Scottish Court of Session Decisions

"Please provide the Court with a copy of Asylum Seekers from Turkey (hereinafter ASFT), to which I shall refer in this report".

"Whilst I do not find that he supported the PKK as claimed in that he was not a member or in a position to provide them with support or that the authorities would have assumed he was in the PKK because he was a draft evader living in central Turkey of Alevi Kurd ethnicity, there remains the argument that the authorities would suspect him of being involved with the PKK once he had disappeared because of his earlier involvement with HADEP of which the authorities were apparently aware. I therefore turn to consideration of the evidence of the appellant's claim made by his representative in his submissions that he had a daily intense involvement with HADEP".

"From the late 1990s the appellant claims to have been an active supporter of HADEP to the extent that it was submitted on his behalf that he had a daily intense involvement with the organisation. He said he attended meetings once a month or so, particularly in Yusuf Akca's house who was his cousin. He was the main organiser of HADEP in the area. After evading military service he continued to work at his father's farm but lived elsewhere, including with his cousins who were HADEP members. He spoke at HADEP meetings far from his home and this is how he met his wife in 1993".

"However, I note that in the SEF form which the appellant completed with the assistance of his representatives and in which he was asked, 'The name of any political organisations with which you have been involved either in the United Kingdom or abroad' the appellant does not mention HADEP or any other political organisation save to say that he 'sympathised' with PKK but was not a member. Again, in his interview the appellant said that he had not been a member of a political party but he sympathised with Kurdish parties such as PKK, HADEP and DEP before it was closed down (B10, Q13). This completely contradicts his statement which he made after his application had been refused by the respondent. In that statement he said he was a member of HADEP from the late 1990s onwards. He said he was tired in the interview. However, I assume he was not tired when he completed the SEF form with his solicitor. He must have known whether or not he had been a member of any political party and to say on two occasions prior to refusal of his application that he was not now nor had been a member of any political party either in the UK or when abroad, and then to change this to a claim of being an active member of HADEP subsequent to the refusal of his claim for asylum is seriously damaging to his credibility. The picture the appellant paints of himself after the appeal as a very active member of HADEP speaking at meetings, etc is very different to the first picture he presented of himself. It is a very different thing to be a sympathiser of the PKK and previous parties concerned with Kurdish interests than to being a political activist travelling the country, attending and speaking at meetings which is what the appellant had changed his claim to by the time he made his statement after refusal of his claim. I note in the Statement of additional grounds filed in March 2001 and referred to above, neither the appellant nor Hatice Toker in her separate statement refer to his active membership of HADEP. Both she and he concentrate in these statements rather on the danger of the appellant being returned as a failed asylum seeker of Kurdish Alevi origin who had refused to undertake military service".

"I consider on this evidence that the claimed active membership of the appellant of HADEP was created to bolster his claim for asylum after the respondent's refusal.

The background material states that the government believes that many HADEP supporters had ties to the PKK or supported their agenda. HADEP offices were raided and HADEP officials such as mayors were detained although I note the areas mentioned are significantly further to the east or south of the country than Kayseri. However, I have found that the appellant was a supporter, not a member and did not hold a position with HADEP despite his later claims to be an active member and therefore he is not in danger of being suspected as a threat to the government on the grounds of any sympathy or support he has for HADEP".

"I note Mr McDowall states that nowhere is safe in Turkey if one is suspected of dissident views. The report to which he refers, 'Asylum Seekers from Turkey' was not enclosed in the bundle of papers. However, the appellant lives in the centre of Turkey as far as I can tell from the map, well away from the active PKK areas".

"Mr McDowall argues that as an Alevi Kurd he would be subjected to ill feeling from within the armed forces although he was not able to quantify the risk or provide evidence within his report. He referred to evidence regarding Kurds in the military service but none was produced with the report. The CIPU report states that both Turkish and Kurdish Alevis may be subjected to some bureaucratic discrimination as are other ethnic and religious minority groups in Turkey. However, it is stated in that report that there is no evidence that Alevis are persecuted on account of their religious beliefs by the Turkish State. He would suffer some consequences on his return as being an evader of military service. It is possible that he would be obliged to serve a sentence of imprisonment before being sent to carry out his military service. No differentiation is made between evaders who remain in Turkey and those who migrate abroad. The appellant would suffer these consequences whether he had given himself up in Turkey or upon his return. The evidence does not support the contention that such consequences would amount to persecution although I note that there is not much evidence in this regard. On the evidence before me I do not find that the appellant would suffer persecution because he is an Alevi Kurd in military service or by the fact he was an evader of military service".

"(3) The lynch pin of the adjudicator's repudiation of the appellant's account is her treatment at para.20 of her determination of the purported discrepancy between his evidence in SEF and at interview that he was a HADEP supporter/sympathiser and in his Witness Statement that he was a member who did not have a membership card. There are serious problems with the adjudicator's reliance on this point. By definition it was not raised in the RFRL since the Witness Statement by definition post-dated that. There was no HOPO at the hearing so the point was not put to the appellant in cross-examination. And although the adjudicator in her determination relies on the point, she did not herself put it to the appellant for explanation, notwithstanding that she questioned him on other matters to an extent perhaps inconsistent with due impartiality; furthermore the appellant's representative was at no time invited to comment on the point. It is submitted that the appellant's representative could be forgiven for failing to identify the point as an obvious discrepancy crying out for explanation during examination in chief.

(4) It is therefore submitted that the adjudicator has found against the appellant on a point which ought to have been put to him for explanation. That submission is made with particular force in the light of the views of the Tribunal in Mayisokele (13039) that care must be taken in making a determination turn on discrepancies of this kind. Under these circumstances, the Tribunal is craved to receive a Supplementary Witness Statement of the appellant which contains his explanation of the point".

"The Adjudicator in a lengthy and carefully considered determination does not show an over eager inclination to base her decision on credibility. The grounds of appeal should not make veiled submissions of possible over-involvement by the Adjudicator without detail or supporting evidence. The reasons for the partial adverse credibility finding are compelling. There is no obligation on an Adjudicator to put to an Applicant every point on which she subsequently relies in reaching an adverse credibility finding. Had she done so there might have been some justification for the suggestion of over involvement".

"(iv) Where credibility is raised in the refusal letter, the special adjudicator should request that the appellant's representative address those matters in examination-in-chief or in submissions. The special adjudicator is then entitled to form his own view as to credibility irrespective of whether the matters are addressed.

(v) Where no matters of credibility are raised in the refusal letter but, from reading the papers, the special adjudicator considers that matters of credibility do arise, those matters should be pointed out to the appellant's representative and request should be made that the appellant's representative address these matters in examination-in-chief or in submissions".

"(vii) Although it is not the function of the special adjudicator to raise a matter which may have been raised by the Secretary of State's representative in cross examination had he been present, a special adjudicator can, after having received the evidence or submissions in relation to matters which he has drawn to the appellant's attention, ask questions in order to clarify any matters.

(viii) Where the refusal letter does not raise matters which the special adjudicator considers relevant and important such as, for example, whether internal protection was open to the appellant or whether the existence of a civil war in the appellant's country precluded refugee status, he should raise these matters with the appellant's representative and invite submissions".

"In this case leave to appeal to the IAT from a decision of the adjudicator had been refused by the Tribunal but that refusal was later quashed by the High Court. In his judgment Ognall, J. had stated that it was not apparent from the determination that the adjudicator had afforded the appellant an opportunity of dealing with the perceived discrepancy in his evidence, and that the adjudicator was arguably wrong in founding his opinion on the credibility of the appellant on the discrepancies which the adjudicator saw between the two sets of information given at two different stages.

Decision: Referring to the above judgment of Ognall J. (with respectful approval) the Tribunal stressed that 'where an adjudicator relies on what appears to be a discrepancy in statements made by the appellant it is incumbent upon the adjudicator that the appellant be given an opportunity to deal with that matter. If the matter is not covered at the hearing and the adjudicator has not given any indication of his doubts the adjudicator should seriously consider whether the matter should be re-listed".

"The BIA must provide a petitioner with a reasonable opportunity to offer an explanation of any perceived inconsistencies that form the basis of a denial of asylum".

"The relevant jurisprudence establishes that inconsistencies in the claimant's evidence from which a board may find a refugee claimant not credible must be put to the claimant and the claimant afforded an opportunity to explain the alleged inconsistencies. A review of this record indicates that this applicant was not confronted with the alleged inconsistencies in her evidence and given an opportunity to respond, as is required by the rules of natural justice".

"I am concerned that in your SEF you do not mention any involvement with HADEP and at interview you simply stated that you were a sympathiser and not a member. It is only in your witness statement, for the first time, that you claim to have been an active member of HADEP. What is your explanation for that?".

"Ultimately, it would seem that it was largely upon Mr McDowall's evidence that the Adjudicator was able to conclude that it had not been established that the petitioner would suffer persecution because of being an Alevi Kurd in military service even having been an evader of the draft".

"The Government believes that many HADEP supporters had ties to the PKK or supported their Agenda".

"the Secretary of State in his letter refusing asylum ... had indicated extremely clearly that he did not accept the credibility of the applicant as an asylum seeker....It therefore must have been apparent to the applicant and to those advising him at the hearing before the special adjudicator that the credibility of his account ....was seriously in question".

"The special adjudicator, having read the applicant's statement and having heard his evidence, did not believe what he had been told"

"I am driven to the same conclusion as that reached by the Immigration Appeal Tribunal that this was a carefully considered determination by the Adjudicator in which her stated reasons for rejecting the petitioner's evidence are compelling and in which she reached conclusions which she was well entitled to reach".

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision".

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved".