R v. Immigration Appeal Tribunal, Ex parte Tazzamil Hussain

R v IMMIGRATION APPEAL TRIBUNAL Ex parte TAZZAMIL HUSSAIN

Queen's Bench Division

[1982] Imm AR 74

Hearing Date: 24 September 1982

24 September 1982

Index Terms:

Adjudicator -- Powers and duties of under the rules -- Rights of parties in respect of admissibility of evidence -- Immigration Appeals (Procedure) Rules 1972, rr 28, 29.

Held:

The applicant, sponsor of his claimed wife and four children who had appealed to an adjudicator against their refusal of entry clearances to join him for settlement, sought an order of the Court directing the adjudicator to receive the evidence of a witness. The nature of the witness' proposed evidence was that he had visited Bangladesh in connection with the case, and had prepared three reports, copies of which had been supplied to the Appellate Authority. The adjudicator refused to accept the reports or hear the witness' proposed evidence. Held: (i) An adjudicator cannot refuse to allow a party to give evidence and to call witnesses. (ii) What he did with the evidence and what rulings he made as to its admissibility and weight, were matters for him. (iii) His fundamental duty was one of fairness.

Cases referred to in the Judgment:

Spackman v The General Medical Council [1943] 2 All ER 337

Counsel:

D. A. Pearl for the applicant. The respondent was not present and was not represented. PANEL: McNeill J Judgment By-1: McNEILL J.

Judgment One:

McNEILL J. This is an application by Tazzamil Hussain for an order directed to an Immigration Appeals Adjudicator, Mr Donnell, requiring him to receive the evidence of a witness, Graham Smith, in the course of a hearing of an appeal by Mr Hussain, as the sponsor of a lady and four children who are, he asserts, his wife and children, to whom an entry clearance certificate was refused in Bangladesh. Nothing turns on the question of the appeal. Mr Hussain was clearly entitled to appeal to the Adjudicator. Mr Smith is a clerk with a firm of solicitors who have pactised substantially in this type of work and over some period of time, conscious of the difficulties of representing those who, save for the sponsor himself, are necessarily overseas at the time of the hearing, and conscious also of the fact that under the Immigration Appeals (Procedure) Rules 1972 there is before the Adjudicator the Entry Clearance Officer's explanatory statement, in appropriate cases the solicitors have sent Mr Smith to investigate the application in the appropriate foreign country and to make a report. And there have been occasions -- there are decisions annexed to the affidavit of Mr Smith illustrating hearings -- at which his evidence has been received by Adjudicators other than Mr Donnell. On the hearing of this appeal Mr Donnell, according to his affidavit, was told by counsel appearing for the sponsor that he proposed to call Mr Smith, who had in fact, in connection with this case, visited Bangladesh twice and had prepared three reports. Those reports had, prior to the hearing, been supplied to the appellate authority. Mr Donnell took the view that the way in which counsel had described Mr Smith's qualifications for making the reports and giving evidence suggested that Mr Smith was in the position of an independent witness and says Mr Donnell in his affidavit, "I was unable to accept this and I refused to accept the reports or hear Mr Smith's evidence." That is the decision which is now challenged. Upon that refusal counsel requested an adjournment and this application was launched, and is now before the Court by leave to Stephen Brown J, given on the 24 May 1982. The conduct of proceedings at hearings is provided for in the rules to which I have already referred, in particular, so far as this case is concerned, rules 28 and 29. Rule 28 reads:

"Subject to the provisions of Rules 18 and 34" -- neither of which is material here -- "at any hearing by an appellate authority" -- the Adjudicator -- "(a) the appellate authority shall give to each party to the appeal an opportunity to address the authority, to give evidence and to call witnesses, and any party to the appeal may put questions to any person giving evidence before the authority; (b) the appellate authority shall give to each party to the appeal an opportunity of making representations on the evidence (if any) and on the subject matter of the appeal generally but, where evidence is taken, such opportunity shall not be given before the completion of the taking of evidence, but, save as aforesaid and after complying where appropriate with the provisions of Rule 8(4) or 11(3)" -- again those are not material here -- "the appellate authority shall conduct the proceedings in such manner as it considers appropriate in the circumstances for ascertaining the matters in dispute and determining the appeal."

Rule 29, which is headed "Evidence" reads: "(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. "(2) In any proceedings before an appellate authority, no person shall be compelled to give any evidence or produce any document which he could not be compelled to give or produce on the trial of an action in that part of the United Kingdom in which the proceedings are conducted.

"(3) An appellate authority may require any witness to give evidence on oath or affirmation, and for that purpose an oath or affirmation in due form may be administered."

The procedure provides for alternative courses. Quite clearly the appellate authority may determine an appeal upon representations. But if either party desires to give evidence and to call witnesses, then the duty of the appellate authority is to give the party that opportunity. The word "evidence" there may well mean evidence not given on oath, and may well include material which would be inadmissible as evidence in a court of law. Subject to these matters the appellate authority is entitled to conduct the proceedings in a manner it considers appropriate in the circumstances for ascertaining the matters in dispute in determining the appeal. In the course of his affidavit Mr Donnell first of all makes it clear that he did not intend to cast any aspersions on Mr Smith's integrity or on the integrity of the firm who employed him. Secondly, he asserts his independence and rightly says that if he takes a view of the law or practice which differs from that of the other Adjudicators, he regards himself as entitled, until stopped, to follow his own view of the law and practice. Thirdly, he draws attention to what I think are plainly difficulties facing Adjudicators, where there is no very satisfactory method recognised so as to become a practice of effectively challenging the contents of the explanatory statement, against what in the ordinary run of cases, as in this case, is the detailed account of field visits and local investigations carried out by or on behalf of the Entry Clearance Officer, there is usually only available the sponsor in this country whose contact with his alleged family has at best been over some years by correspondence or on business. I do not think that it is my function to lay down guide lines, which Mr Donnell suggests in his affidavit I should, for the determination of such disputes. If the Secretary of State thinks it appropriate after this case to seek to amend the general provisions of rules 28 and 29, so be it. But behind those rules there must be this consideration, that the appellate authorities are to deal fairly with both parties to an appeal. Having said that, I then turn to the narrow point here, which is this: Can an Adjudicator refuse to allow a party to give evidence and to call witnesses? I do not think he can. What he does with the evidence when it is given, what rulings he makes as to its admissibility and weight, are matters for him or for a higher appeal tribunal, and of course on admissibility alone, he has the right to receive not merely unsworn evidence, but also evidence which would be inadmissible in a court of law. But again his fundamental duty is one of fairness and if it should be in a particular case that he is receiving evidence on one side which is hearsay, he may well think it proper to receive evidence on the other which is just as much hearsay. Those are matters for him. He can admit the evidence and when weighing it up, accept or reject it. But he has not authority under these rules to deny a party the opportunity to call a witness, as the applicant here desired to call Mr Smith. On that narrow point this application is successful. [After argument.] McNeill J. What I am going to do Mr Pearl is this. I am going to say that there should be an order for judicial review by way a mandamus directed to the Adjudicator to hear and determine the appeal in accordance with the law, and I will make a recommendation that the appeal should be heard by an Adjudicator other than Mr Donnell. I will give you liberty to apply for the working out of the relief if, as I suspect will not happen, there are any difficulties about it. It is right that I should say that at the moment I am not disposed to think that this is really a certiorari case. If you want to argue this further, assuming that this order does not have the desired effect, then you can come back to me.

DISPOSITION:

Order of mandamus, directing the adjudicator to hear and determine the appeal in accordance with the law, granted.

SOLICITORS:

Bindman & Partners.