Akhtar v Visa Officer, Islamabad

Immigration Appeal Tribunal

[1988]Imm AR 465

Hearing Date: 13 January 1988

13 January 1988

Index Terms:

Evidence -- proper approach by adjudicator -- whether an adjudicator is precluded from reversing the findings of an entry clearance officer if there be no acceptable fresh evidence before him -- whether a witness must satisfy an adjudicator on oath. Immigration Act 1971 s 19.


The appellants who claimed to be the wife and children of their sponsor in the United Kingdom were refused entry clearance because the visa officer was not satisfied that they were related as claimed. When the matter went to appeal the adjudicator, who found the evidence unsatisfactory, adopted an approach to the evidence which, it was submitted, on appeal to the Tribunal was a misdirection in law. Held: 1. An adjudicator was not precluded from allowing an appeal if there were no new evidence before him which had not been before the entry clearance or visa officer. His powers, under Section 19 of the 1971 Act include a power to review any determination of a question of fact on which the decision or action was based. 2. It was not likewise necessary for a witness to satisfy an adjudicator that he can be trusted and believed upon his oath.

Cases referred to in the Judgment:

No cases are referred to in the determination.


S Choudhury of the United Kingdom Immigration Advisory Service for the appellant; A Gammons for the respondent. PANEL: DL Neve Esq (President), Mrs A Weitzman JP, AA Lloyd Esq JP

Judgment One:

THE TRIBUNAL: The appellants are citizens of Pakistan. They applied to the visa officer in Islamabad for entry clearance to enable them to join a Mr Mohn Younus for settlement in this country as his wife and children. Their applications were refused because the visa officer was not satisfied that they were related to Mr Younus as they claimed. They appealed to an adjudicator against the refusals. Their appeal was heard by Mr CR Sinclair-Morris and was dismissed on 13 October last. [1988]Imm AR 465 Against Mr Sinclair-Morris's determination they now appeal to the Tribunal. When the application was made, the visa officer interviewed the first appellant, Zakia Begum, and a man called Raja Khan, her maternal uncle. The reasons leading to his refusals are summarised in his explanatory statement as follows: "19. I then came to consider the case as a whole, taking into account the statements of the principal appellant and others who had been interviewed, together with documentary evidence produced in support of these applications. It appeared that the sponsor had applied for registration as a British citizen in August 1974 but that this had not been granted. In the sponsor's favour was the fact that on form R1A, completed on his behalf, he has recorded the names of his two alleged wives, ie Fazal Begum and Zakia Begum. Also in the sponsor's favour was the fact that the requirements of HC 169 regarding maintenance and accommodation appeared to have been adequately met. My dissatisfaction, therefore, was with the claimed relationship of the appellants and the sponsor. From the information before me in the form of the copies of the sponsor's passport, he could not be the father of Shazia and his participation in the parentage of Azim must be called into question on two counts; that the pregnancy lasted in excess of 10 months and the principal appellant's statement that Azim had been born "on time". Time and again I had asked the principal appellant if her husband had been in Pakistan when any of the minor appellants had been born but she steadfastly maintained that he had not. This contradicted the evidence of the endorsements in the sponsor's passports and also the statements of Raja Khan, the maternal uncle of Zakia Begum. When asked to explain the discrepancies that had arisen in her testimony, Zakia Begum was unable to do so. Therefore, faced with the glaring discrepancies and a total absence of any explanation, I found that I was not satisfied that the appellants stood related to the sponsor as claimed and refused their applications for entry clearances on those grounds." When the appeal went before the adjudicator he heard evidence from Mohd Younus and from a man claiming to be Mohd Younus's first cousin, a Mr Karam Ellahi. For reasons which he specifies in the course of his determination, and which appear to us to be reasonable and indeed compelling, the adjudicator found that he could not rely on the evidence of either of them. Birth certificates claiming to be authentic were produced for each of the three minor appellants, but when it was pointed out to Mr Younus that the dates of birth given in the certificates conflicted with the evidence which he had given, he agreed that they might well be forgeries. School certificates had also been produced relating to the children, which he also agreed might also be forgeries. An identity card relating to the first appellant was produced but did not impress the adjudicator. Having reviewed the many unsatisfactory aspects of the evidence before him, the adjudicator records: "For these many reasons much, if not the much greater part, of the appeals evidence is unreliable, lacking as it does, both plausibility as well as credibility. All that is left at the end of the day are the sponsor's sworn fervent assertions to the effect that the appellants are all his family and that they ought to be admitted. I would have been pleased to do as Mr Mohammed Younus has asked. It is, of course, entirely feasible and possible that Mr Younus is a married man; he has been in this country since l965. I would be surprised if he were not married. But the standard of proof on which appellants have to satisfy me as to their claims and assertions is one of a balance of [1988]Imm AR 465 probability and not a balance of possibility. It is even likely that Zakia Begum is the sponsor's wife. But I cannot make findings of fact by means of assumptions and guesswork; it is the appellants' and the sponsor's task and duty to establish their claims and claimed relationship on that balance." He went on to dismiss the appeals. In the course of the adjudicator's determination, he said this: "In order for these appeals to succeed what must happen is that the evidence and such explanations as are tendered, must bring me to the point where I can, if I can intervene at all, conclude that if that same evidence and if these explanations had been tendered to the Respondent or any other reasonable Immigration or like officer, these applications would have been allowed. If, but only if, I reach that stage, will I be in a position to substitute my discretion and my decision for his." The first ground of appeal is that this was a misdirection. The second ground of appeal complains that the adjudicator has attached insufficient weight to the census form which was produced and the identity document in the first appellant's name which had been verified by the Pakistan Consulate in Bradford. With regard to the first ground of appeal, we agree with Mr Choudhury that the passage in question was a misdirection. As he points out, it appears to import that an adjudicator can only reverse an entry clearance officer's finding if there is new evidence which was not before the entry clearance officer. This is of course not the case, and adjudicators' functions are clearly set out in section 19 of the Immigration Act which -- inter alia -- provides that an adjudicator may review any determination of a question of fact on which the decision or action was based. Furthermore, later in the determination having (correctly) stated that the appellants have to satisfy him upon the basis of a balance of probabilities, the adjudicator remarks "In order to effect such a discharge the sponsor must first satisfy me that he can be trusted and believed upon his oath". There is no such requirement contained either in the Immigration Act or the rules made thereunder, and it is perfectly possible for an appellant to satisfy an adjudicator to the required standard without giving evidence on oath, or indeed without giving evidence at all -- for example, by the production of documentary evidence. Mr Choudhury also complains at the rejection by the adjudicator of the documents we have mentioned, and asked us to remit this appeal to another adjudicator for hearing de novo. Mr Gammons opposed this suggestion and pointed out that the adjudicator had conscientiously considered all the evidence before him, and had given detailed reasons for his findings. In his submission, there was no sufficient reason to prolong this matter further. We have considered the submissions in the light of the evidence contained in the file. Whilst it is perfectly true that the adjudicator has misdirected himself in the manner which we have indicated, nevertheless he conscientiously reviewed the evidence before him and, for cogent reasons which he sets out, thought nothing of the two witnesses before him. In our opinion, even if he had attached greater significance to the question of the census form and the identity document, these considerations alone would have been far from [1988]Imm AR 465 sufficient to tip the balance of probabilities in the appellants' favour. In our view, even if the adjudicator had not misdirected himself, he could not possibly have properly come to any conclusion other than he did in respect of each of the appellants. For these reasons we do not propose to interfere with his findings, and the appeal of each of the appellants is dismissed.


Appeals dismissed

This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.