R v. Secretary of State for the Home Department, Ex parte Odubanjo

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

CO/509/96

14 February 1996

Queen's Bench Division: Tuckey J

Appeal-application for adjournment at hearing-applicant present but asserted to be unwell-no medical evidence or certificate-adjudicator himself assessed applicant's ability to give evidence-whether adjudicator's approach reasonable.

The applicant for leave to move for judicial review was a citizen of Nigeria. She had been refused asylum by the Secretary of State. She appealed. She was present at the appeal hearing but her representative stated that the applicant, who was pregnant, was feeling unwell. She sought an adjournment. There was no medical evidence put to the adjudicator. He decided that the hearing should proceed but that if at any time she felt discomfort he would give an appropriate adjournment. He recorded in his determination that she gave her evidence without difficulty and sought no adjournment during the proceedings.

Counsel argued that the adjudicator's approach was unreasonable. He should have granted the adjournment and was not himself in a position to make a proper assessment of the applicant's condition.

Held

1. The adjudicator's approach was fair and sensible.

2. In the absence of any medical evidence he was obliged to use his own common sense and judgment to assess whether an adjournment should be granted.

Miss S Howard-Jones for the applicant

Miss L Giovannetti for the respondent

No cases are referred to in the judgment

TUCKEY J: This applicant applies for leave to review a decision of a special adjudicator who, following a hearing on 5 December 1995, dismissed her appeal against the refusal of the Secretary of State to grant her application for asylum. The applicant also seeks leave to review a refusal by the Immigration Appeal Tribunal to grant leave to appeal against this decision.

The point raised relates to the refusal of the special adjudicator to adjourn the hearing of the appeal in circumstances which I will come to in a moment. Shortly, the facts surrounding this application are that the applicant arrived in this country on 29 July 1995 from Nigeria. She is a Nigerian citizen. She attempted to gain entry by using a South African passport, of which she was not the rightful holder. She had in her possession forged and stolen currency. When these facts emerged on interview she claimed asylum on the basis that it would not be safe for her to be returned to Nigeria.

The Secretary of State rejected her application and the appeal came on for hearing before the special adjudicator on 5 December 1995. At this hearing the applicant was represented by solicitors and counsel. She was about four months pregnant at the time. At the outset of the hearing counsel applied for an adjournment on the basis that the applicant was unwell. It is not entirely clear why it was said that she was unwell but I infer from what the special adjudicator said that she was feeling discomfort as a result of her pregnancy. The special adjudicator, who was not provided with any medical evidence, decided, sensibly, to ask the applicant a few questions himself to determine whether or not she was fit to give evidence. That was the crucial point for him to consider. If she was not fit to give evidence then that would be a good reason to grant the requested adjournment. If, on the other hand, she was fit to give evidence then there would be no good reason for granting the adjournment, given that the machinery for dealing with these appeals is one which is designed to have them heard speedily.

In his reasons the special adjudicator says that, having satisfied himself that the appellant was fit to give evidence and having told her that should at any time she feel in any discomfort he would grant her an appropriate adjournment, he refused the application. He adds that the appellant gave her evidence, that he did not find her to be in any discomfort due to her pregnant state and that she had not asked for a break during the course of her evidence. The content of the applicant's evidence is summarised in the adjudicator's reasons, from which it is apparent that she gave evidence at some length.

In those circumstances it is argued, on behalf of the applicant, that the special adjudicator did not consider whether there was good cause for an adjournment to the appropriate standard required of him, given the need for anxious consideration to be given to all cases in which asylum is sought. The argument is developed attractively by Miss Howard-Jones, along the lines that it was wrong for him to try and set himself up as an expert to gauge whether she was suffering discomfort or not. That was a matter for medical opinion and should not be determined simply by asking a few questions. His observation, with hindsight, that she seemed to be all right is not to the point. He should have acceded to this application and his failure to do so is unfair and unreasonable, whichever way one looks at it and is therefore amenable to judicial review.

I am afraid I cannot accept these arguments. It seems to me that this adjudicator proceeded in a perfectly fair and sensible way, faced with the application to adjourn. He did not have the benefit of a medical report and therefore he had to use his own common sense and judgment to see whether it was a case which, in fairness, he should adjourn or not. He proceeded to do that and from what he says, in the event, his decision not to adjourn seems to have been fully vindicated. I can see nothing wrong or even arguably wrong with that approach and the conclusion which he reached. This application must therefore be refused.

Application dismissed

Solicitors: Sri Kanth & Co, Wembley; Treasury Solicitor