Ates v Secretary of State for the Home Department

J U D G M E N T

Tuesday, 5th October 2004

1. LORD JUSTICE BROOKE: This is a renewed application for permission to appeal against a decision of the Immigration Appeal Tribunal on 26th May 2004, when they dismissed an appeal from the decision of an adjudicator on 29th April 2004, who had in turn dismissed an appeal by the appellant against a refusal letter from the Home Office dated 20th April 2004. This is one of the early cases in which this court is watching the way in which the carriage of these asylum appeals is being expedited.

2. The appellant himself arrived in this country from Turkey on 12th April. His account of the matter, as recorded by the Home Office in the refusal letter, was that he was tortured for three days after being detained on 1st March 2004, not very long before he came to this country. Throughout the three days he was beaten with truncheons, hosed with pressurised water on his naked body, sworn at and had falaka, and after the falaka he could not walk because his feet had been hit. He had been tortured by three, five or ten people at a time, sometimes for half an hour, sometimes for an hour, sometimes for 15 minutes and so on. Eventually he signed a piece of paper, after being tortured for three days, and was then taken to a high ranking officer who said that he had a signed statement and asked him to bring him news every 15 days. He said he was taken home by a taxi driver all bruised. A nurse looked after his wounds. He had bruises on his back and he could not walk for a week.

3. The Home Office, in rejecting his claim, said that if he was beaten as badly as he claimed, he would have received more severe injuries than he claimed. A point was then made that he had not mentioned receiving treatment for the injuries he claimed in his first screening interview.

4. However that may be, the matter then came before Mr Hanratty, sitting as an adjudicator. He recorded the evidence that the appellant gave about the torture. He said he had bruises on his back and swollen feet from the torture he received, which consisted of pressurised water and being hit and punched. The bruises had vanished and there was only one small mark on his shin, just below his left knee, where he had been kicked with a boot. He could not walk for a week after his treatment.

5. In his determination Mr Hanratty said at paragraph 13 that he asked a few questions to clarify the issues in his own mind and to give the appellant a greater opportunity to explain his case. Although criticism was made of other interventions, by the time the matter came before the Tribunal what was really at issue was the nature of the questions Mr Hanratty asked after the appellant had completed his evidence, and this is the part of the determination which I now come to.

6. The adjudicator said that he asked the appellant to describe precisely the nature of the ill-treatment he said he received. He had told him he was very sympathetic to people who had suffered from torture. He recognised that it was such a dreadful experience that sometimes it was not possible to give a coherent account of torture, which was both physical and mental degradation of an individual. The appellant eventually said that on the first day of his treatment he was hit with a cane about three foot long on his feet and suffered Falaka for about 100 to 120 strokes, that was in the morning. In the afternoon he received further ill-treatment, including being hit with truncheons and being kicked. On days 2 and 3 it was more or less the same. On day 2 he was hit about 120 times in the morning in the falaka and he was kicked in the afternoon and given pressure water hose treatment. On day 3 he was not given falaka, he was ill-treated and hit with sticks and kicked.

7. The adjudicator said that he would still be in need of serious medical treatment and his feet would show signs of dreadful torture and injury, but the appellant had told him that the wounds healed fast.

8. The adjudicator, after summarising the evidence at the end of his determination, said that there was only a small mark on his shin below his knee and if the appellant had received anything like the severe falaka treatment he described, he would quite possibly have been crippled. He would still be in need of serious medical treatment and he had not drawn any injury like this to the attention of anyone in the medical services in the detention centre. There was no medical report before the adjudicator, who said that medical reports were often produced, even in fast track cases. He concluded that the appellant's description of his ill-treatment was clearly a fabrication and therefore the whole case fell apart.

9. It is important to notice the way in which the adjudicator explained why he was asking the questions - that was to clarify the issues in his own mind and to give the appellant a greater opportunity to explain his case.

10. When the matter came before the Immigration Appeal Tribunal they recorded that there had been no allegation of improper conduct or bias, except of course for the allegation of apparent bias. There was no allegation of hostility by the adjudicator. There was no allegation that he had asked the appellant too many questions on the subject of the alleged ill-treatment. The only objection was with regard to the adjudicator's questioning about the number of times the appellant was subject to falaka. His representative described it as "a dogged pursuit of the issue". The questions were hostile in nature, although not in the manner in which they were put.

11. The Tribunal recorded in paragraph 10 the nature of the questions insofar as they were recorded contemporaneously. The questions by the adjudicator on the alleged torture ran through, in question and answer form, from L17 to L42, so that there were about 13 questions and answers in all. Towards the end, after the adjudicator had asked the appellant to do his best to describe what happened each day, the adjudicator said:

"I have studied torture, I have been on courses. It goes on in countries including Turkey. Falaka is a horrendous torture. I have to put it to you, you would not be walking. At the very least I would have a medical report to show what injuries you have."

There was an objection to this question, but the adjudicator sought an answer, and the answer was, "I said to you, I can't remember, I was hit a lot".

12. In the way in which the Tribunal handled the matter before dismissing the appeal they referred to a number of cases involving observations about questions by an adjudicator. They observed that it was clear that there was no objection in principle to the adjudicator's questioning of appellants:

"The issue we have to determine is whether the Appellant has had a fair hearing. Would an independent and fair-minded observer sitting at the back of the hearing room who is in possession of all the material facts and circumstances conclude that the Appellant had had a fair hearing or not?"

Then after making the observations I have already recorded about the nature of the challenge to the adjudicator's behaviour, the Tribunal said at paragraph 25:

"As we have said, the weight to be given to the lack of medical evidence and the limited scarring depends on the severity of the alleged ill-treatment. It is clear, from the Adjudicator's questioning, that this is the point he focused on. Rather than 'doggedly pursuing' the point, we are satisfied that he was trying to get some idea of the overall severity of the alleged ill-treatment in order to assess the weight to be given to the lack of medical evidence (as he mentions at L41), the lack of any serious medical treatment and the limited scarring ... We agree that, on one view, the Adjudicator's questioning concerning the alleged ill-treatment by falaka may be seen as persistent, but there is no objection in principle to this because, seen in context, it is clear that the persistence was directed towards obtaining an overall view of the alleged ill-treatment over the three days of the Appellant's alleged detention. Indeed, by questioning the Appellant separately about each day, he was guiding the Appellant to focus on each day in turn, so that the evidence could be clearly understood."

The Tribunal concluded that an independent observer, fully informed of all the facts, would have concluded that the adjudicator was doing no more than giving the appellant a further opportunity to address his concerns, and they were satisfied that the appellant's hearing before the adjudicator was a fair one.

13. Maurice Kay LJ, when he refused permission to appeal on the papers, said:

"I detect no arguable error of law in the determination of the IAT. The correct test was applied and it cannot be said that no reasonable tribunal would have come to the same conclusion."

14. Mr Collins, in making his submissions on this renewed application, appreciated, I think, what a high hurdle he had to climb in the light of Maurice Kay LJ's approach. This court has said in Koller[2001] EWCA Civ 1267 that it will be slow to accept what is in effect a second appeal in a matter of this kind if the tribunal has directed itself correctly to the law and has shown itself to be on top of the relevant facts.

15. Mr Collins has shown me a number of decisions of the Immigration Appeal Tribunal in which, in different words, the Tribunal has been anxious to give advice to adjudicators and indeed deputy adjudicators throughout the land on how to perform their judicial function. As I told Mr Collins in argument, the advice that is given is very similar to the advice which is given by the Judicial Studies Board to embryo judges. In other words, while the witness is giving evidence, whether in examination-in-chief or cross-examination or re-examination, be very slow to intervene unless it is necessary to clarify the evidence which has been given, but after the witness has completed his or her evidence then the adjudicator may ask questions in order to clear matters in which he is in doubt, so long as those questions are not too long or not too burdensome. As Mr Ockelton said in Oyono:

"When the evidence has been finished, in the sense that there has been examination-in-chief and cross-examination and re-examination, it may be that the Adjudicator wishes to put matters arising out of the evidence to the witness, but the time for that is after re-examination. If the Adjudicator does ask the witness any questions, he must then always give an opportunity to the parties to ask any further questions which arise from his."

This practice is visible up and down the country in courts and tribunals today.

16. The adjudicator explained why he took the course he did. The appellant's statement that he had suffered serious torture having been rejected by the Secretary of State, he was concerned that he should ensure that he understood clearly what the appellant was saying after a fairly brief cross-examination, so that he could satisfy himself in his own mind whether it was appropriate for him too to reject this evidence.

17. The Tribunal directed itself correctly in the way that it approached the adjudicator's questioning and I, for my part, share the view of Maurice Kay LJ that there are no reasonable grounds for attacking the determination of the appeal tribunal as a matter of law. Although Mr Collins has come a long way to make clear and well-weighted submissions, I am quite unable to see that there is a point of law in this case fit for the Court of Appeal. Accordingly, I dismiss this application.

Order: Application for permission to appeal dismissed.