MD (Turkey) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE SMITH |
| Judgment Date | 12 December 2006 |
| Neutral Citation | [2006] EWCA Civ 1870 |
| Docket Number | C5/2006/2124 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 December 2006 |
[2006] EWCA Civ 1870
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No. HX/49374/2003]
Royal Courts of Justice
Strand
London, WC2
Lady Justice Smith
C5/2006/2124
MS J FISHER (instructed by Messrs Wilson & Co) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
This is a renewed application following refusal by Keene LJ for permission to appeal a determination of the Asylum and Immigration Tribunal (AIT) dated 19 August 2006 in which it dismissed the applicant's appeal from earlier refusals to grant him leave to enter and remain in the UK on both asylum and human rights grounds.
The applicant is a Turkish national born in October 1979. He is of Kurdish ethnic origin. He came to the United Kingdom in October 2002 and applied for asylum. His application was refused. His appeal to an adjudicator failed in September 2004. In November 2004 he applied successfully for permission to appeal and, in February 2006, the appeal was allowed. The matter was sent for reconsideration by the AIT. That reconsideration took place in July 2006. As I have said, the appeal was dismissed. The AIT also refused permission to appeal to this court on the ground that the grounds of appeal amounted to no more than disagreement with the AIT's conclusions. Keene LJ refused permission saying that the complaints were that insufficient weight had been given to some aspects of the evidence but that no arguable error of law had been identified.
The applicant claimed that he had been persecuted and tortured in Turkey from 1996 until he fled to this country in October 2002. Although he himself had never been politically active, he was suspected of such by the authorities largely on account of the fact that several members of his extended family had been politically active in separatist organisations. His uncle had been granted asylum in the UK in July 2003; his statement was before the AIT. His cousin arrived in the UK in October 2002 at the same time as the applicant; he was granted asylum on appeal to an adjudicator. The applicant's brother was accepted as a refugee in France. Another relative had been given asylum in Germany. The applicant claimed that he had been detained by the Turkish authorities on four separate occasions, in 1996, 1997, 2001 and 2002, and had been ill-treated on each occasion. On one occasion he had escaped and had suffered injury. He claimed that he had scars which were consistent with, and therefore attested to, his ill-treatment. He was also suffering from post-traumatic stress disorder as the result of his experiences in Turkey. He feared that, if returned to Turkey, he would suffer persecution and ill-treatment.
At the reconsideration hearing, the applicant was represented. He gave oral evidence and was cross-examined. He did not call any supporting evidence. A statement, apparently that of his brother who was living in France, was put in but the brother was not present to give evidence; he had been refused a visitor's visa. However, there was no explanation as to why the uncle and cousin, who were in the UK, were not called. The applicant put in several medical reports, to which I will revert in due course. The AIT formed the view that the applicant's evidence was riddled with inconsistencies and was implausible in many respects; in short it was incredible. The AIT held that the applicant had never been persecuted for a Convention reason and there was no real risk that he would face persecution on his return to Turkey.
Although the word does not appear in the Notice of Application, the basis of the application for permission is that the decision of the AIT was perverse. The contention is that the findings on which the decision was based were fundamentally flawed for four reasons. These relate to the AIT's approach to the evidence relating to other family members, the medical evidence, the findings on credibility and the holding on risk on return. I think it is sensible to deal with these issues in the order in which the AIT dealt with them.
After setting out the applicant's claim at paragraphs 3 to 17 of the determination and the respondent's arguments in response, the AIT considered first the effect of the medical evidence. The evidence was accurately summarised. On its face, it was supportive of the applicant's claim. The AIT made some adverse comments about the basis and clarity of some of the opinions expressed. The effect of the evidence was that the applicant had scars which were consistent with his account of ill-treatment and that he had post-traumatic stress disorder which was consistent with his experiences. It also observed that the opinions of the various doctors were dependent upon the truthfulness of the history that the applicant had given. For that reason the AIT did not think that the medical evidence provided support for the applicant's credibility. It was for it, the AIT, to decide whether the account was true.
Ms Fisher, on behalf of the applicant, criticises that approach. In her written grounds, she submitted that the AIT's reasoning was thin and that the importance of the medical evidence had been understated. Today, she has submitted that the way in which the AIT approached this evidence was to put the cart before the horse. I do not accept these criticisms. The effect of the medical evidence was that the doctors were saying: “If this history is true, it would account for the scars on the applicant's body and his psychological state.” The doctors had assumed that the history was true; it was not their role to...
To continue reading
Request your trial
-
Tasarruf Mevduati Sigorta Fonu v Demirel and another
...on those issues. He held that, if the principles expressed by this court in President of the State of Equatorial Guinea v Logo Ltd [2006] EWCA Civ 1870 were applied, it was highly likely that TMSF would succeed on this point. In any event, it was open to Mr Demirel to raise the point hereaf......