Mohammad Karim v Visa officer Islamabad
| Jurisdiction | England & Wales |
| Judgment Date | 10 April 1986 |
| Date | 10 April 1986 |
| Court | Immigration Appeals Tribunal |
Immigration Appeal Tribunal
D L Neve Esq President G W Farmer Esq (Vice-President) Miss M F Appleby CBE JP
C J Bywell for the appellant
R Parsons for the respondent
Case referred to in the determination:
Rohima Bibi and others v Entry Clearance Officer, Dhaka [1986] Imm AR 103
Practice and Procedure where an appeal is remitted to an adjudicator for hearing de novo the proper approach to be adopted by the adjudicator to the record of previous proceedings his approach to the earlier determination the principles laid down in Rohima Bibi and others explained
The facts are set out in the determination.
Held:
1. Following Rohima Bibi and others the adjudicator should have regard to the record of proceedings in the earlier hearing but he should not have regard to the earlier determination.
2. For the avoidance of all doubt the adjudicator should in writing his determination following the re-hearing, record specifically what he has disregarded and to what he had paid attention, in respect of the material on file relating to the earlier hearing.
3. On the facts, the appellant had not established on the balance of probabilities that he was related to the sponsor as claimed.
Determination
The appellant is a citizen of Pakistan, who appeals to the Tribunal against the determination of an adjudicator (Mr C R Sinclair-Morris) dismissing his appeal against the refusal of entry clearance to enable him to join a Mr Abdul Khaliq for settlement in this country as his son. He was represented before us by Mr C J Bywell of the Bradford Law Centre; the respondent was represented by Mr R Parsons.
The application which is the subject of this appeal was made as long ago as November 1978. An interview with the entry clearance officer for 2 October 1980 was arranged, but the appellant failed to attend. A further interview was arranged for 9 June 1981, when he was asked to produce certain documents and to come back with a close relative. He was interviewed again on 9 August 1981, and after Abdul Khaliq, his alleged father, had been interviewed on 8 July 1982 and 29 September 1982, the appellant's application was formally refused on 14 December 1982.
The appellant appealed to an adjudicator against the refusal. His appeal was heard by Mr J Payne and was dismissed on 12 November 1984. The appellant appealed to the Tribunal against Mr Payne's determination, and on 22 March 1985 the Tribunal remitted the appeal for hearing de novo before an adjudicator other than Mr Payne. The appeal then went before Mr C R Sinclair-Morris, who dismissed it on 23 August 1985. It is against the determination of Mr C R Sinclair-Morris that the appellant again appeals to the Tribunal.
The grounds of appeal before us were as follows:
The Adjudicator wrongly decided that he was able to hear the appeal having read the record of proceedings before and decision of the previous Adjudicator, when the Immigration Appeal Tribunal had remitted the appeal to be heard de novo. As stated on page two of the written determination on the Preliminary Issue, the record of the earlier hearing was able to be used by the Presenting Officer for cross-examination; and the record was in fact so used during the substantive hearing.
The Adjudicator at the substantive hearing on 12.8.85 could have been influenced by the record of the hearing and decision of his fellow-Adjudicator, and by the Presenting Officer's cross-examination based on that record.
These grounds had formed the basis of argument before Mr Sinclair-Morris, which he determined as a preliminary issue on 12 August 1985. We pointed out to Mr Bywell that this question had to a large extent already been decided by the Tribunal earlier this year; in the case of Rohima Bibi and Others [1986] Imm AR 103. The determination of Rohima Bibi being subsequent to the appeal...
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