R v. Immigration Appeal Tribunal, Ex parte Farida Bibi

R v IMMIGRATION APPEAL TRIBUNAL Ex parte FARIDA BIBI

Queen's Bench Division

[1986] Imm AR 435

Hearing Date: 16 July 1986

16 July 1986

Index Terms:

Practice and Procedure -- the obligation of the appellate authorities to give reasons for their decisions -- how that obligation is discharged -- the ambit of ex parte Khan defined. Immigration Appeals (Procedure) Rules 1984 r 39(3).

Evidence -- village reports -- the proper approach by the Tribunal.

Held:

The applicant was a young lady born in Pakistan in 1966. In June 1982 she applied with her claimed mother and brother, for entry clearance to join her claimed father in the United Kingdom. All the applications were refused. When the matter went before an adjudicator he had before him additional evidence, including a village report prepared by the United Kingdom Immigrants Advisory Service. He dismissed the appeals of all three applicants. Before the Tribunal the author of the village report gave evidence. In the report he had distinguished between the applicant and her claimed mother and brother in that while he concluded on balance that they were all related as claimed to the sponsor, he felt more confident about the relationship of the mother and the brother. The Tribunal allowed the appeals of the mother and brother. It dismissed the appeal of the applicant. On application for judicial review it was submitted by counsel following ex parte Khan that the Tribunal had failed to give adequate reasons for its decision. Further, it had erroneously distinguished between three appellants on the basis of a village report which supported the cases of all three. Held: 1. On the facts and in the circumstances of the case, the Tribunal had given adequate reasons for its decision. It noted it had reviewed all the evidence and referred to the discrepancies and falsehoods that had cast doubt on the claims of the applicant. In this case there had been only one issue -- that of relationship. In that regard the case was distinguishable from ex parte Khan where there were two issues and the Tribunal had failed clearly to indicate its reasons for its conclusions on each issue. In some cases (as in this case) and as noted in ex parte Khan it was obvious by inference what the issue was. 2. The author of the village report had himself distinguished between the present applicant and the other two then appellants. It followed that the evidential bases of the cases were not identical. In any event, although the author of a village report might express a view, it was for the Tribunal to weigh the evidence: it was not for them "simply to rubber stamp" the view formed by the author.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Mahmud Khan [1982]Imm AR 134

Counsel:

L Fransman for the applicant; P Vallance for the respondent PANEL: Taylor J

Judgment One:

TAYLOR J: This is an application of judicial review of a determination of the Immigration Appeal Tribunal notified on 19 February 1985, dismissing the appeal by the applicant, Farida Bibi, against a refusal of an entry clearance certificate. The applicant is a Pakistani citizen and was born in 1966. On 28 June 1982 she applied at Isamabad for an entry certificate to join her father in the United Kingdom. At the same time her mother, as it was alleged, Nazar Bibi, and an alleged brother, Shahzad Ahmed, also applied for entry certificates. On 3 May 1983 the entry clearance officer rejected all three of those applications. It should be mentioned that so far as Nazar Bibi and Shahzad Ahmed are concerned, there had been a previous application for an entry clearance certificate which was made in April 1977. That was refused in February 1980, on the grounds that the entry clearance officer was not satisfied that those two applicants were related to the sponsor or alleged husband and father. There was an appeal against that decision which was dismissed. The grounds for the refusal of an entry certificate on 3 May 1983 were similar, namely, that the entry clearance officer was not satisfied of the relationship of the three applicants to the sponsor. An appeal was entered by all three. In the interim, before the appeal came on before an adjudicator an enquiry took place. This was on behalf of the appellants. It was conducted by Mr Drabu, who is the Deputy Director of the United Kingdom Immigrants Advisory Service. He visited a village in Pakistan where the family lived. He prepared a report which runs to some pages. That report was put before the adjudicator. On 27 July 1984, the adjudicator having heard that and other evidence, dismissed the appeals. It is right to say that Mr Drabu did not give oral evidence before the adjudicator but there was oral evidence given by the applicant and the sponsor. The adjudicator formed a very poor view of the evidence in support of the appeal. He said that it made lamentable reading and that there was a series of most fundamental discrepancies and admitted lies. In so far as the sponsor was concerned, he was described by the adjudicator as a most evasive witness. Leave was given to appeal against the adjudicator's determination. The hearing before the Immigration Appeal Tribunal was on 21 January 1985. On this occasion Mr Drabu did give evidence and was cross-examined. The conclusion reached by the Immigration Appeal Tribunal differed as between the three appellants. So far as Nazar Bibi and Shahzad Ahmed are concerned, the Tribunal considered that they were the wife and child respectively of the sponsor and the appeals of those two were allowed. However, in regard to Farida Bibi, the applicant in these proceedings, the Tribunal said: "We do not consider it has been established on the balance of probabilities that Farida Bibi is their child and accordingly her appeal is dismissed." Mr Fransman has pursued his two grounds of appeal with commendable brevity and clarity. He puts the matter in this way. First, he says that it is incumbent upon the Tribunal to give reasons for its decision. His submission is that reasons were not given, sufficient for the purposes required. He drew attention to the Immigration Appeals (Procedure) Rules 1984 and in particular to Rule 39(3):

"The determination on any appeal shall be recorded by the appellate authority in a document signed by the President of the Tribunal and the reasons for the determination shall be set out therein."

Mr Fransman further drew my attention to the well-known decision in R v Immigration Appeal Tribunal ex parte Ahmud Khan [1982] Imm Ar 134. At page 136 Lord Lane CJ said this:

"The overriding test must always be: is the tribunal providing both parties with the materials which will enable them to know that the tribunal has made no error of law in reaching its findings of fact? We do not think that the brief reasons set out here suffice for that purpose."

At page 137 Lord Lane CJ said this:

"The important matter which must be borne in mind by tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue between the parties, and they should indicate the evidence upon which they have come to their conclusions."

In the present case, the submission is that only the last three paragraphs of the determination of the Tribunal were addressed to their findings at all. What preceded those three paragraphs was history. I have already read the last paragraph. The two penultimate paragraphs read as follows: "We have carefully considered all the evidence before us and having regard to the lies and unresolved discrepancies which arise in the accounts of fundamental family matters in this case, in our view, the entry clearance officer and adjudicator reasonably drew the conclusions they did upon the evidence available to them.

"However we have, additionally, had the benefit of hearing Mr Drabu's evidence and found this of considerable assistance in reaching our decision,. We find it has been established upon the balance of probabilities that Nazar Bibi is the wife of the sponsor and Shadzad Ahmed is their child and the appeals of these two appellants are allowed."

The final paragraph drew the distinction which I have already mentioned in the case of Farida Bibi, the applicant. Looking at those three paragraphs, Mr Fransman says that they do not provide the sort of reasons which the Lord Chief Justice indicated were required in a case of this kind. However, the Tribunal did refer to all the evidence before them having been carefully considered. They did refer to the lies and unresolved discrepancies and they did indicate that upon the evidence that had previously been adduced before the adjudicator, the conclusion to which he arrived was reasonable in their view. The Tribunal must therefore be taken to have incorporated in their last three paragraphs the evidence which had already been adduced in the case at earlier stages. They then went on to refer to Mr Drabu's evidence and pointed out that upon that, as given orally and subject to cross-examination, they were prepared to draw a distinction between mother and brother on the one hand and alleged sister on the other. It seems to me that having looked at the evidence, there were very clear reasons for drawing distinctions between the appellants on the basis that the Tribunal did. The matters which have been drawn to my attention specifically by Mr Vallance on behalf of the respondent are threefold, although there may be other minor points as well. First, when the application was made by Nazar Bibi and Shahzad Ahmed in 1977, no mention was made at all of Farida. There was mention at that time of two other alleged children of the sponsor and Nazar Bibi but it subsequently appeared that they were invented. One of them was named Bashir, a boy. His date of birth was given as 2 February 1966. When that fraud was admitted and not before, Farida was brought into the picture. Her birth date was then said to be the same as that which had attached to the invented son, Bashir. Secondly, there were discrepacies between what was said by the sponsor and what was said by Nazar Bibi in a number of respects, but most relevantly in regard to the daughter or daughters of their union. So far as the sponsor was concerned, he claimed that he had three daughters, two having died when they were babies. Naza Bibi, the mother of however many daughters there were who ought to have known, was quit firm that she had only given birth to one daughter, namely, Farida. The third point which is drawn to my attention is derived from Mr Drabu's report which was before the adjudicator and was again before the Tribunal, although supplemented there by his oral evidence. In that report, Mr Drabu himself drew a distinction between the degree of confidence that he could command in saying that mother and son were who they claimed to be in regard to the sponsor as opposed to his confidence in regard to the alleged daughter, Farida. True, he said that on the balance of probabilities he thought Farida was the daughter but it was notin the end his decision to make. It was the decision of the Tribunal. Taking all the matters into account which were contained in the evidence before them and to which reference was made in their final three paragraphs, it was open to the Tribunal to come to the conclusion, by way of distinction that it did. As to whether the reasons were sufficient, it seems to me that Mr Vallance is correct in saying that one must bear in mind what the issue or issues are in any given case. Where one has a case with more than one issue and the Tribunal fails to indicate in its reasons upon which issue the decision was made, then its determination would clearly fall foul of the guidelines given by Lord Lane CJ in the case of Khan. In that very case there were two issues to be decided, one as to whether there was a marriage of convenience and, secondly, as to whether there was an intention on the part of the parties to the marriage to live together. The Tribunal failed to indicate whether both issues had been addressed and on what basis they came to their conclusion. In the present case however, there really was only one issue, whether or not Farida, on a balance of probabilities, had been shown to be the daughter of the sponsor and Nazar Bibi. There could be no doubt as to what issue was being addressed. The Tribunal clearly indicate that they had considered that issue. Nor in my judgment, could there be any doubt as to the basis upon which they came to their conclusion. Lord Lane CJ indicated in a subsequent paragraph in his judgment in Khan, that there could be circumstances in which it was not necessary to spell out the reasons where they could be inferred or where they were obvious. What he said was this:

"Where one gets a decision of a tribunal which either fails to set out the issue which the Tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis upon which they have reached their determination upon that issue, then that is a matter which will be very closely regarded by this Court, and in normal circumstances will result in the decision of the tribunal being quashed. The reason is this. A party appearing before a tribunal is entitled to know, either expressly stated by it or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not."

It is quite clear from that passage that Lord Lane CJ had in mind that in some cases, and in my judgment this is one of them, one can infer what is obvious, namely, the basis of the decision made by the tribunal. For those reasons, the first round upon which Mr Fransman has relied is not made out. The second ground is linked to the first. It is based upon the distinction drawn between the applicant on the one hand and the mother and brother on the other. Mr Fransman says that what turned the Tribunal's findings so as to differ from the findings of the adjudicator was the oral evidence of Mr Drabu. Since Mr Drabu expressed himself to be the view that all three were on the balance of probabilitiesthe relatives of the sponsor, so runs the argument, all three appeals should have been allowed rather than just two. However, that fails to Mr Drabu's evidence, simply to rubber-stamp the view which he had formed. They were entitled to form their own view, although they did express gratitude to Mr Drabu for the assistance that he had been able to give. As I have already pointed out, Mr Drabu himself did put Farida in a different category from the other two appellants. It seems to me that an argument based on disparity in the circumstances of this case is not well founded. For those reasons, this application must fail.

DISPOSITION:

Application dismissed.

SOLICITORS:

Winstanley-Burgess, London EC1, Treasury Solicitor