R v. Special Adjudicator, Ex parte Arthur

R v SPECIAL ADJUDICATOR ex parte ARTHUR

Queen's Bench Division

[1994] Imm AR 246

Hearing Date: 14 December 1993

14 December 1993

Index Terms:

Appeal -- special adjudicator -- political asylum -- appeal dismissed -- special adjudicator caused prison officers to be alerted at end of evidence and before hearing submissions -- suspicions that special adjudicator had predetermined the appeal -- whether she acted contrary to natural justice -- whether judicial review the proper remedy. Asylum and Immigration Appeals Act 1993 s 9: Asylum Appeals (Procedure) Rules 1993 r 13.

Held:

The applicant for leave to move for judicial review had appeared before a special adjudicator as the appellant in an appeal against the refusal by the Secretary of State to grant him asylum. He was detained. After the special adjudicator had heard evidence but before the representatives had made their submissions, she caused prison officers to be alerted. Counsel submitted that it would appear that the special adjudicator had predetermined the appeal and acted contrary to natural justice. When challenged at the end of the proceedings the special adjudicator had stated that she had not predetermined the appeal but had merely alerted the prison officers as a precautionary measure. Held 1. There was no evidence to suggest that the special adjudicator had predetermined the case, albeit it was an unfortunate procedure to have adopted. 2. Even if it were arguable that she had thus offended against the principles of natural justice, to seek judicial review was not the appropriate remedy. The applicant should have appealed to the Tribunal.

Counsel:

M O'Maoileoin for the applicant; R Jay for the respondent PANEL: Harrison J

Judgment One:

HARRISON J: This is an application for leave to apply for judicial review, firstly, of a decision of the special adjudicator, Mrs Drew, when she gave an oral determination on 11 November 1993, on the ground that she failed to observe the rules of natural justice, and also in relation to two notices of the chief immigration officer also given on 11 November 1993, on the ground that those notices were invalid because not all relevant information had been taken into account when they were issued. So far as the first of those matters is concerned, the complaint relates to the course of action taken by the special adjudicator when, at a time which appears to be between the end of the evidence and the start of the submissions, the adjudicator either herself wrote a note or instructed her clerk to write a note, which note was seen after the end of the proceedings and which was subsequently found to contain a direction that a prison officer should be alerted to be present at the end of the hearing. It is said that that is something with which the special adjudicator should not concern herself and that it showed that she had predetermined the decision before the end of the hearing, and thereby she acted contrary to the rules of natural justice. In answer to that, Mr Jay said that there was no evidence that the special adjudicator had prejudged the issue, and, in any event, as a matter of discretion, there was an alternative remedy available to the applicant which would include complaining on the grounds of breach of the rules of natural justice, which was to apply for leave to appeal to the Immigration Appeal Tribunal pursuant to section 9 of the Asylum and Immigration Act 1993 and the regulations thereunder. There is a five-day time-limit for making such an application and the applicant was so advised by the Treasury Solicitor on 12 November 1993, that is to say, the day after the special adjudicator's oral determination. I am told that the five-day period would, in fact, run from the date of the written determination rather than the oral determination, that date being 19 November. Dealing with that point first, it seems to me that, although it was an unfortunate procedure to have adopted, there is no evidence that the special adjudicator had prejudged the issue at that stage of the proceedings and I place some emphasis upon what Mr O'Maoileoin told me that the special adjudicator had told him, when he raised the matter after the end of her oral determination, that she had alerted a prison officer as a precautionary measure and that she had not predetermined her decision at that point. In the absence of any evidence that she had predetermined the matter at that stage, there cannot, it seems to me, be an arguable case that she did act in breach of the rules of natural justice. I also think it is right that, even if I had held the contrary view, there is the alternative remedy which was available to the applicant which had to be exercised within five days of the written determination, and the applicant was so alerted by the Treasury Solicitor. It does not seem to me that this case has such exceptional circumstances about it as to warrant the remedy of judicial review rather than the statutory remedy which was available. For those reasons, I do not think that there is an arguable case on the first main ground taken by Mr O'Maoileoin. The second matter which he raises is that the notices issued by the chief immigration officer are invalid because the immigration officer failed to take into account all information available to him at the time they were issued. The time they were issued is shown from the faxed notes, at the top of the document, as 5.04, which is, as I understand it, about five minutes before the special adjudicator concluded her oral determination. The answer to that point, I think is given by Mr Jay, that even if that is right, it is an academic point because of what has subsequently happened which has resulted in a situation where the Secretary of State or the immigration officer will have to issue fresh notices in any event. The third and last point raised on behalf of the applicant was that the notice giving the directions for removal was invalid because it directed removal on the next day, which did not enable the applicant to take advantage of the five-day period in which to exercise the right of appeal. Again, I think the answer here must be that that is now wholly academic, because, as I have said, fresh notices will have to be issued. For those reasons, as a matter of discretion, the court would not have granted relief in relation to that matter either. For those reasons, I have come to the conclusion that there is not an arguable case here and I dismiss this application.

DISPOSITION:

Application dismissed

SOLICITORS:

Martin & Co, London SW9; Treasury Solicitor

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