R v Secretary of state for the home department ex parte Mehmet Kabala
| Jurisdiction | England & Wales |
| Judgment Date | 12 June 1997 |
| Date | 12 June 1997 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Saville, Thorpe, Judge LJJ
Miss C Fielden for the applicant
R Tam for the respondent
Cases referred to in the judgments:
Ladd v MarshallWLRUNK [1954] 1 WLR 1489: [1954] 3 All ER 745.
R v Secretary of State for the Home Department ex parte Al-MehdawiELR [1990] 1 AC 876: [1990] Imm AR 140.
Ademola Onibiyo v Secretary of State for the Home Department [1996] Imm AR 370.
Secretary of State for the Home Department v Coskun Boybeyi [1997] Imm AR 491.
R v Secretary of State for the Home Department ex parte Mehmet Kabala (unreported, QBD, 8 May 1997).
Asylum refused fresh evidence submitted whether Secretary of State unreasonable to decline to accept that the fresh evidence gave rise to a fresh claim the importance of the requirement that fresh evidence should have been previously unavailable. HC 395 para. 346.
Renewed application for leave to move for judicial review of refusal by the Secretary of State to accept that fresh evidence submitted to him gave rise to a fresh claim for asylum, following the refusal of an earlier claim. The request that the Secretary of State consider a fresh claim had been made on the basis inter alia of two letters from an expert on Turkish affairs supporting the applicant's claim that an arrest warrant was genuine, contrary to the earlier conclusion of the Secretary of State and the adjudicator. Counsel argued that in asylum cases it was inappropriate for the rule in Ladd v Marshall, that fresh evidence must have been unavailable earlier, to be rigorously applied.
Held:
1. Following Onibiyo and Boybeyi the rule in Ladd v Marshall clearly applied.
2. The reports from the expert in Turkish affairs could have been obtained earlier.
3. The failure of advisers to obtain the evidence earlier did not put that evidence outside the ambit of the rule; Al-Mehdawi followed.
4. In any event, looking at the evidence as a whole, there was no reason to believe that the fresh evidence would lead to a different conclusion by a special adjudicator.
Judge LJ: This is a renewed application for leave to move for judicial review of the refusal of the Secretary of State for the Home Department dated 26 March 1997 to accept a fresh asylum claim by Mehmet Kabala. Carnwath J refused to grant leave on 8 May 1997.
There is no need for a lengthy recitation of the facts. The applicant is a citizen of Turkey. He was born in May 1974. He is of Kurdish origin. He left Turkey in March 1994 and came to this country seeking asylum, asserting that he had been the victim of torture. On 20 June 1994 his application was refused. He appealed against the refusal. After a hearing in August 1996 at which he was represented by Mr Rintoul of the Refuge Legal Centre, on 21 October 1996 the special adjudicator dismissed his appeal on the basis that she was not satisfied that the applicant's fear of persecution, if he were to be returned to Turkey, was well-founded. It is abundantly clear from the detailed determination that the special adjudicator was wholly unimpressed with the evidence of the applicant and in a number of respects she expressly found that his evidence was not credible.
In view of the matters raised before the Secretary of State and before us, amounting to fresh material relied on by Miss Fielden, two particular issues canvassed before the special adjudicator and dealt with by her in her determination require special attention. Those were a document purporting to be a warrant of arrest, or a document having similar effect, stamped 15 December 1995 and the applicant's claim that he had a conscientious objection to military service. So far as the conscientious objection was concerned, the special adjudicator said:
I believe the Appellant might face prosecution for failure to report for call-up to do his required military service, I do not...
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