Visa Officer, Karachi v. Hassan Mohammad

VISA OFFICER, KARACHI v HASSAN MOHAMMAD, TH/16245/77(1317)

Immigration Appeal Tribunal

[1978] Imm AR 168

Hearing Date: 11 September 1978

11 September 1978

Index Terms:

Evidence -- Admissibility -- Fresh evidence on appeal -- Facts in existence at time of the decision appealed against -- Evidence of those facts, if relevant, should be received -- Documentary evidence relating to such facts also admissible even if bearing later date -- Evidence relating to facts arising after immigration authority's decision not properly admissible -- Case of Abdul Rashid ([1978] Imm A.R. 71, Div Ct) explained -- Immigration Act 1971, s 19(1)(2) -- Immigration Appeals (Procedure) Rules 1972, r 29(1).

Held:

Fresh evidence tendered on an appeal should always be received by adjudicators, provided it related to facts already in existence at the time of the decision of the immigration authority which was the subject of the appeal and provided it was relevant evidence. And, where that relevant evidence was documentary, it mattered not whether it was dated subsequent to the immigration authority's decision, provided it related to facts which existed at the time of that decision. The Tribunal, explaining the decision of the Divisional Court in R v Immigration Appeal Tribunal, ex p Abdul Rashid (reported [1978] Imm A R 71), so held in the case reported below, in which documentary evidence not seen by the visa officer was tendered to show that an applicant for entry clearance as a visitor was the owner of land in Pakistan; the application had been refused on the ground, inter alia, that the visa officer was not satisfied that the applicant intended no more than a visit n1; the documentary evidence of land ownership was relevant as tending to indicate that the applicant had an incentive to return to his home in Pakistan n2. Accordingly it had been properly received by the adjudicator. n1 The visa officer acted under para 13 of HC 81, the rule applicable to non-Commonwealth citizens seeking entry to the United Kingdom as visitors. n2 Rule 29(1) of the Immigration Appeals (Procedure) Rules 1972, making provision for the reception of "oral, documentary or other evidence of any fact... relevant to the appeal" is cited on pp 171 -- 172, post. Per curiam: Adjudicators should not receive evidence relating to facts which arose after the decision appealed against; if occasionally such exclusion of evidence caused injustice when it required an appellant to make a fresh application, then it was open to adjudicators to record that this appeared to be the case and to make an appropriate recommendation to the Secretary of State.

Counsel:

B. Hunter for the Visa Officer. Z. H. Chishti of the United Kingdom Immigrants Advisory Service, for the respondent visitor. PANEL: D. L. Neve Esq (President), J. H. Bowman Esq, R. S. Charnley Esq

Judgment One:

THE TRIBUNAL: The respondent Mr Hassan Mohammad is a citizen of Pakistan, 46 years of age, who applied to the visa officer in Karachi in May 1977 for entry clearance to enable him to visit this country for three months, to see his daughter and son-in-law. His application was refused because the visa officer was not satisfied that he intended to stay only for this limited period. He appealed against the refusal. His appeal was heard by an adjudicator (Mr J. K. Brownlees) and allowed on 24 January last. Against Mr Brownlees' determination the visa officer now appeals to the Tribunal. The grounds of appeal are as follows: "1. That the adjudicator placed much weight on new documentary evidence, which is contrary to the normal procedures established in Tribunal decisions. 2. That the documentary evidence produced at the hearing was dated either well before the date of refusal of an entry clearance or several months after the ECO's decision. 3. That the adjudicator acted against the weight of evidence." The outcome of the appeal depended upon the determination of the respondent's intentions -- a question of fact -- and Mr Hunter conceded that there was sufficient evidence to justify the adjudicator's findings in this respect. The appeal had been brought, however, to enable the whole question of the admission of fresh evidence to be considered. There was some uncertainty as to the "normal procedures" referred to in the first ground of appeal, and he sought the Tribunal's guidance in this respect. He referred us to the following cases: Entry Certificate Officer, Lahore v Abdullah n3; Secretary of State for the Home Department v Thaker n4; R v Immigration Appeal Tribunal ex p Abdul Rashid, heard by the Divisional Court on 14 December 1977 n5; and Immigration Officer, London (Heathrow) Airport v Ghassan Abu-Nassar, heard by the Tribunal on 3 July 1978 n6. n3 [1973] Imm A R 57. n4 [1976] Imm A R 114. n5 Reported at [1978] Imm A R 71. n6 TH/17162/77 (1255), (unreported). In the Abdullah case, the Tribunal held n7 that n7 [1973] Imm A R at p 61.

"In ruling (in Purushothaman's case n8) that an adjudicator must take into consideration all the evidence, including any further evidence, before him and for that purpose might review any determination of a question of fact on which the original decision was based, the Tribunal in our view had in mind, as a matter of general principle, evidence which was in existence but which was not before the immigration officer when he made his decision. Evidence of subsequent facts which if before the immigration officer might have influenced his decision by indicating some change in the applicant's original circumstances should normally form the basis of a further application."

n8 [1972] Imm A R 176; TH/2398/71 d 15.12.71. In the case of Thaker the Tribunal said n9: n9 [1976] Imm A R at p 118. "The appellant's first ground of appeal -- that the adjudicator should not have taken into account evidence of facts subsequent to the Secretary of State's refusal -- raises an important question and one with which adjudicators have to deal almost daily. It would be useful if we could lay down a hard-and-fast answer to this question, but -- as we think appears from the cases mentioned -- immigration appeals arise from facts which are so infinitely variable that this is not possible. Furthermore, because it is usually necessary for an appellant to make a fresh application if the 'new' evidence proffered is not received, it is necessary to consider what this may entail: if the appellant is in this country, and seeking an extension of his permitted stay, the time taken to consider a fresh application (and possibly to determine an appeal arising from it) may well, given the present state of affairs, afford him the extension he seeks irrespective of any lack of merit in the application itself. By contrast, if the appellant is in Bangladesh, for example, and has to make a fresh application to the High Commission there, in the present circumstances this may take him as long as a year (he having probably already waited a year for an appointment before he could make his original application). Considerations of this nature make it clear that a pragmatic approach to the problem, involving questions of expediency, is necessary if as much justice as possible is to be done between the parties; because the application of legal precedents in vacuo could obviously lead to unjust results. With this in mind, how should the problem be approached? We consider that it would be helpful in each case to consider the nature of the 'fresh' evidence which it is proposed to adduce: if it is evidence which strictly refers to the application made to the Secretary of State or entry clearance officer (such as, for example, social service reports in cases involving 'family or other considerations', or evidence of income tax allowances in cases involving family relationships), it may well be helpful and right to accept it -- but only after the opposite party has been given an adequate opportunity to consider it, by adjournment if necessary. How much weight should be attached to the fresh evidence is another matter -- for example, evidence of improved attendance by a student at a course of study subsequent to a refusal would in normal circumstances be of little weight, if taken into account at all. On the other hand, if the 'fresh' evidence alters the nature of the original application, it will probably be better to refuse to accept it and require the appellant to make a fresh application if he so wishes." In the case of Abdul Rashid, the Lord Chief Justice (giving the judgment of the Court) said n10: n10 See at [1978] Imm A R 71. "The applicant put the appellate machinery in motion. There arose at an early stage before the adjudicator the question whether the deficiency of evidence which had led to the applicant being initially refused permission to enter could be overcome by the calling of fresh evidence available at the time of the hearing. The adjudicator had taken the view (which we are told has been taken by other adjudicators as well) that there was no scope for the calling of fresh or additional evidence once the immigration officer has made up his mind. In other words, it was thought that the further consideration of the problem would have to be put on the basis that the only relevant facts were those which have been established before the immigration officer. In fact it has been established for some little time on authority that the power of the adjudicator to hear evidence is not restricted in that way. We have been referred today in particular to r 29 of the Immigration Appeals (Procedure) Rules 1972, which provides in sub-rule (1): 'An appellate authority may receive oral, documentary or other evidence of any fact which appears to the authority to be relevant to the appeal, notwithstanding that such evidence would be inadmissible in a court of law'. That rule should be regarded as authorising the reception by an adjudicator of any relevant and admissible evidence which is available for him for his consideration and is put before him at the time he determines the matter." In the case of Ghassan Abu-Nassar n11 the Tribunal, in dismissing the immigration officer's appeal, purported to apply the Divisional Court's judgment in the Abdul Rashid case n12. n11 TH/17162/77 (1255), (unreported). n12 Reported at [1978] Imm A R 71. In addressing us, Mr Hunter has suggested that the Tribunal might have distinguished the Ghassan Abu-Nasser case n11 from the Abdul Rashid case n12, and invites us now to put a certain interpretation upon the Lord Chief Justice's remarks (quoted above) in the following way. Rule 29(1) of the Immigration Appeals (Procedure) Rules 1972, referred to by the Lord Chief Justice, reads: "An appellate authority may receive oral, documentary or other evidence of any fact which appears to the authority to be relevant to the appeal, notwithstanding that such evidence would be inadmissible in a court of law." However, an adjudicator has to determine an appeal in accordance with s 19 of the Immigration Act 1971, sub-sections (1) and (2) of which provide: "19(1) Subject to sections 13(4) and 16(4) above, and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act -- (a) shall allow the appeal if he considers -- (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and (b) in any other case, shall dismiss the appeal. (2) For the purposes of sub-section 1(a) above the adjudicator may review any determination of a question of fact on which the decision or action was based; and for the purposes of sub-section 1(a)(ii) no decision or action which is in accordance with the immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the rules and has refused to do so." Mr Hunter submits that the provision in sub-s (2), that an adjudicator "may review may determination of a question of fact on which the decision or action was based" necessarily connotes that he may not review other facts: expressio unius exclusio alterius. For that reason, when the Lord Chief Justice, referring to r 29(1), said "That rule should be regarded as authorising the reception by an adjudicator of any relevant and admissible evidence which is available for him for his consideration and is put before him at the time he determines the matter", he must be taken, in referring to "relevant and admissible evidence" to have meant evidence of facts which were in existence at the time of the entry clearance officer's or immigration officer's decision n13. This, Mr Hunter submits, is a logical interpretation which does not offend against s 19(1) and (2) of the Act and is in accordance with the principle laid down in the original case of Abdullah n14. n13 Reference to the facts in Abdul Rashid's Case (reported at [1978] Imm A R 71.) confirms this submission, inasmuch as the fresh evidence which the appellant in that case had sought to adduce was evidence which would confirm his claim to be a 'returning resident', documentary evidence, inter alia from the Department of Health & Social Security and from various of his employers in the United Kingdom showing that he was employed in this country during the years 1964 to 1972, and further evidence relating to a passport held at that time. Those relevant documents relating to facts existing prior to the application for entry as a returning resident had not been seen by the immigration officer. n14 [1973] Imm A R 57. Mr Chishti, however, submits that in order to do justice to both parties, both adjudicators and the Tribunal should accept any evidence whatsoever, provided it is relevant, no matter at what stage of the proceedings it is produced and even if it refers to facts which have occurred since the decision appealed against was made. He submits that this is the purpose of r 29(1) of the 1972 Procedure Rules and must be what the draftsman intended. If it is not so, and a fresh application has to be made owing to the failure to produce adequate evidence at the time of application, great injustice may result. It is neither in the interests of appellants nor the Secretary of State that such evidence should be excluded. We have considered these submissions. The problem raises the question as to whether an adjudicator is an appellate authority, or some kind of super entry clearance officer or super immigration officer. We think it clear from s 19 of the Act that the former is the case, and in our view Mr Hunter's submissions are well founded. It follows that adjudicators should always receive fresh evidence, provided that it is relevant and provided it refers to facts in existence at the time of the decision appealed against. It matters not whether such evidence was available to the entry clearance officer or immigration officer, or whether such evidence, if documentary, is dated subsequent to their decision, provided it fulfils those requirements. In our opinion adjudicators should not receive evidence relating to facts which have arisen after the decision appealed against. If -- as Mr Chishti reasonably suggests -- it may occasionally result in an apparent injustice to require an appellant to make a fresh application, then in such cases it is always open to adjudicators to record that this appears to them to be the case, and to make an appropriate recommendation to the Secretary of State. In the case with which we are now concerned the fresh evidence received by the adjudicator related mainly to facts in existence at the time of the visa officer's decision (being concerned with the repondent's ownership of land) and this evidence was thus properly received. In view of the concession made by Mr Hunter and referred to at the beginning of this determination we do not see any reason to upset the adjudicator's determination and accordingly this appeal is dismissed.

DISPOSITION:

Appeal dismissed.