Aytac, R (on the application of) v Immigration Appeal Tribunal

In assessing a refugee’s fear of persecution on return, the court must examine whether the particular individual would arouse the adverse interest of the authorities and face a real risk of detention and ill-treatment. A ceasefire or general improvement in security conditions may properly be used to assess the credibility and likelihood of alleged past events. It does not, by itself, eliminate the authorities’ continuing interest in persons actively involved with an insurgent organisation. Each case turns on its own facts. On judicial review, the appellate tribunal should not order reconsideration merely because another fact-finder might have reached a different conclusion. Reconsideration is justified where the findings are clearly wrong or disclose an error of law. A procedural-fairness challenge based on matters not put to an appellant requires supporting material, including, where appropriate, evidence from the representative or examination of the hearing record.

The claimant, a Kurdish national from Turkey, sought asylum after alleging repeated detention and torture by the Turkish authorities because of suspected support for the PKK. The Secretary of State rejected his account. An adjudicator accepted that he had been detained and ill-treated in 1996 and 1997, but rejected his alleged detentions in 1999 and 2000 and concluded that he would not face a real risk on return.

The Immigration Appeal Tribunal refused permission to appeal on 15 April 2002. The claimant sought judicial review, arguing that the adjudicator had relied excessively on the 1999 ceasefire, reached unsupported conclusions about risk on return, and failed to put adverse matters to him. The central issue was whether the tribunal had erred in law.

1. Application dismissed. The adjudicator was entitled to reject the claimant’s account of detention in 1999 and 2000. She gave sufficient reasons, including the reduced violence, the withdrawal of most PKK members, the absence of intervening attention from the authorities, and the failure of the claimant’s account to explain why other household members were not detained.
2. The ceasefire was used properly. It was relevant to the likelihood that PKK guerrillas would still require shelter and that the claimant would have been targeted for assisting them. It was not treated as automatically removing official interest in persons previously or actively involved with the PKK.
3. The relevant asylum question was whether, at the date of the hearing, there was a real risk that the claimant would be detained on return and, if detained, tortured. The assessment had to focus on whether this particular claimant would arouse adverse interest, having regard to matters such as suspected activism, involvement in violence, arrest warrants or charges, family connections, and possible information about other activists.
4. Other tribunal determinations could not determine the result because each case depended on its facts. The tribunal was concerned with legal error, not whether another adjudicator might have reached a different factual conclusion. A possible alternative decision did not make the findings arguably wrong.
5. The complaint that matters had not been put to the claimant was unsupported. Such a challenge should be based on material evidence, including confirmation from the representative or examination of the hearing record. No such material had been produced.
6. The tribunal had therefore disclosed no error of law. The application for judicial review was dismissed. A detailed assessment was requested.

1. High Court (Administrative Court): The application for judicial review of the Immigration Appeal Tribunal’s refusal of permission to appeal was dismissed.
2. Immigration Appeal Tribunal: Permission to appeal was refused on 15 April 2002.
3. Adjudicator: The claimant’s asylum appeal was rejected after the adjudicator accepted earlier detention and ill-treatment but rejected the alleged later detentions and found no real risk on return.