R v. Immigration Appeal Tribunal, Ex parte Zaman

R v IMMIGRATION APPEAL TRIBUNAL Ex parte ZAMAN & ZAMAN, TH/58656/80 (2182)

Queen's Bench Division

[1982] Imm AR 61

Hearing Date: 19 July 1982

19 July 1982

Index Terms:

Practise and Procedure -- Tribunal -- Proper approach by after granting leave to appeal from adjudicator on the evidence and not on a point of law -- Immigration Act 1971 s 20(1): Immigration Appeals (Procedure) Rules 1972.

Held:

The applicants, citizens of Bangladesh, were refused entry clearance to join Shamsul Islam in the United Kingdom as his dependent children. Their appeal against this decision was dismissed by an adjudicator. The Immigration Appeal Tribunal granted leave to appeal, on the evidence and not on a point of law, against the adjudicator's decision, but in turn dismissed the appeal. The present matter arose from an application for judicial review of the Immigration Appeal Tribunal. Held: The proper approach in such circumstances was for the Tribunal to consider the matter de novo on the material before it and not to restrict itself to the form of review which the Divisional Court embarked on when considering an application for judicial review. This the Tribunal had failed to do.

Counsel:

K. A. Quddus for the applicants. J. Laws for the respondent. PANEL: Woolf J

Judgment One:

WOOLF J. This is an application for judicial review in respect of a decision of the Immigration Appeals Tribunal, which heard two appeals -- one by Khasruz Zaman and the other by Jogluj Zaman -- on the 15 October, 1981, and notified their decision on the 21 December, 1981. This raises the issue as to the proper approach of the Tribunal, when it has given leave to appeal from the decision of an adjudicator, in a case where leave was required because the appeal was one which was concerned with the evidence and did not involve a point of law. The statutory framework for that appeal is to be found in section 20 of the Immigration Act 1971, and the Immigration Appeals Procedure Rules 1972. Section 20(1) of the Act says: "Subject to any requirement of rules of procedure as to leave to appeal, any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the Appeal Tribunal, and the Tribunal may affirm the determination or make any other determination which could have been made by the adjudicator." It is to be noted that those words of section 20(1) are wide words. The provision is made subject to the requirement of the Rules of Procedure. However, the qualification in the Rules of Procedure is limited to matters of leave. The Rules of Procedure, it seems to me, cannot be relied upon to cut down the right of appeal which is given by section 20, save as to the question of leave. In any event, when one looks at the Rules of Procedure it does not seem to me that they do in fact cut down the right of appeal, though they clearly contemplate that certain appeals should take place without a hearing. It is the very nature of the immigration appellate jurisdiction that witnesses frequently cannot be called because they are broad and the evidence which has to be relied upon by both adjudicators and tribunals is very different from the type of evidence upon which a court of law normally has to rely. Looking at section 20, it seems to me that, subject to the limitations which are placed upon the Tribunal to go into matters of credibility because they will not always see the witnesses, the right to appeal is the equivalent right to that which was to be enjoyed where there is the right to a rehearing; that is to say, the Tribunal must consider the matter de novo on the material before it and not restrict itself to the form of review which this court embarks upon when it is considering an application for judicial review. That the Tribunal should recognise that this is its function, can be of great importance to appellants before it, particularly in cases such as the present when the adjudicator had an extremely difficult task in trying to come to a satisfactory conclusion on the conflicting material before him. The adjudicator in question, Mr Brownlees, had before him five appeals. The first appellant was the alleged wife of someone who was settled in this country and the four remaining appellants were the alleged children of the first appellant and the person settled in the United Kingdom. Initially, the matter was before an entry clearance officer, who had refused leave to enter, or more accurately, to grant an entry certificate giving leave to enter, because he was not satisfied that any of the appellants bore the appropriate family relationship to the sponsor who is settled in this country. The adjudicator allowed the appeal of the first appellant because he was satisfied that she was indeed the wife of the sponsor; he also allowed the appeal of one of the children but rejected the appeal of the other three. If is only two of those children who took the matter to the Tribunal. The reason why the adjudicator allowed the appeal of the alleged wife was that he was satisfied a marriage had taken place, albeit that the marriage had taken place in 1961 and not in 1958 as alleged by the sponsor. What happened before the adjudicator was that a marriage certificate was produced, together with a translation which showed the marriage as having taken place in 1958. However, further investigation indicated that the translation was inaccurate and the marriage certificate in fact supported a marriage in 1961. On that basis, Salma Khanam, who was born on the 7 March, 1960, was born before the marriage and therefore that child could not be treated as a child of the family. In addition, the adjudicator had an account before him of two interviews which had taken place with the sponsor's brother. In one of those interviews the sponsor's brother had said that in 1970 the sponsor and his wife had four children but in a subsequent and more detailed interview he said three children. The adjudicator decided that the statement that there were only three children was the correct one and clearly regarded that as being extremely significant evidence. He explained that he thought the evidence was likely to be unprejudiced and not devised to suit the present claims of the sponsor because the brother had made these statements not in support of the sponsor's application but in support of his own application for entry. The adjudicator said of it: "To my mind the most unprejudiced accounts... were those of his brother..." He preferred the reference to three children to that of four children because the statement about three children was made very shortly after the brother said that he had left the wife and children and would be likely to be aware at that time of the number of children. I am bound to say that I do not find that a very convincing basis on which to distinguish the two conflicting accounts. Nonetheless, that is what the adjudicator did. He then went on to give his reasoning in this way: "I am also satisfied on the balance of probabilities that in 1970-71 the sponsor had 3 children, no more and no less. I am not satisfied that the third child is Salma Khanam, since her claimed date of birth is before what I consider to be the date of marriage between the sponsor and Anwara Khanam: 21 or 22 December 1961. I am satisfied that this third child was born or conceived by 27 November 1963 when the sponsor first arrived in the United Kingdom and that he is in all probability either the second or third appellant, Khasruz Zaman or Jogluj Zaman. However, on the evidence I cannot be satisfied on the balance of probabilities that either is that child, and in such circumstances I must dismiss both of their appeals." The adjudicator was there saying that he was not able, having accepted that there were three children, to distinguish between the two children who could be qualified to be the third child and therefore dismissed the appeal of both. Quite clearly the result of that decision of the adjudicator meant, on his view of the evidence, one or other of those children was being dealt with unjustly. He had obviously come to the conclusion that one or other of those children was being dealt with unjustly. He had obviously come to the conclusion than one or other was a child who was eligible to come to the United Kingdom but because he could not say which child was being unjustly dealt with he had to reject the application of both. I fully understand how the adjudicator came to that decision, once he had accepted that he would act on the account of the brother that there were only three children at the material time. The onus is upon an applicant to satisfy the appropriate body that he is eligible and if he does not do so, then the adjudicator is perfectly right in rejecting the application. I stress the position because it seems to me that where you have that kind of result and there is then leave to appeal to the Tribunal, there is a heavy obligation upon the Tribunal to exercise properly the function which I have indicated is the proper function of an appeal tribunal in those circumstances. The present Tribunal was presided over by an extremely experienced vice-president, whose decisions in these matters are always very careful and precise. It is because of the reputation of the particular vice-president that I was particularly concerned to note that, in giving his conclusions in dismissing the appeals of the two children, he said: "The Tribunal has come to the conclusion that it would not be justified in interfering with the adjudicator's determination. It could only do so if it were to upset his findings of fact as to the date of the marriage and/or the number of children of the marriage born by 1970-71. These findings were in its view supported by the evidence and were not unreasonable. Further the adjudicator heard the sponsor and he expressed the greatest doubt as to his credibility. We do not consider that the further evidence submitted to the Tribunal of family letters written in 1981 would or should have affected his decision." That is a reference to the adjudicator's decision. Looking at the paragraph as a whole, it seems to me to indicate the Tribunal took the view that its role on an appeal of this sort was exactly the same as the role of this court in examining the decision of the Tribunal. It looks as though the Tribunal were not approaching the evidence de novo but were deciding whether or not the adjudicator's decision was one which he could properly come to as a matter of law. If that is to be the right assessment of the approach by the Tribunal (as shown by the paragraph I have just read) it indicates an approach which is too narrow and one which is not in accordance with the statutory provisions to which I have referred. It is perfectly proper for the Tribunal to have regard to the view which the adjudicator formed of the witnesses who gave evidence before him; however, it is not right for the Tribunal to refuse to interfere with an adjudicator's assessment of a matter such as the number of children at a particular date, based upon material of the sort which I have indicated earlier in this judgment, purely because the adjudicator could reasonably take the view which he did of that evidence. What the Tribunal should do is to look at that material in the same way as the adjudicator had to look at it. The Tribunal is as well equipped as the adjudicator to do that. It should then ask itself whether it would have come to that same conclusion. If the Tribunal comes to the same conclusion, then of course it would uphold the adjudicator's decision. If, on the other hand, it formed a different view, then in appropriate circumstances it would allow the appeal. In this case, it was critical the Tribunal should do that because if it felt that the adjudicator was justified in coming to his decision about three children in 1970-71 but nevertheless it was one that it would not have come to, then it should have given effect to its view of that evidence rather than give effect to the adjudicator's view. The result would have been that, if the rest of the adjudicator's conclusions were accepted, instead of both children being refused, both children would have had their appeal allowed. It follows, therefore, that having come to the conclusion that the paragraph to which I made reference indicates a wrong approach by the Tribunal, I allow this application for judicial review. I grant an order of certiorari so that the matter can go back to the Tribunal in order to be reconsidered by the Tribunal.

DISPOSITION:

Application allowed. Order of certiorari granted for the matter to be reconsidered.

SOLICITORS:

Beharrysingh & Co; Treasury Solicitor.