Tribunal decisions

The decision

ar

GB and others (Credibility – Cross Examination) Turkey [2004] UKIAT 00143

IMMIGRATION APPEAL TRIBUNAL

HHeard at Field House
On : 4 March 2004 Date Determination notified
Prepared: 5 March 2004 08 June 2004

Before:

Mr H J E Latter (Vice President)
Mrs M Padfield, JP

Between
APPELLANT

and

Secretary of State for the Home Department
RESPONDENT

Representation
For the appellant: Mr D. Jones, Counsel, instructed by Wilson & Co.
For the respondent: Mr P. Deller, Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellants are all citizens of Turkey. They appeal against the determination of an Adjudicator, Mrs S. Bayne, who dismissed their appeals against decisions giving directions for their removal following the refusal of their claims for asylum.

2. The first appellant arrived in the United Kingdom on 22 July 2001 accompanied by the second appellant, her stepson, and her two daughters. The first and second appellants claimed asylum on 27 July 2001. On 28 August 2001 a decision was made to remove the first appellant following the refusal of her claim for asylum. On 18 September 2001 a similar decision was made following the refusal of the second appellant’s claim. The third appellant, who is the sister of the second appellant and the stepdaughter of the first appellant, has been in the United Kingdom since October 1999 when she arrived with her husband, Celal Aksu. He claimed asylum. That application was refused and his subsequent appeal was dismissed on 29 July 2001. The third appellant then applied for asylum in her own right on 26 September 2001 and on 13 November 2001 a decision was made to issue removal directions following the refusal of that claim. The appeals against these decisions were heard together by an Adjudicator on 12 September 2002 and 7 November 2002.

3. The first appellant clamed that she was born and brought up in an area of Turkey where the PKK were active. Her parents, her brother and her three sisters all continue to live in Turkey. She had three nephews who were involved with Dev Sol one of whom is Celal Aksu, the third appellant’s husband. The first appellant married Ali Bulbul in 1992 and then moved to Kadiri, to the Bulbul family home. She became stepmother to the second and third appellants as well as to their three siblings. Ali Bulbul worked as a builder. He was regularly away from home at different building sites. The first appellant claimed that although she was aware that her husband was involved politically with a pro-Kurdish political party, she was not aware of the extent of his involvement until after his death in 2000. She obtained this information from her husband’s cousin, Husseyin Bulbul, who had been actively involved with the political party in question and had himself been imprisoned as a result of this involvement. She claimed that her husband regularly held gatherings in the home but she was never involved nor was she told their nature. She believed that her husband had been detained by the police on many occasions.

4. In July 2000 police officers came to the family home and took her husband away. She said that this was the last time she saw him. She was informed the following day that he had died of a heart attack. She believed that her husband had been killed as a result of ill-treatment and torture by the police. She was visited by the police in February 2001 when the second appellant was arrested and detained. She claimed that he returned home with a burst eardrum as a result of ill-treatment by the police. This injury needed hospital treatment. There was a further visit a few days after the second appellant’s operation when she was manhandled and verbally assaulted. She began to make arrangements to leave the country with the assistance of an agent. The second appellant was arrested again on 5 July 2001 and detained. She was able to leave with the second appellant and her two small children on 15 July 2001. She travelled overland concealed in a lorry. Her claim for asylum is based on an assertion that she would be arrested and ill-treated by the Turkish authorities were she to be returned as a result of the political affiliations of her husband and her nephews.

5. The second appellant claimed that he had been aware of his father’s political activities throughout his life. His father had been arrested in approximately 1996 and then on many occasions prior to his last detention on 31 July 2000. He was always told about these detentions by the first appellant. He claimed that his brother, Erden, had been taken away by the police on several occasions. He had last seen his father when he was detained on 31 July 2000. The following day the family were notified of his death and the body was returned covered in bruises. He believed that his father had died as a result of torture and ill-treatment. He said that he had been arrested in February 2001 when police officers searched the family home. Nothing political was found but he was taken away and interrogated about his father, his uncle and his cousins. He was punched in the ear by one of the police officers. His eardrum burst and an operation was arranged the following day. He confirmed that he and his stepmother decided to make arrangements to flee. He was arrested again on 5 July 2001 when he was slapped and pushed. He was held until the evening before being released, having promised to give information to the police. Arrangements were finalised and they left Turkey on 15 July 2001. He claimed that he feared arrest, detention and ill-treatment from the Turkish authorities as a result of the political affiliations of his family and because of his own previous arrests. He fled having agreed to become a police informer and this would aggravate his position.

6. The third appellant claimed asylum following the refusal of her husband’s claim because no mention had previously been made of her own family’s political affiliations. She had been aware of her father’s political involvement and the involvement of his cousin Husseyin. Her father had been arrested on many occasions. She said that his last arrest had been on 1 August 2000. She had married Celal Aksu in September 1997. At that time she was unaware of his involvement with Dev Sol. Her husband was arrested on a number of occasions: six times during the five month period that they lived in his home area of Yekilsoy and a further six times after they moved to Goksun. They had decided to flee the country. In August 1999 her husband sold his shop in Goksun and went to Istanbul. He had arranged for her to go the Bulbul family home in July 1999 where she remained for three months. During this period the police came twice to question her about her husband. They fled to the United Kingdom in October 1999.

7. The Adjudicator accepted that all the appellants were Alevi Kurds and related as described. Ali Bulbul had been a successful self-employed builder who spent a large amount of time away from the family home on various building sites. All the appellants were vague in the extreme with regard to the nature of his political involvement. She accepted that there had been an occasion in 1995/1996 when Ali Bulbul was arrested and detained by the police overnight. She was not satisfied that he had been of any interest to the Turkish authorities or that he had been ill-treated in any way. He had been released without charge because he was of no interest to the Turkish authorities and no further interest was taken in the family thereafter. She did not believe that the third appellant and her husband had been of any interest to the authorities when they left in October 1999. She rejected the evidence relating to the death of Ali Bulbul. She was not satisfied that he had been arrested and detained at all in July/August 2000 nor, if he had died, that it was as a result of police brutality. She was not satisfied that any of the appellants were of any interest to the Turkish authorities when they left, nor that they had any family connections with prominent members of a separatist organisation. None of them would be viewed as suspected separatists either in their own right or by implication. All the appeals were dismissed on asylum grounds. The Adjudicator went on to consider the claims under the Human Rights Convention but found that there would be no breach of the United Kingdom’s obligations if the appellants were to be returned to Turkey.

8. Lengthy grounds of appeal were filed against this determination. Mr Jones accepted that they could have been drafted more succinctly. They can be summarised as follows. It is argued that the Adjudicator’s handling of the medical evidence was in error. The Adjudicator was wrong to permit the first appellant to be cross-examined. She failed to distinguish the two aspects of the medical evidence which had been firstly, to determine the first appellant’s level of cognitive function to ascertain whether she was intellectually impaired and secondly, a mental state examination to consider whether she was suffering from functional psychiatric disorder. Further evidence was adduced in supplementary reports from Dr Romanos and Dr Sheenan to reinforce the contention that the Adjudicator had failed to grapple effectively with the medical evidence.

9. It is further argued that the Adjudicator failed to give proper weight to the fact that the first appellant was suffering from some degree of emotional disturbance. She had given too much weight to her evidence compared with the evidence of the other appellants. The Adjudicator had failed properly to assess the expert evidence from Sheri Laizer. She had wrongly assessed the evidence relating to Ali Bulbul’s political activities and had erred in her treatment of the evidence of Celal Aksu and the determination of the Adjudicator who had dismissed his appeal.

10. Mr Jones adopted these grounds in his submissions. He accepted that he could not argue that it had not been open to the Adjudicator to permit the first appellant to be cross-examined on her oral evidence. However, the Adjudicator had failed properly to assess the medical evidence and this failure undermined her assessment of the credibility of the witnesses’ evidence. The Adjudicator had been selective in which parts of the medical evidence she had accepted. She had failed to treat the first appellant’s evidence with the necessary caution in the light of her mental condition. This seriously undermined her assessment of the evidence. She had attached too much weight to apparent errors in the first appellant’s evidence in her assessment of risk.

11. The Adjudicator had failed to give proper weight to the evidence from Sheri Laizer. Her evidence was mentioned almost as an afterthought by the Adjudicator. There was no adequate basis for rejecting the second appellant’s evidence. It was wrong to draw adverse inferences against the third appellant’s evidence in the light of the findings made by the Adjudicator in her husband’s appeal.

12. Mr Deller submitted that it had been a matter for the Adjudicator whether the first appellant should be cross-examined. There was no indication that she had been unable to give her evidence or that the Adjudicator had not dealt with it fairly. The Adjudicator had looked at the medical evidence and reached a decision properly open to her. It would be a matter for her to decide what weight to attach to the oral evidence. This was not a case where the first appellant's evidence had been rejected as unreliable and then used as a basis to point to discrepancies with the other oral evidence. Sheri Laizer’s report showed that the claims made by the appellants were plausible but it was for the Adjudicator to decide whether they were or might be true in accordance with the lower standard of proof. The Adjudicator had highlighted at length why she was not satisfied that the basic facts relied on by the appellants were made out. She had looked at the evidence as a whole and reached findings which were properly sustainable.

13. The Adjudicator was invited to deal as a preliminary issue with whether the respondent's representative should be allowed to cross-examine the first appellant. Normally it must be for a party’s representative to decide whether to call oral evidence or to rely on documentary evidence. A witness statement can only stand as oral evidence if the witness submits to cross-examination. If for whatever reason there can be no effective cross-examination, her witness statement may stand as documentary evidence to be given such weight as the Adjudicator feels appropriate in the light of all the evidence.

14. However, as the issue of whether the respondent should be permitted to cross-examine the first appellant was raised before the Adjudicator, she cannot be faulted for dealing with it, and indeed Mr Jones does not now seek to argue that her decision to permit the first appellant to be cross-examined was not open to her. When considering this issue, the Adjudicator has referred to the reports of Dr Sheenan and Dr Romanos in paragraphs 13 and 14 of her determination. She noted that the first appellant when seen by Dr Sheenan had been unable to give any details of the approximate geographical location of the region where she was born, purported to be confused when asked to recount where and with whom she lived in the United Kingdom. She said that she did not remember learning to read and write and that she liked school a bit but was unable to tell him any more about her experiences. When she was seen by Dr Romanos on 22 May 2002, she said that she loved school, got on well with her teachers and other children and was able to read and write in Turkish. The Adjudicator noted that Dr Sheenan had commented that the first appellant had a great difficulty in answering simple questions. It was not clear whether this reflected her reluctance to divulge information or an inability to do so. When she was unable to complete the ‘draw a person test’ Dr Sheenan stated that it was unusual even for a person with a diagnosed learning disability, regardless of education and cultural background, to be unable to attempt this test. It was not clear whether the first appellant’s performance reflected reluctance or an inability to complete the task. In Dr Romanos’ report he said that the first appellant’s concentration was very poor and although she showed a reasonable memory for past events, at times she found it difficult to give dates and became irritated when having to make an effort to remember. For the reasons which she summarised in paragraph 24 of her determination the Adjudicator was entitled to come to the view that there no reason why she should prevent cross-examination of the first appellant.

15. The main point made by Mr Jones in respect of the medical evidence is that the Adjudicator failed properly to take it into account when assessing the first appellant’s evidence and comparing her evidence with the evidence of the other witnesses. Following the hearing before the Adjudicator a further report was obtained from Dr Romanos. He has commented on the Adjudicator's findings and remains of the opinion that the first appellant’s mental state at the time of his assessment made her unable to cooperate with cross-examination as it was likely that she would have had difficulties in understanding questions and giving detailed and accurate answers. A cross-examination would have been likely to result in a further deterioration of her mental state with potential harmful effects. This report really does not take the matter any further. Having heard oral evidence from the first appellant it was for the Adjudicator to assess it and reach conclusions in the light of all the evidence. Mr Jones argues that the Adjudicator's assessment of credibility is undermined and made unsafe by the fact that she failed to approach the expert evidence in the right way. It is argued that she misunderstood or failed to appreciate the distinction between the level of the first appellant's cognitive function in deciding whether she was intellectually impaired and whether she was suffering from a psychiatric disorder: ground 3. It is said that irrespective of the cause of the first appellant's disability, the fact remained that she was unlikely to prove capable of presenting a reliable history and in these circumstances the Adjudicator was wrong to assess her evidence in the ordinary way and wrong to treat her as capable of adducing coherent evidence as opposed to assessing the evidence of competent and rational witnesses such as the second and third appellants and letting it take precedence over her evidence: see grounds 13 and 15.

16. In our judgment there is no substance in these grounds. Having heard the oral evidence it was for the Adjudicator to assess it. There is no reason to believe that she did not take into account the medical evidence which had been adduced. She considered it when deciding whether it was right for the first appellant to be cross-examined. There is no basis for finding that she then left that medical evidence out of account when assessing what weight to attach to her evidence.

17. The grounds go on to argue that the Adjudicator should have given more weight to the expert evidence in the report from Sheri Laizer and that she failed to review the background evidence in general. Sheri Laizer’s reports, which appear at A71-80 and 163-173, were commented on by the Adjudicator in paragraph 103 of her determination. The Adjudicator made the point that Sheri Laizer’s opinion was based on an account which the Adjudicator found to be unreliable. The Adjudicator came to the view that in the light of her findings the appellants would not be seen as separatists by the Turkish authorities. The expert evidence was based on an assumption that the accounts given by the appellants were true. The expert evidence may show, as in this case, that the accounts were plausible. However, it is for the Adjudicator to assess whether the accounts are true in accordance with the relatively low standard of proof.

18. It is also submitted that the Adjudicator erred in his findings on Ali Bulbul’s political involvement. At the hearing a number of refugee status letters were produced showing that other relatives had been granted asylum. It is argued that the Adjudicator failed to consider the fact that their relative Husseyin Bulbul was a prominent politician in Turkey and that one of his sons was a recognised refugee in the United Kingdom. The relevance of these issues was for the Adjudicator to assess. The Adjudicator has considered the position of Husseyin. He is referred to paragraphs 28, 55 and 99 of the determination. The Adjudicator makes it clear that she has taken into account the fact that Husseyin Bulbul, who was reportedly the most active political member of the family, was still living in Turkey as were the first appellant’s siblings and the parents of Celal Aksu. It is also argued that the Adjudicator was wrong in the way she treated the evidence relating to Celal Aksu. His appeal had been dismissed in a determination issued in 2000. In paragraph 82 of her determination the Adjudicator commented that Celal Aksu’s statement of 23 April 2002 did not reflect what had been said to the Adjudicator at the hearing of his own appeal. In our judgment, the Adjudicator was entitled to take into account the first determination and to give it such weight as she felt appropriate when assessing the credibility of the evidence before her.

19. In summary the Tribunal are not satisfied that the Adjudicator erred in her assessment of the evidence in such a way that renders her findings unsafe. She has not taken irrelevant factors into account or left relevant factors out of account. Having considered the evidence, she has set out her findings and reasoning in paragraphs 74-104 in respect of the asylum claim and in paragraphs 105-114 in respect of the human rights claim. The Adjudicator took the view that all the appellants were vague in the extreme with regard to the nature of Ali Bulbul’s political involvement: paragraph 74. She noted the contradiction in the evidence of the third appellant who described two specific occasions when Ali Bulbul was arrested at the family home in 1993 whereas the first appellant had made no reference to those incidents.

20. The Adjudicator did note the consistency in the evidence of one incident in 1995/1996 when Ali Bulbul was arrested. In the light of the background evidence it was not unusual for the police to arrest someone of Kurdish ethnicity whom they suspected might be involved with the PKK. She accepted that there was a reasonable degree of likelihood that this arrest had taken place. She noted the conflicting accounts given of the period between 1995/1996 and July 2000. The second appellant asserted that Ali Bulbul had been arrested on many occasions and that he had been told by the first appellant that his father had been taken away. The Adjudicator assessed the third appellant’s evidence, taking into account the evidence that had been given at the hearing of her husband’s appeal. Her comments in this respect set out at paragraphs 82 and 83 were properly open to her.

21. When considering the issue of the death of Ali Bulbul, the Adjudicator noted inconsistencies in the evidence which she has highlighted in paragraphs 86-88 of her determination. For the reasons which she gave she was not satisfied that the document purporting to be an official record was a genuine document but in any event noted that it gave no indication as to the cause of death. She took into account the fact that there was some inconsistency between all the appellants relating to the purported arrests and detentions of Erkan. She noted that a consistent account was given of his arrest on 5 July 2001 but, in the light of her other findings; she found it highly unlikely that he had been arrested on this occasion.

22. Looking at all these factors, in our view, it is not arguable that the Adjudicator's findings and conclusions were not properly open to her for the reasons she gave. She has looked at both consistencies and inconsistencies in the evidence and then looked at the evidence as a whole.

23. The grounds of appeal do not seek to challenge the Adjudicator's findings on human rights issues save to assert that her findings are grounded in her review of the facts relating to the claim under the Refugee Convention. It is argued that she erred in her assessment of the medical evidence relating to the first appellant and has failed properly to contemplate the extensive family ties enjoyed by the appellants in the United Kingdom. The Tribunal are not satisfied on the medical evidence that claims under Article 3 have any prospect of success in the light of the Court of Appeal judgments in N [2003] EWCA Civ 1369 and Djali [2003] EWCA Civ 1371. When considering family and private life, the Adjudicator noted that only one of the first appellant’s stepdaughters had leave to remain. The other members of the family were either failed asylum seekers or were waiting decisions in respect of their immigration status. Whatever family life existed, it had been formed in the full knowledge of the tenuous immigration status of all parties. She was not satisfied that there were any insurmountable obstacles to the appellants continuing family life in Turkey nor that removal would be disproportionate. These findings were clearly properly open to her on the evidence.

24. In summary, in the view of the Tribunal the grounds of appeal in substance amount to an attempt to re-argue issues of fact which have been fully considered by the Adjudicator who has reached findings which were properly open to her for the reasons she gave.

25. Accordingly, these appeals are dismissed.

H.J.E. LATTER
VICE PRESIDENT