R v. Immigration Appeal Tribunal, Ex parte Gondalia

R v IMMIGRATION APPEAL TRIBUNAL ex parte GONDALIA

Queen's Bench Division

[1991] Imm AR 519

Hearing Date: 17 May 1991

17 May 1991

Index Terms:

Primary purpose -- applicant and sponsor gave to immigration authorities agreed false account of circumstances surrounding the marriage -- on appeal, affidavits admitting deception and setting out different account of circumstances put before adjudicator -- adjudicator considered that taint of deception would only be removed if evidence of witnesses before him was straightforward and acceptable -- witnesses assessed as unsatisfactory -- whether adjudicator adopted a proper approach -- adjudicator failed specifically to mention in determination certain facts favourable to the applicant which the record showed were facts put to him -- whether it could be assumed that he had therefore not taken them into acount. HC 503 para 46.

Held:

Application for judicial review of refusal by the Tribunal to grant leave to appeal from the dismissal by an adjudicator of a primary purpose appeal. Before the applicant's interview the sponsor had told the applicant to let her know what replies he gave to the entry clearance officer so that, when interviewed herself, she would be able to give similar replies. The story put to the entry clearance officer was false. The application for entry clearance was refused. When the appeal came before the adjudicator, affidavits were put in, admitting the earlier deception and putting forward a different version of material events. The adjudicator observed that for the taint of the earlier deception to be removed, it would be necessary for "the evidence given at the hearing to be straightforward and acceptable": he then found the principal witnesses before him to have been unsatisfactory. He then concluded that the applicant's credibility was also impaired. He dismissed the appeal. Before the court it was submitted that the adjudicator had made errors of fact. Certain matters asserted to be favourable to the applicant's case were not specifically mentioned by the adjudicator in his determination. His approach to the issues raised by the credibility of the witnesses was also challenged. Held: 1. The adjudicator was entitled to come to the conclusion that he did, as to the credibility of the witnesses before him and to conclude that the taint of the former deception had not been removed because he had not been impressed by the evidence of those witnesses. 2. It did not follow, because the adjudicator had not referred to certain specific matters, that he had not taken them into account. Counsel had stated that he had put those matters to the adjudicator, and they were plain points that would not have been misunderstood or overlooked. 3. The adjudicator had in any event given ample reasons for his decision and his determination was not vitiated by the errors on particular facts, when the evidence as a whole was taken into account.

Counsel:

N Weiniger for the applicant; Miss A Foster for the respondent PANEL: Henry J

Judgment One:

HENRY J: The applicant, a citizen of India, challenges the decision of the Immigration Appeal Tribunal of 14 June 1990 refusing him leave to appeal against the decision of the adjudicator of 18 April 1990. The adjudicator upheld the refusal by the entry clearance officer of leave to enter as the husband of the sponsor in this case. This of course is a primary purpose of marriage case. The applicant and the sponsor got off to an extremely bad start in this inquiry. Apparently, or so it is said, on advice received by an agent in India, they started off in an effort to persuade the entry clearance officer that this marriage was a love-match between them. The dates were that on 20 October 1987 the sponsor had come to India. Seven days later she met the applicant for the first time. Seven days after that the parties decided on marriage and they were married within four weeks on 29 November 1987, the sponsor returning to England some six weeks later. The first interview with the visa officer was on 8 June. Before that, the sponsor had been in communication with the applicant saying to him that at that interview he would be asked questions, "Please write and inform me of all the questions that they asked at your interview so that when I go here for my interview it would help me. They will ask me the same questions that they asked you and if supposing I happen to say something a bit distorted, your arrival this side might be delayed. Therefore, write and let me know immediately whatever questions they may ask you. You will be going to Bombay for your interview, so it would be best for you to write from Bombay and post the letter from Bombay so that I receive it quickly." The applicant was interviewed by the visa officer on 8 June. He told the concocted story that this was a love-match. On 28 July, the sponsor was interviewed in England at the visa officer's request. She told the same story. On 25 October, the applicant was interviewed again and stuck to the story, but the deception did not succeed because the visa officer found that this was in fact an arranged marriage. The visa officer says this about it at page 166: "The appellant declared that within his family it was the custom to have arranged marriages. His marriage however was not arranged and I found this curious. The appellant met the sponsor, a total stranger, and proposed to her at only their third meeting: albeit he was not looking for a wife at the time. In my opinion such celerity on this part was inconsistent with a 'love-match' particularly as he knew practically nothing about the sponsor at the time. In my opinion, the appellant came from a family background of modest income. He earned Rs 400 (approx @16 a month). I did not think it unreasonable to conclude that the appellant could not support a wife in India, which would suggest why, at the age of 28, he was still unmarried and had not looked at any girls for marriage for "many years". In my view, he therefore had an economic incentive to leave India, and that marriage to the sponsor offered him an opportunity to do so." He therefore concluded that the marriage was of subsidiary importance to the entry to United Kingdom and refused the applicant. There was an appeal against that decision to the adjudicator. The notice of appeal was filed at the end of November 1988, but it was not until the end of December 1989 that both the sponsor and the applicant filed corrective affidavits indicating that the account of their marriage that they had given was a false account, admitting that it had been an arranged marriage. Therefore, when the matter came before the adjudicator in 1990, his decision being dated 18 April of that year, he had the corrective affidavit of the applicant and had affidavits also from the sponsor and her father and saw them and her brother give evidence. In that decision, he first directed himself as to the law. The direction he gave himself as to the law, having summarised the facts which he referred to as the background, is an accurate direction. It has not been challenged. He made it clear that the cases showed that the onus was on the appellant, the applicant, to satisfy him on the balance of probabilities that at the time the marriage took place its primary purpose was not to obtain admission to the United Kingdom. He made clear that if the applicant could satisfy the requirement of paragraph 46(b), namely that each party to the marriage has the intention of living permanently with the other, his or her spouse, while that did not of itself satisfy the requirement as to primary purpose it places the applicant in a better position towards satisfying that requirement and, in the familiar phrase, that evidence of intervening devotion between husband and wife can also make it easy to satisfy the requirement as to primary purpose; it can cast a flood of light on the requirement. Finally, he directs himself as to the classic test that he must approach the matter as would a jury and ask what the real primary object of the exercise of this couple getting married was: was it to live together as man and wife, preferably in the United Kingdom, or was it to enable the appellant to obtain settlement here, the matrimonial relationship being of subsidiary importance? In relation to those matters and as to the matters pointing in the applicant's favour, the adjudicator made the following finding in relation to them. He says this: "No damage is done to the appellant's case by the fact that this was an arranged marriage. I am satisfied that apart from the question of primary purpose, all the other requirements of paragraph 46 . . . are satisfied, including that each of the parties has the intention of living permanently with the other as his or her spouse; this carries considerable weight in the appellant's favour. I am also satisfied that there has been intervening devotion between the parties; the letters which have passed between them clearly portray genuine affection, and it is to be noted that the sponsor returned to India in February 1989 and spent two and a half months living there with the appellant. This intervening devotion casts a favourable light on this case. It is not detrimental to the appellant's case that the sponsor may have imposed an advance condition that she would only marry a man willing to come and live with her in the United Kingdom; I say "may have" because the true story remains in doubt in view of the poor quality of the evidence." Having taken those matters properly into account, he looked at the relevance of the change in the account of the marriage that had been given by these parties. In relation to that he said this: "Having regard to the substantial change in the story now put forward in the affidavits, the credibility of the parties is an important issue, and I regret to say that I found both the sponsor and her father to be unreliable witnesses. Mr Weiniger argued that the initial deception perpetrated by the protagonists was regrettable but now had been frankly admitted and had been carried out for a reason which was not unfamiliar; the full story as now given he urged, removed the taint of that former deception." He then has this important sentence: "To achieve this it would in my view be of particular importance for the evidence given at the hearing to be straightforward and acceptable, and it is in this regard that I found both the sponsor and her father to be disappointing witnesses. They both equivocated in giving evidence as to whether, at the time the sponsor's parents had first met the appellant in India in May or June 1987, he had known that they were from the United Kingdom and that a match between him and the sponsor was a possibility. By contrast, the sponsor's brother, who gave his evidence in a refreshingly straightforward manner, said frankly that when he had taken the photographs of the appellant during that meeting, the appellant had been well aware that the purpose of those photographs was in relation to a possible match between him and the sponsor and also that the Meswania family lived in the United Kingdom. The sponsor was similarly disingenuous in saying, both in her affidavit and in her evidence, that she had felt it necesary to give the same answers as had the appellant in order to avoid contradicting him. But she was not an unwilling party to this deception; in her letter to him dated 8 April 1988 she specifically asks him to tell her all the questions put to him at interview so that when she goes for her own interview she can give the same answers." Those were conclusions that the adjudicator was entitled to come to, and he was entitled to conclude, as he did, that the taint of the former deception had not been removed because he was not impressed by the evidence of these witnesses. He then went to look at the appellant's evidence. The applicant came to the matter with similarly reduced credibility because he had been party to putting forward this false story. He maintained it on two occasions and presumably had given information to the sponsor in relation to it. In considering him, the adjudicator, says this: "The appellant clearly comes from a poor economic background. This emerges from the two phohtographs I have of him in his own home environment from the fact that, as he himself said, he could not support a wife on his own; from the fact that his earnings were low by Indian standards. He had been trained as a welder but was working in a sweetshop. At the time of the marriage he was 28 years of age but had not, it would appear, taken any active steps to find himself a wife. These factors leave me in little doubt that there was an enormous economic incentive for him to make a marriage which could result in his achieving settlement in the United Kingdom. Having regard to the fact that it is his own motivations which are the central consideration, and in view of his substantially reduced credibility, I find that he has failed to satisfy me on the balance of probabilities that that was not his real, his primary object in undertaking this marriage." Accordingly, the appeal was dismissed. That decision is attacked on the grounds that it is shown, so it is said, internally that the adjudicator had simply not assimilated facts and that errors of fact in his reasoned decision require that the matter should go back to another adjudicator for another decision and that those matters vitiate his decision. The first point made is that the photographs which the adjudicator found as, or recorded as, being of him in his own home environment -- whatever that phrase may mean -- were not from his own home but were from a house of some relations of the sponsor which I am told is some way away from his home. It seems that the adjudicator there made a mistake. Is that the sort of mistake which can vitiate this decision? One has to look and see what he was using that conclusion for. He was using it as part of his finding, which had also been the finding of the entry clearance officer, that this applicant came from a poor economic background. There was ample evidence on the papers before him that that was precisely the background that he did come from. He had said that he could not support a wife on his own, and it is true that his earnings were low by Indian standards. We know from the papers that even if he had earned nearly three times as much he would still not be at the level requiring him to pay income tax. Therefore, it cannot possibly vitiate the essential factual finding that he came form a poor economic background, and that is a matter on which the adjudicator was entitled to draw the inference that he had an "enormous economic incentive" to make a marriage which would "result in his achieving settlement in the United Kingdom". Another error in the decision is relied on. It is said that the adjudicator did not realize that the appellant had three brothers rather than two. This is not, or so it seems to me, a matter of any consquence. What the evidence shows is that at the time of his first interview with the entry clearance officer in June he was living with his father and his two younger brothers, both of whom were single. That interview is recorded in the determination and reasons of the adjudicator. By the time of his second interview, the appellant had moved to the house of his elder brother and was then living there. That part of the second interview is not recorded by the adjudicator, but the adjudicator has accurately summarized the first interview, which is all that he is attempting to do in that part of his judgment. The fact that by the second interview the appellant had moved is neither here nor there, and there was no reason why the adjudicator need have referred to it. Then the absence from the determination and reasons of any mention of two factors which it is said weighed in the applicant's favour are relied on. First, nowhere in the decision is there reference to the fact that the passport application that the applicant made shortly after the marriage was the first passport application he had ever made and that he had been content to remain in India all that time. That, it is said, throws light on his motivation. Secondly, it is said, and again correctly, that there is no mention in the adjudicator's determination and reasons that the initiative for the first introduction of the husband to wife in this arranged marriage came from the wife's family and not from the husband's. There is no reference to these matters in the adjudicator's decision. The first question is: can it be assumed from that that the adjudicator had not taken them into account? In my judgment, it clearly cannot because Mr Weiniger, who appeared then and who has appeared before me, makes it plain to me that they were matters that he relied on before the adjudicator as he relied on them before me. They were there before the adjudicator. They are plain points that would not be overlooked or misunderstood. The fact they are not referred to is the next point that I deal with. Can it be said that the adjudicator has not given sufficient reasons for his decision? It seems to me that he has given ample reason of his finding and the reasons for it. The reasons for his finding, when finally analyzed, are, first, the lack of credibility so far as the applicant and the sponsor and her father are concerned allied with the economic incentive. In reaching that conclusion, he would have had regard to these points made and it cannot be assumed against him that he gave no regard to them. When faced with that argument, Mr Weiniger for the applicant said that the vice of it lay in that as the adjudicator had not himself referred to them, so they might not have come to the attention of the Appeal Tribunal. But when one looks at the procedure rules, one sees that the Appeal Tribunal gets the full case papers. The points were raised in the notice of appeal lodged with that Tribunal. Therefore, they would have had those points before them and would have been able to take them into account. In short, there is nothing here that shows that there is any error of law either relating to the decision of the adjudicator or relating to the decision of the Immigration Appeal Tribunal in refusing leave to appeal. Therefore, for those reasons, this application is dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

Ved & Co, Pinner; Treasury Solicitor

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