Koca v Secretary of State for the Home Department
| Jurisdiction | Scotland |
| Judgment Date | 27 May 2005 |
| Docket Number | No 38 |
| Date | 27 May 2005 |
| Court | Court of Session (Inner House - First Division) |
Court of Session Inner House First Division
Lord President (Cullen of Whitekirk), Lord Macfadyen, Lord Clarke
Immigration - Asylum - Whether adequate reasons given by adjudicator - Whether adjudicator ought to have raised question of alleged discrepancies in applicant's evidence
An application for asylum by a Turkish national and Alevi Kurd was refused by the adjudicator. She relied on apparent discrepancies in the applicant's evidence as to the extent of his involvement with a political party. She did not assess the credibility or reliability, or relevance, of the evidence of an expert which was provided in the form of a letter and which supported the applicant's claims that he was at risk of persecution. A report relied on by the expert was not produced. The respondent was not represented before the adjudicator. Leave to appeal was refused by the Immigration Appeal Tribunal. The applicant brought a petition for judicial review. On 22 November 2002, the Lord Ordinary refused the prayer of the petition.
The petitioner reclaimed. He argued that he had not received a fair hearing, because the adjudicator had not brought the question of the apparent discrepancies in his evidence to his attention and given him an opportunity to explain them. He also attacked the approach of the adjudicator and the Lord Ordinary to the expert evidence, and the adequacy of the adjudicator's reasons for her decision. The respondent argued that the petitioner knew his credibility generally was in issue and he was given an opportunity to address it, so that the hearing had been fair. He defended the adjudicator's treatment of the expert evidence and argued that there was no obligation on an adjudicator to search out evidence which was not produced. He contended that the reasons set out by the adjudicator left no reasonable doubt as to what her reasons were or the material considerations she took into account.
Held that: (1) the overriding requirement was that the petitioner should have been given a fair hearing, and that included an obligation to provide intelligible reasons for the decision; but the adjudicator's decision gave no indication of why the expert evidence, which was prima facie supportive, was rejected, and that amounted to procedural unfairness which required the decision to be reduced (para 19); (2) where a perceived inconsistency in the petitioner's position was to form a significant ground for rejecting his appeal, fairness required the adjudicator to give him an opportunity to explain it, especially where the respondent was not represented, and that had not been done, so that the hearing had been conducted unfairly in that respect also (para 20); and reclaiming motion allowedand case remitted for a rehearing.
Observed that an adjudicator has no obligation to search out material such as the report referred to by the expert where it is not produced (para 21).
Mehmet Koca brought a petition under the judicial review procedure seeking reduction of decisions of the Immigration Appeal Adjudicator dated 7 February 2002 and of the Immigration Appeal Tribunal dated 19 March 2002.
The petition called before the Lord Ordinary (Carloway) who, at advising on 22 November 2002, refused the prayer of the petition. The petitioner reclaimed. The petition called before the First Division, comprising the Lord President (Cullen of Whitekirk), Lord Macfadyen and Lord Clarke, for a hearing on the summar roll, on 15 and 16 January 2004 and 21 April 2005.
Cases referred to:
Ahmed v Secretary of State for the Home Dept [1994] Imm AR 457
Asif, PetrUNK 1999 SLT 890; 1999 SCLR 427
Campos-Sanchez v Immigration and Naturalisation Service INF No A-72-667-220, unreported
Clarke v Watson 1982 SLT 450
Costain Ltd v Strathclyde Builders LtdUNK 2004 SLT 102; 2004 SCLR 707
Guo v Canada (Minister of Citizenship and Immigration)[1996] FCJ 1185
Hassan v Immigration Appeal Tribunal [2001] Imm AR 83
Karanakaran v Secretary of State for the Home DeptUNK[2000] 3 All ER 449
Lindsay v GilesUNKUNK (1844) 6 D 771; 16 Jur 357
MNM v Secretary of State for the Home Dept [2000] INLR 576
Mayisokele App No 13039, unreported
R v Immigration Appeal Tribunal, ex p Keziban Kilinc[1999] Imm AR 588
Singh v Secretary of State for the Home Dept 1998 SLT 1370
Singh v Secretary of State for the Home DeptSC 2000 SC 219; 2000 SLT 243
South Bucks District Council and anr v Porter (No 2)UNKWLRUNK[2004] UKHL 33; [2004] 1 WLR 1953; [2004] 4 All ER 775
Zermalt Holdings SA v Nu-Life Upholstery Repairs LtdUNK[1985] 2 EGLR 1136
At advising, on 27 May 2005, the opinion of the Court was delivered by Lord Clarke-
Opinion of the Court-
[1] This is a reclaiming motion from an interlocutor of the Lord Ordinary, dated 22 November 2002, whereby he refused the prayer of the reclaimer's petition for judicial review of a decision of the Immigration Appeal Tribunal refusing the reclaimer leave to appeal against the determination of an adjudicator dated 7 February 2002, which refused the reclaimer's claim for asylum.
[2] The full history of the reclaimer's application for asylum, and its refusal by the respondent, is set out in detail by the Lord Ordinary in his opinion. In summary, the reclaimer is a national of Turkey. He is an Alevi Kurd, who was born in 1973. He left Turkey in or about February 2000 and arrived in the United Kingdom on 7 March 2000. He made a claim for asylum in terms of the Convention relating to the Status of Refugees 1951 ('the Geneva Convention'). In the statement of evidence form (SEF) which he submitted to the respondent, in support of his claim for asylum, and which was completed with the assistance of a solicitor, the reclaimer stated that he was of Turkish/Kurdish nationality and had left Turkey on 1 March 2000 by lorry, paying those who had arranged for his transportation out of Turkey 13,000 DM. He stated that he had changed lorries three or four times before arriving in the United Kingdom. He gave four reasons for fearing persecution in his country of nationality. These were: (1) his ethnic origin; (2) his religion; (3) the political opinions he held; and (4) the fact that he had evaded military service. He explained that he had been called up for military service in 1993 but he failed to attend his medical examination because he did not want to fight for the Turkish army and was against the use of violence and guns. Thereafter he used various false ID cards and false names. On 15 February 2000 he had participated in a protest against the detention of the head of the Kurdistan Workers Party (PKK). At the demonstration a friend of his had been arrested and, under torture, the friend gave the reclaimer's name to the military personnel who had been torturing him. Subsequently the reclaimer's home had been raided while he was absent from it. He decided he had to flee Turkey.
[3] The reclaimer was interviewed, on behalf of the respondent, on 14 March 2000. The record of that interview is set out at pp 261-267 of the appendix. On 12 January 2001 the respondent refused the reclaimer's application for asylum in a letter, a copy of which forms pp 125-128 of the appendix. In brief, the reasons given for refusal were as follows. In the first place the respondent considered that there was no evidence to demonstrate that being of Kurdish ethnic origin was in itself sufficient to establish a well-founded fear of persecution in Turkey. Secondly, the respondent considered that the reclaimer's claim to be an objector to the use of violence and, therefore, military service was implausible. Thirdly, the reclaimer did not originate from the five provinces in southeast Turkey most severely affected by the conflict between the Turkish authorities and the PKK and there was no reason to think that he would be affected by the situation in those provinces upon his return. There was no reason why the reclaimer would have to reside in southeast Turkey. Fourthly, the authorities in Turkey would have been entitled to make inquiries regarding the reclaimer's alleged support for the PKK as this was a terrorist organisation. The respondent was not persuaded that there was any compelling evidence to demonstrate that Alevi Muslims had a well-founded fear of persecution in Turkey on account of their religious beliefs. Lastly, the reclaimer had passed through a number of foreign countries where he could have claimed asylum. The fact that he did not do so, in the view of the respondent, 'further reduces your credibility'.
[4] The reclaimer's appeal against the respondent's refusal was heard by an adjudicator at Glasgow on 11 December 2001. At the hearing of the appeal the respondent was not represented. The reclaimer was represented by a solicitor. The reclaimer and his wife gave oral evidence. There were also before the adjudicator witness statements from both the reclaimer and his wife. Both parties had lodged bundles of documents. The adjudicator also had before her a letter from the reclaimer's solicitor, which document was described as a chronology and skeletal argument for the appellant. Among the reclaimer's productions was a report, in the form of a letter, from David McDowall, dated 13 September 2001. This gentleman holds himself out as a specialist in Middle Eastern affairs with a particular interest in the Kurds. The report, with appendices, is reproduced as pp 1-84 of the appendix. On p 2 of the letter Mr McDowall states: 'Please provide the Court with a copy of Asylum Seekers from Turkey (hereinafter ASFT), to which I shall refer in this report'. It is a matter of agreement that that request was not complied with and the report (ASFT) in question was not before the adjudicator.
[5] At the hearing before the adjudicator the reclaimer's representative chose not to put questions, in the form of examination in chief, to the reclaimer but to rely on his witness...
To continue reading
Request your trial
-
Rosaleen Kennedy+jean Black V. The Lord Advocate
...WLR 3892, South Bucks District Council and another v Porter (No 2) [2004] 1 WLR 1953 and Koca v Secretary of State for the Home Department 2005 SC 487, it was submitted that the decisions of the first respondent refusing to hold FAIs into the deaths of Mrs. O'Hara and Mr. Black were unsusta......
-
A v Secretary of State for the Home Department
...for the Home Department [2000] INLR 576. They were also recognised by this court in Koca v Secretary of State for the Home Department 2005 SC 487. That was a case in which the adjudicator had rejected the credibility of an aspect of the applicant's account on the basis of what she considere......
-
Veronique Angele Boum V. Secretary Of State For The Home Department
...v Secretary of State for the Home Department 2005 SCIH 37, 2005 1 SC 415; Koca v Secretary of State for the Home Department 2005 SCIH 41, 2005 1 SC 487; Singh v Secretary of State for the Home Department 2000 SC 219; and Januzi v Secretary of State for the Home Department [2006] UKHL 5, [20......
-
Kevin Fotheringham For Judicial Review Of The Scottish Football Association Discipline Appeals Tribunal
...sufficient and, specifically, did they leave the reader with real, substantive doubt (cf Koca v Secretary of State for the Home Department 2005 SC 487) about the process and outcome of 29 January 2008? [19] At the end of its judgment the Appeals Tribunal set out the following conclusions: "......