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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Demir v Secretary Of State For Home Department [2001] EWCA Civ 1531 (10 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1531.html Cite as: [2001] EWCA Civ 1531

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Wednesday, 10th October 2001

1. LORD JUSTICE SCHIEMANN: Before the court is an appeal from the Immigration Appeal Tribunal in an asylum case. The appellant is a Turkish national of Kurdish origin who sought asylum in this country. He arrived here on 11th February 2000. The respondent refused his asylum claim. He appealed to a special adjudicator. That appeal was dismissed. He was granted permission to appeal to the Immigration Appeal Tribunal and that appeal was heard and dismissed. He applied for permission to appeal to this court, which was refused by the tribunal but granted by me, and we have heard his appeal.
2. The basis of his asylum application was a fear of persecution said to arise from the fact that he was of Kurdish origin and had been a sympathiser of the illegal terrorist organisation the PKK, and that he had a brother who had died in 1992 in police custody in circumstances where there was strong suspicion, so it was claimed, of police malpractice. There was no suggestion that he had himself been a member of the PKK, but he claimed that he had been detained and ill-treated on a number of occasions by the Turkish authorities and that he was still wanted by the authorities, who would (or at any rate there was a risk that they would) maltreat him if he were returned. The special adjudicator accepted that the appellant had been a PKK sympathiser, but found that this was at a low level and not such as to have warranted any interest by the authorities.
3. In broad terms, the detentions of which the appellant complains and which are said to give rise to his present alleged fear of persecution occurred in three categories. There were some when he was still at school in the mid-1980s. There were a number in about 1994 which were related to the fact that he sought to evade military service and had escaped from military service whilst he was doing it. Then there was a final detention (which was described as being in 1998, but I think it must have been in 1999) which was said to have been four months or so before he left Turkey and came to this country.
4. The decision of the Immigration Appeal Tribunal of which complaint is made contains the following paragraphs:

"9.The Adjudicator believed the appellant's evidence with regard to his involvement with the PKK. It was the appellant's own evidence that he had never been a member of the PKK and that his involvement with the PKK was limited to providing the PKK food and shelter on an irregular basis.

10.It was the appellant's evidence that he had been called up for military service in 1992 but he had evaded the call up for two years. He was arrested in 1994, detained for two days and sent to do military service. He absconded from the army after seven or eight months. He was arrested again and returned to military camp. After twelve months he absconded again but was arrested three days later. He then completed his military service in 1997. In relation to these arrests and detentions, the Adjudicator quite properly, in our view, concluded that these were caused by the appellant's evasion of military service rather than due to any sympathy that he had for the PKK or any activities that he was engaged in on their behalf. Although most of these arrests took place according to the appellant while he was attending meetings or rallies, the short periods of detentions and the consequences following the detentions lend strong support for the conclusion drawn by the Adjudicator.

11.After completion of his military service, according to the evidence of the appellant, he was arrested and detained once in 1998, three or four months before his departure from Turkey for the United Kingdom. On this occasion, said the appellant, he had attended a protest rally in support of Abdullah Ocalan. He was ill-treated and his detention exceeded the legally permitted period but the extension was authorised by the DGM. On release he was told that he would be summoned to appear in court and that he would be sent papers about the hearing date. According to him, he had given the police a wrong temporary address and feared that there would still be a case outstanding against him. He stated that he had given the police his permanent village address too and that the police had contacted his father who had told them that he did not know his whereabouts as he had moved to Istanbul. The appellant stated that he had heard nothing further about the case as he was not planning to return to Turkey and was therefore not interested. It is fair to say that the appellant was inconsistent in his evidence about the exact timing of the rally. It is also important to note here that following his release the appellant remained in Turkey for a few months and during that time he encountered no further difficulties. In our view, the Adjudicator faced with this evidence was quite correct in her conclusions that the arrest and detention did not take place.

12.Having reviewed all the evidence, we have concluded that the Adjudicator's findings on the credibility of the appellant's claim were not flawed and that all her material findings are well supported by evidence and are properly reasoned.

13.With regard to the objective evidence, we see nothing therein to suggest that the appellant will be at risk of persecution for a Convention reason on his removal to Turkey. According to the findings of fact made by the Adjudicator, which we fully endorse, the appellant was never arrested or detained for any political activities. He was at best a sympathiser of the PKK. He has had no adverse experiences or problems with the authorities after completion of his military service in 1997. In the circumstances we agree with the Adjudicator that the appellant has failed to establish on the standard of reasonable likelihood that he has a well founded fear of persecution for a Convention reason in Turkey."

5. The main complaint made in relation to that decision by the Immigration Appeal Tribunal is that, in substance, it adopts the adjudicator's decision. Mr Halligan criticises the adjudicator's decision and says that, if his criticisms of the adjudicator's decision are right, the Immigration Appeal Tribunal must have been wrong to accept it. It is therefore right that one should set out the appropriate paragraphs of the adjudicator's decision, which are as follows:

"5.1I have duly weighed and evaluated all the evidence. I find that the Appellant is not a member either of PKK or Hadep although he is a low-level supporter/sympathiser of the former but that his involvement was peripheral and would not have warranted any adverse interest in him by the authorities. I find that insofar as Hadep is concerned, he did no more than cast a vote for it and I find this surprising given that it is a Party with which I would expect him to have a large degree of sympathy. He has stated that he hated the authorities because they were responsible for his brother's death yet I find it incredible that he could do no more than vote for Hadep yet he was prepared to assist an illegal terrorist organisation in the way that he did. I find it inexplicable that he could not see his way to assisting a legal political party which according to the background material won control of several municipalities in the south east. I find that the detentions in 1994, if they did occur, were linked not to the fact that the Appellant was a Kurd or a sympathiser of the PKK but to his evasion of military service. In his asylum interview, the Appellant claimed that he was taken away by the police from his shop on two occasions, but not arrested, that the shop was in a Turkish area and that it was boycotted because customers had heard that he had been detained and were aware of his brother's death. I find it improbable that customers would be influenced in this manner particularly as the shop problems, if they did occur, occurred in 1997, five years after his brother's death. I find therefore that there is no evidence to support the need for the Appellant to leave Maras because of his brother's death in 1992.

5.2The Appellant has claimed that his detention was extended by the DGM. The background material suggests that the DGM concerns itself largely with more heinous crimes than that in which the Appellant was involved (attendance at a rally). The Appellant claims that the case against him was still outstanding when he was released and that it would continue if he were to return. I find it improbable that when he gave his address to the police as an hotel in Istanbul that the police would not check the information given and I find this is even more improbable given that the Appellant stated that he did not, at the time, have his ID card with him. The background material suggests that this alone would give rise to suspicion. There are regular ID checks made by security forces and the Appellant did not experience any difficulty during the months he remained in Istanbul after the rally. As regards the outstanding case against him, according to the Appellant's own admission, his father has not received any relevant papers on his behalf and has heard nothing further about it. And as the Appellant's father was viewed by the police as a contact point with the Appellant, I find that if there were any papers to be served on the Appellant, it would have been the Appellant's father who would have received them. The fact that he did not do so, I find, must mean either that there is no case outstanding against him or the so called case has been concocted by the Appellant in an effort to shore up his weak claim for asylum.

5.3As regards the reason and date of the rally, the fact that the Appellant is unsure whether or not at the time it occurred a death sentence had been passed against Ocalan is not credible. I find that it is not plausible that, given the Appellant's claim to have regular contact with associates in the PKK, that he would not have known about this and his lack of knowledge casts considerable doubt on his credibility as to whether or not there was such a rally or if there was that he had actually attended it.

5.4I find that the Appellant had no adverse experiences or problems with the authorities on completion of his military service in 1997. Upon his return to Turkey as a Turkish speaker of Kurdish origin who has completed his military service and has no known connections to the PKK or other illegal groups, I do not find that there is a reasonable likelihood that he would face persecution. I find that upon his return to Turkey without any papers, he would be detained and interrogated and it would be established that he had left the country, did not have any papers and was a Kurd. However he has undergone military service so he would not be liable to prosecution for draft evasion. Background information suggests that a returnee who is not in possession of valid Turkish travel documents is likely to be kept in custody and interrogated. During that interrogation all relevant information including reasons for leaving Turkey, possible criminal records and contacts with illegal Turkish organisations will be unearthed. Enquiries would be made to find out if the returnee is liable to prosecution for a criminal offence. Information currently available indicates that undocumented returnees are not, in general, ill-treated while in custody, but ill-treatment cannot be ruled out where returnees are suspected separatists. However, I find that there are certain features about this Appellant which suggests that he would not be amongst those at particular risk of such ill-treatment. His connection with the PKK, if any, has been peripheral. I have already stated above that I find that he is not wanted for a political crime and that he has no criminal or political record in Turkey. I find therefore that the risk of the Appellant being ill-treated is not a real one. The Appellant has not discharged the burden of proof that is upon him to show that he has a well-founded fear of persecution for a Convention reason."

6. The appellant says - and, for my part, I have some sympathy with the submission - that the special adjudicator was perhaps wrong in the surprise which she expressed in paragraph 5.1 at the appellant's failure to do more than cast a vote for Hadep, or, in particular, given that he was not prepared to do more for Hadep, that he was, so he claims, prepared to assist an illegal terrorist organisation. However, assuming that criticism to be well founded, it does not seem to me to detract significantly from the remainder of the adjudicator's finding. I find, as did the Immigration Appeal Tribunal, that what she says in relation to the detentions in 1994, if they did occur, namely that they were linked to his evasion of military service, was a conclusion which was well open to her and, indeed, a natural one to which to come.
7. More crucial, as it seems to me, is the evidence in relation to the rally. For my part, I would have found it slightly easier to understand the adjudicator's decision if paragraph 5.3 had preceded paragraph 5.2. The position in relation to Mr Ocalan is that he was arrested in February 1999 and the death sentence was passed upon him in June of that year. The special adjudicator says that it seems odd that the appellant, if he was protesting in August or September of that year, should not have been clear as to whether the protest was against the death sentence or against the arrest.
8. The adjudicator's reasoning in paragraph 5.2 is essentially this, as I see it: that if there had been a concern by the DGM which was still continuing, more would have happened during the time that the appellant remained in Turkey prior to leaving for this country. She says that, so far as the outstanding case against him was concerned, if there were any papers to be served on him, they would have been served on his father, who was seen as a contact point. In those circumstances, therefore, either the whole suggestion of a case against him which was still outstanding was concocted by the appellant or, alternatively, she seems to say at the end, if there was indeed a case, there was no enthusiasm by the authorities to pursue it.
9. That in itself seems at that stage to leave open the question whether or no he did indeed have any difficulties with the authorities. However, when she gets to paragraph 5.4 the adjudicator makes an unequivocal finding that the appellant had no adverse experiences or problems with the authorities on completion of his military service in 1997. So far as that is concerned, therefore, it looks as though all the past history prior to the events, if any, in 1999 is of no present relevance at all. It may be (but it is not perhaps absolutely clear) that in the first sentence of paragraph 5.4 she finds that he did not attend the rally at all. My suspicion is that that is what she was finding; and certainly that is the conclusion to which the Immigration Appeal Tribunal came in the last few words of paragraph 11 of their decision.
10. The appeal to this court is only on a matter of law. The crucial question before both the special adjudicator and the Immigration Appeal Tribunal was whether, if this gentleman were to be returned to Turkey, he would be exposed to a risk of the appropriate gravity of persecution for a non-Convention reason. Each of them came to the conclusion that he would not. The adjudicator found that the risk of him being ill-treated was not a real one. The Immigration Appeal Tribunal says, in paragraph 11, that it is important to note that following his release (on the assumption that he was at the rally) the appellant remained in Turkey for a few months and during that time he encountered no further difficulties.
11. In those circumstances, as it seems to me, the Immigration Appeal Tribunal was entitled to come to the view that this person has not made out his claim to asylum. Although the decisions are phrased with perhaps a slight ambivalence as to whether or no they accept his account of what happened at the time of Mr Ocalan's detention, they were entitled to come to the conclusion that his claim was not made out and, in coming to that conclusion, did not err in law.
12. Therefore, although I gave permission for the matter to be further argued before this full court, I would dismiss this appeal.
13. LORD JUSTICE WALLER: I agree.
14. It seems to me that the special adjudicator made certain findings. First, she found that the appellant's connection with the PKK was peripheral. Second, she found that the arrests that occurred during the period 1994 to 1996 were concerned with evasion of military service. Third - and, as it seems to me, this was key to the special adjudicator's ultimate conclusion - she found that the appellant's story that he had attended a rally relating to Abdullah Ocalan's arrest in 1999, that he had then been arrested, his detention had been extended and he had been ill-treated, and his story that there was an outstanding case against him, were simply not true.
15. These latter findings are, as it seems to me, clear from paragraphs 5.2 and 5.3 of the special adjudicator's reasons, when one has regard also to the first sentence of paragraph 5.4, where she says: "I find that the Appellant had no adverse experiences or problems with the authorities on completion of his military service in 1997."
16. I agree with my Lord that those paragraphs could be more felicitously expressed. Indeed, I agree with my Lord that the order of them can be said to be somewhat illogical. But I have no doubt, when one reads that sentence at 5.4, of the clear findings that the special adjudicator was making. Then, of course, there must be added the fact that the Immigration Appeal Tribunal itself reviewed the evidence and heard submissions and came to the clear conclusion, in paragraph 11 and, in particular, the last sentence of paragraph 11, that:

"... the Adjudicator faced with this evidence was quite correct in her conclusions that the arrest and detention did not take place."

17. Given those conclusions, which in my view cannot be described as perverse or improperly reasoned, the ultimate conclusion reached by the special adjudicator and the Immigration Appeal Tribunal was one to which they were fully entitled to come. Thus I agree that this appeal should be dismissed.
Order: appeal dismissed.