AK (Failure to assess witnesses’ evidence) Turkey [2004] UKIAT 00230  

IMMIGRATION APPEAL TRIBUNAL

Heard at: Field House	Determination notified	
On: 11 August 2004		
Prepared: 12 August 2004	23 August 2004 	

Before:

Mr L V Waumsley (Vice President)
Ms V S Street
Mr M L James

Between

Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DETERMINATION AND REASONS

For the Appellant:		Mr S Taghavi of counsel, instructed by Hackney Law Centre
For the Respondent:	Mr C Buckley, Home Office Presenting Officer

1.	The appellant, a citizen of Turkey, appeals with permission against the determination of an adjudicator (Mr B M Suchak), sitting at Taylor House, in which he dismissed the appellant's appeal on both asylum and human rights grounds against the respondent's decision to give directions for his removal from United Kingdom as an illegal entrant after refusing an application for asylum made by him.

2.	The appellant arrived in the United Kingdom in March 2000.  He applied for asylum some three weeks later.  The grounds on which he did so were that he and a number of the other members of his family were involved with TKP/ML (Communist Party of Turkey/Marxist Leninist) and TIKKO (Turkish Workers and Peasants Liberation Army), and as a consequence he had been detained and ill-treated by the Turkish authorities in the past.  He therefore feared that he would be at risk of further detention and ill-treatment for the same reason if he were to be returned to Turkey.

3.	In his determination, the adjudicator rejected the appellant's evidence in all material respects.  In arriving at that conclusion, he took into account the fact that the adjudicator who had heard the appellant's previous asylum appeal had found him to be "totally lacking in credibility". He concluded that the appellant had never in fact been involved with TKP/ML and TIKKO as claimed.  It was on that basis that he dismissed the appeal on both asylum and human rights grounds.

4.	The appellant's challenge to the adjudicator's determination was based on a number of grounds which may be summarised as follows:

1.	The adjudicator erred in his approach to the determination of the first adjudicator;
2.	He failed to make proper findings of fact on material issues;
3.	He failed to give proper consideration to the psychiatric evidence;
4.	He erred in his assessment of the risk to the appellant on return to Turkey;
5.	He erred in his assessment of the claim under Article 8 of the European Convention on Human Rights.

5.	At the start of the hearing before us, Mr Buckley, who appeared for the respondent, acknowledged that the adjudicator's determination was unsustainable, and that the appeal would inevitably have to be remitted for rehearing by another adjudicator.  Mr Taghavi, who appeared for the appellant, confirmed that he was content with that the proposal.

6.	With respect to this experienced adjudicator, we are bound to say that Mr Buckley was entirely right to concede that the determination was plainly unsustainable.  Our principal reason for arriving at that conclusion arises out of the second ground of appeal referred to above.  The adjudicator has recorded in his determination that oral evidence was given before him, not only by the appellant himself, but by no less than five witnesses who were called on his behalf.  The adjudicator has referred to the evidence given by those witnesses at paragraphs 9 to 13 (inclusive) of his determination.

7.	However, the adjudicator's references to the evidence given by those five witnesses are wholly inadequate.  By way of example, at paragraph 9 of his determination, he has recorded the evidence given by the second witness in the following terms:

"The second person called to evidence (sic) was the appellant's wife, [        ].  She relied on her witness statement.  She takes tablets for her back pain".

8.	The evidence given by the remaining four witnesses is recorded in the following four paragraphs of the determination in similarly cryptic terms.  There is no further reference in the determination to any part of that evidence, apart from a brief reference at paragraph 26 in the following terms:

"Both the appellant and his wife told me that they were not receiving any medical treatment for any psychiatric condition".

9.	At no stage has the adjudicator given any further indications to the nature or content of the evidence given by the five witnesses.  Whilst there is of course no general requirement for an adjudicator to set out at length the oral evidence given before him, and in many cases no useful purpose would be served by doing so, nevertheless he ought as a matter of good practice to summarise at least the material parts of the evidence which he has heard so as to enable an informed reader to ascertain the nature and content of that evidence, and also to enable him to be satisfied that the adjudicator has directed his mind properly to the material aspects of the evidence.  In general, it is not sufficient for an adjudicator merely to record that a witness has relied on his or her witness statement, although there may be particular circumstances in which that would suffice, e.g. where the evidence in question relates to facts which are not in dispute between the parties, or which are irrelevant to the issues on which the outcome of the appeal will turn.

10.	In addition to his failure to summarise properly the evidence given by the five witnesses called on the appellant's behalf, the adjudicator has also failed to make any assessment as to the credibility or otherwise of that evidence, or to give any reasons for arriving at his assessment.  Save in those exceptional cases where the material facts are not in issue between the parties, it is an essential part of an adjudicator's responsibility to make clear findings of fact on the material issues, and to give proper, intelligible and adequate reasons for arriving at those findings.  An adjudicator who fails to do so is liable to find that his determination is vulnerable to challenge on appeal at the suit of the losing party.  That is the position here.

11.	With respect to this experienced adjudicator, we are bound to say that his failure to make any findings of fact in relation to any of the five witnesses called on the appellant's behalf was a serious error on his part.  It is an error which, as Mr Buckley very properly recognised, is in itself sufficient to render the determination fatally flawed.  

12.	Unfortunately, it is also an error which this Tribunal has noticed is being made with increased frequency by adjudicators when oral evidence is given, not only by the relevant appellant himself, but also by one or more witnesses called on his behalf.  The necessity to make proper findings of fact in relation to all the oral evidence, and not merely that given by the appellant, is one which is being overlooked by adjudicators with unfortunate frequency.  For that reason, it is intended that this determination should be reported for the guidance of adjudicators as to the necessity to make proper findings on the evidence of all the witnesses called before them.

13.	Although the ground referred to above constitutes our principal reason for concluding that the adjudicator's determination is unsustainable, it is unfortunately not the only reason.  If it were necessary for us to do so, we would arrive at the same conclusion in relation to ground 3 as well.  The adjudicator has recorded at paragraphs 2(C) and 5(2) of his determination that the evidence before him included a psychiatric report relating to the appellant.  The dates given by the adjudicator in those two paragraphs differ slightly, but it appears to be the same report in each case.  It was argued on the appellant's behalf that this psychiatric evidence was corroborative of his claim that he had been subjected to severe ill-treatment at the hands of the Turkish authorities when he was returned to Turkey in August 1997 following the dismissal of his earlier asylum appeal.  There was also other medical evidence adduced before the adjudicator, such as the two letters dated 23 June 2000 and 6 July 2000 from Dr R Stanowski, copies of  which are contained in the appellant’s bundle of documents.

14.	Unfortunately, the adjudicator has carried out no assessment of any of the psychiatric or medical evidence before him, and has given no indication as to his conclusions regarding that evidence, apart from a brief reference at paragraph 26 of his determination in the following terms:

"I should state that I have considered the medical/psychiatric reports that were submitted.  However I pointed out to Ms Ahmad [the appellant's counsel before him] that these were somewhat dated.  Both the appellant and his wife told me that they were not receiving any medical treatment for any psychiatric condition.  I do not believe that the medical/psychiatric reports add anything to the appellant's cause".

15.	With respect to the adjudicator, that plainly does not constitute adequate consideration of the medical and psychiatric evidence.  It was of course for him to consider that evidence and to decide what weight (if any) he was prepared to attach to it.  However, it was also incumbent upon him to give proper, intelligible and adequate reasons for arriving at his conclusions on that evidence.  A brief statement that the reports were "somewhat dated" and that he did not believe that they added "anything to the appellant's cause" was not sufficient.  He also needed to explain why he had arrived at that conclusion.  Unfortunately, he did not do so.

16.	In light of our conclusions on these two grounds, we do not find it necessary to deal with the remaining grounds on which the appellant's challenge to the adjudicator's determination was mounted.  As Mr Buckley properly acknowledged, the determination is plainly unsustainable.  In the circumstances, we are left with no alternative save to remit this appeal for rehearing by another adjudicator.  Whilst it is a matter for those responsible for listing hearing before adjudicators, not us, we would respectfully recommend that care should be taken to ensure that the remitted appeal is listed for hearing before a full-time adjudicator or experienced part-time adjudicator only in light of the number of witnesses who are likely to be called to give oral evidence at the remitted hearing.

17.	This appeal is allowed to the limited extent that it is remitted for a fresh hearing before an adjudicator other than Mr B M Suchak.

Signed					Dated

L V Waumsley
Vice President

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