R v. Secreatry of State for the Home Department, Ex parte Sasikath

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte SASISKATH

CO/4165/95

7 October 1996

Queen's Bench Division: Hidden J

Appeal-political asylum-notice of hearing sent to applicant but not to his representative-applicant asserted he did not receive notice-no appearance before special adjudicator-special adjudicator determined appeal in absence of the applicant-leave to appeal to the Tribunal refused-whether adjudicator entitled so to proceed-whether notice deemed to have been received-whether in proceeding as he did the adjudicator was obliged to record the rule under which he acted, Immigration Appeals (Procedure) Rules 1984 rr 34(5)(a), 44: Asylum Appeals (Procedure) Rules 1993 rr 6(1), 25, 32.

The applicant for judicial review was a citizen of Sri Lanka who had been refused asylum by the Secretary of State. He lodged a notice of appeal. Notice of the hearing before a special adjudicator was sent to him but not to his representative. The applicant asserted that he had not received the notice and consequently there was no appearance before the adjudicator. The adjudicator on the basis that the notice was to be deemed to have been received, proceeded to determine the appeal in the absence of the applicant. He dismissed the appeal and leave to appeal to the Tribunal was refused.

Counsel argued that the adjudicator had erred in deeming that the notice had been received by the applicant. He contended that rule 34(5)(a) of the 1984 Rules, which contained a presumption of receipt unless the contrary were shown, had been excluded from the Asylum Appeal (Procedure) Rules 1993.

Held:

1. Rule 32 of the 1993 Rules laid down that "any notice... sent or served under these Rules shall be deemed to have been received... where notice... is sent by post, on the second day after which it was sent."

2. Following, ex parte Sivanantharajah the deeming provision applied to all cases even where there was evidence that the notice was received at a different time or not at all: Monic had been wrongly decided.

3. In recording his decision to proceed the adjudicator was not bound to state the precise rule under which he acted, merely to set out the relevant facts.

F Slevin for the applicant

S Kovats for the respondent

Cases referred to in the judgment:

R v Secretary of State for the Home Department ex parte Murugesu Sivanantharajah [1995] Imm AR 52.

Monic (unreported) (12823).

HIDDEN J: The applicant, who with leave seeks to challenge the decision of the Immigration Appeal Tribunal dated 12 October 1995 and that of the special adjudicator of 26 September 1995, is a 22-year-old Sri Lankan of Tamil ethnic origin who arrived in this country by air from Antwerp on 6 October 1994 and claimed asylum on arrival. He was interviewed on 7 and 20 October 1994. The Secretary of State considered all of the information before him but concluded that the applicant did not qualify for asylum and refused his application by letter dated 3 February 1995.

The applicant lodged an appeal against that decision on 14 March 1995. All the documents in the matter were sent both to the appellant at his stated address and to his solicitors. A notice of hearing for 19 September 1995 was sent by recorded delivery to the appellant at his last known address on 27 March 1995. It does not appear that such a notice of hearing was sent to his solicitors.

When the appeal came on for hearing on 19 September 1995 there was no appearance by the applicant, and the special adjudicator put the matter back to the end of the list. When it was reached again at the end of that list, the Home Office presenting officer submitted that this was a suitable case for determination of the appeal in the absence of the appellant, and requested that the special adjudicator apply the terms of rule 25 of the Asylum Appeals (Procedure) Rules 1993. At page six of his decision the special adjudicator said:

"…the Home Office Presenting Officer, representing the respondents, submitted that this was a suitable case for the determination of the appeal in the absence of the appellant, and requested that I apply the terms of rule 25, of the Asylum Appeals (Procedure) Rules 1993.

Having satisfied myself that the appellant had been properly served, I directed that this was a suitable case for the determination of the appeal in the absence of the appellant..."

The presenting officer relied on the Secretary of State's letter of refusal of 3 February 1995, and the special adjudicator then reserved his determination.

In giving his decision, he said:

"I have closely studied the evidence before me, and I am not satisfied that the appellant has been telling the truth, in that he has exaggerated the situation in Sri Lanka, and has not supported his testimony with any concrete evidence of any weight or value. In my opinion, he has not shown himself to be a credible witness."

In coming to those conclusions, the adjudicator was, as he was entitled to do, coming to conclusions based on the Secretary of State's letter of 3 February in which the Secretary of State had noted inconsistencies which cast doubt on the overall credibility of the applicant's claim.

The applicant appealed to the Immigration Appeals Tribunal on grounds which included the fact that the applicant had not received any document from the Home Office with regard to the hearing on 19 September 1995. The determination of the Immigration Appeal Tribunal held that:

"The applicant was advised by letter of 27 March 1995 sent by recorded delivery, of the hearing on 19 September 1995. The Post Office has confirmed delivery on 30 March 1995. There was therefore good service as required by rule of the Procedure Rules."

The specific rule was not stated by the Immigration Appeal Tribunal.

Mr. Slevin accordingly submits that the applicant, whose address was a house in multiple occupation, did not receive a notice of hearing for 19 September 1995. He submits that the special adjudicator misdirected himself when he presumed that the notice of hearing which was sent was deemed to be delivered to the applicant. Mr. Slevin argues that rule 34(5)(a) of the Immigration Appeals (Procedure) Rules 1984 was omitted by rule 25 of the Asylum Appeals (Procedure) Rules 1993, so that there is no longer a presumption that if a notice of hearing is sent by post in accordance with rule 44 that such notice is deemed to be delivered to the applicant. Rule 44(1) reads:

"(1)Any notice or other document required or authorised by these Rules to be sent or given to any person or authority may be sent by post in a registered letter or by the recorded delivery service or delivered

(e)in the case of a document directed to any other person to his address for service specified in any notice given under these Rules, or to his last known or usual place of abode."

Rule 34(5) of the same rules, reads:

"For the purposes of this Rule-

(a)notice of the time and place of a hearing or an adjourned hearing shall be presumed to have been given unless the contrary be shown if notice was sent by post in accordance with Rule 44 not later than 7 days before the date thereof."

However, rule 25(b) of the Asylum Appeals (Procedure) Rules 1993 omits rule 34(5)(a) from the Asylum Appeals (Procedure) Rules 1993. There is thus no provision in the 1993 Rules that the notice of hearing shall be presumed to have been given, unless the contrary be shown, if notice was sent by post in accordance with rule 44 not later than seven days before the date thereof.

In this case it is worthy of note that no notice of hearing was sent to the applicant's solicitors and therefore there is no question of the application of the further deeming provision in relation thereto as to a person representing a party to an appeal in rule 44(1) of the 1984 Rules.

In the manner in which Mr. Slevin submits his case for the applicant there would seem to be no answer to the contest which he puts before me. However, Mr. Kovats for the Secretary of State submits that the position is not as simple as Mr. Slevin contends. The special adjudicator must send an appellant notice of the time and place of the appeal hearing, Mr. Kovats concedes, in relation to rule 6(1)(a) of the 1993 Rules. Rule 6(1) says:

"The special adjudicator shall not later than 5 days after receiving a notice of appeal serve on-

(a)the appellant...

a notice of the date, time and place fixed for the hearing of the appeal."

The notice of hearing, Mr. Kovats concedes, may be sent by post to the appellant's address under the terms of rule 44(1)(e) of the 1993 Rules which I have already read. Mr. Kovats then submits that the vital rule here is rule 32 of the 1993 rules, which reads:

"(1)Subject to paragraph (2), any notice or other document that is sent or served under these Rules shall be deemed to have been received-

(a)where notice or other document is sent by post, on the second day after which it was sent; and

(b)in any other case, on the day on which the notice or other document was served.

(2)Where under these Rules a notice or other document is sent by post to a special adjudicator or to the Tribunal, it shall be deemed to have been received on the day on which it was in fact received by the special adjudicator or, as the case may be, the Tribunal."

Mr. Kovats says that it is immaterial whether the notice for hearing has in fact come to the attention of the applicant or not since rule 32(1) contains a deeming provision which applies in all cases: this is in contrast to rule 34(5)(a) of the 1984 Rules which provides that proof of postage is proof of service unless the contrary is shown, and which is expressly excluded by rule 25(b) of the 1993 Rules. Mr. Kovats relies for support on the case of ex parte Sivanantharajah [1995] Imm AR 52. That was a case where the applicant for leave to move for judicial review had been refused political asylum by the Secretary of State and had appealed, and had his appeal dismissed by the special adjudicator. No copy of that determination was sent to the applicant's nominated representative: a copy was sent to the applicant himself. The applicant asserted he did not receive that copy and he asserted that in consequence he was not aware of the dismissal of his appeal until it was too late to appeal to the Tribunal.

It was held that the rule did not require service on both the applicant and his representative; service on the applicant was sufficient, and if service were on a representative then it was deemed to have been made on the applicant. More significant, it was held that whether or not the applicant received the determination was irrelevant. Once it was shown that the determination was sent, the fact that it was not received was immaterial. As to that second point, Popplewell J said at 53:

"The second point which Mr. Murphy makes is this. Given that the applicant has sworn that he never received it, the deeming provisions are to be read subject to proof by an applicant in this case that he has not in fact received it. That in my judgment does not give any effect to the word 'deemed'. In my judgment the fact that the applicant says that he has not received it is not germane to the issue. Once it is shown that the letter has been sent, the fact that it has not been received is unfortunate but irrelevant."

I find that case to be an exact parallel here and, sadly for this applicant, the fact that he has not received the notice is also unfortunate but irrelevant when looked at in relation to the position under the rules.

I am satisfied that Mr. Kovats is correct in his interpretation of the law and the rules, and in seeking to draw the support that he does from the case of Sivanantharajah.

Rightly, Mr. Kovats draws my attention to the case of Monic heard by an Immigration Appeal Tribunal on 6 December 1995 which he says was wrongly decided.*[1] He takes three points in support of that submission. First, it is inconsistent with ex parte Sivanantharajah which is not referred to in it. Second, Monic relies on RSC Ord. 10, r. 1(3)(a) which expressly uses the words "unless the contrary is shown". Further, the wording of rule 320) of the 1993 Rules is in contrast to the wording of rule 34(D)(a) of the 1984 Rules. The express exclusion of rule 34(5)(a) by rule 25(b) of the 1993 Rules, and the wording of rule 32(2) of the 1993 Rules, clearly shows that Parliament did intend the deeming provision in rule 32(1) of the 1993 Rules to apply in all cases.

I accept that Monic was wrongly decided and the law is, as I have said, as set out in ex parte Sivanantharajah. It follows that, since a special adjudicator may hear an appeal in the absence of a party under the provisions of rule 346 of the 1984 Rules as applied by rule 22(3) of the 1993 Rules, the special adjudicator had jurisdiction to hear this appeal in the absence of the applicant. Rule 34(2) reads:

"Without prejudice to paragraph (1) above but subject to paragraph (3) below, an appellate authority may proceed with the hearing of an appeal in the absence of a party (including the appellant) if satisfied that, in the case of that party, such notice of the time and place of the hearing, or of the adjourned hearing, as is required by Rule 24 has been given."

It is clear that the presenting officer, when he made his application, used the words "rule 25 of the Asylum Appeals (Procedure) Rules 1993". That is a reference to the rule which specifically deals, not merely with omitting paragraph 5(a) of rule 34, but in applying rule 34 which I have just read and of course thereby applying the same rule 34(2).

In those circumstances it is clear that the presenting officer was merely using a form of shorthand which would be well-known to the special adjudicator in this case. In any event, it was not necessary for the adjudicator to specify the exact rule-, what was necessary was for him to find as a fact whether the circumstances had arisen which entitled him to proceed under rule 34(2). They had, and he was entitled so to proceed, as was the Immigration Appeal Tribunal entitled to find that the proceedings had gone on regularly.

It follows that in this case both the special adjudicator and the Immigration Appeal Tribunal were properly satisfied that the notice of the hearing had been duly served. The special adjudicator had to make the relevant finding of fact which he did, and he did not need to refer expressly to rule 32(1) of the 1993 Rules.

It follows that in this case Mr. Slevin's interesting, and at first attractive argument must fail and so also must this application.

Application dismissed

Solicitors: Nathan & Co, London SW19; Treasury Solicitor




[1]* In Monic (HX/70153/95) the Secretary of State had appealed to the Tribunal against the determination of a special adjudicator who had allowed a political asylum appeal. The adjudicator's determination had been sent on 28 June 1995: it was received by the Secretary of State on 29 June 1995. The notice of appeal was received by the appellate authorities on 7 July. Counsel argued that because the determination was actually received on 29 June the notice of appeal was out of time: the notice would not have been out of time if the determination was deemed to have been received on the second day after posting, ie 30 June 1995. The Tribunal held that the deeming provisions did not apply where there was evidence of receipt at another time.

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