Case No: C/2001/2772
Neutral Citation No: [2002] EWCA Civ 977
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

Royal Courts of Justice
Strand, 
London, WC2A 2LL

Wednesday 17th July 2002
Before :

LORD JUSTICE SIMON BROWN

LORD JUSTICE BROOKE

and 

LORD JUSTICE DYSON

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Between :
	BULENT AVCI	Appellant	
	
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SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
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Mr E. Grieves (instructed by Messrs Howe and Co.) for the Appellant
Miss E. Grey (instructed by The Treasury Solicitor) for the Respondent

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Dyson:
 
1.	This is an asylum case.  The appellant is a Turkish national.  He arrived clandestinely in the United Kingdom on 16 October 2001, and claimed asylum 2 days later.  The basis of his claim was that he is an Alevi Kurd and a supporter of the PKK, and that he had a well-founded fear that he would face persecution at the hands of the Turkish authorities if he returned to Turkey.  His claim was refused by the Secretary of State on 5 December 2000.  His appeal was dismissed on 27 April 2001 by the Adjudicator, Mr Entwistle.  His appeal to the Immigration Appeal Tribunal (“the Tribunal”) was dismissed by a decision promulgated on 16 October 2001.  He now appeals to this court by permission granted by Keene LJ.  Before I come to the grounds of appeal, I need to refer in a little detail to the reasoning both of the Adjudicator and the Tribunal.
The Adjudicator
2.	The essential part of the Adjudicator’s reasoning appears at paragraph 20 of his Determination.  He found that the appellant was a sympathiser of the anti-government PKK organisation, and that although there was no evidence that he was a member of the PKK, he took part in displaying and distributing posters for them.  He participated  in PKK demonstrations, including a rally held on 15 August 1996 to celebrate the start of PKK’s armed struggle.  He was arrested after taking part in the demonstration, but the Adjudicator rejected his evidence that he had been tortured by the authorities during his detention.  He continued as follows: 
“Many other persons were also involved in the demonstrations and I do not find any particular reason as to why the appellant should have been singled out for any particular treatment such as torture once he had been detained. I note that the appellant was released after two days without charge. Although the appellant said he was tortured and subjected to electric shock treatment there was no medical evidence to confirm this and he has never had any psychological medication or received any counselling for this. The appellant continued to take part in demonstrations, attending a few each year. Furthermore the appellant also completed his military service between August 1998 and February 2000. I accept he may have been subject to some forms of discrimination but the two occasions on which he said he was subjected to solitary confinement were for breaches of regulation for which he should expect to receive some form of punishment. He confirmed he was not beaten during these two periods of confinement. The appellant moved to live in Istanbul in order to avoid the persecution he said he was suffering in his home village. However I note that once in Istanbul he took part in a demonstration on the 15th of August 2000 to celebrate the start of the armed struggle. I do not accept that the appellant would leave his home village because he was being discriminated against for being a Kurdish Alevi and then soon after take part in a pro-PKK demonstration in Istanbul particularly in view of the fact he had previously been detained for such actions. He continued to live in Istanbul but on the  20th of September 2000 he was arrested. He does not know the reason for this but he said this may have been because of what happened at the demonstration on the 15th of August. He was held there for three days and said that he was again subjected to being beaten and received electric shock treatment. I accept that there may have been some pressure put on him to confess that he was involved with the PKK and had taken part in an illegal demonstration. However the appellant did not have a high profile or active role in the PKK and again I do not accept that the authorities were particularly interested in the appellant to single him out for special treatment. He was again released without charge but did not receive any medical treatment for his injuries. Again there is no medical evidence to support his alleged injuries from this detention.”
3.	The overall assessment made by the Adjudicator was in these terms:
“(iii) I find that although the appellant may have been harassed for his Kurdish ethnic origin and took part in pro-PKK demonstrations, he did not have anything but a very minor role in these and would not have been singled out by the authorities for any special treatment. In particular I do not accept that the appellant’s evidence was credible that he fled his home village because of a fear of persecution for being Kurdish and a PKK sympathiser because very shortly after arriving in Istanbul he takes part in another PKK demonstration. Although there are examples of the Kurdish people receiving harsh treatment from the authorities, I find the appellant was not treated unreasonably for his participation in the PKK demonstrations and his breach of regulations during his period of military service. However the appellant was never charged and I do not believe the authorities would be particularly interested in him if he were returned to Turkey as he is not subject to outstanding charges or indeed had any previous convictions for a criminal offence. I note that one third of the Muslim population in Turkey also belongs to the Alevi sect. Since 1984 more than 3,500,000 Kurds have left southeast Turkey with Istanbul accommodating almost 1,500,000 new immigrants. Most of these live peacefully in western Turkey and on the southern coast. 
(iv) I find that the appellant would have left Turkey earlier if he had a well founded fear of persecution since he claimed he was first detained in August 1996. However since then he continued to take part in PKK demonstrations. Also the appellant could have asked the authorities to protect him if he considered he was being unfairly persecuted but he did not do this. I believe that the appellant could return to live with his family without being unduly harassed or alternatively he could return to live in other parts of Turkey where law-abiding Kurdish ethnics are treated fairly. I note from the background information that being of Kurdish origin does not of itself constitute a higher risk of inhuman treatment but everything depends on the individual and his activities in Turkey. In the case of the appellant he did not have anything but a very minor part in the PKK organisation of which there is no evidence that he was even a member. Also the authorities never prosecuted him and always released him after a short period. I also find that the appellant could have claimed asylum during his travel through various countries to the United Kingdom. Again the appellant did not immediately claim asylum on his arrival in the United Kingdom. Also he did not notify the authorities that he was unable to attend the required interview on the 23rd of November 2000 which leads me to believe that he did not wish to attend this interview because he was not a genuine asylum seeker in need of international protection.” 
The Tribunal
4.	The principal ground of appeal was that the Adjudicator had failed properly to take into account the background evidence which, it was contended, showed that “suspected low level activity is sufficient to compel the Adjudicator to the conclusion that the appellant has a well-founded fear upon return”.  In particular, it was submitted that, in view of the background evidence, once the Adjudicator had accepted (as he did) that the appellant had been detained by the authorities, it was irrational to reject his evidence that he suffered ill-treatment during his detentions.  
5.	At paragraph 29 of their Determination, the Tribunal made reference to the background evidence in the context of the appellant’s claim that he had taken part in a demonstration on 15 August 2000.  They said this:
“29....The Tribunal has some difficulty in relation to this claim because the background evidence is that the leader of the PKK Abdullah Ocalan returned to Turkey in mid-February 1999 for a public protest by his supporters some of which became violent.
30. It then goes on to record that following the elections and a drop in PKK terrorist violence in summer 1999 government pressure on HADEP eased somewhat.
31. Ocalan was convicted of treason and on the 29th June 1999 sentenced to death. His lawyers have appealed to the European Court of Human Rights. On the 2nd August 1999 Ocalan through his lawyers made a statement calling on the PKK to end the arms struggle as of 1st September 1999 and withdraw its forces outside the borders for the sake of peace. Two days later the PKK presidential council answered his appeal and confirmed that PKK combatants would indeed cease operations against Turkey. That statement was supported the following day by the People’s Liberation Army of Kurdistan (ARGK) the armed wing of the PKK which confirmed that it would abide by Ocalan’s decision although it claimed the right to fight in self-defence if attacked.
32. On the 12th January 2000 the Turkish government agreed to respect an injunction from the European Court of Human Rights calling for the suspension of Ocalan’s execution pending his appeal to the court. Analysts argued that the decision undermined the government’s determination to push forward with its plans to join the EU, and to pursue its economic and political objectives and that it was ready to defy public sentiment to achieve them. In a written statement from prison Ocalan said that the decision was a step towards democracy. He pledged that the PKK would not exploit the move and said that the PKK’s war for a Turkish state was a historic mistake. The PKK presidential council confirmed that they would only pursue democratic means to further their political objectives.
33. The Appellant says the demonstration was to celebrate the start of the armed struggle.
34. In the light of the background evidence the Tribunal does not find it credible that such a demonstration occurred.” 
6.	The Tribunal then turned to the evidence about the arrest of the appellant on 20 September 2000, and his claim that he was detained for three days and beaten and subjected to electric shock treatment.  At paragraph 37 they continued:
“37. The Adjudicator accepted that there may have been some pressure put on him to confess that he was involved with the PKK and had taken part in an illegal demonstration.
38. However as he rightly put it the Appellant did not have a high profile or an active role in the PKK. He did not accept that the authorities were particularly interested in the Appellant to single him out for any special treatment. Again he was released without charge. He did not receive any medical treatment for his alleged injuries. The Adjudicator rightly points out that there is no medical evidence to support his alleged injuries from his detention. The Tribunal does not find the Appellant’s account in relation to this last detention to be credible. Indeed it would appear that the appellant arrived within a matter of days from being detained. If he in fact had been beaten as he claimed there might well have been some evidence for what he says. 
39. The Adjudicator went on to find that the Appellant may have been harassed for his Kurdish ethnic origin and had taken part in pro-PKK demonstrations. His role was very minor, he did not believe he would have been singled out by the authorities for any special treatment.
40. He did not find credible the claim that he fled his home village because of a fear of persecution for being Kurdish and a PKK sympathiser. 
41. He did not believe that he had received particularly harsh treatment from the authorities nor had he been harshly treated during his military service.
42. He found that the Appellant had never been charged and that the authorities had no interest in him.
43. The Tribunal concur with the Adjudicator’s finding that the Appellant does not have a well-founded fear of persecution for a Convention reason if returned to Turkey. He is a low level supporter of the PKK. They declared a cease-fire with the Turkish authorities and that cease-fire is being honoured.
44. He will be returned to Turkey as a failed asylum seeker. The authorities have no interest in him. He has completed his military service.
45. In the case of Turgut evidence was before the Court of Appeal in relation to returns by other countries of failed asylum seekers to Turkey.
46. The risk such a person might be detained and ill-treated on return in that case assessed at its highest at 1%.”
The grounds of appeal
7.	Keene LJ originally refused permission to appeal on the papers.  When the application for permission was renewed orally, the point that impressed Keene LJ as most worthy of argument was that it was said that the issue of whether the appellant could be believed when he said that there was a demonstration on 15 August 2000 had not been raised at the hearing before the Tribunal.  Before this court, however, Mr Grieves’ central argument is that it was not reasonably open to the Tribunal to reject the appellant’s evidence of ill treatment. As will appear, he places great reliance on the background evidence.  A subsidiary argument is that the Tribunal had no reasonable basis for overturning the Adjudicator’s finding that there had been a pro-PKK demonstration on 15 August 2000, and that the appellant had participated in it.   But before I say more about Mr Grieves’ submissions, I need to refer to some of the relevant background material.
The background material
8.	In a letter dated 22 March 1999, the United Nations High Commissioner for Refugees stated: 
“Persons who are suspected of having the slightest links with the PKK are detained and kept in detention. It is known that they are at times subjected to torture/ill-treatment and cases of extra-judicial executions have been reported.
In view of the above, it is essential to find out if Turkish asylum seekers, if returned, would be at risk of being suspected of connection to or sympathy with the PKK, or have otherwise a political profile.”
9.	The Turkey Country Assessment dated April 2001 by the Country Information and Policy Unit, Immigration and Nationality Directorate, Home Office  (“CIPU”) was before the Tribunal.  It provided the source material for what appears at paragraphs 29-34 of the Tribunal’s Determination.  It also contains the following passage at paragraph 7.28 on which Mr Grieves relies:
“Obviously, the group most likely to be exposed to harassment/prosecution/persecution are Kurds suspected of being connected to or being sympathisers with the PKK. In view of the above, UNHCR advise that it is essential to find out if Turkish asylum seekers, if returned, would be at risk of being suspected of connection to or sympathy with the PKK, or have otherwise a political profile. If this is the case, UNHCR continue, they should not be considered as having been able to avail themselves of the option to relocate in a region outside the southeast of the country.”
10.	Section 5 is headed “General Human Rights Situation”.  It refers (5.1) to a report by the United Nations Special Rapporteur following a visit in November 1998, which showed that, despite a substantial reduction in the brutality of the methods of torture used in some places, serious forms of torture still seemed to be rife in many parts of the country.  The practice of torture “may well, in numerous places around the country, deserve the categorisation of systematic in the sense of being a pervasive technique of law enforcement agencies for the purpose of investigation, securing confessions and intimidation” (5.2).
11.	But there are also other passages to which Miss Grey has drawn our attention.  There is a section of the document which bears the heading “Treatment of Returned Asylum Seekers”.  This states that returnees without documents “are generally not being maltreated while being kept in custody.  However, ill treatment cannot be ruled out in cases where returnees are suspected separatists” (7.35).  “Being of Kurdish origin does not in itself constitute a higher risk of inhuman treatment.  Everything depends on the individual and his activities in Turkey and abroad” (7.37).  
12.	The Home Office Operational Guidance Note, Turkey, January 2002 includes this passage:  “Almost all violent activity by the PKK has ceased, although some armed clashes between the Government and the PKK continue to occur.  Security forces continue to target active PKK units as well as those person they believe support or sympathise with the PKK”.   
Other decisions
13.	Mr Grieves has drawn our attention to a number of (mainly tribunal) decisions which are based on the background material, and which, he submits, support the proposition that the threshold of risk in these cases is no more than that the applicant is likely to be suspected as a sympathiser of, or connected in some way with, the PKK.  In Veli Yelocagi (CA-99-7970), a decision of the Court of Appeal in relation to a Determination of a tribunal published on 18 October 1999, Kennedy LJ said at paragraph 15:
“In other words, on the facts what had to be established was whether or not this appellant had that low level connection which would endanger him, having regard to the contents of the UNHCR letter; which contents were, it seems, both by the Secretary of State and by the Tribunal accepted as an appropriate basis for consideration of the case.”

14.	In the appeal of Ali Mede, a decision published on 22 September 2000, the tribunal referred to paragraph 7.28 of CIPU April 2000 (which was in identical terms to the corresponding paragraph in CIPU April 2001 to which I have referred).  It is of significance, however, that the tribunal referred to the decision in Okur, in which “the tribunal recognised, as the Home Office Assessment points out, that everything regarding the return of an asylum seeker depends on the individual and his activities in Turkey and abroad”.

15.	In the appeal of Mustapha, a decision published on 13 February 2001,  the tribunal, whilst recognising that “each case must be decided on its own facts” applied what was said by the UNHCR in its letter of 22 March 1999, and allowed the appellant’s appeal.  They said that, in view of the authorities’ record of ill treatment and extra-judicial executions, it was essential to find out whether Turkish asylum seekers, if returned, would be “at risk of being suspected of connection to or sympathy with the PKK”.  In that case, it was noted that the appellant came from a village which was known for its sympathy for the PKK; had been detained and tortured for activities which he had carried out for the PKK; and had left Turkey when the authorities were actively looking for him in connection with his activities for the PKK.  

The submissions
16.	Mr Grieves submits as follows.  The background evidence clearly shows that, at the time of the hearings before both the Adjudicator and the Tribunal, a Turkish Kurd was at risk of persecution in Turkey, even if only suspected of being a sympathiser of, or connected with, the PKK. Two principal consequences flow from this.  First, in so far as the Tribunal took into account the fact that the appellant “did not have a high profile or an active role in the PKK” (paragraph 38), they applied too high a threshold for determining whether there was a reasonable likelihood of persecution.  Secondly, once it was found that the appellant had been detained twice, the background evidence should have led the Tribunal to conclude that the appellant was telling the truth when he said that he was ill treated on both occasions. 
17.	Mr Grieves submits that the findings by both the Adjudicator and Tribunal that the appellant’s account of ill treatment was incredible were irrational.  In making these findings, they failed to take account of the background evidence.  Moreover, the reasons given for rejecting the appellant’s account do not bear scrutiny.   These are that (a) there was no medical evidence of the beatings to which the appellant said that he had been subjected: if he had in fact been beaten “there might well have been some evidence for what he says” (paragraph 38 of the Tribunal’s Determination); and (b) the appellant arrived in the United Kingdom “within a matter of days from being detained” (paragraph 38).  As for (a), Mr Grieves submits that the alleged torture would not necessarily have left any scars, so that the absence of evidence of scarring counts for little or nothing.  As regards (b), the appellant was released from detention on 23 September and left Turkey on 9 October.  No inferences can reasonably be drawn from these two facts as to the veracity of the appellant’s account of being tortured between 20 and 23 September.  
18.	As a subsidiary point, Mr Grieves seeks to impugn the Tribunal’s finding that the demonstration of 15 August did not occur.  He submits that the Tribunal failed to identify any error on the part of the Adjudicator which justified the reopening of his finding that the demonstration did occur and the appellant took part in it.  Secondly, he complains that the Tribunal gave no notice to the appellant that they were or might be minded to reverse the Adjudicator’s finding on this point.
19.	Miss Grey emphasises the fact that the question of risk in these cases is fact-sensitive.  In a number of tribunal decisions, the point has been made that each case turns on its own facts.  She has referred to Dari (01TH03280, 2 January 2002);  Gulbache (01TH02034, 13 September 2001);  Demirci (01TH02406, 9 January 2002).  What is required is an assessment of risk having regard to the extent of the appellant’s actual and/or perceived involvement in and support for the PKK.  As in the present case, this will usually require an assessment of the credibility of the appellant, conducted in the light of the background evidence.  
20.	The background evidence did not give rise to any presumption that the appellant had been tortured when he had been detained.  The Adjudicator found that the appellant lacked credibility in a number of respects. He did not believe that the appellant could have fled from persecution in his home village, only to take part immediately in an illegal demonstration in Istanbul.  He did not believe that the appellant had been tortured during either of his periods of detention.  Further, the appellant did not notify the UK immigration authorities that he could not attend the interview of 23 November 2000, which led the Adjudicator to believe that he did not wish to attend because he was not a genuine asylum seeker.
21.	In short, the findings of the Adjudicator and Tribunal that the appellant had not been tortured during either of his periods of detention were not irrational.  The Tribunal plainly did consider the background evidence.  Their finding that the ceasefire was a relevant change of circumstances was based on it. The Tribunal were entitled to reverse the Adjudicator’s finding about the demonstration of 15 August, and to rely on that as additional support for doubting the appellant’s credibility.  Even if the Tribunal did not give notice to the appellant that they were considering the possibility of reversing the Adjudicator’s finding that a demonstration had taken place on 15 August, the requirements of natural justice did not oblige them to do so.

Conclusion
22.	It is not suggested by Mr Grieves that the background evidence indicated that all Kurds suspected of support for, or sympathy with, the PKK (however slight) were at the time that this appeal was considered by the Adjudicator and the Tribunal at risk of persecution in Turkey.  Mr Grieves rightly recognises that it all depends on the facts of the individual case.  In making an assessment of those facts, in this as in almost all cases, findings as to the past experiences of the appellant are usually of critical importance.  If an appellant has been subjected to persecution in the past, this will be cogent evidence that, in the absence of a material change of circumstances, he will be at risk of persecution if he is returned.  That is why it was critical in this case for the Adjudicator and Tribunal to decide whether the appellant had or had not been tortured during his two periods of detention.  If they had accepted his evidence on this point, it would have been most surprising if they had dismissed the appeal.  It follows that what lies at the heart of the  appeal to this court is the challenge to the rejection by the Adjudicator and the Tribunal of the appellant’s evidence on this point.
23.	As we have seen, Mr Grieves places a great deal of weight on the background evidence.  The high water mark of his case is the UNHCR letter of 22 March 1999 which states that persons who are suspected of having the slightest links with the PKK are detained, and that they are “at times” subjected to torture.  This advice predated the PKK ceasefire of September 1999.  Moreover, even this document does not suggest that all those suspected of slight links with the PKK are tortured.  The Home Office operational Guide Note for January 2002 refers to the fact that all violent PKK activity has ceased, although security forces “continue to target active PKK units as well as those persons they believe support or sympathise with the  PKK”.  It is unclear from this document whether the targeting of those whom the security forces believe support or sympathise with the PKK includes torture, and if so on what scale.
24.	Mr Grieves does not dispute that, taken by itself, the background evidence cannot prove that the appellant was likely to have been tortured during his detentions.  I do not accept his submission that the background evidence raises a “presumption” or even a “prima facie case” that the appellant’s account of torture during his two periods of detention was true.  That evidence was important as part of the background.  It had to be considered.  It was certainly consistent with the appellant’s  account.  But, in my judgment it did not establish the truth of the evidence.   The appellant’s credibility lay at the heart of the appeal to the Adjudicator and the Tribunal.  The Adjudicator had the benefit of his oral evidence.  He did not believe that the appellant had been tortured during his periods of detention.  He gave two specific reasons for reaching this conclusion.  First, he did not consider that there was any reason why the authorities should have singled the appellant out for torture on either occasion: he played a very minor role in the demonstrations, and was released from detention without charge.  Secondly, there was no medical evidence on either occasion to confirm the alleged torture.  But he gave further reasons for reaching the conclusion that the appellant was not a credible witness.  I have already referred to the points made by Miss Grey.  There is the further point made by the Adjudicator at paragraph 20(iv) that the appellant would have left Turkey earlier if he had a well founded fear of persecution.  He claimed to have been tortured in August 1996, and yet continued thereafter to take part in PKK demonstrations albeit at a very low level.  

25.	In my judgment, the Adjudicator was entitled to reject the evidence of torture for the reasons that he gave.  Mr Grieves has criticised the reasoning in so far as it is based on the absence of medical evidence.  If that had been the sole reason for rejecting the appellant’s account, I would have seen considerable force in Mr Grieves’ criticism.  But it is far from being the sole reason.  The Adjudicator gave a number of reasons which, in combination, provided a rational basis for rejecting the appellant’s account of torture.  It should not be forgotten that the Adjudicator had the benefit of seeing the appellant and hearing him give evidence.  In my view, the challenge to the Adjudicator’s finding on this central issue fails.  

26.	So too does the challenge to the decision of the Tribunal to uphold the Adjudicator on this issue.  The Tribunal did not deal in terms with the Adjudicator’s findings in relation to the first detention.  But they explicitly upheld the Adjudicator’s finding in relation to the detention between 20 and 23 September 2000, and there is nothing to indicate that they took a different view as regards the first detention.  In my judgment, they were entitled to uphold the Adjudicator, and to conclude that the background evidence did not shake his findings as to the credibility of the appellant’s account.  

27.	In fact, the Tribunal took the view that the background evidence reinforced the Adjudicator’s overall conclusion that the appellant did not have a well-founded fear that he would face persecution for a Convention reason if he returned to Turkey.  This was because they decided that, in view of the ceasefire of September 1999, the demonstration of 15 August 2000 could not have taken place.  If that demonstration did not take place, that further undermined the appellant’s credibility, since he had said that he had participated in it.  Mr Grieves submits that the Tribunal were not entitled to reverse the Adjudicator’s finding about the demonstration of 15 August.  I propose to deal with this issue very briefly, since in my view even if Mr Grieves is right, it cannot affect the outcome of this appeal.  In reaching their decision, the Tribunal endorsed the essential reasoning of the Adjudicator, which was that the appellant was a low-level supporter of the PKK in whom the authorities would have no interest.  This was the first reason given by the Tribunal in paragraph 43 of their Determination as support for their conclusion (in agreement with the Adjudicator) that the appellant did not have a well founded fear of persecution for a Convention reason if he returned to Turkey.  This conclusion was reinforced by the Tribunal’s appreciation of the effect of the ceasefire, and their conclusion that the demonstration of 15 Aug 2000 did not take place.  But there is no reason to suppose that the Tribunal would not have endorsed the view of the Adjudicator even if they had agreed with the Adjudicator about the demonstration of 15 August.  There is nothing in the findings or reasoning of the Tribunal which lends support to such a conclusion.  I did not understand Mr Grieves to submit that the Tribunal’s Determination should be interpreted as saying that the ceasefire was a significant change in Turkey so as to free the appellant from a risk of persecution where previously he had been subject to such risk.  

28.	It follows that in my judgment, no error of law in the Tribunal’s reasoning has been exposed by Mr Grieves.  The Tribunal were entitled to dismiss the appeal from the decision of the Adjudicator.  I would dismiss this appeal.

Lord Justice Brooke:

29.	I do not know why the Tribunal decided to reverse the adjudicator’s finding that there was a demonstration of Kurds in Istanbul on 15th August 2000, being the anniversary of the start of the armed struggle. The Tribunal do not explain their reasons adequately and they should not have taken this step without putting the parties on notice that they might do so and inviting their submissions on the point. Perhaps they misunderstood the shorthand used by the adjudicator for describing the purpose of that demonstration: I do not know. This was the point which worried Keene LJ when he granted permission to appeal.

30.	As the argument in this court developed, however, this part of the Tribunal’s determination became less significant. Of central importance was the treatment of Mr Avci when he was detained by the Istanbul police in September 2000. The adjudicator made a finding of fact that nothing particularly untoward occurred, and the Tribunal has upheld that finding of fact. The judges at the different tiers of the Immigration Appellate Authority have infinitely more practical experience than the judges of this court in assessing the strength of the claim by a Turkish Kurd that he has been treated inappropriately by the Turkish police. Unless we were to accept Mr Grieves’s submission that there should be a rebuttable assumption of ill-treatment in every such case, which I decline to do in the context of the situation in Turkey in autumn 2000, the outcome of an appeal of this kind depends critically on the impression the appellant made on the adjudicator at the first hearing and the quality of the adjudicator’s reasons for rejecting his evidence. 

31.	In the circumstances I agree with Dyson LJ, for the reasons he gives, that the Tribunal were entitled to dismiss the appeal from the decision of the adjudicator and I, too, would dismiss this appeal.

Lord Justice Simon Brown:

32.	I too agree with Dyson LJ that, for the reasons he gives, this appeal should be dismissed.

	ORDER: Appeal dismissed.  The appellant to pay the respondent's costs, such costs to be determined pursuant to section 11 of the Access to Justice Act 1999.  There will be a detailed assessment of the appellant’s publicly funded costs.

(Order not part of approved judgment)