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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ozcan, R (on the application of) v Immigration Appeal Tribunal [2002] EWCA Civ 1133 (30 July 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1133.html Cite as: [2002] EWCA Civ 1133 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
(Mr Justice Scott Baker)
Strand, London, WC2A 2LL | ||
B e f o r e :
LORD JUSTICE JUDGE
and
SIR MURRAY STUART-SMITH
____________________
THE QUEEN ON THE APPLICATION OF INANC OZCAN | Appellant | |
- and - | ||
IMMIGRATION APPEAL TRIBUNAL | Respondent |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Jenni Richards (instructed by Treasury Solicitors) for the respondent
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Potter:
INTRODUCTION:
“Subject to any requirement of the rules of procedure as to leave to appeal, any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the Appeal Tribunal, and the Tribunal affirm the determination or make any other determination which could have been made by the adjudicator.”
“Leave to appeal shall be granted only where –
a) the Tribunal is satisfied that the appeal would have a real prospect of success; or
b) there is some other compelling reason why the appeal should be heard.”
“3. You have applied for asylum on arrival in the United Kingdom on September 29th 1999. You claimed that you had been persecuted by the Turkish authorities and members of the MHP (Nationalist Action Party) because of your Kurdish Alevi ethnicity and your political identity as a TDKP (Turkish Revolutionary Communist Party) supporter. You were also persecuted after you witnessed a murder in April/May 1999.
You stated that you had migrated to Mersin from your village in Goksun in 1990 because you had been put under pressure by the PKK (Kurdistan Worker’s Party) and the authorities. The military was pressurising you into becoming a village guard and the PKK were demanding you help them. You claimed that since living in Mersin you have been arrested on four or five occasions for undertaking activities for the TDKP. On each occasion you were detained for three or four days, tortured, and then released without charge.
In April/May 1999, you were travelling in a dolmus when the vehicle was stopped by five armed men who claimed to be MHP supporters. They began to argue with the driver of the dolmus, stating that he should not be driving on their territory. The argument continued and the men then shot the driver dead. The armed men threatened you ands the other passengers that you should not act as witnesses to the event. However, when the police arrived at the scene, you and another passenger came forward and reported the incident. You were asked to go to the station where you gave a full witness statement. A week after you had given this statement, you started receiving threats. These soon became death threats and you decided to go into hiding. You remained in hiding until you left the country on 20 September 1999 concealed in the back of a lorry.
You claimed fear of persecution in Turkey because of your Kurdish ethnic origin…”
THE APPELLANT’S EVIDENCE
THE FINDINGS OF THE ADJUDICATOR
“If, as I assume, Mr Ozcan is not in possession of a valid travel document, he will be fully interrogated by the Anti-terror Police if he is returned to Turkey. This is likely to take 24 hours or more. During this process it will be established that he is originally from Goksun, a contested area where the local Alevi Kurdish population was deemed to be largely sympathetic to the Kurdish guerrillas. A check will also be run on him in Mersin and there is clearly the danger that the police there will inform Istanbul that they wish to interview him and that he should be transferred to Mersin for further ‘interrogation’. I cannot say it definitely will happen, but I do think it is a distinct danger. It is very difficult to know the extent of the MHP networks inside the police, but I think one has to assume they are pretty extensive.
I think one also should bear in mind the routine and systemic nature of torture while in detention. I append my file of e-mail press cuttings of the recent findings of the Turkish Parliamentary Human Rights Commission. ….. Most significantly, the Commission has clearly fingered the highest levels of the State as sanctioning torture, thus not allowing government ministers to get away with their usual excuses that it is simply regrettable misbehaviour at junior levels. I could not therefore put my hand on my heart and opine that your client would be safe if he returned to Turkey. There seems to me to be a clear risk that he might suffer miss-treatment if he returned.”
“95. For the reasons set out, while I accept that the appellant’s account of his own and his family’s problems in Goksun up to 1990 is reasonably likely to be true, and also his account of his own and his family’s problems in Mersin up to 1995 is reasonably likely to be true.
96. However, I do not accept that it is reasonably likely that:
a) The appellant has been arrested on a frequent basis since 1995.
b) The police or the MHP had any interest in the appellant at the time he left Turkey.
c) The situation has changed in the meantime.
97. Neither the subjective nor the objective element of a well-founded fear of persecution for a Convention reason has been established to the required standard, and the appeal is dismissed.
98. As regards returnability, I note what Mr McDowall says on page 60, but in view of my assessment of the evidence I do not consider that the appellant is in a vulnerable category which might prejudice his treatment on arrival at Immigration Control in Turkey.”
THE GROUNDS OF APPEAL
THE BACKGROUND EVIDENCE
(a) Article 169 of the Turkish Penal Code makes ‘aiding an illegal organisation’ an offence. That offence falls within the jurisdiction of the State Security Court in respect of which offences or suspected offences a person detained may be held incommunicado (see CIPU report 4.9-4.11).
(b) In November 1998 the Special Rapportuer of the UN Commission on Human Rights found that while torture was not systematic in Turkey in the sense that it was approved of and tolerated at the highest political level, in relation to offences falling under the jurisdiction of the State Security Court:
“the practice of torture may well, in numerous places around the country, deserve a categorisation of systematic in the sense of being a pervasive technique of law enforcement agencies for the purposes of investigation, securing confessions and intimidation in numerous places around the country. This was especially true if the less extreme, but still serious, forms of torture or ill-treatment referred to above are taken into consideration.” (CIPU Report, para 5.2).
(c) the PKK (which the appellant had been accused of supporting prior to 1990) and the TDKP of which he had been an active supporter and in connection with which he had been detained and tortured prior to 1995, are both illegal political organisations.
(d) the opinion of the UNHCR is that in Turkish cities where there has been a large influx of Kurds, the group most likely to be exposed to harassment/persecution/prosecution are Kurds suspected of being connected to or being sympathisers with the PKK.
“in view of the above, UNHCR advise that it is essential to find out if Turkish asylum seekers, if returned, would be at risk of being suspected of connection to or sympathy with the PKK or have otherwise a political profile. If this is the case, UNHCR continue, they should not be considered as having been able to avail themselves of the option to relocate in the region outside the south-east of the country”. (See CIPU Report, para 7.28).
e) Evidence as to the treatment of asylum seekers returned to Turkey, summarised in the CIPU report includes the fact that returnees known to the police for any reason may be taken into custody for interviews; those without documents will be subject to an ‘in depth interrogation’ referring, inter alia, to contacts with illegal Turkish organisations; in some cases enquiries will be made with other Government offices; ill-treatment cannot be ruled out in cases where returnees are suspected separatists; there has been an increasing number of cases lately where returned asylum seekers were picked up later by ‘unknown men’ and beaten up or arrested by the police and taken into police custody in order to obtain confessions from suspected persons. Finally the CIPU report states that:
“7.37 Being of Kurdish origin does not in itself constitute a higher risk of inhuman treatment. Everything depends on the individual and his activities in Turkey and abroad.”
“I come at last to my conclusion. It is not one that I found easy to reach. It can now, however, be stated very shortly. Despite the great wealth of material available to show that grave human rights abuses still regrettably occur in Turkey, and despite the lingering sense of unease which one must inevitably feel at the return of those like this applicant to Turkey, I am unable to hold that the Secretary of State was bound to find the risk of this particular applicant being ill-treated to be a real one. Clearly there exists a conflict of opinion as to the degree of risk faced generally by returnees to Turkey. I cannot say that the Secretary of State has not conscientiously appraised the question. Whether I myself would necessarily have made the same judgment is immaterial. His judgment, I conclude, was reasonable. It is therefore unassailable.”
“Persons who are suspected of having the slightest links with the PKK are detained and kept in detention. It is known that they are at times subjected to torture and ill treatment and cases of extra-judicial executions have been reported.
In view of the above, it is essential to find out if Turkish asylum seekers, if returned, would be at risk of being suspected of connection to or sympathy with the PKK, or have otherwise a political profile.”
The advice in this letter is plainly that referred to in the extract from the CIPU report which I have quoted at 14(d) above.
“4. What the Special Adjudicator did not do, unfortunately, was to consider whether, on return, the Appellant would fall foul of the authorities because of the involvement of his family with the DHKP. The Tribunal is aware from many cases involving Turkish Kurds that there is a real risk that on return, they will be interrogated and indeed may be detained for a period while interrogated. If there is no reason to connect them with any past activities which would have drawn them to the attention of the police, then the likelihood is that they will be released and there is no reason to believe that there is a real risk of persecution, notwithstanding the Turkish Authorities propensity to engage in torture. But the situation may be somewhat different if there is a reason for the authorities to link the individual with activities of which the authorities disapprove and that clearly seems to us to be the position here, having regard to the activities of the family. We should say that although it is not entirely clear from the adjudication, it does not seem that the Special Adjudicator was rejecting the Appellant’s account so far as it related to the involvement of his family.”
“We would like to make it clear, largely because there is too great a tendency to cite decisions of the Tribunal in cases such as this as precedents, that this is not a precedent. This is a case which is decided, as so many are, purely on its own facts….”
“I cannot accept that in such a situation an adjudicator is required to spell out a detailed analysis of the numerous reports and documents produced by way of background material in such a case. It would, as Mr Hunter submitted, place an intolerable burden on adjudicators. It is to be borne in mind that the duty is to give reasons for the decisions reached, not to give reasons for every individual conclusion arrived at in the course of the decision. As was said in Reg –v- Criminal Injuries Compensation Board ex parte Cook [1996] 1 WLR 1037, the reasons should contain sufficient detail to enable the reader to know what conclusion has been reached on the principal important issue or issues, but it is not a requirement they should deal with every material consideration to which they have had regard. It is not necessary to demonstrate that “the conclusion has been reached by an appropriate process of reasoning from the facts”: per Aldous LJ at 1043 CD and 1045D.”
See also R -v- Secretary of State for Home Department, ex parte Befekadu [1999] Imm AR 467 at 474-5.
Lord Justice Judge:
Sir Murray Stuart-Smith