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

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte MOKALA KIKAKA

CO/2810/95

5 February 1996

Queen's Bench Division: Tuckey J

Appeal-applicant by choice unrepresented at initial hearing-case adjourned part-heard-new representatives appointed-request for subsequent hearing to be adjourned and for hearing de novo for counsel to represent and lead applicant-whether adjudicator's refusal unreasonable.

The applicant for leave to move for judicial review was a citizen of Zaire. She was refused asylum by the Secretary of State. She appealed. She appeared before the special adjudicator without representation. She was offered the opportunity to consult the Refugee Legal Centre but elected to proceed on her own. The case was then adjourned part-heard and the new date for the resumed hearing fixed.

The applicant then appointed new representatives who in turn instructed counsel. An application was made for an adjournment because counsel was not available on the date fixed for the hearing. A request was also made for a de novo hearing to allow counsel to lead the applicant and other witnesses. The applications were refused: there was no appearance by counsel at the resumed hearing and the adjudicator determined the appeal. The Tribunal refused leave to appeal.

Before the court it was argued that it had been a breach of natural justice to refuse the adjournment to give counsel an opportunity to appear.

Held

1. Whether to grant an adjournment or not was a matter of discretion for the adjudicator.

2. It could not be said that the decision of the adjudicator or the refusal by the Tribunal to grant leave to appeal was a breach of natural justice.

3. Applying the principles set out in ex parte Martin, it could not be said that the applicant, on the facts, had suffered any prejudice.

L Daniel for the applicant N Garnham for the respondent

Case referred to in the judgment:

R v Kingston-upon- Thames Justices ex parte Peter Martin [1994] Imm. AR 172.

TUCKEY J: This is an application for leave to move to review the refusal of leave to appeal by the Immigration Appeal Tribunal from the decision of a special adjudicator, Mr. Mitchell QC. His determination is dated 10 July 1995.

The applicant is Mokala Kikaka. She is a citizen of Zaire. She entered this country on 19 September 1993 on a passport which was not in her name and applied for asylum two days later. Her application for asylum was refused by the Secretary of State, by letter dated 28 September 1994 and she appealed to the special adjudicator against that decision.

The appeal first came before the special adjudicator on 28 March 1995, when she attended on her own. She previously had solicitors representing her, but said that she was not able to pay for them to appear for her at the hearing. The special adjudicator invited her to choose between representing herself or seeking help from the Refugee Legal Centre. She chose to represent herself and the hearing went ahead. Obviously, in the event that she had chosen to seek help from the Refugee Legal Centre, the adjudicator would have adjourned the hearing on that date to enable them to represent her.

On 28 March the applicant gave evidence and was cross-examined and her evidence was completed. She called a witness from Belgium who had travelled on that day to the hearing. At the conclusion of the hearing the special adjudicator says that the oral evidence was completed but he adjourned it, at the applicant's request, to give her the opportunity to produce to him further evidence in the form of documents and a video cassette. The inference, I think, is that had she not been given that opportunity, as she requested, the hearing would have been concluded that day. Be that as it may, the case was adjourned to 20 June.

By letter of 8 June a firm of solicitors wrote to the special adjudicator saying that they had been instructed by her. They made an assertion, which turned out to be unfounded, as to what had happened on the first occasion, but went on to say that she wished to call another witness. They said that they had managed to contact Mr. Kulscar of counsel, who had agreed to represent the appellant on a pro bono basis. The letter continues:

"However, as Mr. Kulscar was not present at the initial proceedings, he will therefore be at a disadvantage when presenting submissions. Also, Mr. Kulscar will be engaged with judicial review proceedings at the Royal Courts of Justice on 20 June and therefore clashing with Ms Kikaka's hearing."

They asked for a de novo hearing to be listed so that their client could be properly represented and the matter could be heard again, with Mrs. Kikaka being represented by counsel.

This was referred to the special adjudicator but was considered in his absence by the Regional Adjudicator and refused. The applicant attended alone on 20 June. There was no counsel there for the reason, no doubt, set out in the letter. There was no representative from the solicitors and, indeed, as far as one can see the applicant did not herself ask for the case to be further adjourned on that day. The special adjudicator concluded the hearing, having been handed material by the applicant. He dismissed the appeal. The basis for doing so is summarised at the end of his written reasons. He said:

"The appellant's account is not believable in any of its material detail and I find her not to be a credible witness. I apply the standard of proof of a reasonable degree of likelihood. Based on my analysis of the evidence I find that the appellant has failed to establish a well-founded fear of persecution for a Convention reason.

The appeal is dismissed."

The applicant sought leave to appeal to the Immigration Appeal Tribunal. Among the points taken on her behalf were that there should have been a hearing de novo. Alternatively the special adjudicator should have adjourned to allow counsel to be present because:

"...the appellant would have been assisted by counsel in making submissions."

Mr. Daniel, who appears on behalf of the applicant, supported the latter argument by pointing out that this case did depend upon the applicant's credibility and interpretation of the evidence which was before him and not simply on the demeanour of the applicant. These were important proceedings for the applicant and so he submits, it was a breach of natural justice not to have adjourned the case, at least to enable submissions to be made. There was a failure to exercise a rational and consistent discretion, by the Tribunal, in refusing leave to appeal against the adjudicator's decisions. As to consistency, Mr. Daniel invoked another case where, in other circumstances, the Tribunal had given leave to appeal where an adjudicator had refused an adjournment. The question as to whether or not to grant an adjournment at any time, or to order a hearing to start de novo, is obviously one for the discretion of the tribunal. The exercise of that discretion is only reviewable in this court on well-known grounds. They can be identified as wrong in principle or self-misdirection. For present purposes, however, it seems to me to be more apt to consider it as Simon Brown U did in the case of R v Kingston- upon- Thames Justices ex parte Martin [1994] Imm AR 172. There when considering the question of adjournment from the perspective of fairness and from the perspective of reasonableness or rationality, he set out a number of considerations which had to be borne in mind which included the importance of the proceedings and their likely adverse consequences to the party seeking the adjournment. The risk that the party seeking an adjournment would be prejudiced in the conduct of the proceedings if the application was refused was also identified as an important consideration.

Bearing those observations in mind, it seems to me here that it cannot be said, even arguably, that either the special adjudicator, in dealing with the case in the way that he did or the Tribunal in refusing leave, behaved in a way that could be characterised as a breach of natural justice or unreasonable or irrational. The fact is that the applicant was initially asked if she wanted an adjournment but she declined for perfectly good reasons; but she declined. The hearing was all but concluded on the first occasion. The adjudicator was faced with an application to hear the case de novo which he, rightly, in my judgment, rejected. He was not asked to consider a further adjournment for counsel to make submissions, either by the applicant herself or by any representative, either in correspondence or appearing at the hearing on 20 June.

At the end of the day, although I do accept that these were enforcement proceedings and their likely adverse consequences to the applicant were great, I do not accept that there was, in the event, any real risk of prejudice in the outcome of the proceedings by not considering and granting a further adjournment to allow counsel to make representations for the simple reason that the outcome of this appeal depended upon the applicant's credibility. The adjudicator had the opportunity of seeing her over two days and his findings about her credibility are very clear. However skilfully counsel might have been able to deal with the evidence which had already been given in the case (despite the disadvantage that he had of not having been there himself) I do not think that this would have affected its outcome or that the applicant was in the event prejudiced by not having counsel.

For those reasons I am afraid I do not accept that there are any arguable grounds in support of this application and therefore it should be refused.

Application refused

Solicitors: Powell & Co, London, SE18; Treasury Solicitor