R (Cindo) v Immigration Appeal Tribunal
| Jurisdiction | England & Wales |
| Judge | Mr Justice Maurice Kay,MR JUSTICE MAURICE KAY |
| Judgment Date | 14 February 2002 |
| Neutral Citation | [2002] EWHC 246 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1012/00 |
| Date | 14 February 2002 |
[2002] EWHC 246 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Maurice Kay
Case No: CO/1012/00
Mr. Manjit Gill QC and Mr. James Collins (instructed by Sheikh & Co Solicitors London, N4) for the Claimant
Mr. Gerard Clarke (instructed by Treasury Solicitors) for the Respondent
1. The Claimant is an Alevi Kurd and a citizen of Turkey. He arrived at Waterloo International Rail Terminal on 9 July 1997 and claimed asylum. This was refused by the Secretary of State on 28 th August 1998. An appeal to a Special Adjudicator was dismissed on 11 November 1999 and on 20 December 1999 the Immigration Appeal Tribunal refused leave to appeal. The Claimant now seeks to challenge that refusal by way of an application for judicial review.
2. The Special Adjudicator accepted that the Claimant was a “low level” PKK supporter and that on two occasions he has been arrested, detained and beaten by the Turkish authorities but had been released without charge on both occasions. On the first occasion his release had been procured by the payment of a bribe and he was told that he would be killed if he continued to help the PKK. A few days after the second release (in March 1997), the Claimant discovered that his paternal uncle, who was a PKK member, had been killed by the authorities. The Claimant also faced another difficulty. In February 1997 he had been called up for a medical examination prior to military service and on 21 May his draft papers arrived. By then, however, he had left his home village of Balikesir and gone to Istanbul where he stayed with a maternal uncle while an agent arranged for him to leave the country, which he eventually did in the back of a lorry, travelling via France, whence he came by rail to London. His claim for asylum was put on the basis that he has a well-founded fear of persecution if he were returned to Turkey because the authorities would resume their persecution of him for his PKK sympathies and, in addition, he is now a draft evader with a genuine unwillingness to perform military service because he refused to fight fellow Kurds.
The reasoning of the Special Adjudicator can be understood from the following passages in his determination:
“….the fact that the appellant both was prepared to and was able to remain behind in Turkey in Balikesir and then in Istanbul between March and July without difficulty and without coming to the adverse attention of the authorities, suggests very strongly that the Turkish authorities had not then nor have now any continuing interest in this appellant.
There is little difference between the position of Vedat Cindo and many other young men of his background. He is a low level PKK supporter and he has failed to show that there is a serious possibility or reasonable likelihood that if returned to Turkey he would be persecuted on account of his support of the PKK”
As regards draft evasion, the Special Adjudicator accepted what the claimant said but, after considering the objective country material, concluded:
“Although there may well be some occasions in which some Kurds are posted against their will to the south eastern area of Turkey, it is reasonably suggested that such occasions are rare. I do not consider the conflict in south eastern Turkey to be of such a nature that this appellant's unwillingness to be involved in it can be said to amount to conscientious objection sufficient to justify the grant of asylum status. It is not unreasonable for the Turkish authorities either to make provision for national service or to impose penalties for those who default. From the evidence before me, it appears that if draft evaders…..are caught they are taken straight to their units and then into service. Turkish Courts commonly impose minimum penalties such as fines… There is no reason to suppose that this appellant would be treated any differently to any other person who evaded his military service simply by virtue of his Alevi Kurdish background. Although if returned to Turkey this appellant might well face some punishment and be required to perform military service I do not consider that his expressed unwillingness to do so is such as to amount to a well-founded fear that if returned to Turkey he would be persecuted.”
3. The Special Adjudicator then considered the implications of the Claimant being returned to Turkey as a failed asylum seeker, without a Turkish passport. He said:
“I give regard here to the recent and authoritative case of Ali Senkoy (16594)”.
In Senkoy the IAT had concluded that, on return, Senkoy would be interrogated and “badly insulted, threatened and humiliated”, but that that would fall short of persecution. In the present case the Special Adjudicator said:
“I reach the same conclusion here. Simply because this appellant might receive something of a rough welcome if returned to Turkey, I do not find that there is a serious possibility that he will be persecuted on arrival. He would, as in Ali Senkoy's case, be released and allowed to go on his way or sent off to do his military service.”
4. In refusing leave to appeal against the decision of the Special Adjudicator, the IAT stated that his conclusions were fully supported by the evidence, that there was no misdirection in law and that, read as a whole, the determination amounted to a “full, fair and reasoned review” of the Claimant's case.
5. On behalf of the Claimant, Mr Manjit Gill QC seeks to challenge the refusal of leave to appeal by reference to amended grounds under seven headings. One of them raises an important point of principle and I shall deal with it first.
Ground 1: The Senkoy Point
6. To understand this ground of challenge, it is necessary to have in mind the following chronology:
29 April 1998: IAT decision in Senkoy promulgated: appeal dismissed: reliance placed on Migrant News Sheet for November 1997 in relation to failed Kurdish asylum seekers returning to Turkey.
17 August 1998: Senkoy's solicitors submit further documentation to the Secretary of State, requesting that it be treated as a fresh asylum claim. The documentation included a report from Mr Kieran O'Rourke, which painted a different picture from that depicted in the Migrant News Sheet.
4 September 1998: Secretary of State refuses to treat the documentation as giving rise to a fresh asylum claim.
? October/
November 1998: Senkoy seeks leave to apply for judicial review of the decision of 4 September 1998.
16 December 1998: Turner J. grants leave to apply.
11 June 1999: Home Office official files a witness statement setting out the views of the Secretary of State, opposing Senkoy's application for judicial review.
17 August 1999: Hearing of the Cindo case before the Special Adjudicator, whose determination was promulgated on 11 November 1999, relying on the “recent and authoritative” case of Senkoy.
20 December 1999: Cindo refused leave by the IAT, reference being made to the IAT decision in Senkoy.
18 February 2000: I quash the refusal of the Secretary of State to treat Senkoy's documentation of 17 August 1998 as a fresh asylum claim.
2 March 2001: Court of Appeal dismisses the appeal of the Secretary of State in Senkoy.
7. Relying on that chronology, Mr. Gill submits that the decision of the Special Adjudicator in the present case was tainted by reliance on the IAT decision in Senkoy which had been overtaken by events, namely the new documentation submitted on Senkoy's behalf which was by then the subject of a contested application for judicial review. Of course, he does not criticise the Special Adjudicator in the present case. His aim is directed at the Secretary of State. He puts it in this way in his skeleton argument:
“….long before the hearing before the Special Adjudicator in this matter, the Secretary of State had received information from Senkoy's advisors (i.e. the fresh evidence on the abuse of returnees) which, according to the Court of Appeal, ought to have led him to conclude that the reasoning of the IAT in Senkoy and the evidence on which it relied was suspect. He ought therefore to have drawn it to the attention of the Special Adjudicator when the hearing took place in August 1999. He owes a duty not to mislead the Special Adjudicator”.
That is the submission at its highest, put in the form of a positive duty. In oral submissions, Mr. Gill also put it on the alternative and lower bases that the fact that the Special Adjudicator and the IAT did not have the later Senkoy material before them at times when it was in the possession of the Secretary of State rendered the hearings in the present case unfair or vitiated the decisions which were reached on the basis of a mistake or misapprehension as to the current state of information.
8. It is common ground that recent authorities illustrate a principle relevant to these submissions. In Regina v Criminal Injuries Compensation Board, ex parte A [1999] 2 AC 330, the Board had rejected a claim, observing that there was a lack of supporting medical evidence. In fact there had been a police surgeon's report which would have supported the claim and was at variance with evidence given to the Board by a police officer. Lord Slynn of Hadley stated (at pp.344–345C):
“Your Lordships have been asked to say that there is jurisdiction to quash the Board's decision because that decision was reached on material error of fact ….. For my part, I would accept that there is jurisdiction to quash on that ground in this case, but I prefer to decide the matter on the alternative basis argued,...
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