R v. Immigration Appeal Tribunal, Ex parte Vijay Mansukhlal Mehta
| Publisher | United Kingdom: Court of Appeal (England and Wales) |
| Author | Court of Appeal (Civil Division) |
| Publication Date | 26 July 1976 |
| Citation / Document Symbol | [1976] Imm AR 174 |
| Type of Decision | TH/1774/75 |
| Cite as | R v. Immigration Appeal Tribunal, Ex parte Vijay Mansukhlal Mehta, [1976] Imm AR 174, United Kingdom: Court of Appeal (England and Wales), 26 July 1976, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b674c.html [accessed 17 September 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
R v THE IMMIGRATION APPEAL TRIBUNAL Ex parte VIJAY MANSUKHLAL MEHTA TH/1774/75
Court of Appeal (Civil Division)
[1976] Imm AR 174
Hearing Date: 26 July 1976
26 July 1976
Index Terms:
Notice of appeal -- Time limit for giving notice exceeded -- Preliminary issue before appellate authority -- Discretion of appellate authority to allow appeal to proceed -- Discretion where by reason of "special circumstances" just and right so to do -- Relevance of all the material before appellate authority -- Substantive merits of case a factor for consideration -- Weight, if any, to be given to that factor a matter for the discretion of the appellate authority -- Immigration Appeals (Procedure) Rules 1972 (SI 1972 No 1684), rr 4(5), 8(3)(b), 11(1)(4), 12 (e).
Held:
M, a citizen of India, entered the United Kingdom as a holiday visitor in September 1974. Shortly afterwards he applied for a variation of his leave to enter so as to permit him to remain in the country as a student at a technical college for 2 years. His application was refused on the ground that the Secretary of State was not satisfied that he was a bona fide student who intended to leave the country on completion of his studies. n1 The notice of refusal was sent on 30 December 1974 to M's registered address but because he had moved away without officially notifying a change of address the notice did not reach him till about 15 January 1975. He lodged a notice of appeal on 17 January and his grounds of appeal included matters relevant to his studies and financial support. The Home Office, acting in accordance with r 8(3)(b) of the Immigration Appeals (Procedure) Rules 1972, n2 alleged that M's notice was out of time, having been received outside the 14 days permitted under r 4(5), and requested that an adjudicator determine this matter as a preliminary issue under r 11(1) and decide further under r 11(4) whether, if out of time, M's appeal should nonetheless be allowed to proceed by reason of special circumstances making this just and right. n3 M was then invited to submit a statement in writing (under r 12(e)) n4 in answer to the out-of-time allegation which he was told would be determined by an adjudicator who, if he found the allegation valid, would then decide whether there were special circumstances which would justify allowing the appeal to proceed. M in reply wrote a letter dealing only with the circumstances relating to the lateness of his notice of appeal. M's statement, together with his original grounds of appeal and a statement from the Home Office (which, under r 8(3)(b), was confined to the facts relating to the out-of-time allegation) were placed before the adjudicator. The adjudicator was of opinion that the explanation given by M in his statement did not amount to special circumstances under r 11(4) making it just and right to allow his appeal to proceed to a hearing and he dismissed the appeal. In his determination (d 16 April 1975) the adjudicator stated that the "substantive merits" of the appeal were "not of course at issue at the present time". n1 The immigration rules relating to student applications by Commonwealth citizens are set out in HC 79 and HC 80. n2 Rule 8(3)(b) is set out in footnote 7, post. n3 Rule 11(4) is set out on p 178, post. n4 Rule 12(e) is set out pn p 178, post. On 16 May 1975 the Court of Appeal gave judgment in the case of Miss R. P. Mehta (the '1975 Mehta Case') n5, as a result of which it was clear that the adjudicator was in error when he excluded substantive merits from consideration on the preliminary issue. M's solicitor applied to the Tribunal for leave to appeal from the adjudicator's decision. The Tribunal in its determination, refusing leave, referred inter alia to "lengthy grounds of appeal" furnished by the appellant's representative "which the Tribunal has carefully considered", but did not comment upon or criticise the words of the adjudicator which had treated the substantive merits as a necessarily irrelevant factor on this preliminary issue; the Tribunal concluded by saying that it did not consider that "the reasons for the delay amount(ed) to special circumstances making it just and right to allow the appeal to proceed to a hearing". n5 [1976] Imm A R 38, sub nom R v Immigration Appeal Tribunal, ex p Rashila Prataprai Mehta; [1975] 2 All ER 1084, sub nom Mehta v Secretary of State for the Home Department: [1975] 1 WLR 1087, sub nom R v Secretary of State for the Home Department, ex p Mehta. M moved in the Queen's Bench Divisional Court for an order of certiorari to quash the Tribunal's decision, contending that the Tribunal's determination showed the same error of law on the face of it as had appeared in the adjudicator's determination -- the refusal to treat as relevant the substantive merits. The Divisional Court, citing the 1975 Mehta Case (p 38, ante) granted the order (pp 182-184, post). On the appeal of the Immigration Appeal Tribunal to the Court of Appeal, Held: the appeal would be allowed for the following reasons -- (i) The Tribunal having expressly and unequivocally stated that it had carefully considered the lengthy grounds of appeal -- which, M's counsel accepted, did raise the substantive merits -- it could not be said that an error of law appeared on the face of the Tribunal's decision, namely that the Tribunal failed to consider a matter which it ought to have considered (in accordance with the decision in the 1975 Mehta case). Per MEGAW LJ: "By 'substantive merits' I understand to be meant a provisional assessment (for it could only be provisional, at best, at that stage) of the chances of success of the appeal, if the appeal were to be allowed to proceed despite the lateness of the notice" (p 180, post). Per curiam: The appellate authority (adjudicator or tribunal), having decided that a notice of appeal from a decision of the immigration authority was out of time, had then to look at all the material before it in order to decide whether there were in the case such special circumstances as would make it right and just to allow the appeal to proceed. That material would, or might, include material which could be said to relate to 'the merits'. The material should be considered in the sense of 'looked at' with a view to seeing whether it showed a factor which, in the opinion of the appellate authority, would weigh in the balance in deciding -- after taking into account all relevant factors -- whether the required 'special circumstances' existed. If the appellate authority failed to look at that material it could not possibly assess whether it might be a relevant factor; accordingly in that sense the appellate authority should look at it (p 183, post). And, having seen that the material related to 'the substantive merits' the appellate authority was not to refuse to consider it further merely because that was its nature. The weight, if any, to be given to that factor was, however, and must be a matter for the discretion of the appellate authority (see pp 183, 184-185, post). R v Immigration Appeal Tribunal, ex p R. P. Mehta, [1976] Imm. A.R. 38 ante, explained and followed. Per BROWNE LJ: "When I said in the 1975 Mehta case that 'I emphasise that I am only saying that the tribunal is entitled to take into account such matters -- not that they should and still less that they must be taken into account in every case' (p 43 ante, p 184 post) I was trying to avoid imposing limitation on the discretion of the tribunal as to the weight (if any) they give to such factors in a particular case" (p 185, post). (ii) (on M's alternative submission before the Divisional Court that the decision on the Tribunal on the material before it was, in effect, perverse) applying the criterion stated by LORD DENNING MR in R v Preston Supplementary Benefits Appeal Tribunal, ex p Moore ([1975] 2 All ER 807 at p 813; [1975] 1 WLR 624 at p 631), and having regard to the facts in relation to the lateness of the notice of appeal and the reasons therefor and to all that was put forward as to the merits of M's case and the chances of success if the appeal were allowed to proceed, the Court was unable to assent to "the view that the decision which the tribunal reached was one that no tribunal could reasonably reach on all the material before it" (p 184, post).Counsel:
Harry Woolf for the Immigration Appeal Tribunal. Nigel Murray for the respondent, V. M. Mehta. PANEL: Megaw, Orr and Browne, LJJ.Judgment One:
MEGAW LJ: In this appeal the Immigration Appeal Tribunal asks this Court to set aside the judgment of the Divisional Court of the Queen's Bench Division dated 8 October 1975 whereby the Court granted to Mr Vijay Mansukhlal Mehta an order of certiorari quashing the tribunal's decision of 22 May 1975. In 5 September 1974 Mr Vijay Mansukhlal Mehta arrived at Heathrow Airport. He is a citizen of the Republic of India. He told the entry certificate officer that he was intending to visit the United Kingdom on leave for one month. He told the immigration officer that he was coming on two weeks' holiday. He was granted leave to enter the United Kingdom for one month as a visitor. Soon thereafter he was accepted as a student at the Southgate Technical College for a two-year course. On 25 September 1974 Mr Mehta applied for a variation of his leave to enter so as to permit him to remain in the United Kingdom as a student for 2 years. On 30 December 1974 that application was refused by the Secretary of State. The reason given in the notice of refusal was: "The Secretary of State is not satisfied that you are a bona fide student who intends to leave the United Kingdom on completion of his studies." The notification of that refusal was sent on the same day by a recorded delivery letter addressed to Mr Mehta at his registered address, 19 Reservoir Road, Southgate, London N14. That letter was not in fact received by Mr Mehta until 15 January 1975. Mr Mehta had moved away from that address and had not notified the Home Office of his change of address. A Mr Mistry, who lived at 19 Reservoir Road, had tried to get in touch with Mr Mehta to deliver the letter to him but, apparently because Mr Mehta had gone away for his Christmas holiday and had remained away from his new place of residence until about 15 January, Mr Mistry did not succeed in delivering it to Mr Mehta until then. Rule 4(5) of the Immigration Appeals (Procedure) Rules, 1972 (SI 1972 No 1684), which I shall call "the Rules", provides that notice of appeal in a case such as this, under s 14(1) of the Immigration Act 1971, "may be given not later than 14 days after the refusal to vary". Mr Mehta gave notice of appeal. That notice was received at the Home Office on 17 January 1975. There is now no dispute but that the relevant date of the refusal is the date on which the notice of refusal is sent by post (r 4(11)), and the relevant date of the giving of the notice of appeal is the date of its receipt n6. So Mr Mehta's notice was out of time by some 4 days. n6 Quaere under rr 43 and 44(1)(c) . Mr Mehta's grounds of appeal as set out in his notice of appeal were: (1) That he was a genuine full-time student at the Southgate Technical College. He enclosed a letter from the Head of the Department, Mechanical Engineering, of that College dated 15 January 1975, confirming Mr Mehta's "100 per cent attendance" and speaking highly of his work. (2) That he was fully dependent on his father, in Sudan, for payment of college fees and maintenance. He enclosed a copy of a bank document. (3) That he would leave the United Kingdom on the completion of his studies. He requested a hearing of his appeal. The Home Office acted in accordance with r 8(3) anc r 11(1) of the rules. Under r 8(3)(b) n7 the Home Office alleged (as is now accepted as correct) that the notice of appeal was not given within the period permitted by r 4. Accordingly, the Home Office did not submit the full written statement of the facts which would be required to be submitted for an ordinary in-time appeal (r 8(1)). They submitted, in accordance with r 8(3)(b), a statement of the facts relevant to the out-of-time allegation. The statement is dated 12 February 1975. Attached to the statement, and referred to therein, were copies of the notice of appeal and of the documents which had been enclosed with that notice. By para 3 of the statement the Secretary of State requested, as r 11(1) entitled him to do, that there should be determined as a preliminary issue the validity of his allegation that the notice of appeal was not given within the permitted period. n7 Rule 8(3)(b) reads as follows: "Where the respondent to an appeal alleges that --... (b) the notice of appeal was not given within the period permitted by Rule 4, the written statement referred to in paragraph (1) above shall include that allegation but it shall not be necessary for the respondent to include in the statement facts which are not relevant to the allegation." The first stage of the appeal procedure was an appeal to an adjudicator (s 14(1) of the 1971 Act). The procedure for such an appeal at that stage is contained in Part II of the Rules, rules 3 to 12, to some of which reference has already been made. Rule 11(4) provides:"Where the respondent to an appeal makes such an allegation as is mentioned in r 8(3)(b) and the appellate authority determines, as a preliminary issue, that the notice of appeal was not given within the period permitted by r 4, then, except where a deportation order is for the time being in force in respect of the appellant, the appellate authority shall not be required to dismiss the appeal but may allow it to proceed if the authority is of the opinion that, by reason of special circumstances, it is just and right so to do; and, in such case, the notice of appeal shall be treated for all purposes as if it had been given in accordance with r 4."
Rule 12 deals with circumstances in which an appellate authority may determine an appeal without a hearing. For the purpose of the present case, the relevant part of the rule is:"12. An appellate authority may determine an appeal without a hearing if... (e) such a preliminary issue as is referred to in r 11 arises and the appellate authority has afforded the appellant a reasonable opportunity to submit a statement in writing of matters put forward in rebuttal of the respondent's allegation, and -- (i) the appellate has not submitted such a statement, or (ii) the appellate authority is of the opinion that matters put forward by the appellant in such a statement do not warrant a hearing."
The Home Office having requested the determination of a preliminary issue under r 11(1), the clerk to the adjudicator on 1 April 1975, wrote to Mr Mehta informing him of the Home Office's allegation that the notice of appeal was out of time. Copies of all the relevant documents were enclosed. The second paragraph of the letter, intended no doubt to state the effect of r 11(4) and to offer Mr Mehta the "reasonable opportunity" contemplated by r 12(c) , read as follows:"It is for an immigration appeals adjudicator to determine as a preliminary issue whether or not your notice of appeal is in time and to decide, if it is out of time, whether there are special circumstances which would justify allowing your appeal to proceed. If you wish to make a statement in answer to the allegation which the Secretary of State has made, you should do so not later than 15 April 1975. If no statement from you is available by this date, the adjudicator may determine this preliminary issue on the basis of the enclosed papers."
Mr Mehta on 10 April 1975, wrote to the clerk to the adjudicator. The letter was his "statement in writing" as contemplated by r 12(e). His statement, on its face, dealt only with the circumstances directly relating to the lateness of his notice of appeal. It set out the matters, mentioned above, relating to his change of address and non-receipt of the Home Office's notice of refusal until 15 January 1975. A confirmatory statement by Mr Mistry was enclosed. However, the adjudicator in his decision says that "the appellant also enclosed copies of documents relating to the substantive merits of his appeal...". It would seem that the documents in question had in fact been sent to the adjudicator by the Home Office with their statement dated 12 February 1975. But I do not think it matters. The adjudicator had the documents and I am prepared to assume that it was Mr Mehta who had sent them. The adjudicator was of opinion that the matters put forward by Mr Mehta in his statement did not warrant a hearing of the appeal. By his written determination of the preliminary issue dated 16 April 1975 he dismissed the appeal. On 16 May 1975, a month after that decision, this Court (Lord Denning MR, Browne and Geoffrey Lane LJJ) gave judgment in R v Secretary of State for the Home Department: ex p Mehta n8. The Miss Mehta concerned in that case, which will be referred to hereafter in this judgment as 'the 1975 Mehta case', is no relation of the Mr Metha who is the party to the present appeal. As a result of the decision in the 1975 Mehta case, it is clear that the reasons given by the adjudicator for his decision in the present case are wrong. The decision included the sentence, part of which has already been quoted, which, read in full, said: "The appellant also enclosed documents relating to the substantive merits of his appeal which are not of course at issue at the present time". By "not of course at issue" the adjudicator meant that they were irrelevant to the issue which he had to decide: that is, that he was not entitled to take them into consideration in arriving at his decision on this preliminary issue: they could not be considered as relevant at all in reaching the decision whether there were "special circumstances" under r 11(4) by reason of which, despite the notice of appeal being out of time, it was just and right to allow the appeal to proceed. n8 [1975] 1 WLR 1087; sub nom Mehta v Secretary of State for the Home Department [1975] 2 All ER 1084; sub nom R v Immigration Appeal Tribunal, ex p R. P. Mehta [1976] Imm A R 38. The decision of the appellate authority which gave rise to the appeal to this Court in the 1975 Mehta case was founded upon the same view as to the limited scope of factor which could be relevant for the decision whether or not such special circumstances as are contemplated by r 11(4) exist. The ratio decidendi of the 1975 Mehta case, so far as it is relevant to this appeal, is that the factors which may be relevant for this purpose are not, as had been thought by the appellate authority in that case, and again by the adjudicator in the present case, confined to matters which directly concern, or tend to explain or excuse, the lateness in the giving of the notice of appeal. So to hold is to take too strict a view of what may be relevant to the decision as to r 11(4) "special circumstances". There is no reason in law why the appellate authority should not take into account the substantive merits of the case. By "substantive merits" I understand to be meant a provisional assessment (for it could only be provisional, at best, at that stage) of the chances of success of the appeal, if the appeal were to be allowed to proceed despite the lateness of the notice. The judgment of Browne LJ in the 1975 Mehta case makes clear what it was, so far as is relevant to the present case, which that case decided. Browne LJ, having quoted the view which had been expressed by the adjudicator in that case that he should be concerned "only with any special circumstances that prevented the appellant giving notice of appeal within the permitted period", went on to say that in most cases, perhaps in all cases, that would be a factor to be taken into account. He then said n9: n9 [1976] Imm. A.R. 43; [1975] 2 All ER at p 1089; [1975] 1 WLR at p 1092."I think the tribunal took too narrow a view and was wrong in law in holding that this was the only factor, and that they were not permitted to take into account any other factor. I am certainly not going to try to lay down any exhaustive list of what other factors can be taken into account and I am not laying down that in every case other factors must be taken into account. I am only saying that in my view there is no reason in law why the tribunal should not take into account the substantive merits of the case, or the fact that the failure to give notice in time was due to some mistake of the applicant's legal advisers or the fact that the applicant had been lulled into a false sense of security. I think the tribunal is entitled to treat such matters -- and there may be others -- as making it just and right to treat the notice of appeal as having been given in time. But I emphasise that I am only saying that the tribunal is entitled to take into account such matters -- not that they should and still less that they must be taken into account in every case."
The adjudicator's decision in the present case, dated 16 April 1975, contains the same error of law on the face of it as one of the errors of law which led to the issue of the order of certiorari in respect of the appeal tribunal's decision in the 1975 Mehta case. So. if the matter had rested there, and the adjudicator's decision had been in question, that decision could not have stood. But we are not directly concerned with the adjudicator's decision, though it is submitted for Mr Mehta that the defect in that decision is relevant to the consideration of the decision with which the Divisional Court was concerned and with which we are now concerned: the decision of the Immigration Appeal Tribunal; for Mr Mehta, as he was entitled to do, applied to the Immigration Appeal Tribunal for leave to appeal. His "Grounds of Appeal" submitted on 14 May 1975 were lengthy. Most of them are no longer relevant. Paragraph 6 reads as follows:"6. It is respectfully submitted as a matter of law that the following constitute special circumstances within the meaning of r 11(4) in this case: (a) the brevity of the period by which the Home Office claims the notice of appeal was out of time, if it were in fact out of time: (b) the fact that the appellant gave his notice of appeal on the very same day he had seen or received the notice of refusal; (c) no substantial hardship, inconvenience, injustice or miscarriage of justice has been caused by the alleged delay; (d) it is an accepted principle of justice that an inquiry into the merits of a matter should not be excluded by mere technicalities when such technicalities do not create any or all of the elements referred to in (c) above; (e) this is essentially a case where the doctrine 'de minimis lex non curat' applies."
It is submitted, or accepted, by counsel for Mr Mehta that by that paragraph the tribunal was being invited to consider "the substantive merits"; and it is further submitted that it thereupon became the duty of the tribunal to do so. The tribunal issued its decision -- the decision in respect of which the order of certiorari has been granted by the Divisional Court -- on 22 May 1975. By that date the decision of the 1975 Mehta case had not only been given, but had also been reported n10. Whether or not it had already been read and noted by the President of the tribunal when he made this decision is not a matter on which I think we can or should speculate, in deciding what is the meaning of the words used in that decision. n10 "The Times", 20 May 1975. The decision reads as follows: "Determination of Preliminary Issue. The appellant, a citizen of India, has applied to the tribunal for leave to appeal against the determination of an adjudicator... who found that the appellant's notice of appeal was out of time and could not accept that the reason for the delay amounted to special circumstances making it just and right to allow the appeal to proceed to a hearing. "The appellant's representative has furnished lengthy grounds of appeal which the tribunal has carefully considered. "The date of posting of the notice of refusal is not the date from which the time limit for appealing commences to run. It is the date of the refusal." (I break off here for a moment to say that that sentence is wrong. It is the date of posting which is relevant. But nothing turns on that mistake. I proceed with the text of the decision.) "Even if the envelope containing the notice of refusal did not on the face of it show a date stamping the tribunal has no reason to doubt that it was posted on the date stated, namely, 30 December last. "If the appellant had notified the Home Office of his change of address or made arrangements for the prompt collection or forwarding of his mail he would in the opinion of the tribunal have had ample time in which to lodge his notice of appeal within the permitted time. The tribunal does not consider that the reasons for the delay amount to special circumstances making it just and right to allow the appeal to proceed to a hearing. (Rule 11 of the Immigration Appeals (Procedure) Rules 1972 refers)."The application is refused."
The Queen's Bench Divisional Court was moved on behalf of Mr Mehta for an order of certiorari. On behalf of Mr Mehta it was contended that this decision of the tribunal showed an error of law on the face of it. The error was said to be the same error as appeared in the adjudicator's decision: the refusal or failure to treat as relevant "the substantive merits". The leading judgment in the Divisional Court was delivered by Lord Widgery CJ, O'c/onnor J and Lawson J concurring. The learned Lord Chief Justice quoted the penultimate paragraph of the tribunal's decision, but he did not expressly reter to the second paragraph:"The appellant's representative has furnished lengthy grounds of appeal which the tribunal has carefully considered."
He then says that:"there is nothing on the face of the tribunal's decision to suggest of certainty that any error of law was committed."
The Lord Chief Justice goes on:"In the terms used it seems to be a decision in the exercise of the discretion and within the terms of the discretion. Furthermore, the tribunal does not deal with the question whether there was merit in the applicant's application. That was raised before the adjudicator but is not repeated in terms by the tribunal, and one does not really know whether he is endorsing or not the views which the adjudicator took."
The learned Lord Chief Justice then refers to the 1975 Mehta case. He says:"The important points which come from it, I think, are these. In the judgment of Lord Denning MR (the leading judgment of the court) it is quite evident that the Court of Appeal intend that the phrase 'special circumstances' should be widely interpreted. Furthermore, Lord Denning says in plain terms that in his judgment the merits of the case are a factor which should be considered by an adjudicator or tribunal exercising this jurisdiction. Lord Denning does not say that they are to be conclusive or overwhelming or anything like that, but he says they should be considered."
It is this passage, I believe, which has led to the suggestion that an important question of principle is involved in this appeal. For the Immigration Appeal Tribunal, it is contended that the Divisional Court "wrongly decided that the merits of the case are a factor which should be considered by the adjudicator or tribunal", whereas the 1975 Mehta case "decided no more than that the adjudicator or tribunal could have regard to the merits". With all respect to the subtle arguments adduced, I do not think that any substantial question of principle is involved. The appellate authority -- adjudicator or tribunal, having decided that the notice of appeal is out of time, has then to decide whether or not there are such special circumstances as make it right and just to allow the appeal to proceed. To make that decision the appellate authority has to look at all the material before it. That includes, or may include, material which can be said to relate to "the merits". Of course that material "should be" considered, in the sense of looked at with a view to seeing whether or not it shows a factor which, in the opinion of the appellate authority, will weigh in the balance in deciding, after taking into account all relevant factors, whether the required "special circumstances" exist. In that sense the appellate authority "should" look at it. If it fails to look at it, it cannot possibly assess whether it may be a relevant factor. In that sense, it is not "may", but "should". In particular, when the appellate authority has looked at the material and has seen that it relates to "the substantive merits", it may not refuse to consider it further merely because that is the nature of the material. That would be contrary to the decision in the 1975 Mehta case. But, having looked at it, and considered it, the appellate authority is not required as a matter of law to allocate to it any weight, or any particular weight, positive or negative, in arriving at its overall conclusion on the question which it must answer: "Are there special circumstances which make it just and right that the appeal should be allowed to proceed?" The weight, if any, to be given to that factor is, and must be, a matter for the discretion of the appellate authority. Lord Widgery CJ, in the next paragraph of his judgment says:"I think it is only right to assume in the present case, though it is not altogether clear, that the merits were not considered. They were not considered by the adjudicator. I think the proper interpretation of the facts is that they were not considered by the tribunal either."
With great respect, I am unable to agree with the view there expressed that "the merits" were not considered by the tribunal. This is a question, simply, of the interpretation of the tribunal's decision, which I have already quoted in full. The penultimate paragraph of that decision, which the learned Lord Chief Justice cited, could, I respectfully agree, if it had stood alone, be treated as giving rise to the inference that the tribunal regarded itself as not obliged to give consideration to the question whether the material, as to "the substantive merits", was a factor that would or might have weight if it were to be put in the balance in the assessment of "special circumstances". That possible inference is in some degree reinforced by the fact that the tribunal does not, in its decision, comment upon, or criticise, the adjudicator's decision, which had treated "the merits" as a necessarily irrelevant factor on this preliminary issue. But, with great respect to the learned Lord Chief Justice, the tribunal has expressly and, as I see it, unequivocally stated that it has "carefully considered" the "lengthy grounds of appeal" which Mr Mehta's representative had furnished. Those grounds of appeal, as counsel for Mr Mehta before us expressly accepted or submitted, "clearly did raise the merits". In those circumstances, with very great respect, I am unable to agree that there can be said to appear on the face of their decision an error of law: namely that the tribunal failed to consider a matter which it ought to have considered. It was contended, further, on behalf of Mr Mehta before the Divisional Court that, whether or not the tribunal did purport to take into account "the substantive merits", its decision that there were not such special circumstances as are contemplated by r 11(4) was a decision which no reasonable tribunal could have reached: that, in effect, it was a perverse decision: and that it should on that account be quashed. The learned Lord Chief Justice expressed the view that if (as he thought was not the case) the tribunal had had the advantage of reading the judgment of this Court in the 1975 Mehta case, "then I do not think, as a reasonable tribunal, it could have given the judgment which it gave in this case": in other words, unless, as the Divisional Court thought, there was indeed an error of law in the tribunal's decision, that decision was perverse. In this Court counsel for the tribunal attacked that holding of the Divisional Court. Counsel for Mr Mehta submitted that it was correct. It was accepted that the criterion to be applied was that which was stated by Lord Denning MR, in R v Preston Supplementary Benefits Appeal Tribunal ex p Moore. n11 n11 [1975] 2 All ER 807 at p 813; [1975] 1 WLR 624 at p 631."The court should only interfere when the decision of the tribunal is unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision."
With very great respect, having regard to the facts in relation to the lateness of the notice of appeal, and the reasons therefor, and to all that has been put forward as to "the merits" of Mr Mehta's case and the chances of success if the appeal were to be allowed to proceed, I find myself unable to assent to the view that the decision which the tribunal reached was one that no tribunal could reasonably reach on all the material before it. I do not think that this negative view is usefully susceptible of amplification. Accordingly I would allow the appeal: I would set aside the judgment of the Divisional Court and I would refuse the order for certiorari.Judgment Two:
ORR LJ, who is not able to be present this morning, has authorised me to say that he agrees with the judgment which I have just delivered and with the judgment which is about to be delivered by Browne LJ.Judgment Three:
BROWNE LJ: I agree with everything Megaw LJ has said in his judgment and with his conclusion that this appeal must be allowed. I only add anything because I was a party to the decision of this Court in the 1975 Mehta case n12 and I am afraid that my judgment in that case was not as clearly expressed as I should like, mainly I think because of the ambiguity of the phrase "take into account". n12 See [1976] Imm A R at pp 38-43. I entirely agree that the true position is as stated by Megaw LJ in the passage in his judgment in the present case beginning "The appellate authority -- adjudicator or tribunal, having decided that the notice of appeal is out of time, has then to decide whether or not there are such special circumstances as make it right and just to allow the appeal to proceed..." and ending "The weight, if any, to be given to that factor is, and must be, a matter for the discretion of the appellate authority" (pp 182-183). When I said in the 1975 Mehta case that "I emphasise that I am only saying that the tribunal is entitled to take into account such matters -- not that they should and still less that they must be taken into account in every case", I was trying to avoid imposing limitations on the discretion of the tribunal as to the weight (if any) they give to such factors in a particular case. I gather from Mr Woolf that there is doubt about what I meant by "this" when I said that "No doubt in most cases, and it may be in all cases, under r 11(4) this will be a factor to be taken into account..." n13 of course I meant "any special circumstances that prevented the appellant... from giving notice of appeal within the permitted period". n13 See [1976] Imm A R, at p 43. In the present case, I think such an order of certiorari can only be made if there is an error of law appearing on the face of the decision of the tribunal. There clearly was such an error in the decision of the adjudicator, because he fell into the same error as the tribunal in the 1975 Mehta case. I agree with Megaw LJ that the question whether the tribunal also fell into this error is simply one of the interpretation of the tribunal's decision, raising no question of principle. I was at one time inclined to think that it had, but in the end, for the reasons given by Megaw LJ, I am not satisfied that any error of law appears on the face of the decision of the tribunal, and therefore I agree that this appeal must be allowed.DISPOSITION:
Appeal allowed. Judgment of Divisional Court set aside. Order of certiorari refused. Leave to appeal to House of Lords refused.SOLICITORS:
Treasury Solicitor; A. R. Asirivatham, Wallington.Copyright notice: Crown Copyright