R v. Immigration Appeal Tribunal, Ex parte Susikanth

R v IMMIGRATION APPEAL TRIBUNAL EX PARTE SUSIKANTH

Court of Appeal
Hobhouse, Millett and Otton LJJ
20 November 1997

Appeals - Asylum - Notice of hearing posted and delivered by appellate authority - Appeal determined in the absence of appellant - Appellant claiming that notice of hearing was not received - Application to Immigration Appeal Tribunal for leave to appeal against special adjudicator's decision to proceed in appellant's absence - Duty of Tribunal to consider its discretion under r 34(2) of the Immigration Appeals (Procedure) Rules 1984 The appellant appealed to a special adjudicator against the decision of the Secretary of State to refuse his application for asylum. On 30 March 1995 the appellant received a notice of hearing from the appellate authority, the notice having been posted by recorded delivery on 27 March 1995. Neither the appellant nor anyone on his behalf attended the hearing. The special adjudicator exercised his discretion under r 34(2) of the Immigration Appeals (Procedure) Rules 19841[1] to proceed in the absence of the appellant and dismissed the appeal. The appellant sought leave to appeal from the Immigration Appeal Tribunal asserting, inter alia, that he had not received a notice of hearing. The Tribunal refused leave relying simply on the fact that notice of the hearing had been sent and that there was evidence from the Post Office that it had been delivered. On 7 October 1996 Hidden J dismissed an application for judicial review of the Tribunal's decision to refuse leave. The appellant appealed. Held - allowing the appeal - r 34(2) of the 1984 rules provides the appellate authority with a discretion to proceed in the absence of an appellant if the requisite notice of hearing had been given. It did not automatically follow, therefore, that if a notice of hearing was 'sent' and 'delivered', it was in fact received by an appellant; evidence may show otherwise. In the light of the appellant's assertion of lack of receipt, the exercise of the discretion in r 34(2) should have been specifically and overtly considered by the Tribunal either by calling for an oral hearing of the application for leave to appeal, obtaining further documents from the appellant, or by granting leave and dealing with the issue at the outset and by exercising its power to remit to the adjudicator if it thought fit. Accordingly, in view of the failure adequately to consider the discretion provided by r 34(2), the Tribunal's decision fell to be quashed. Per Otton LJ: in normal circumstances, if an appellant is to claim lack of receipt of a notice of hearing, a supporting affidavit should be sent with the notice of appeal (form A2); alternatively or additionally, there should be a specific request on behalf of the appellant to attend before the Tribunal to give evidence as to why, given that the notice was correctly addressed, he had not received it. Statutory provisions considered Immigration Appeals (Procedure) Rules 1984 (SI 1984/2041), rr 32, 34, 44 Asylum Appeals (Procedure) Rules 1993 (SI 1993/1655), rr 6, 13(5) Cases referred to in judgment R v Immigration Appeal Tribunal ex parte Zaman and Another [1982] Imm AR 61, QBD R v Immigration Appeal Tribunal ex parte Jones (Ross) [1986] Irran AR 496, QBD R v London Quarter Sessions Appeals Committee ex parte Rossi [1956] 1 QB 682, [1956] 2 WLR 800, [1956] 1 All ER 670, CA R v Secretary of State for the Home Department ex parte Sivanantharajah (Murugesu) [1995] Imm AR 52, QBD R v Secretary of State for the Home Department ex parte Susikanth [1997] Imin AR 83, QBD R v Secretary of State for the Home Department ex parte Al-Mehdawi [1990] 1 AC 876, [1989] 3 WLR 1294, [1989] 3 All ER 843, HL Mr N. Blake QC and Mr F Slevin for the appellant Mr S. Kovats for the respondent HOBHOUSE LJ: This is an appeal with the leave of this court from a judgment of Hidden J dated 7 October 1996, whereby he refused judicial review to the applicant, Mr Susikanth, in relation to a matter arising under the Asylum Appeals (Procedure) Rules 1993. The point with which we are concerned relates to proceeding with a hearing before the special adjudicator in the absence of the applicant. Before coming to the facts of this case, it is necessary to explain shortly the scheme within which this matter arises. An applicant who is refused asylum has a right of appeal to the special adjudicator. The special adjudicator has to hold a hearing in respect of that appeal. Under r 6 of the 1993 rules it is the obligation of the special adjudicator not later than 5 days after receiving notice of appeal to serve on the appellant and the immigration officer or Secretary of State, as the case may be, and any other relevant person, a notice of the date, time and place fixed for the hearing of the appeal. Rule 44 of the Immigration Appeals (Procedure) Rules 1984, which applied by incorporation into the 1993 rules, provides that:

'Any notice or other document required or authorised by these Rules to be sent or given to any person or authority may be sent by post in a registered letter or by the recorded delivery service or delivered-
...
(e)in the case of a document directed to any other person, to his address for service specified in any notice given under these Rules, or to his last known or usual place of abode,

and, if sent or given to a person representing a party to an appeal in accordance with Rule 26(1), shall be deemed to have been sent or given to that party.'

When the adjudicator holds his hearing there is always the risk that the applicant or one of the other parties may not turn up. That possibility is covered by r 34(2) of the 1984 rules. That reads:

'Without prejudice to paragraph (1) above but subject to paragraph (3) below, an appellate authority may proceed with the hearing of an appeal in the absence of a party (including the appellant) if satisfied that, in the case of that party, such notice of the time and place of the hearing, or of the adjourned hearing, as is required by Rule 24 [but when incorporated into the 1993 rules it is r 6], has been given.'

Paragraph (3) reads:

'The appellate authority shall not, unless in the circumstances of the case it appears to the authority proper so to do, proceed with the hearing in pursuance of paragraph (2) above if the absent party has furnished the authority with an explanation of his absence.'

There is a para (5), to which I will revert later. The structure of the rules that I have so far referred to is that they require notice of the hearing to be given to the appellant, and they prescribe the method by which that notice is to be given. Under r 34(2), if the adjudicator is satisfied that such notice has been given as required by that rule and as explained, that includes giving it by sending a letter by recorded delivery to the appellant's address, then the special adjudicator has a discretion whether or not to proceed with the hearing of the appeal in the absence of a party. He has the jurisdiction to do so and he must exercise his discretion whether or not he is going to choose to do so. Paragraph (3) also gives rise to a discretion. It contemplates that, for example, the appellant may have sent a letter saying that he is going to be unable to attend and, then, the discretion that is open to the adjudicator is slightly differently expressed but it remains a discretion which he must exercise. There have been references in the argument before us and before Hidden J to the doctrine of ultra vires. That has primarily been raised in relation to another rule, but it must be commented that r 34, and indeed r 44, are of a kind which are commonly found in procedural rules. Equivalent rules exist in the Rules of the Supreme Court, and it is hard to see how any court or tribunal could operate effectively without the benefit of a rule such as r 34. Furthermore, the ordinary conduct of litigational dispute resolution does include powers to serve documents by post, certainly documents of the character of notices as to the date of hearings. This has also been accepted as a proper approach in the case of R v Secretary of State for the Home Department ex parte Al-Mehdawi [1990] 1 AC 876, particularly at 893, where it is recognised that the power to serve notices upon a legal representative may not in all circumstances be effective to bring the notice to the actual knowledge of the relevant client who is the party to the proceedings. There is nothing wrong in principle about such rules, but they may give rise to further problems which have to be addressed when doing justice between the parties. In the Rules of the Supreme Court there are express safeguards to deal precisely with that sort of situation. The same considerations are illustrated by the case of R v London Quarter Sessions Appeals Committee ex parte Rossi [1956] 1 QB 682, which contemplates the use of the post, in that case registered post, to effect service of documents, but also addresses the consequences of the failure of such method of service to bring the relevant document effectively to the actual knowledge of the relevant party. What happened in the present case was this. The applicant is a gentleman who was born in Sri Lanka in August 1976. He came to this country in September 1994 and applied for asylum. That application was considered on behalf of the Secretary of State. The applicant was interviewed, given an opportunity to explain why he was applying for asylum, and then in February 1995 his application was refused. He exercised his right of appeal to the special adjudicator and he served a notice of appeal. It was in the statutory form, which requires the applicant to give his address as the address where he is 'now' living. He gave his address: 75 George Road, New Malden, Surrey. He also referred to the fact that he had a solicitor, but the solicitor is simply named in answer to a question in the form:

'Will anyone help you prepare or present your appeal? Put No or Yes.'

The solicitor does not have the same role as a litigation agent in litigation in court, but his name appears in the formal documentation as being somebody who is being used by the applicant. The primary statement is the statement of the applicant's own address. This is not a case which raises any problem of any change of address. Throughout the material events the applicant continued to reside at 75 George Road. It appears that on 27 March 1995 a letter was dispatched by recorded delivery to the applicant at 75 George Road, informing him of the date for the hearing before the adjudicator in the following September. It has been ascertained that the Post Office have a record of having delivered that letter at that address on 30 March 1995. On 19 September 1995 the adjudicator held his hearing. The applicant did not attend, nor did anyone acting on his behalf. The adjudicator, in his decision and reasons which he signed on 26 September 1995 and sent out on 3 October 1995, included the following passage:

'The appellant lodged an appeal against that decision, on 14 March 1995, and all the documents in the matter, having been sent to the appellant, at his stated address, and to his representatives, Nathan & Co, solicitors, and to the United Nations High Commissioner's representative in the UK, a notice of hearing for 19 September 1995, was sent, by recorded delivery, to the appellant, at his last known address on 27 March 1995.

When this appeal came on for hearing, at Hatton Cross, on 19 September 1995, there was no appearance by the appellant, despite his having been notified by recorded delivery of the date of the hearing, and nothing was heard from his representatives.

I put this case to the end of the list, and, at 3 pm, as there was still no appearance by the appellant, or his representative. Mr D. Cooper, Home Office presenting officer, representing the respondents, submitted that this was a suitable case for the determination of the appeal in the absence of the appellant, and requested that I apply the terms of r 25 of the Asylum Appeals (Procedure) Rules 1993.

Having satisfied myself that the appellant had been properly served, I directed that this was a suitable case for the determination of the appeal in the absence of the appellant.'

The adjudicator therefore held that he had jurisdiction to proceed in the absence of the applicant, and furthermore he exercised his discretion to do so. He was entitled to do that under r 34(2), which I have read. No criticism is or can be made of the adjudicator upon the material which was then before him. He had no explanation of the failure to attend. He might have adopted different courses. He was at liberty to adjourn the hearing or make further inquiries of his own motion, but he was entitled on the material before him to take the course which he did. The applicant came to know of the decision, and on 10 October 1995 he exercised his right to apply to the appeal Tribunal. He did so in a document, which was again in the statutory form. Again he set out his address at 75 George Road, referred to the assistance his solicitors were giving him, and, under the heading 'Grounds of your appeal', he said:

'(1)The appeal which was heard on 19 September 1995 was heard in the absence of the appellant and his solicitors.

(2)The appellant did not receive any document from the Home Office with regard to the hearing on 19 September 1995.

(3)An opportunity ought to be giving to the appellant to explain his circumstances and to express his fear to the adjudicator.'

He then added three further grounds which went to the merits of his application for asylum. The Immigration Appeal Tribunal has to work within a very tight time scale when it is dealing with asylum matters. The relevant provisions are in Part 3 of the 1993 rules, and they are required, among other things, to determine the application for leave not later than 5 days after its receipt. They dealt with this application promptly. The determination is dated 2 days after the notice, that is to say 12 October 1995. They recited the grounds of appeal, and they said:

'The statement above relating to notice to the appellant is incorrect. The applicant was advised by letter of 27 March 1995 sent by recorded delivery, of the hearing on 19 September 1995. The Post Office has confirmed delivery on 30 March 1995. There was therefore good service as required by rule [and they did not insert any number] of the Procedure Rules.'

The number of the rule that they should have inserted was either 6 or 44 or both of those numbers. They then made additional comments on the other grounds of appeal, and concluded:

'In the opinion of the Tribunal this is not a proper case in which to grant leave, and such leave is refused.'

It is that decision which is the subject of the application for judicial review and had to be considered by the Divisional Court. The position of the Immigration Appeal Tribunal is that they have a discretion whether or not they grant or refuse leave. That is a discretion for them to exercise. They have to act under time constraints, to which I have already referred. They do, however, have the power in r 13(5):2[2]

'An application for leave shall be determined without a hearing unless the Tribunal considers that there are special circumstances making a hearing necessary or desirable.'

If they give leave, then they are under an obligation to conduct a hearing de novo of the matters raised by the grounds of appeal. That is clearly stated in the case of R v Immigration Appeal Tribunal ex parte Zaman and Another [1982] Imm AR 61 and in the case of R v Immigration Appeal Tribunal ex parte Jones (Ross) [1986] Imm AR 496, 499 and 500. It is also the position that when they hear an appeal evidence can be called before them. They are not confined to questions of law; they can consider questions of fact, and they have the power, among other powers, to remit the matter to the special adjudicator for a further hearing. Those matters are covered both by the statute and by the relevant rules, in particular the 1993 rules. Therefore it is accepted, and has to be accepted, that if leave to appeal is granted, then on the hearing of the appeal before the Immigration Appeal Tribunal they should hear relevant evidence, properly adduced, and they can review matters which are matters of discretion decided by the special adjudicator. Certain of the orders that a special adjudicator can make are discretionary orders. Other matters of discretion can arise, such as whether or not an adjournment should have been ordered. All those matters are potentially within the purview of an appeal to the Immigration Appeal Tribunal. Thus there is no reason in principle why the Immigration Appeal Tribunal should not review, if it has given leave, the exercise of the discretion under r 34(2). The application for judicial review that has been made is, as I have stated, one that is directed to the refusal of leave to appeal by the Immigration Appeal Tribunal in the terms which I have read out. The grounds of appeal included the statement that the appellant did not receive any documents from the Home Office with regard to the hearing on 19 September 1995, and the applicant, as required, made a declaration on the form:

'I declare that the information I have given is true and complete to the best of my knowledge and belief'

That declaration he himself signed. That raises the question whether there is a relevant factor which should be considered in the exercise of the relevant discretion under r 34(2), which was not available to be considered by the adjudicator in fact and which is material to the exercise of that discretion. In principle it would appear that whether or not the appellant had actually received the document must be a factor to be taken into account in the exercise of the discretion. If an applicant has actually received a document and then chooses not to turn up at the hearing it will be difficult for him to persuade any court thereafter that the discretion ought to have been or ought to be exercised in his favour. If, on the other hand, he can explain convincingly and credibly that it did not come to his actual knowledge, and if he can, furthermore, show that that was without any fault or responsibility on his part, then obviously he has persuasive grounds for the exercise of a discretion in his favour. In any given case, of course, the facts may turn out to be somewhere between those two extremes. There has been no investigation in the present case whether or not the facts of the case are such as to cause the discretion to be exercised in favour of the applicant. The starting-point is that the special adjudicator was fully justified on the material before him in exercising his discretion in the way that he did. The question that the applicant sought to raise on the appeal is whether in view of the full facts which he wished to place before the Immigration Appeal Tribunal the discretion ought to be exercised differently. It can be said with force that the applicant failed to put forward his case in a particularly convincing fashion. He made a bald assertion of non-receipt. He did no more than sign the declaration which I have read out. There is scope for him sending additional documents. He could have sent a document which contained a fuller explanation. He could, if it was appropriate, have sworn an affidavit, as he subsequently did for the purposes of the proceedings before the Divisional Court. He could have expressly requested an oral hearing. He did none of those things, and it may be that it is those omissions which contributed to the failure of the Immigration Appeal Tribunal to grant him leave to appeal. One says that to show that one understands that the Immigration Appeal Tribunal has to be cautious before granting leave to appeal on bare assertions or assertions which seem to be inadequately supported. However, considering the statement of their reasons for declining to grant leave to appeal, it appears to me that they did not consider the relevance to the appeal of the exercise of the discretion under r 34(2). They do not refer to that. They treat it as a case which solely related to the jurisdiction or power to proceed under r 34(2). As I hope I have explained, r 34(2) involves both the establishment of the jurisdiction or power and then the exercise of the discretion. In my judgment, that is something which ought specifically and overtly to have been considered by the Immigration Appeal Tribunal before they refused leave. It might have been difficult in practical terms for them to do that in any meaningful way without calling for an oral hearing or obtaining immediately further documents from the applicant, and I appreciate fully the practical difficulties that arise from adopting either of those courses, but if they felt difficulty about that, then there was always the alternative of granting leave, dealing with this question at the outset and then exercising their power to remit if they considered that a hearing ought to take place before the adjudicator where both parties were present. In my judgment, although this case is near the borderline, and I recognise the discretion of the Immigration Appeal Tribunal as to granting or refusing leave to appeal, I consider that in this case they did not give adequate consideration to the discretion point. They appear to have overlooked a material consideration, and accordingly they ought to be required to reconsider their refusal of leave. I will revert to what I consider to be the appropriate order shortly. Before doing that I must refer to the point which was argued below and which was dealt with in the judge's judgment. He, as I have previously stated, dismissed the application for judicial review. The relevant rule which was under consideration in that argument and consideration by the judge was r 32 of the Asylum Appeals (Procedure) Rules 1993. This is under the heading 'Time' and provides:

'(1)Subject to paragraph (2), any notice or other document that is sent or served under these Rules shall be deemed to have been received-

(a)where the notice or other document is sent by post, on the second day after which it was sent; and

(b)in any other case, on the day on which the notice or other document was served.'

There are other provisions which I need not read out. What appears to have been suggested was that this deeming provision in some way determined for all purposes, including the purposes of r 34(2), that there had been a factual receipt by the relevant individual of the document. As I have explained, such a consideration is not the relevant consideration for the power to exercise a discretion under r 34(2), although it will be relevant to the exercise of the discretion. In my judgment, r 32 does not decisively affect the present point. It is concerned with the question of time and is concerned with what is necessary to prove receipt by simply proving dispatch. There was a similar provision in r 34(5)(a), which does not apply to asylum appeals. That reads for the purpose of this rule:

'... notice of the time and place of a hearing, or an adjourned hearing, shall be presumed to have been given, unless the contrary is shown, if notice was sent by post in accordance with Rule 44 not later than 7 days before the date thereof.'

That appears to be directed to the same question and establishing how early something must be dispatched in order to give rise to either a conclusion or an inference of receipt by a particular day. It was this type of point with which the judge was concerned, and he expressed his conclusions by reference to a decision of Popplewell J in the case of R v Secretary of State for the Home Department ex parte Sivanantharajah (Murugesu) [1995] Imm AR 52. I do not consider it is necessary to discuss that decision, which may have been considered in other proceedings, but Hidden J adopted the statement:

'Once it is shown that the letter has been sent, the fact that it has not been received is unfortunate but irrelevant.'

Hidden J continued:

'I find that case to be an exact parallel here and, sadly for this applicant, the fact that he has not received the notice is also unfortunate but irrelevant when looked at in relation to the position under the rules.'

The judge therefore appears to have concluded that no question of discretion arose or had to be considered. That no doubt was because of the way the matter was argued before him. Once it is seen that the relevant point in the present case is not the existence of a power under Ord 34, r 2, but the discretion whether or not to exercise it and the review of that discretion by the Immigration Appeal Tribunal on the consideration of additional evidence to that which was available to the adjudicator, then it can be seen that the matters which weighed with Hidden J and the provisions of r 32 fall by the way. Under those circumstances and for the reasons which I have given earlier, I consider that this appeal should be allowed, that the refusal of leave by the Immigration Appeal Tribunal should be quashed and they be directed to reconsider whether or not they should grant this applicant leave to appeal to the tribunal. Because of the time constraints under which the Immigration Appeal Tribunal has to operate, I consider, for purely practical considerations, we should direct that the order of this court be not drawn up until Wednesday of next week, which I believe to be 26 November 1997. The purpose of that is so that the parties and the Immigration Appeal Tribunal shall know that they have 5 working days from that date within which to reconsider this matter and to decide whether or not to have an oral hearing or admit other evidence and whether or not to give leave to appeal. MILLETT LJ: I agree. OTTON LJ: I agree. I also conclude that the Immigration Appeal Tribunal did not consider properly the relevance of the assertion on the appeal form that the applicant had not received the notice, in the exercise of the discretion under r 34(2). The relevant part of the adjudication reads:

'The statement above relating to notice to the appellant is incorrect. The applicant was advised by letter of 27 March 1995 sent by recorded delivery, of the hearing on 19 September 1995. The Post Office has confirmed delivery on 30 March 1995. There was therefore good service as required by r [44] of the Procedure Rules.'

It is not clear on the face of it on what basis the Tribunal came to the conclusion that the assertion that the appellant had not received the notice was incorrect. It does not automatically follow that if the notice was 'sent' and 'delivered' that it was in fact received by the appellant. Evidence could prove otherwise, or at least cast a real doubt that it had not. If it was on the basis that there was a signature which was or purported to be the appellant's signature on the delivery slip, then that would have been a sound basis upon which to reject the assertion of non-receipt, in which event one would have expected this to be stated. On the other hand, if the delivery record contained a signature of a person other than the appellant, this should have placed the Tribunal on inquiry as to whether the applicant's assertion might be true. If the delivery record before them was not conclusive, then the Tribunal should have considered whether to inquire further or to remit the matter to the special adjudicator. I would add that the decision of this court today arises out of the particular circumstances of the case and the manner in which the Tribunal expressed its finding. It must not be assumed that the tight timetable laid down by Parliament and implemented by the rules can generally be frustrated by a mere assertion that the appellant has not received the notice. In normal circumstances if this point is to be raised it should be supported by an affidavit to accompany the form A2, as envisaged by part 5 of the form, alternatively or additionally, the appellant or those assisting him should make a specific request to attend before the Immigration Appeal Tribunal to give evidence as to why, given that it was correctly addressed, he had not received the notice. I would allow this appeal and concur with the order and timetable proposed. Appeal allowed. Solicitors: Nathan & Co for the appellant Treasury Solicitor

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[1] Rule 34 (2) of the 1984 rules is no longer applicable to asylum appeals; the power to proceed in the absence of a party in asylum appeals is now found, in identical terms, in r 32(2) of the Asylum Appeals (Procedure) Rules 1996. [2] See now r 13(b) of the Asylum Appeals (Procedure) Rules 1996.