R v. Immigration Appeal Tribunal, Ex parte Muhammed Zahid Ali

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

APPLICATION FOR LEAVE TO MOVE FOR JUDICIAL REVIEW

2nd October, 1998

Before:

LORD JUSTICE PETER GIBSON

LORD JUSTICE PILL

LORD JUSTICE MUMMERY

REGINA - v -IMMIGRATION APPEAL TRIBUNAL Respondent MUHAMMED ZAHID ALI

MR S SIDHU (Instructed by Messrs Shuttari Paul & Co., Southall, Middx UB1 1SW) appeared on behalf of the Applicant

MR R TAM (Instructed by The Treasury Solicitor) appeared on behalf of the Respondent

JUDGMENT

LORD JUSTICE PETER GIBSON:

Lord Justice Pill will give the first judgment.

LORD JUSTICE PILL:

This a renewed application for leave to apply for judicial review. The applicant arrived in the United Kingdom from Pakistan in March 1995 and applied for asylum. His application was refused by the Secretary of State. He appealed to the Special Adjudicator who dismissed the appeal following a hearing on 6th May 1997 at which the applicant did not attend. The applicant sought leave to appeal to the Immigration Appeal Tribunal. By a decision made on 6th August 1997, and notified on 12th August, he was refused leave. The Tribunal subsequently refused to reconsider its decision upon receipt from the applicant's solicitors of further documents.

The applicant seeks to quash the decision of the Tribunal refusing leave to appeal, and also the subsequent decision of 4th September 1997 not to reconsider the matter. The grounds upon which the application was made were, substantially, that the Special Adjudicator had erred in law when on 6th May 1997 he refused to adjourn the appeal of the applicant.

This is a renewed application for leave to apply for judicial review. The application first came before Richards J on 27th February 1998. Before considering the learned judge's decision, I mention documents upon which Mr Sidhu for the applicant seeks to rely. There are newspaper reports from newspapers in Pakistan. It is common ground that they were not before the Special Adjudicator. It is now common ground that they were sent to the Tribunal by the applicant's solicitors on the evening of 5th May. It is also clear that the documents had not come to the attention of the members of the Tribunal when they made their decision on 6th August. By a letter of 20th August the applicant's solicitors drew attention to the fresh documents and requested a reconsideration of the application. That request was declined by the Tribunal. The case before Richards J was on the basis that the Special Adjudicator ought to have adjourned the application. Richards J considered that submission in detail and refused it. He came to the conclusion that the Special Adjudicator was in the circumstances entitled to decline to adjourn the case, and the Tribunal were entitled to uphold that refusal by him.

Mr Sidhu has made to us submissions similar to those before the Tribunal. Reference is made to the applicant's change of solicitors and to the fact that the application for an adjournment was made three weeks before the hearing.

In my judgment it is not arguable that either the Special Adjudicator or the Tribunal were in error in the course they took. I do not propose to set out the issues on that point in any more detail because the matter was comprehensively dealt with by Richards J with whose judgment I respectfully agree. Additional points are, however, taken before this court upon this renewed application. The first is that the Special Adjudicator was at fault in failing to call for further documents. Mr Sidhu has produced to the court a note prepared by the applicant's former solicitor of a meeting between him and a Home Office representative on 9th March 1996. It was the meeting at which the copy of the Secretary of State's grounds for refusing asylum were given to the applicant, and further questions were put to him in the presence of his solicitors. On the solicitors note it is recorded:

"Q. Showed photographs in papers."

The submission is that having seen, or at any rate having had the opportunity to see the note including that sentence, the Special Adjudicator ought to have pursued the matter and sought the photographs to which reference was made. I see no merit whatever in that submission. The words might have meant almost anything, and it is quite impossible to say that there was any duty upon the Special Adjudicator to seek further particulars of the solicitor's note or any documents referred to in it.

The point developed by Mr Sidhu in the additional grounds of application referred to the failure of the Tribunal to accept that the additional documents, to which I have referred, had been submitted to the Tribunal before the decision was made on 6th August. Mr Sidhu submits that it should have been accepted by the judge and by the Tribunal on the leave application that the documents were available. He does not challenge the fact that the members of the Tribunal were unaware of the documents on 6th August. They were supplied to the office very late in the day on the 5th; it is not surprising that they were not placed before the members of the Tribunal on the following morning.

The judge, Mr Sidhu submits, should not have taken the view he did, that the documents had not been served by 5th August. The matter is not now one in issue, because further inquiries have been made and Mr Tam, for the Tribunal and the Secretary of State, accepts that the relevant documents were faxed to the Tribunal late on 5th August 1997. In those circumstances, Mr Sidhu puts his case in this way. First, that when the documents were drawn to the attention of the Tribunal later in August 1997, there should have been a reconsideration of the application for leave to appeal. Second, he submits that the documents having been served, his client should not bear the consequences of the Tribunal's failure to have regard to them, and in those circumstances this court should give leave to apply and, indeed, the High Court should subsequently direct that the decision of the Tribunal be quashed and that there be a reconsideration by it of the application for asylum.

For the Secretary of State, Mr Tam submits first that the Tribunal was not entitled to look at the documents on 6th August, even had the members been aware of them. He submits that the 1996 Rules require that the application for leave shall be made not later than five days after the person making it has received notice of the determination against which he wishes to appeal. (Rule 13(2) of the Asylum Appeals Procedure Rules 1996) There was no power, he submits, in the Tribunal to look at documents which were not submitted within that time limit. He further submits that even had the Tribunal considered the documents, it would have made no difference to the decision which was made. However, he does concede, and this concession has led to further submissions before the Court, that if there were documents which the Tribunal ought to have considered but which, whether or not there was fault on their part, members did not consider, the result should be that the decision of the Tribunal be quashed. That result should occur even though the Tribunal was correct in holding, on the material before it, that the adjudicator was entitled not to adjourn the case on 6th May but to go on to hear it.

It follows from that concession that if there is in the material now before the Court, and submitted to the Tribunal in August 1997, material which is arguably relevant to the application for asylum then, notwithstanding the correctness of the decision both of the Special Adjudicator and of the Tribunal on the material actually seen, the decision of the Tribunal should be quashed and there should be a reconsideration of the application.

In my judgment, this is not an appropriate case upon this leave application in which to consider the strict time limit for which Mr Tam contends. He has referred to decisions of McCullough J and Laws J, R v Secretary of State for the Home Department ex parte Toprak [1996] Imm AR 332 (McCullough J) and Green v Immigration Appeal Tribunal ex parte Mubassir [1998] Imm AR 304 (Laws J). Both those cases dealt with the document in which grounds of appeal are set out. I do not find it appropriate upon this leave application to analyse them in detail. In my judgment they do not deal with the question now before the Court: whether the Tribunal is entitled to consider documents in support of an existing Notice of Appeal, and in particular whether the Tribunal is entitled to consider them if they are served later than the five days referred to in the Rules. I would only say that on the submissions made to this Court, I am unconvinced that a Tribunal, if it sees fit, is disentitled by the Rule from considering documents submitted to it in support of existing grounds of appeal, but after the five days concerned.

I am prepared to approach the documents on the basis that had the Tribunal been aware of them on 6th August its members would have considered them. In saying that, I am far from encouraging the late submission of documents. It is unsatisfactory, and in the circumstances of this case very unsatisfactory that these documents, some of which relate back to 1995, were not placed before the Tribunal at an earlier stage. It is incumbent upon applicants who wish to have their cases considered fully, to cooperate with the Tribunal, and with Special Adjudicator before that, in providing particulars of the case including any documents upon which it is sought to rely. It is common ground that these documents were not before the Special Adjudicator.

No adequate explanation has been given as to why these documents were not made available at a much earlier stage. I summarise their contents. There is a newspaper report of 25th August 1995:

"Zahid Ali who is wanted by the Police in connection with serious crimes has succeeded in fleeing from the country. It is believed he is in the UK where he has applied for Political Asylum."

It is conjecture only, but I am prepared to assume on the basis of Mr Sidhu's submissions that the reason the applicant is wanted by the police is that set out in another document, which is dated 16th August 1994. That is not a police document but a document from a neighbour of the applicant, who describes an event and alleges that the applicant "set fire to the Aman Gah. We tried to apprehend him, but he opened fire on us as a result of which one of my sons Qamar Abbas was seriously injured. Zahid Ali fled firing at us."

A further document is an order of magistrates requiring the applicant to attend at the police station on 1st August 1995. A further press report is of an explosion which is said to have occurred on 19th January 1997, long after the applicant had left Pakistan. There is no evidence whatever before the Court as to how these additional documents relate to the case of the applicant for asylum. Mr Sidhu submits that it is not for this Court to assess the relevance of the documents; that is a matter for the Tribunal upon their present decision being quashed. There is no affidavit from the applicant or anyone else which relates the contents of the additional documentation to the case which the applicant has made. That case is set out in the decision of the Special Adjudicator, based on substantial information provided on the applicant's behalf, though the applicant was not himself present at the hearing. I have found it impossible to relate the case as put by the applicant on that occasion to the fresh documents. They do not in my judgment assist the applicant in the case which he was seeking to put forward and in some respects appear inconsistent with it.

Mr Sidhu submits that the documents constitute evidence of "witch hunting" and show that the police are making false allegations against the applicant. Hard though I have tried, I have been unable to find in the fresh documents anything which arguably constitutes such "witch hunting" or such false allegations. As I have already said, I find it extremely difficult to understand why these documents, if they were thought to assist the applicant, had not been made available at an earlier stage. In the result, they were not made available until the evening before the decision of the Immigration Appeal Tribunal, their not having been made available to the Special Adjudicator and the applicant having failed to appear before the Special Adjudicator in May 1997.

I would accept Mr Tam's concession that there could be a situation in which when fresh material becomes available, this Court should be prepared to require that the matter be reconsidered by the Immigration Appeal Tribunal, which is a fact finding body and equipped to consider the relevance of the fresh documents to the application which has been made and the material earlier supplied in support of it. The applicant has not shown that it is arguable in this case that upon these facts such a course is appropriate. It follows that in my judgment not only was the adjudicator fully entitled to refuse the application for an adjournment, but the Tribunal was entitled to uphold that decision and to decline to reconsider it. I make allowance for Mr Tam's concession that if material fresh information were to become available, then the Tribunal should be required to reconsider the matter on the basis of that information, notwithstanding the correctness of the earlier decisions upon the material then available. However, I accept Mr Tam's submission, as did the judge, that the additional documents do not provide material upon which it is arguable that the Tribunal, on any relevant matter before it, would have come to a different decision.

I would refuse this application, though noting Mr Tam's assurance to the Court that the Secretary of State in the performance of his duties will consider the further material before taking further action in relation to the applicant.

LORD JUSTICE MUMMERY:

I agree.

LORD JUSTICE PETER GIBSON:

I also agree.

ORDER:

Application dismissed. No order for costs, save legal aid taxation.

(Order not part of approved judgment)

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