R v The Secretary of State for the Home Department ex parte Mehmet Kabala
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE SWINTON THOMAS,LORD JUSTICE POTTER |
| Judgment Date | 27 April 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0427-11 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | FC3 98/5378 CMS4 |
| Date | 27 April 1998 |
[1998] EWCA Civ J0427-11
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR LEAVE TO MOVE FOR JUDICIAL REVIEW
AND TO ADDUCE FURTHER EVIDENCE
Royal Courts of Justice
Strand
London W2A 2LL
Lord Justice Simon Brown
Lord Justice Swinton Thomas
Lord Justice Potter
FC3 98/5378 CMS4
FC3 98/5907 CMS4
MR M GILL (instructed by Messrs Gill & Co, London W1XZ 8PF) appeared on behalf of the Applicant.
MR R TAM (instructed by the Treasury Solicitor, DX 123242) appeared on behalf of the Respondent.
The applicant is a 23 year old Turkish Kurd. Four years ago, on 13th March 1994, he arrived in this country and claimed political asylum. That application was refused by the Secretary of State on 20th June 1994. The subsequent story of the applicant's efforts to reverse that refusal is a long and complicated one. The first part of it was told by Judge LJ when giving the leading judgment in this court on 12th June 1997 (a judgment now reported at [1997] Imm AR 517). That decision brought to an end the applicant's second judicial review challenge. This is his third such challenge, and indeed even today we are faced in addition with an application to adduce by way of fresh evidence material which has not yet been put before the Secretary of State and which in reality therefore is tantamount to a fourth challenge.
I propose to deal with this matter relatively briefly. To deal with it in full detail would occupy a very considerable part of this court's day, and this is, one should not, no more than a renewed application for leave to move listed for 45 minutes. That said, I recognise, as did the judge below, that this court is bound to view any asylum application with the most anxious scrutiny, scrupulously weighing the material before it. That, I may say, we did over the weekend, as well as this morning.
The Secretary of State's original refusal was the subject of appeal to the special adjudicator. That appeal was dismissed and leave to appeal to the Immigration Appeal Tribunal was refused. The first judicial review challenge was to that refusal, and that too was refused by the court. During the course of that appeal to the special adjudicator a particular document was adduced by the applicant in evidence. It was an arrest letter dated 15th December 1995 which purported to give instructions from the local State Prosecutor's Office to the Chief of Security in Osmaniye for the applicant's arrest as soon as possible. Its date was of course some 20 months after the applicant had already come to this country. The special adjudicator, having regard to his overall view of the case and the way in which the document had come to be presented to him, concluded that he "felt that he [that is the applicant] had engineered the sending of the official-looking document relating to his being wanted."
Essentially all the applicant's subsequent efforts have been devoted to trying to establish the genuineness of that document, ie to convince the Secretary of State of its authenticity and of the reality of the risk of persecution which it purportedly postulated. The applicant has thereby been seeking to persuade the Secretary of State that he has a fresh claim for asylum which, once the Secretary of State rejects it, would of course open the way for a fresh round of appeals. His first attempt was by obtaining reports about the document from a Mr Norton, the Director of the Centre for Turkish Studies at the University of Durham, a former Assistant Military Attache at the British Embassy in Ankara.
It is common ground that in considering whether a fresh claim for asylum has been made the Secretary of State may disregard any evidence which does not satisfy the Ladd v Marshall tests, but as to the rest must keep the question of whether the evidence is apparently credible separate from the question of whether the evidence is actually credible (in which regard see particularly Ex parte Boybeyi [1997] INLR 130).
The Secretary of State was not persuaded by Mr Norton's reports; rather he remained satisfied that the arrest document was a forgery. That decision was the subject of the second of the applicant's judicial review challenges. Leave to move was refused by Carnworth J at first instance and then by the Court of Appeal in the judgment to which I have already referred, on 12th June 1997.
As to the fresh evidence, Judge LJ at the conclusion of his judgment said this:
"It is perfectly true that the evidence of Mr Norton was not available to her, but it self-evidently could have been. Indeed, if, as is now asserted, it was crucial to the applicant's case, it is difficult to imagine how any representative could not have appreciated its possible importance. In those circumstance neither of the two areas of evidence put before the Secretary of State to persuade him to treat this case as a fresh submission amounted to fresh material at all. In any event, the question is whether the Secretary of State erred in such a way that this court could intervene. It is sufficient to say for the purposes of this judgment that no such error has, even arguably, been demonstrated. In the end, even with this fresh evidence, looking at all the evidence as a whole, there is no reason to conclude that a fresh hearing before a special adjudicator would lead to a different view being formed of the applicant's credibility or any other conclusion being reached than that he had not established within the appropriate principles a well-founded fear of persecution for a Convention reason."
Since that judgment the applicant and those acting on his behalf have made no fewer than four successive further attempts to persuade the Secretary of State that a fresh asylum claim has been made, the fourth being by way of the material now sought to be adduced as fresh evidence, which, as indicated, has...
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