SH (Subsequent decision: how far relevant?) Turkey [2005] UKIAT 00068 (11 March 2005) [2005] UKIAT 00068

UKIAT
SH (Subsequent decision: how far relevant?) Turkey [2005] UKIAT 00068 (11 March 2005)
[2005] UKIAT 00068 · 2005-03-11
[1]SH (Subsequent decision: how far relevant?) Turkey [2005] UKIAT 00068 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 17.02.2005 Date Determination notified: 11 March 2005 Before John Freeman (a vice-president) Thomas Culver and Mrs RM Bray JP Between SH APPELLANT and Secretary of State for the Home Department RESPONDENT Mr F Omere (counsel instructed by Irving & Co) for the appellant Miss A Gill for the respondent DETERMINATION AND REASONS This is an appeal from a decision of an adjudicator (Miss JM Braybrook), sitting at Taylor House on 19 May 2004, dismissing an asylum and human rights appeal by a Kurdish citizen of Turkey. Permission to appeal was given on the basis that there might have been an appearance of unfairness in the way the adjudicator conducted the hearing: there was no presenting officer, and she asked a number of questions for herself. The grant of permission left it open to the claimant to argue other points; but it was made without reference to CA [2004] EWCA Civ 1165 , and in the light of that decision we shall have to consider for ourselves whether anything else in the case does raise any point of law.[2]We have to say that this was not a case where the Home Office (who do not appear to have given any explanation for it) should ever have allowed themselves to go unrepresented: it had been heard once already by another adjudicator, and sent back for a fresh hearing by the Tribunal, because he had not dealt with all the issues, and had misdirected himself on one of them. This time it appears, as we pointed out at the hearing, to have been deliberately listed in accordance with the sensible policy of the regional adjudicator, before a very experienced colleague (first appointed in 1993 or before, according to the records), in the hope that this would now result in a final decision. The Home Office ought to have been ready to play their part in this process.[3]Conduct of hearing The grounds of appeal refer to the familiar decision in Surendran (21679) : as the reference number shows, that dates from before the Tribunal adopted its last-but-two manner of citation in 2000, following which the guidelines contained in it were adopted in MNM [00/TH/02423] . Surendran has since been reconsidered and the guidelines substantially re-interpreted in WN [2004] UKIAT 00213 (by Ouseley P and a legal panel). Counsel who appeared before the adjudicator (Mr NS Ahluwalia) cannot be blamed for not referring to WN , as, though the case was heard on 16 April 2004, the decision did not come out till 4 August. We shall return to this point; but, while WN is in the form of an extended gloss on Surendran , we see no reason to look beyond WN itself for the principles we should adopt in a case of this kind. It was not, at least in the copy we have, formally "starred", as Surendran had been; but it was clearly a deeply-considered decision of a Presidential legal panel, and intended to be followed by all adjudicators, and all divisions of the Tribunal.[4]In summary, they are these: Arabic numbers show the paragraphs of WN from which they are derived, Roman ones the numbering given by the Tribunal to the principles set out (referring back, in the case of IV-VII , to the guidelines in Surendran ), and italics direct quotations. 25. I Credence should not be given to allegations not supported by evidence.28. II It is not necessary for a fair hearing that every point of concern which an Adjudicator has be put expressly to a party, where credibility is plainly at issue. As we have said elsewhere, it is a matter of judgment whether to omit to do so is unfair or whether to do so risks appearing to be unfair as a form of cross-examination. On balance, the Adjudicator's major points of concern are better put, especially if they are not obvious. The questions should be focussed but open, not leading, expressed in a neutral way and manner, and not at too great a length or in too great a number.29. III The [ Surendran ] guidelines are guidelines and guidance; they are not rules of law. They are not a strait-jacket. They do not represent black and white answers to all the situations, many and varied as they are, which arise before an Adjudicator where the Home Office Presenting Officer is not present.30. The real test to be applied, however, is whether the hearing was fair or unfair and whether a fair-minded and independent observer would conclude that there was a real possibility that the Adjudicator was biased. … compliance with the guidelines will make it very difficult, if not impossible, for an Appellant to show that the Adjudicator acted, or could properly be thought to have acted, unfairly. If they are not complied with, it plainly assists an argument as to actual or apparent unfairness. But it is not conclusive as to it at all.31. The obligation is on the Appellant to deal with obvious points which relate to his credibility without necessarily being asked to comment on them by the Adjudicator.32. IV … it is clearly not inappropriate for the issue of concern [on credibility] to be raised in questions by the Adjudicator. It may be more useful for the Adjudicator to put those questions than to ask the representative to do so. This can all be seen as "clarification", for that emphasises that the task is not one of cross-examination, and is subject to the caveats as to timing, manner, length and content which we deal with later.33. V The adjudicator should be all the more ready to raise credibility points not covered in the refusal letter, as the claimant may not be aware he is under challenge on them.34. This is especially the case with new material, first raised before the adjudicator.35. VI Adjudicators are not confined to questioning on the Secretary of State's material.36. VII If obvious points are not dealt with, the Adjudicator can deal with them in his determination, and it is generally better that he should do so having given the Appellant a chance to answer them.37. The risk of cross-examining or appearing to cross-examine can be avoided by an Adjudicator in the manner, style or length of questions, which he asks. Generally, questions other than those designed to clarify what was said or intended to be said are better left until after the conclusion of the evidence where no Home Office Presenting Officer is present and after re-examination where a Home Office Presenting Officer is present [there follows a reference to K [2004] UKIAT 00061 , with which we are not concerned here, except to note that the law on this point had already been developing: see 7 below].38. Questions should not be asked in a hostile tone. They should not be leading questions which suggest the answer which is desired, nor should they disguise what is the point of concern so as to appear like a trap or the closing of the net. They should be open ended questions, neutrally phrased. They can be persisted in, in order to obtain an answer; but they should not be persisted in for longer than is necessary for the Adjudicator to be clear that the question was understood, or to establish why it was not being answered, or to pursue so far as necessary the detail underlying vague answers. … The Adjudicator can properly put, without it becoming a cross-examination, questions which trouble him or inferences from answers given which he might wish to draw adversely to a party. These questions should not be disproportionate in length to the evidence given as to the complexity of the case, and, we repeat, an Adjudicator should be careful to avoid developing his own theory of the case.39. While there is a tension between fairness in raising points that need to be dealt with, and fairness in not appearing to be partisan,40. this should be resolved by recognizing that, while obvious credibility points do not need to be put, it is generally better to raise those which may be important, but not obvious, which may be done by appropriate direct questioning.[5]Turning back to the present case, there is no lack of evidence about what happened before the adjudicator. Mr Ahluwalia has supplied, in accordance with the directions of the vice-president who gave permission to appeal, a statement of truth with his notes of hearing attached: we have the original handwritten copy, and what purports to be a typewritten transcript of the relevant parts, though as we shall see it is not quite that. We also have the adjudicator's own comments on the grounds of appeal: unfortunately she was not supplied with Mr Ahluwalia's note, but it does not seem from her own record of proceedings that there is any substantial difference of recollection about the number and kind of questions she asked.[6]The transcript consists only in the questions asked by (and answers given to) the adjudicator at the proper time for inquiries directed to more than mere clarification, which in this case was at the conclusion of the evidence in chief: see WN § 37 above. There is no complaint in the grounds of appeal against the relatively few questions asked in the course of evidence in chief; and in fact they are specifically referred to in the grounds at § 2 as " questions clarifying the appellant's evidence ". There is however one point to which we need to turn before we come to those questions which are complained of.[7]At the beginning of Mr Ahluwalia's note there appears the following " Prelim. Surendran ". The exchange to which this relates, clearly not part of the evidence, does not appear in the adjudicator's record of proceedings, but she does deal with it in her comments, as follows: [Mr Ahluwalia] mentioned the Surendran guidelines at the outset of the hearing. I mentioned to him that, following recent guidance from the Tribunal, a more flexible approach was developing at hearings where the Secretary of State was not represented. It was no longer a requirement that the adjudicator should put questions through Counsel to the appellant. Counsel appeared to be unaware of any change in approach. He stated that Surendran was a starred decision and that any departure from the Surendran guidelines would be a matter that would be raised in any subsequent appeal. Rather than further discussion on the point, I indicated that I would wait and see if any points needed clarifying or expanding after Counsel had examined in chief.[8]As we have noted (see WN § 37 again), the law on this point had been developing, and the very experienced adjudicator was better informed about the way it was going than Mr Ahluwalia. We have already made it clear that we do not, and could not criticize Mr Ahluwalia for not foreseeing the decision in WN ; but it is perhaps unfortunate that he should have adopted, at the outset of the hearing, the rather combative approach to the point revealed in the adjudicator's comments. It reads as if he were anticipating conflict, and preparing his ground. The adjudicator on the other hand does not seem to have made anything of the exchange at the time, but sensibly suggested that they should move on to the evidence.[9]There is one other general point which we need to deal with in the light of that exchange. There is a complaint in the grounds of appeal, supported by a standard annotation {" [TONE] ") at the relevant points in the transcript, about the manner in which the adjudicator asked her questions at the end of the evidence in chief. Mr Omere understandably placed considerable reliance on that; indeed at one point he indicated that he did not consider his case could succeed without the evidence about the adjudicator's tone. Our view, as we made clear, was that, while it was something of which we were bound to take account, in the absence of any audio-recording (not provided for in proceedings of this kind), it would inevitably be hard for us to form an objective independent view of it; whereas we were well able to take such a view, as we clearly needed to, on the questions themselves.[10]What however we also made clear to Mr Omere was that we were entirely prepared to accept that Mr Ahluwalia had felt a genuine subjective sense of grievance at the adjudicator's tone. That is something for us to take into account; but, as was made clear in WN § 30, the test is not what the parties or their advocates thought of what went on, but " whether a fair-minded and independent observer would conclude that there was a real possibility that the Adjudicator was biased ". In this context the point we have noted at 7 - 8 is of considerable relevance. It is hard to blame counsel, trying to do his best for his client, for insufficient professional detachment; but we have to say that Mr Ahluwalia's approach to the question of the Surendran guidelines does suggest that he may have been over-sensitive to any interventions by the adjudicator. We have to take account of that in dealing with what he felt about her tone; and we propose to concentrate on the questions she actually asked.[11]Before we turn from how the adjudicator put her questions to what she asked, the first passage to which Mr Omere referred us was at Q27-28 of the transcript of the adjudicator's questions:27. You refer to HADEP. What did you actually do for HADEP? [TONE] Meetings28. [Adjudicator interrupts] Where? Interpreter interrupts. Please would you allow me to finish interpreting first before I forget the answer he gave me. [This interruption appears as follows in the handwritten note "let me finish first before I forget answer": while nothing at all turns on that, and indeed we have no doubt the interpreter expressed himself as politely as in the transcript, that would have been better in verbatim form, subject to abbreviations and punctuation being supplied.] We went to the homes of people, to get people's support, attended meetings in cafes, asking people to vote for HADEP and support the party. Mr Omere's point on this was that the interpreter having to interrupt the adjudicator, after she had interrupted him, showed what we might describe as an unacceptably brusque manner on her part.[12]We disagree. As we pointed out to Mr Omere, the result of the process had been that the evidence which the claimant wished to give had come out. As most people who have been involved in adjudicator hearings (which includes two of us) cannot fail to be aware, it is sometimes difficult either to judge when an interpreted answer has come to an end, or when what has come out so far is addressing the point of the question. It is the responsibility of the adjudicator to keep the process on track, while making sure that the claimant has a full opportunity to say whatever is of any real relevance. The interpreter equally has a responsibility to ensure that his half of that task is performed; and in this case both of them carried out their rôles, with the result that the claimant's full relevant answer was recorded.[13]Turning to the contents of the questions, Mr Omere's first point was on this exchange: 15 Were you able to satisfy them that you were not involved? You were not charged? [TONE] I did tell them that I was at my shop [and that] I was not involved. They made inquiries and detained me for 6 days. 16 They didn't believe you were involved? [TONE] Yes. They detained me for 6 days. [When they] realized that I was not going to say anything and I denied it, they released me. 17 This was a false accusation, wasn't it? [TONE] Yes Mr Omere's point was that this line of questioning was too cross-examinatory, and in the case of Q17, not even necessary.[14]While those questions taken in isolation may seem to lay themselves open to that kind of comment, we have to look at them in context, and (as Miss Gill reminded us) at the fairness of the hearing as a whole. What these questions were directed to was how it had come to pass that, after not being detained at all between 1992-2000 (despite regular police visits to his house and shop), the claimant should suddenly have found himself taken away by them in that year, on suspicion of being involved in some incident (unidentified at this point, but apparently involving the burning of a police car); but then released without charge. To spell it out, there was an apparent contradiction in the claimant's evidence that regular police interest during those eight years had not resulted in his being detained; but an incident which they had been unable (presumably for lack of evidence) to pursue in the face of his denial, had resulted in his being detained for as long as six days.[15]In our view, this was a point with which the claimant and Mr Ahluwalia needed to deal. It was not so obvious that the adjudicator could simply sit back and take it up either with counsel, or for the first time in her decision; but it was of quite some importance, as anyone experienced in the factual issues arising in cases of this kind would have realized. That this was what was in her mind is clearly shown by the following question, of whose importance Mr Omere did not seem to be aware: 18 Why were there not any similar accusations made by them between 1992 and 2000? I don't know how their mind works. They were raiding my house and shop, but I don't know why. That prepared the way for the points the adjudicator made at § 20 of her decision, which formed an important part of her findings. In our view, she might reasonably have been criticized for not bringing to the claimant's attention, with some quite pointed questions at 15 -17, the apparent discrepancy between what had not happened between 1992-2000, and what did happen in the latter year. He may not have been able to resolve that to her satisfaction; but he was entitled to be given a chance to try.[16]The next exchange on which Mr Omere relied was at Qs 20-21: again we need to set it in context. 19 In your SEF, you say they were suspicious of clothes being supplied [by you to the PKK]? That was when I was in the village. They accused me of supplying them with clothes when I had the shop as well. 20 When you were taken in, you were questioned about the police vehicle? [They suspected me] of supplying them [the PKK] with clothes because I was selling clothes in my shop. In my shop, I was a wholesaler and a retailer. I had some names of wholesalers. They took those names as well. 21 In you[r] 4th detention, in a specific incident, were they asking you again or not? Again, they came to my house, ransacked it, but could not find anything. They detained me and took me to the ATD [Anti-terror division] and interrogated me for 2 days. 22 What were you detained about this time, because on the previous time, you say it is [in connection with the police] vehicle? This time, they just said come with us. Mr Omere's objection to this was that it was not necessary to elicit this evidence (the car having already been mentioned); so the questions were unacceptably cross-examinatory, especially in the phrasing of 21.[17]Q 20 in the adjudicator's record of proceedings reads " Jan 2000 just ask about police vehicle? ", Q21 " April 2001 – specific incident they asked u about? , and Q22 " In Jan 2000 did they ask u about PKK? " We have no doubt the adjudicator did draw those dates to the claimant's attention in her questions, though neither Mr Ahluwalia in writing his note, nor Mr Omere in addressing us appears to have been aware of their importance. As the adjudicator points out in her comments, the claim about the police car had appeared for the first time in the evidence in chief before her.[18]It follows that the adjudicator needed to draw the claimant's attention, in Qs 18-20 and 22, to the question of whether that claim was to be taken as superseding what he had said in his statement of evidence form (see § 28 at C8) about being detained in January 2000 on suspicion of supplying the PKK with clothing; or whether the car incident had formed an additional ground of suspicion. Q21, contrary to the form in which it appears in Mr Ahluwalia's note (clearly counsel had misunderstood its purpose) was not a dogged cross-examinatory pursuit of the question raised in 18-20, but represented the adjudicator drawing a distinction between that occasion and the next.[19]We should be the first to recognize the difficulty of appreciating the importance of individual factual points in a case of this kind, where a claimant's account may have appeared in several different forms by the time of the adjudicator hearing; but we have to say that the problem which occurred over this passage is a vivid illustration of the dangers of seeing unacceptable cross-examination everywhere, rather than looking for what point the adjudicator may actually be seeking to establish, and why.[20]Mr Omere's next point was on this: 25 In January 2000, they didn't ask you about the PKK? [TONE] I was accused of helping the PKK, and accused of supporting the PKK, by providing them with clothes. That, he said in effect, offended against the prohibition on leading questions at § 38 of WN . If one only considers the form of it, that is of course right; and, whatever was the object of the question, it might have been just as well achieved in the form in which the adjudicator put it in her own record of proceedings " In Jan 2000 did they ask u about PKK? ". The adjudicator kept a remarkably full contemporaneous record of her own questions, and the answers to them, bearing in mind that she may have been writing as she spoke; but that process is always easier where an interpreter is involved, and we think she probably did put it that way.[21]Even if we were wrong about that (because – contrary to our view – we should need to be satisfied that there was no reasonable likelihood that it was not put in the way contended for by Mr Ahluwalia, or for any other reason), we need to look, not just at the form, but at the context. Mr Ahluwalia's version has two intermediate questions on the same point between Q22 (see above) and this one, whereas the adjudicator's record of proceedings goes straight from one to the other.[22]This had been the adjudicator's record of Q22 and the answer to it: April 2001 – specific incident they asked u about? Detained me, interrogated me for 2 days. This time asked me about PKK, PKK support, HADEP. We suspect u also have some info[rmation] about this organ[ization] The questions recorded by Mr Ahluwalia as Qs 23-24 (which we accept were asked as set out) and the answers to them appear to relate to this April 2001 incident. Clearly what was on the adjudicator's mind, however, as it had been during Qs 18-20 and 22, was what had passed between the claimant and the police in January 2000. What was happening at Q25, whichever way it was put, was not her relentlessly cross-examining him about that, but trying to make sure that he understood the distinction being drawn about what they had asked him about in 2000 and 2001, and that he was clear about what had happened in 2000. In the light of WN , we see nothing wrong with that whatsoever.[23]After the point already dealt with on Q28, Mr Omere's next one was on this: 30 You didn't actually do anything else for HADEP? [TONE] I distributed their leaflets, I visited houses one by one. I used to go to their homes as a guest, so as not to draw attention – although HADEP was a legal party, I had to be cautious – and talk to people to get them to support us. Mr Omere said that was unacceptable cross-examination, since the claimant had already mentioned what he did do for HADEP in his statement of evidence form (see § 24 at C7).[24]The adjudicator recorded this question simply as " HADEP activities? ", and, given the volume of material before her, she may well have forgotten what it was that the claimant had said he did for them. Whichever form the question was asked in, we do not think the " fair-minded and independent observer " of WN would have seen anything wrong with it, unless the tone really had been hostile. Another two questions followed (three in the adjudicator's record of proceedings): 31 How would you describe the aims of HADEP? [TONE] HADEP – [although its [sic] regarded as a Kurdish[ party], [it does] not [just] represent Kurds. It represents all members of all groups for equal rights and opportunities in the country, without taking into account their race, religion, etc. 32 How does it differ from DEHAP? DEHAP is a continuation. When HADEP was closed down, DEHAP was established as a continuation. HADEP was closed down in 2003.[25]It was only at this point that Mr Ahluwalia intervened, recording what he and the adjudicator said as follows: Objection from counsel. Concerned by the tone, number and nature of the questions. I am concerned that you have entered into the are[n]a. Adjudicator [unhappy with counsel's intervention] "I am just trying to get at the truth". Grave exception was taken to this in the grounds of appeal, not only on the basis that [§ 5 d)] " It is not the function of the adjudicator to adopt an inquisitorial role "; but, specifically, at § 6 c), as follows: The adjudicator erred in applying the wrong standard of proof in assessing the answers to the questions. It is submitted that in stating that 'I am just trying to get to the truth' implies [sic] that a higher standard of proof was being used when assessing the appellant's evidence.[26]We shall have something more to say about that in due course; but these were the adjudicator's comments in reply: she accepted that she might well have used those words, but This had nothing to do with the burden of proof. It was merely a statement of fact. I had to make findings on credibility and on the facts. Unfortunately, Counsel appeared determined to believe that asking any questions at all on a topic was an indication that I had prejudged the issue and did not believe the appellant's case (see for example his first question in re-examination …) That reads, in Mr Ahluwalia's handwritten note (the transcript does not go on to the re-examination):
" Adjudicator putting to you that it is not credible that not detained between 1992 – 2000"
. The claimant gave an answer in line with his previous evidence; but, not to our surprize, the adjudicator found it necessary to intervene herself after that: to our considerable surprize, Mr Ahluwalia did not see fit to record this, though we have no doubt it was said. I have asked questions about this because IAT mentioned this is an area which had been incorrectly assessed by 1 st adjudicator. Not stating/concluding he is not credible.[27]The first Tribunal (see 2 ) had said this (at § 7): … regrettably the Adjudicator failed to take full account … [of] the Appellant's claim that he had indeed suffered specific problems with the authorities during the eight year period to which the Adjudicator had referred, including the fact that his house and his shop in Antep were raided on many occasions … While this is perhaps a slightly different point from the one concentrated on by Miss Braybrook, we do not see how she can be blamed for turning her attention (and directing the claimant's) to what might be described as the central paradox of his case: why was it that the authorities chose to detain him in 2000, when they had not done so since 1992, and he had been leading the same kind of life ever since?[28]Finally Mr Omere took exception to this: 40 You[r] village was 32 – 40% Kurdish. Didn't they also have problems? Kurds do have problems. Some have more or worse problems that [than] others. He said this was an unnecessary question: perhaps it was, since the claimant was not putting forward a case based on suffering problems merely as a result of being a Kurd, but on his individual history. However we do not see how it could be said to amount to objectionable cross-examination.[29]It is now time for us to give our views on this part of the claimant's case. The point about standard of proof in the grounds of appeal (see 26 ) we regard as wholly unarguable. The adjudicator correctly stated the 'real risk' test (see Kacaj [01/TH/00632] and approved on this point by the Court of Appeal) at § 9, and applied it at § 22. There is nothing whatever to show that she did not do what she said she was doing.[30]In our view, it is a strange reflection on the ways of thinking that have been allowed to grow up around a judicial system that it should be possible for counsel seriously to criticize an adjudicator for trying to get at the truth. To do Mr Omere justice, this was not a point he pursued with any great enthusiasm: as he had to accept in the course of argument, the adjudicator could not possibly have been criticized for saying that she was trying to get at what was reasonably likely to be true; but, as he sensibly also accepted, the use of such an artificial formula would have made no difference to the nature of the inquiries the adjudicator was actually pursuing, which is what we have to consider.[31]Mr Omere made a general point about the number of the adjudicator's questions. Besides lengthy statements and interviews, the claimant's own case in evidence in chief had taken up (leaving out the adjudicator's clarification questions) a full three pages of Mr Ahluwalia's handwritten note. The series of questions complained of had taken in all just under five pages. This may seem a great deal; but the question in terms of WN (§ 38) is whether it was disproportionate to the length and complexity of the case. Bearing in mind that there was plenty more to the claimant's case than simply the evidence in chief, and that the adjudicator was not approaching it completely afresh, but (in our view rightly) trying to make sure she covered the ground on which the previous Tribunal had remitted the case to her, we do not think the length of her questions can be said to be so disproportionate as to show an error of law on her part.[32]There was only one general point made by Miss Gill (apart from the valid one – see 14 – about considering the fairness of the hearing as a whole) which calls for comment. That is her suggestion that the claimant ought to have made a complaint, through his solicitors, before raising the ones he did in his grounds of appeal. We have to say we do not regard this as arguable. While there may well be points which ought to be raised at once, because they represent problems which can be cured before an adjudicator's decision goes out in its final form, these complaints were not an example of that kind.[33]These complaints dealt with the adjudicator's general approach to the case, and were quite properly (though we shall have more to say about that) raised with her by Mr Ahluwalia at the hearing. Clearly he went away with a sense of grievance: as his statement shows, he reported his view of what had happened to his instructing solicitors. If they had written on those lines to the regional adjudicator, we have no doubt that they would have been met by the entirely proper reply that the case was before Miss Braybrook for decision, and it was not for the regional adjudicator to interfere in her consideration of it. In our view there can be no possible objection to the complaints being raised for the first time in writing in the grounds of appeal.[34]We can now turn to the merits of the individual complaints, which we have reviewed as we went. To summarize our views on the areas of complaint: our paragraphs adjudicator's questions our views 11 - 12 27 - 28 intervention by interpreter neither showed any preceding unfairness by adjudicator, nor had any unfair consequence 13 – 15 15 - 18 questioning by adjudicator about detention in 2000 (after none since 1992) raised legitimate area of concern, in manner acceptable in context 16 – 19 19 – 22 questioning by adjudicator designed to draw distinction between events of 2000 and 2001, and did not amount to unacceptable cross-examination on the former 20 – 22 22 – 25 (see 16 – 19) 23 – 27 30 - 32 questioning by adjudicator about claimant's HADEP activities not strictly necessary, but not objectionable; comment about search for truth not objectionable 28 40 questioning by adjudicator about experiences of Kurds in claimant's village not necessary, but not objectionable[35]As will now be clear, we do not see anything objectionable in themselves in the adjudicator's questions or comments which were the subject of complaint. We do have to say that a number of the questions tended to give hostage to fortune by their form, which in some cases appeared rather cross-examinatory. However, for the reasons we have given, we have no doubt that they were not intended in that spirit. On the other hand, they were clearly perceived in that way by Mr Ahluwalia: we accept that he was acting in good faith in pursuing his complaints in the way he did. However, his impression of the adjudicator's conduct of the hearing is only of any importance so far as it might indicate that of the hypothetical " fair-minded and independent observer " at the hearing.[36]We repeat that the Home Office never ought to have put the adjudicator in the position, in a case which was not simple in the first place, and which had already been remitted once by the Tribunal, of having herself to take such a large part in the necessary inquiry into the facts. It is now clear from WN that, subject to the words of caution set out there, an adjudicator may in such cases have a duty, as well as a right to take such a part in these circumstances. These are not ordinary civil proceedings, where rules would normally provide for an absent party's case to fail in default of appearance. There is a strong public interest, both that well-founded claims should succeed, and that others should be dismissed. We regard it as clear beyond argument that the duty of 'most anxious consideration', referred to in so many of the authorities, is one owed to the public, as well as to the claimant.[37]Bearing in mind that the adjudicator was engaged in a legitimate process of inquiry, would the hypothetical " fair-minded and independent observer " have regarded the way she carried it out as unfair as a whole? We have to put ourselves in the position, so far as we can, of this mythical person so well-known to the law; no doubt he (or she) is now as ethnically-mixed as the real-life complement of the Clapham omnibus on which he was supposed to travel. What he is not, however, is engaged on one side in the way to the extent that Mr Ahluwalia clearly was, quite legitimately in principle, if not entirely advisably in the way he approached his task. From the material (Fordham's Judicial Review Handbook , 4 th ed. § 61.3.8) with which we were supplied by Mr Omere, the " fair-minded and independent observer " is " neither complacent nor unduly suspicious " ( Reza v. GMC [1991] 2 AC 182 ; and " familiar with the detailed history of the proceedings and with the way in which cases of this kind are tried " ( Berg v. IML London Ltd [2002] 1 WLR 3271 ).[38]We have to say that Mr Ahluwalia's opening remarks to the adjudicator about Surendran (see 7 – 8 ) in our view show him as seriously over-sensitive to the possibility of apparent bias on the part of the adjudicator, in a way which WN has revealed as over-stated. He chose to anticipate that possibility before the adjudicator had said anything to indicate such an attitude, and we have no doubt that his approach to the case was coloured by the rather combative position he had already taken up. We do not think the hypothetical " fair-minded and independent observer " would have shared his impression of the tone of the adjudicator's questioning: it will have been noted that he managed to inject this impression into what, even in his own version, was not only a neutral, but a perfectly neutrally-expressed question about the aims of HADEP (see 24 , Q31).[39]It was only after another similarly unobjectionable question about DEHAP that Mr Ahluwalia chose to intervene. As we have already made clear, he was quite right to take up any grievance he thought he had there and then; but the only objectively justifiable reason for his doing so at that point could have been that the adjudicator's questioning had somehow crossed the line of the permissible in terms of length. For the reasons given at 31 , we do not think it had.[40]As the adjudicator points out, Mr Ahluwalia's first question in re-examination (see 26 ) makes it clear that he had misunderstood her as having already taken up a position on the claimant's credibility. That he realized himself he had gone too far in this may be shown by his omission from his own note of the rather mild reproof the adjudicator then administered, more in the way of a statement of her actual position, and the way she saw her task, especially in the light of the previous Tribunal decision. That impression is confirmed by what the adjudicator says at the end of her comments: At the conclusion of his submissions, Counsel expressed the hope that his confrontational style during the hearing would not prejudice his client.[41]We do not think for one moment that Mr Ahluwalia's style of advocacy did prejudice the claimant in the mind of the adjudicator; but we do think it shows him as a very much less than objective observer of the proceedings before her. On all the material before us, we take the view that the adjudicator's impression of Mr Ahluwalia's attitude, set out in her comments already quoted at 26 , was entirely justified. It is a pity that it has led to so much time being spent on how the case was conducted, rather than on its merits; but the complaints made about that have had to be fully investigated. For the reasons given, we do not consider them made out.[42]Merits Turning finally to this part of the case, Mr Omere's only point on it was that the adjudicator had not taken account of the approach now laid down for cases of this kind (Turkish Kurds, in case that has by now been forgotten) by the Tribunal in IK Turkey CG [2004] UKIAT 00312 . As of course Mr Omere acknowledged, the decision in IK 04-312 did not go out till 2 December 2004, long after the adjudicator heard the present case. While it may certainly amount to an error of law for an adjudicator not to take account of a 'country guidance' decision already in the public domain, of which she is obliged to take judicial notice, we do not think it can possibly amount to such an error for her not to anticipate one still over five months into the future, even when her own went out on 23 June (signed by her on the 8 th ).[43]Mr Omere did not seem to have appreciated the distinction that needs to be drawn between decisions declaratory of the common law, or even authoritatively interpreting statutory material already in force on the one hand; and on the other those described by the Court of Appeal in ŠŠ [2002] EWCA Civ 539 as embodying " the somewhat exotic doctrine of a factual precedent ". These have been recognized (not least in Shirazi [2003] EWCA Civ 1562 ) as essential to the Tribunal's performance of its rôle; but that does not mean that they should be regarded as an authoritative statement of the factual situation in the country in question, not only as it was at the date of the hearing, but as it had been at all material times.[44]As we made clear, Mr Omere could only show an error of law on the part of the adjudicator in her assessment of the background evidence if that showed a mistake of fact within the extended definition in E & R [2003] EWCA Civ 49 . The only point he put forward as doing so (set out in the grounds of appeal at § 13) referred to a Swiss report, quoted in the April 2004 version of the CIPU report. This version was made available to the adjudicator, and she set out the relevant part of the report (Swiss Organization for Refugees, June 2003), at § 27, and gave her views on it as follows:
'… Despite the absence of entries in the central information system, the individual concerned might be listed on one of the other information systems. This must certainly be assumed in the case of individuals who have already been taken into custody by the police, gendarmerie or some other branch of the security service in the past'
. There was no indication of the basis for these conclusions and nothing to indicate that the source was more reliable than the information from the department.'[45]Mr Omere could only succeed on this point on the basis that the decision in IK 04-312 showed, as set out in E&R at § 66, that each of the following factors affected the adjudicator's decision [ the lay-out below is ours, but the words are the Court of Appeal's ]: 1. There must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. 2. The fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. 3. The appellant (or his advisers) must not have been responsible for the mistake. 4. The mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning.[46]If the adjudicator's conclusions, set out at 44 , involved a mistake in the sense of 1-2 above, then it was capable of being a material one, because her final paragraph on the asylum claim begins as follows: 30. I concluded that the appellant's detentions in 1990 and 1992 would not be recorded on the GBTS system. The importance of that finding is that, strange as it may seem to those unfamiliar with these cases, there was a serious argument on risk on return, even though the adjudicator had disbelieved the claimant on the events in January 2000 onwards, which he said had made him leave Turkey, and on a basis we have upheld. What is now said on his behalf is that, even though the rather ancient history of 1990-92 had not led to any further detentions for him while he remained in Turkey till 2001, yet it might have done so on his return there in 2004.[47]The background evidence relied on by the Home Office shows (and there is no controversy about this) that the GBTS (the " central information system " of the Swiss report) is the system consulted by security personnel at the point of return (usually Istanbul airport); and that it contains no details of (in Turkish legal terms) " detentions " (periods in informal custody, such as this claimant complained of), but only of " arrests " (by order of a court). The importance of the Swiss report was that it suggested that such security personnel might consult other records, which might show up " detentions ". Again, if taking a contrary view did involve a "mistake" on the adjudicator's part, then it was not one for which the claimant was responsible, because Mr Ahluwalia had referred her to the treatment of it in the April 2004 CIPU report.[48]What we now have to decide is whether that view did involve a "mistake", in the very limited E&R sense. The only basis on which Mr Omere could contend that it did is on IK 04-312 , where the Tribunal (Batiste & Perkins VPP, with a legal member) went at length into the question of what records were available at the point of return. They said specifically at § 32: We also see no good reason to dispute the clarification from the Turkish authorities that this [list of what was available on it] must be read subject to the previously unappreciated distinction between "arrests" and "detentions".[49]The considered view of the Tribunal in IK 04-312 , having heard and considered a large volume of evidence, was this (at § 87): … the evidence before us does not suggest in our view that any additional information system will be directly available at the [airport] police station beyond the GBTS and the border control records. We consider however that if unresolved doubts remain from questioning the returnee it is reasonably likely that further enquiries will be made as appropriate in the circumstances and any new information arising as a result will be assessed on its merits. While it is right that we should set out the proviso (" …however …" ), we repeat that the Swiss evidence was made available to and considered by the adjudicator; so only if she assessed it in a way which was uncontentiously and objectively verifiably wrong would her decision on the point amount to a mistake within E&R.[50]What the Tribunal were to say (see above), not only about that evidence, but about a very great deal more on the same point shows not only that the adjudicator was not wrong in that way, but that she was in fact right, so far as the GBTS was concerned. There is no suggestion that border control records are of any relevance in this case. It follows that the claimant's challenge to the merits of the adjudicator's decision cannot succeed either. Appeal dismissed John Freeman (approved for electronic distribution)