R v. Immigration Appeal Tribunal, Ex parte Mary Nyonkabi Mwania

R v IMMIGRATION APPEAL TRIBUNAL
ex parte MARY NYONKABI MWANIA

CO/2771/96

16 April 1997

Queen's Bench Division: Forbes J

Appeal-asylum-dismissed by adjudicator in absence of appellant-request for adjournment never received by appellate authorities-application for leave to appeal to Tribunal-assertion in grounds that applicant had been medically unfit to attend hearing-no supporting evidence-application refused-whether Tribunal entitled to determine application without making further enquires as to applicant's circumstances. Immigration Appeals (Procedure) Rules 1984 r 34: Asylum Appeals (Procedure) Rules 1993 r 13(5).

The applicant for judicial review was a citizen of Kenya. She had applied for asylum. Her application was refused. She appealed. After adjournment because of her pregnancy, a hearing ate was fixed for the appeal. It was asserted that an application for a further adjournment was sent to the appellate authorities because the applicant was not fit to attend: the application was never received by the appellate authorities. There was no appearance before the adjudicator who determined the appeal in the applicant's absence. Application was made for leave to appeal to the Tribunal. A bare assertion was made in those grounds that the applicant had not been fit to attend the hearing: no supporting evidence was produced. The Tribunal refused leave.

Before the court it was argued that before determining the application, the Tribunal, in the circumstances, should have called for further medical evidence or arranged an oral hearing of the application or granted leave and remitted the case for hearing de novo.

Held:

1. It would place an intolerable burden on the appellate authorities to require them to carry out further enquiries such as counsel proposed, on bare assertions in the grounds of appeal.

2. The applicant had been represented and the representatives had not put any supporting documents to the Tribunal.

3. In the circumstances there was nothing procedurally unfair in the Tribunal's approach.

A Riza QC and O Lanlehin for the applicant Miss L Giovannetti for the respondent

No cases are referred to in the judgment

FORBES J: This is an application for judicial review and for appropriate relief in respect of the decision of the Immigration Appeal Tribunal which, on 12 July 1996, refused leave to appeal against the determination of a special adjudicator, notification of which was sent to the applicant on 4 July 1996. Leave to move for judicial review was granted by Popplewell J on 4 September 1996.

The relevant facts are as follows. The applicant is a Kenyan citizen now aged 24. She arrived in the United Kingdom on 15 September 1995 and applied for leave to enter as a student. That application was refused by the Secretary of State. On 16 September 1995 the applicant claimed asylum. On 17 and 18 September 1995 she was interviewed with regard to the application. On 19 October 1995, her application for asylum was refused by the Secretary of State. Having set out a detailed account of the facts and circumstances relating to her application for asylum, including the representations made by the applicant, the Secretary of State came to the following conclusion, as stated in the final paragraph of his letter:

"For the reasons detailed above the Secretary of State has concluded that you have not established a well-founded fear of persecution in Kenya under the terms of the 1951 United Nations' Convention relating to the Status of Refugees and refuses your application under paragraph 336 of HC 395".

In October of 1995, the applicant discovered that she was pregnant, something of which she was unaware at the date she entered the United Kingdom. On 25 October 1995, directions were given for her removal, but on 2 November 1995 the applicant gave notice of appeal against the Secretary of State's refusal to grant her refugee status.

The appeal was due to be heard initially on 25 January 1996. The applicant had been granted temporary admission on 13 November 1995, due to her pregnancy and related complications. In the early part of 1996, the applicant was admitted to a hospital because of the complications relating to her pregnancy. The hearing scheduled for 25 January 1996 was adjourned accordingly. There is, in the bundle of documents, a copy of the letter dated 25 January 1996, from the consultant who was dealing with the applicant's pregnancy, in the following terms:

"This woman is pregnant with her first baby and is under the care of Mr. John O'Riordan. The baby is due around the 1st of June 1996.

"She was admitted with pregnancy complications on 21.01.96. She is still on admission but discharge is anticipated shortly".

On 14 February 1996, the applicant's general practitioner advised the solicitors then acting for the applicant that it was in the interests of the applicant and her expected child that the appeal hearing be postponed until after 1 June 1996. The applicant's solicitors made appropriate representations. On 23 February 1996 they informed the applicant that the Gravesend office of the appellate authorities had confirmed that the hearing would be postponed to a suitable date. On 11 March 1996 notice was given of a new hearing date for the appeal, namely 18 June 1996.

On 18 May 1996, the applicant gave birth to a son, Brian George. On 13 it June 1996 or thereabouts, the applicant told Mr. Arowojolu, the legal representative then acting for her, that she was not well enough to attend the imminent appeal hearing which had been scheduled to take place on 18 June. In his affidavit, Mr. Arowojolu has given the following account of what occurred:

"On or about 13 June 1996, the applicant, whose appeal to a special adjudicator was due to be heard on 18 June 1996, informed me that she was not feeling well enough to attend a hearing in Gravesend, having just given birth to a baby and that even if she was well enough to attend, she would have childminding difficulties as she does not know anyone who could look after her four week old young child whilst she attended the hearing. Bearing in mind the provisions of rule 34(3) of the Immigration Appeals (Procedure) Rules, I advised her that I would write to the immigration Appeals Office to request an adjournment. I duly sent a letter by fax to the Immigration Appeals Office on 13 June 1996. A copy of that letter is now produced and shown to me marked ‘OOA 1'. Having made a written request for an adjournment and explained the reason therefore in the letter, I did not consider it necessary to attend the hearing. In my experience, so long as there are good reasons for such requests, written requests for adjournments have always been sufficient."

The letter to which Mr. Arowojolu made reference, dated 13 June 1996, was addressed to 26 King Street, Gravesend, Kent, and was in the following terms:

"Please be advised that our client would not be able to attend the hearing slated for 18th June. This is because our client only gave birth to a baby about four weeks ago, and is not feeling very well. She suffers from postnatal blues and could not travel as the baby is small and there is no childminder to take such a small baby.

"We are sorry for any inconvenience, whilst we await a new hearing date.

"Thank you.

"Yours faithfully "

It is common ground that this letter, sent by fax, was not received by the immigration appellate authorities. Unfortunately, there is no report of the fax now available which might help to explain why the fax did not arrive or was not received by the appellate authority. It is impossible to say any more than that the respondent has carried out appropriate investigations and no trace of the fax in question has been found. Although the point is made by Mr. Arowojolu, that faxes or letters do from time to time go astray and from time to time are mislaid, so far as these proceedings are concerned that fact is that the letter in question appears to have not been received by the appellate authorities, did not come to the attention of the special adjudicator and was not in the file relating to this case, when considered by the Immigration Appeal Tribunal.

On 18 June 1996 the appeal hearing took place before the special adjudicator in the applicant's absence. The special adjudicator decided to exercise his discretion to proceed with the appeal in the absence of the applicant and, accordingly he did so. No criticism is made of that decision on the part of the special adjudicator on the information then before him. Nor, for the purposes of these proceedings, is any criticism made of his determination and conclusions.

At this stage, it is convenient to refer to rule 34 of the Immigration Appeals (Procedure) Rules 1984 which, by reason of rule 22(3) of Asylum Appeals (Procedure) Rules 1993, applied to the hearing of the appeal before the special adjudicator. I quote from rule 34 of the 1984 Rules as follows:

"(2)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.

"(3)The appellate authority shall not, unless in the circumstances of the case it appears to the authority proper so to do, proceed with the hearing in pursuance of paragraph (2) above if the absent party has furnished the authority with an explanation of his absence."

As I have already indicated, no criticism of the special adjudicator's decision to go ahead in the absence of the applicant is made, because on the material before him there had been no explanation furnished as to why the appellant in that case was not present and had not attended.

When dealing with the absence of the appellant, the special adjudicator said this in his written determination:

"5.Miss Mwania gave notice of appeal on 2 November 1995. She initially nominated C Roberts, Solicitors as her authorised representatives. Subsequently, she transferred her instructions to Simons Muirhead & Burton (Solicitors). On 6 March 1996, Simons Muirhead & Burton advised the Immigration Appellate Authority by telephone that Miss Mwania had transferred her instructions to Immigration and Nationality Law Office of Suite 306, 10 Cleveland Way, Whitechapel, London El. I shall refer to that entity as INLO. Notice of the time and place of the hearing of the appeal was sent by recorded delivery post to INLO at that address on 11 March 1996. A copy was also sent by recorded delivery post to Miss Mwania at 210 Green Lane, London N13 the address which she gave in the notice of appeal, her last known address, on the same day. On 11 March 1996, INLO returned the form ‘information for listing-Asylum Appeals' stating that they estimated that the hearing would last for one hour. I am therefore satisfied that INLO was Miss Mwania's authorised representative and was aware of the date of the hearing.

6.When the appeal was called on for hearing, neither Miss Mwania nor any person on her behalf appeared. In the light of the foregoing, I was satisfied that it was appropriate to determine this appeal in Miss Mwania's absence under rule 34 of the Immigration Appeals (Procedure) Rules 1984 as applied by rule 22(3) of the Asylum Appeals (Procedure) Rules 1993.

8.As Miss Mwania did not attend the hearing, I was unable to assess her reliability or credibility by observing her give her evidence and deal with questions in cross-examination. What she said at interview has not been tested. If she had genuinely been in fear of persecution, I would have expected that

(a)she would have maintained contact with her representatives and attended the hearing of the appeal unless unavoidably prevented; and

(b)if she had been unavoidably prevented, she would have sent word either directly or by her representatives.

No explanation for Miss Mwania's absence has been given. No message was received by the immigration appellate authority to the effect that she was unable to attend."

The special adjudicator then went on to dismiss the appeal.

On 9 July 1996, an application for leave to appeal against the decision of the special adjudicator was lodged with the Immigration Appeal Tribunal. The application for leave was set out in the Form A2, a copy of which appears in the bundle at page 27 onwards. The Asylum Appeal (Form) had been filled in in handwriting. It is not necessary to refer to any part of that document, beyond part 5, which is in the following terms:

"Documents which you are sending",

and then below that:

"You must send the Special Adjudicator's decision, or a copy of it, with this form."

and below that:

"Are you sending any other documents with this form? Put No or Yes",

The "No" has been ringed; after that appears the following:

"If you have put Yes, say what papers or photographs you are sending",

and beneath that in handwriting appear the following words:

"But shall tender a copy of letter informing court of need for adjournment.

On 12 July 1996, Mr. Hatt, the Vice-President of the Immigration Appeal Tribunal, considered the application for leave to appeal and refused leave. In the body of his written determination, he set out the grounds which were submitted in support of the application for leave to appeal. It is appropriate to quote grounds two and five inclusive of those grounds, which are in the following terms:

"2.The appellant could not attended (sic) the hearing and the appellate authority was notified by fax-stating that the appellant at the time recently gave birth, and the child was just barely four weeks, and with no minder, she could not travel to the hearing, as she was still suffering from postnatal problems, and not strong enough. To have continued the hearing with such exceptional reason which deserved an adjournment was unfair and not in the interest of justice.

"3.The appellant would contest that it has also always been in the court's file that she due to deliver anything near the hearing.

"4.The adjudicator could not therefore balance her credibility properly on the basis of interviews that he himself found wanting on the Secretary of State's part.

"5.The Tribunal is asked to send this case back to be heard de novo in the interest of justice & fair play."

Mr. Hatt noted that no further grounds were submitted within the period in which the application had to be completed. Then, before, refusing leave, he recorded this:

"The Tribunal has read all the papers on file."

On behalf of the applicant, Mr. Riza QC has pointed out that the determination of the application for leave to appeal is in pro forma form. However, accepted that, where it states that the Tribunal has read all the papers on file, that accurately reflected what has taken place. Mr. Riza also accepted that t file which was read would have contained all the relevant documents in the matter which were then available to the appellate authorities. If there had been in the possession of the appellate authorities any document which notified the appellate authorities of the need for an adjournment, it would have been in the file. It is thus clear from the determination that there was no such document available to Mr. Hatt when he considered the matter.

Mr. Riza submitted that the decision of the Immigration Appeal Tribunal was flawed by procedural impropriety. He submitted that it was not possible to come to a fair conclusion as to the arguability of the second ground of appeal and of the subsequent grounds, which were all dependent upon ground two without the Tribunal making further enquiries, either (1) by calling for he document or documents which supported ground two; of (2) by ordering an oral hearing of the application for leave under rule 13(5) of the 1993 Rules; or (3) by granting leave to appeal and remitting the matter to the special adjudicator for further investigation of the alleged application to adjourn the matter and, in any event, the factual basis of that application.

I have considered those submissions very carefully. I bear in mind that this is a refugee case and, as such, one which requires special care to be given to all possible arguments that exist in an applicant's favour. However, I have come to the conclusion that the decision of the Immigration Appeal Tribunal cannot be faulted in the way which is suggested by Mr. Riza. In my view, on the information which was before the Tribunal on 12 July 1996, Mr. Hatt was entitled to decide that there was no substance in the second ground of appeal and the subsequent grounds which were dependent on it. He had read the entire file. There was no letter or notification of any application to adjourn the matter in that file. The letter which had been promised in Part 5 of the Asylum Appeal Form A2 (see above) had not in fact been forthcoming. In those circumstances, I do not accept that it was unfair for Mr. Hatt to come to a decision as to the arguability of ground two and the subsequent grounds, without carrying out the sort of further investigations for which Mr. Riza has so strenuously argued. In my judgment, to impose upon the Immigration Appeal Tribunal an obligation to initiate and carry out further inquiries of this sort, because of the assertions made in the grounds of appeal and for no other reason, is quite unrealistic. In my judgment, it would place an intolerable burden on the authorities and would go much further than is required to ensure that there is procedural fairness in the appeal process. This was not a case where the applicant was unrepresented. There were those who were properly instructed and who had the care of her interests. This was not a case where there was any document or other indication in the file which could have alerted Mr. Hatt to the need for further or more detailed consideration of the arguability of ground two in the proposed grounds. Although I accept that there can be circumstances in which an error of legal advisers, if that is the explanation in this case, should not be allowed to deflect the court from doing justice, the type of circumstances in which such approach is appropriate do not, in my view, arise in this case. I have to ask myself the question whether, on the information before him, Mr. Hatt made a decision with regard to the grounds of appeal which he was then considering which was procedurally unfair and thus constituted an error of law on his part. I have come to the firm conclusion that no such error was committed by Mr. Hatt on the date and at the time he had to make the decision in question. On the information before him, he came to a decision to which he was fully entitled to come. Accordingly I am satisfied that it cannot be faulted for any of the reasons or arguments put forward by Mr. Riza on behalf of the applicant.

Accordingly, for all those reasons, this application is dismissed.

Application dismissed

Solicitors: Michael Reason, London, ECI; Treasury Solicitor

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