queen's Bench Division: Laws J Appeal - refusal of asylum - appeal dismissed - leave to appeal refused by Tribunal - application for judicial review - issue raised in application not raised in grounds put to Tribunal - whether judicial review appropriate the ambit of the Tribunal's duty in assessing whether an adjudicator's determination is proper. The Asylum Appeals (Procedure) Rules 1993 r. 13. Application for judicial review of the refusal by the Tribunal to grant leave to appeal from the determination of a special adjudicator who had dismissed the applicant's appeal against the refusal by the Secretary of State to grant him asylum. The applicant was a citizen of Turkey, a Kurd. An issue before the special adjudicator had been the applicant's liability for military service and his objections to performing it. In a passage in which the learned judge considered the reasoning to be "fragile", the special adjudicator had concluded the applicant had not shown a Convention reason for his objections. However in the grounds submitted in support of the application for leave to appeal to the Tribunal, professionally drafted, there was no point raised as to the special adjudicator's approach to the question of military service or her conclusions on it. The court considered the extent to which there would be a reviewable error of law by the Tribunal, in failing to identify an issue not brought to its attention in grounds of appeal submitted to it.

Held:

1. Contrary to the approach in some other cases, the court concluded that it was restricted to considering on Wednesbury principles whether the Tribunal had erred in law. It was not a question whether for the court to entertain an issue not raised in grounds of appeal, was an abuse of process (ex parte Chugtai), nor a matter for the discretion of the court to entertain such a ground (ex parte Akkulak and ex parte Khatiza Begum).

2. In general the obligation of the Tribunal was to scrutinise the adjudicator's determination to see that on the face of it and in the context of the grounds of appeal put to the Tribunal, the determination was a proper one.

3. The Tribunal would also have a duty to ensure (irrespective of the grounds put to it) that the determination contained no plain errors of construction of a statute or the immigration rules. Likewise it should ensure that there had been no obvious unfairness or failure of proper procedures before the adjudicator. It should also take congnizance of any obvious factual contradictions in the determination.

4. The Tribunal's duty would be more extensive where grounds had not been professionally drafted than where they had been so drafted.

5. In the instant case the Tribunal had not acted unreasonably and judicial review would be refused.

Miss I Rahal for the applicant

S Kovats for the respondent

Cases referred to in the judament:

CCSU v Ministerfor the Civil Service [1985] AC 374: [1984] 3 All ER 935. R v Immigration Appeal Tribunal ex parte Khatizza Begum (unreported, QBD, 21 May 1991). R v Immigration Appeal Tribunal ex parte Cami Akkulak (unreported, QBD, 29 September 1994). Cami Akkulak v Immigration Appeal Tribunal [1995] Imm AR 114. R v Secretary of State for the Home Department ex parte Zahir Chugtai [1995] Imm AR 559. R v Secretary of State for the Home Department ex parte Mehmet Toprak [1996] Imm AR 332.

LAWS J:

This is an application for judicial review of a decision by the Immigration Appeal Tribunal. It engages a question which has been considered by these courts in other cases of how far the Tribunal owes a duty, reviewable here, to consider points of law within the decision of an adjudicator whose determination is appealed against, where the points in question have not been pleaded in any grounds placed before the Tribunal. The applicant is a Turkish Kurd and arrived in this country in August 1994 when he claimed political asylum. He gave as reasons for making the claim an account of political affiliations which he said he had and trouble and difficulties which he said had been visited upon him in Turkey, The conventional political asylum questionnaire was administered to him. He was later interviewed. The Secretary of State refused asylum on 17 November 1994 and declined to ‘grant leave to enter shortly afterwards. The appeal process was set in train. The special adjudicator dismissed his appeal in May 1996 and the following month the Tribunal refused leave. Miss Rahal for the applicant before me seeks to attack a section of the special adjudicator's determination which concerns the question whether the applicant would be required to do military service if he were returned to Turkey and whether such a requirement on the facts might qualify him for refugee status. The special adjudicator said this:

"The appellant based his claim on his fear that if he had to do his military service, he might be asked to fight other Kurds and would in any case be generally harassed during his service. I took into account paragraphs 167-74 of the UNHCR handbook and the documents submitted. I accept that there has been international criticism of some aspects of Turkey's military action and instances of some conscripts including Kurdish conscripts experiencing difficulties during their service. However, I was not satisfied that the matters put forward by the appellant were supportive of a fear of persecution within a Convention reason."

It is convenient straightaway to refer to the UNHCR Handbook. At paragraph 171 this passage appears:

"Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status for desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution."

The Handbook is of course not a source of law as such, but Mr. Kovats for the Secretary of State inclines to accept that the kind of case there referred to might, if the facts were made out, properly establish an asylum claim. He also accepts, as I understand it, that where the claimant fears that he might, upon being drafted, be forced to fight against his own people or members of a group with which he is closely associated, then, too, there might arise a proper claim. Miss Rahal's complaint is that in the passage from the adjudicator's determination which I have read there is a want of adequate reasons. She says that the adjudicator has not explained what she made of the extent to which Turkey's military actions had been the subject of international criticism. She does not say what view she took of the possibility that the appellant might be asked to fight other Kurds. So, she submits, one simply does not know what was the true basis for her conclusion that the matters put forward did not support a persecution claim within the Convention. The adjudicator's reasoning in the passage complained of seems to me to be fragile to say the least. The question whether I should grant relief in this case in truth depends upon that aspect of the matter which concerns the grounds put before the Tribunal. It is common ground that grounds which were drafted by counsel made no reference from first to last to any matter concerning the adjudicator's treatment of the issue regarding military service. Mr. Kovats for the Secretary of State submits that, at any rate on the facts of the case, that circumstance is itself sufficient to defeat the applicant. Before looking at some of the learning on the subject, I should say a little more about the facts. When the political asylum questionnaire was submitted to him, the applicant made no mention whatever of any difficulties regarding military service. It surfaced when he was interviewed. It is right, however, to notice that in answer to the question in interview, what is the basis for your present claim for asylum, he answered:

"I have mortal fear in Turkey. I was in fear of my life. I wanted to leave Turkey and go to any European country-that was my intention. I suffered constant harassment from the police and whenever I took part in demos I ended up being detained or beaten up."

There is no mention there of any fears relating to military service. However, question 52 was in these terms:

"If you have not completed military service, are you eligible for military duty?"

The applicant answered:

"Eligible, but do not want to do it as does not want to fight against Kurds. See 7."

That is a reference back to the question and answer which I have just set out. There obliquely is a reference to his desire not to be subjected to military service lest he be made to fight against the Kurds. Then, in what is in effect a continuation sheet on the interview document, he says:

"I returned to my uncle, and I had a letter saying that I must get a medical before being drafted into the army. I went for the check-up but decided not to do military service because I knew that I would be sent to East Turkey to fight against my own people, also my brothers have been very badly beaten whilst in the army. So I decided to leave Turkey."

I omit a few lines. There follows an exchange of questions and answers which were set out by the adjudicator in a passage just before the section of which Miss Rahal makes complaint. It ran as follows:

"(Q)You have problems in Izmir then why did you return to Istanbul?
(A)I did not want to stay there because I did not know that many people.

(Q)If Izmir is safe why not go there rather than Europe?
(A)If I stayed there I could be detained any time and taken to the military service, that is why I have come here.

(Q)So you have come here because you do not wish to do military service?
(A)Mainly military service and also because of the persecution against the Kurdish people."

It is to be noted that the applicant is not there distinctly saying that he wishes to avoid military service because, if subjected to it, he would be required to fight his own people. The position, then relating to the documentation up to the applicant's interview is that his fears or concerns about military service were raised late and obliquely. The matter was carried forward, certainly to some extent, by a letter from his solicitors to the Home Office, in which they say this:

"Our client wishes to clarify his situation with regard to military service. One of his reasons for leaving, Turkey was his unwillingness to service (sic) in the military service because this would, he feels, involve killing his fellow countrymen. He believes that this is inhumane and if he refused to obey orders, he would be detained and persecuted as a result. He also fears for his life if he were to return to Turkey due to his political activities in Turkey."

That is certainly not oblique but is of course even later in the day. The Secretary of State's refusal letter contains a section dealing, with military service. I read two paragraphs:

"When asked why you could not have remained in Turkey you said that you could have been detained at any time and taken to do military service. The Secretary of State considered it probable that your unwillingness to do military service was the primary reason for your leaving Turkey. The Secretary of State accepted that if you return to Turkey you would be required to undertake military service. He understood that this is a requirement for all adult Turkish males, and that evasion of the requirement to undertake military service is a civil matter punishable by law in Turkey. Unwillingness to do military service is not in itself a basis for being a refugee, but the Secretary of State was prepared to consider whether your unwillingness to do military service arose from reasons which could qualify you for refugee status within the terms of the 1951 Convention."

The next paragraph is as follows:

"You claimed that if you were required to do military service you would be sent to the East of Turkey to fight against your own people [Kurds]. The Secretary of State understood that military service postings in Turkey are determined at random by computer, and that there is no evidence to support the claim that Turkish citizens of Kurdish ethnic origin are being sent as a matter of policy to the East of Turkey to fight other Kurds. You did not cite any other reason for your unwillingness to do military service, and in the circumstances the Secretary of State considered that there was no basis, within the terms of the 1951 Convention, for you to qualify as a refugee as a result of your unwillingness to do military service."

Thus, Miss Rahal submits, the Secretary of State for his part entertained the applicant's case on the basis that that case included a complaint about the requirement to do military service. I may go to the adjudicator's decision in order to see what case was in truth being put by the applicant there. The special adjudicator recited the applicant's evidence at some length. She records part of it as follows:

"He decided not to do his military service because the state had tortured him a lot and he did not want to kill his own people. He decided to leave Turkey especially after the events of 1 May 1993. He did not leave until August 1994 because he could not arrange this before."

I omit a paragraph:

"His reason for fleeing was political and because his life was in danger, not to avoid military service. He had discussed with his friends his wish not to do military service because he did not want to serve a state which was persecuting him."

The special adjudicator proceeds to summarize the submissions of counsel. First, she deals with the submissions made on behalf of the Home Office:

"Mr. Turay accepted the appellant's account of his detentions which had been consistent and which he had not sought to embellish. However today the appellant said the prospect of military service was not part of his motivation; this contradicted his answer in interview 0. Furthermore even if he had been persecuted in the past the question was would he be in the future.

She turned to the submissions made for the applicant:

"Miss Rahal submitted that, on the appellant's account of his detentions, at least 4 of them had been on grounds of ethnic origin and political beliefs. The Turkish government was not justified in using torture on anyone believed to be supporting even an organisation with Dev Sol's aims. The appellant's motive for coming to the UK was peripheral. If avoiding military service was part of the reason, it did not undermine his claim. The question was would he be persecuted on his return."

It seems to me that while the question of military service had been raised in the manner which I have described, when the matter came before the special adjudicator, she might have been forgiven for supposing that a complaint about military service formed no part of the applicant's case whatever. However, as is clear from the very passage in the determination of which Miss Rahal makes complaint, the special adjudicator did entertain some consideration of this issue of military service and said what she said in the passage under assault. That is a sufficient description of the way in which this issue has figured in this case for my resolution of the question I must decide. I have already indicated that there is no reference in the grounds to the Tribunal to anything to do with a requirement to perform military service. In those circumstances, I have to decide whether, even if the reasoning in the passage complained of in the determination is at fault, there is a reviewable error of law on the part of the Immigration Appeal Tribunal. The most convenient starting point is the Procedure Rules which apply to asylum appeals. These are the Asylum Appeals (Procedure) Rules 1993 made under the Asylum and Immigration Appeals Act 1993. What I may call the mainstream procedure rules for immigration appeals made in 1984 do not apply so far as relevant here. Rule 13 of the 1993 Rules is headed "Leave to appeal" and the context is appeals to the Tribunal from the special adjudicator. The rule makes it clear by paragraph (1) that the Tribunal's leave is required. Paragraph (3) is in these terms:

"An application for leave shall be made by serving upon the Tribunal Form which shall be accompanied by the document (or copy of the document) recording the special adjudicator's determination."

Form contains provision for setting out an appellant's grounds of appeal. Plainly, there is an implicit requirement upon an appellant to state his grounds in that form when he seeks to appeal to the Tribunal. As I understand it, there is no express provision by statute or rule which identifies the test which a Tribunal must apply in deciding whether or not to grant leave to appeal. It seems to me that that being so, this court, in determining whether a Tribunal has made a reviewable error in failing to grant leave to appeal, must start from first principles. As is of course elementary, in general terms judicial review is only available if one or more of the three categories of case described by Lord Diplock in the CCSU case is established. Here, there is no question of any procedural unfairness, nor any question of illegality, as Lord Diplock described them. My jurisdiction is to supervise the Tribunal on Wednesbury grounds. Has this Tribunal refused leave to appeal to it in circumstances where no reasonable Tribunal properly directing itself could have arrived at such a result? It is, however, to be remembered that while the Wednesbury standard is applicable to this as to all discretionary decisions where the primary decision is given by statute to another decision-maker, nevertheless, in cases which touch fundamental rights, and in particular in cases of political asylum, the court approaches its jurisdiction with the most anxious scrutiny. Equally, the Tribunal must approach its jurisdiction in like spirit. I turn to some of the cases in which the court has considered the effects of a failure to raise a ground of appeal before the Tribunal. In R v Immigration Appeal Tribunal ex parte Akkulak, decided by Dyson J on 29 September 1994, the judge said this:

"In seeking application for leave to apply for judicial review of the Appeal Tribunal's refusal, Mr. Aslangul has relied upon the ten grounds of relief which are set out in the Form 86A document. It is right to point out at the outset that a large number of these grounds are outside the scope of the three grounds of appeal which were placed before the Appeal Tribunal. In my judgment, as a matter of principle it is impossible to seek to impugn the decision of the Appeal Tribunal by praying in aid matters which were not relied upon in support of the application for leave to appeal to the Tribunal. So far as the three grounds of appeal which were before the Tribunal are concerned, I am quite satisfied that the Appeal Tribunal was justified in reaching the conclusion that it did.

It has to be demonstrated that in reaching that conclusion the Appeal Tribunal acted in a perverse manner, or acted unreasonably in the Wednesbury sense."

The case went to the Court of Appeal. The decision of that court is reported at [1995] Imm AR 114. Nourse LJ cited that passage of Dyson J's judgment in which he holds that the Tribunal's decision could not be impugned by praying in aid matters not before it. The learned Lord Justice continued as follows:

"Mr. Raymond, for the applicant, has submitted that the judge was wrong in saying that it was not possible to impugn the decision of the Tribunal by praying in aid matters not relied upon in support of the application for leave to appeal. We have not called upon Mr. Tam, for the Secretary of State, and for myself I express no view as to whether Mr. Raymond's submission is correct or not."

The learned Lord Justice proceeds to deal with the case on the footing that that submission was correct, so that the additional points of complaint could be considered by the court. Mann LJ and Rose LJ agreed with Nourse LJ's judgment (in which he dismissed the case on its merits) without adding any reasoning of their own. Thus, the decision of the Court of Appeal is not authority which upholds or departs from the views of Dyson J. A somewhat different approach was taken by Collins J in R v Secretary of State for the Home Department ex parte Chugtai [1995] Imm AR 559. In that case it was argued for the first time in the judicial review proceedings that the applicant had been ordinarily resident in the United Kingdom at all material times for the purpose of the immigration rules relevant to his case. Collins J criticizes the adjudicator's reasoning on the relevant factual issues and then he says this:

"Mr. Ashford-Thom"-he was for the Secretary of State-"says that is not a point which can be taken at this stage because it was not in the grounds of appeal and it really is expecting too much of the Tribunal to ferret around to look for points of law which even those now advising the applicant were unable to identify until a late stage of these proceedings."

I omit some words and continue:

"I do want to make it clear that I do sympathise with the submission that there is a limit to the burden one should place upon the Tribunal. On the other hand, some who appeal to the adjudicator will be dependent upon advisors who are less than wholly satisfactory.

A little later:

"I think that a Tribunal should always be (and I am sure is) careful to see whether there is a point of law in the decision even if that point is not specifically identified in the grounds of appeal. I would be surprised, I confess, if the Tribunal really supported a submission that it was an abuse of the process to seek to take the point on judicial review if the point of law had not been specifically identified in the notice of appeal. I say that because I am aware that Mr. Ashford-Thom is instructed not by the Tribunal but by the Home Office. I am sure that the Tribunal will always look carefully at any adjudicator's decision and will identify a point of law if one is there. Of course, it cannot be expected to spend a long time on each decision to see whether the advisors have missed a point which might arguably appear. Obviously. if judicial review was sought on a point which was not taken and which was not in any way made apparent to the Tribunal, it would only be in rare cases that such an application would let anywhere, because it would only be where the point was one which clearly had some merit that a court would be minded to interfere. At the end of the day, if an applicant has a meritorious arguable point of law which he has missed because his grounds of appeal did not specifically refer to it but which was there on the face of the decision, by which I mean was there if the decision had been considered against the relevant rule on its facts, then it seems to me that it would be prima facie wrong for an applicant to find himself excluded from taking it and perhaps from this country because his advisers missed it."

I should next quote a short passage in the judgment of McCullough J in ex parte Toprak given on 31 October 1995.*[1] In that case counsel for the applicant had made a certain concession before the learned judge. It is not necessary to go into the details. The judge records the Secretary of State's response to the concession thus:

"Mr. Jay, for the Secretary of State, says that her concession may not be right. His point is that the Tribunal, in deciding whether or not to give leave to appeal, is obliged to consider a point of law which it thinks arguable even if it has not been adverted to in the grounds of application."

Implicitly, it would appear that the learned judge approved of that approach. Henry J, (as he then was), on 21 May 1991 decided ex parte Khatiza Begum. That was a primary purpose marriage case. The judge records the respondent's assertion that a point sought to be canvassed in the judicial review was not then available "because it was not in the application for leave to appeal to the Immigration Appeal Tribunal. Henry J (as he then was) proceeded to deal with that submission as follows:

"I am satisfied that I have a discretion to entertain the point. This is not a case where there has been a full appeal hearing and we are dealing with a point not taken at such a hearing. In those circumstances, it seems to me that the authorities which say that points not taken at appeal hearings cannot be relied on in a judicial review can be distinguished. Those authorities are Immigration Appeal Tribunal v Toluir Ali [1988] Imm AR 237 and R v Secretary of State for the Home Department ex parte Begum [1989] Imm AR 547. In so distinguishing those decisions, I rely on the dicta of Kennedy J given in R v Immigration Appeal Tribunal ex parte Charanjit Kaur, where he says:"

-that is quoted by Henry J:-

" 'In my judgment it would be appropriate in the present case, which is in many ways exceptional, to exercise the discretion which both parties concede that I have in order to allow this application, even though the point being taken now was not a point taken in grounds of appeal to the Immigration Appeal Tribunal. I say that because. it is, in my judgment, important to appreciate that here what is sought to be done is to allow the appeal process to take its normal course. The Immigration Appeal Tribunal considered an application which, on the face of it, was quite clearly drafted by those who had only an imperfect legal appreciation of what had happened... I think there is force in Mr. Nicol's submission that if the Tribunal had had an opportunity slowly to read the adjudicator's decision, it would even, without any external assistance in the form of expressed grounds of appeal, have been alerted to the point which is now being taken, because the experienced members of the Tribunal might well themselves have come to the conclusion that the adjudicator did not appear, in his reasoning, to have in the forefront of his mind the date in relation to which he had to make his decision. The Immigration Appeal Tribunal might then have felt it appropriate at least to enquire whether those acting on behalf of the applicant wanted to widen the grounds of appeal to embrace the point which is now being made.' "

Henry J cites further from the decision of Kennedy J The citation extends to page 15F of the transcript. I will not read the balance of the quotation which is there set out. He concluded that the case before him was to be approached in the same way, and says:

"This is a point which, it seems to me, can legitimately be raised even though it was not in the applicant's home-made grounds of appeal to the Tribunal".

With very great respect to Collins J, it seems to me that the question that arises in cases of this kind is not whether it is or may be an abuse of the process to take on judicial review a point not pleaded in grounds put to the Tribunal. The true question is whether, given all the facts, and in particular the fact that the ground sought to be relied on was not asserted before the Tribunal, it can be said that the Tribunal has fallen foul of the Wednesbury rule, conditioned no doubt by the special scrutiny required in immigration cases. Likewise, with deference to Henry J and Kennedy J, it does not seem to me to be a question of the court's discretion. I am asked to say whether or not there is a reviewable error here committed by the Tribunal. That is not a question of discretion but a question of substance. Of course, if there were an application to hold a judicial review directly of the adjudicator, then the question of discretion would arise, namely, whether or not such proceedings should be entertained notwithstanding the applicant's failure to exhaust his remedies by taking his points of criticism to the Tribunal; but there is no application before me to review the adjudicator. As I say therefore, I have to consider the case in the light of the Wednesbury principle. Given the special care that has to be taken in immigration cases, it seems to me that it is not enough simply to ask whether a reasonable Tribunal might or might not have failed to spot such a point -as that now taken in relation to the adjudicator's reasons. A more helpful approach is to consider what is the duty of the Immigration Appeal Tribunal faced with an application for leave to appeal to it. Very obviously, it must consider the express grounds put forward. Is there any wider duty? Mr. Kovats has made it clear, if I may say so entirely correctly, that the Tribunal may in some circumstances be reviewed for failure to examine a point not appearing in the pleaded -rounds. The Tribunal owes a duty, breach of which would be reviewable in this court, to see that determinations of adjudicators are free from such flaws as plain errors of construction in relation to the statute, or a plain misunderstanding of the immigration rules with which an adjudicator and the Tribunal may be taken to be well familiar. However the Tribunal owes a wider duty than this. There may be cases-one hopes they are few-where, for one reason or another, there has been some obvious unfairness or failure of proper procedure before the adjudicator. In the perhaps unlikely event that the subsequent grounds of appeal do not take such a point, yet it appears clear from the record of proceedings, then the Tribunal might be said to owe a duty to look into it. There may be cases where unhappily there is a clear self-contradiction in relation to the facts on the face of the determination. In general, the duty is to scrutinise the adjudicator's determination to see that, on the face of it and in the context of the grounds actually put forward, the decision is a proper one. The duty cannot be precisely defined if for no other reason than that the Tribunal will have to have regard to all the circumstances. One relevant circumstance might be whether or not the grounds that are advanced have been expertly drafted by lawyers on the one hand, or are home made on the other. Applying this approach and given the facts which I have recited earlier, I am unable to conclude that this Tribunal has acted unreasonably, to the point where I should interfere, in failing itself to pick up any defect in the adjudicator's reasoning. Miss Rahal relies on that passage from the determination which I have quoted, in which the Tribunal say in terms that, read as a whole, the determination is a full, fair and reasoned review of the applicant's case. She says that is simply not right given her criticism of the passage concerning military service; but, in the context in which the Tribunal had to operate, it is an understandable conclusion for them to reach. They were looking at the case in the light of the grounds put forward. If there is no complaint as to reasons, which is a form of complaint described by Mr. Kovats as a second order challenge, the Tribunal may then readily suppose that the applicant for his part is content with the reasons he has been given. At all events, having looked at the matter as carefully as my duty requires me, I consider that it would be wrong to grant relief by way of judicial review here. The Tribunal has not fallen foul of any applicable principle of public law. The application will be dismissed.

DISPOSITON

Application dismissed

Solicitors:

Howe & Co, London W10; Treasury Solicitor




[1]* See now [1996] Imm AR 332.

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