R v IAT ex parte Balendran
| Jurisdiction | England & Wales |
| Judgment Date | 12 December 1997 |
| Date | 12 December 1997 |
| Court | Queen's Bench Division |
Queen's Bench Division
Jowitt J
I Lewis for the applicants
S Kovats for the respondent
Cases referred to in the judgment:
Montgomerie & Co v Wallace-JamesELR [1904] AC 73: [1900–1903] All ER 926.
Edwards v BairstowELRUNK [1956] AC 14: [1955] 3 All ER 48.
Shiloh Spinners Ltd v HardingELRUNK [1973] AC 691: [1973] 1 All ER 90.
R v Immigration Appeal Tribunal ex parte Sandal [1981] Imm AR 95.
R v Immigration Appeal Tribunal ex parte Zaman [1982] Imm AR 61.
R v Immigration Appeal Tribunal ex parte Siggins [1985] Imm AR 14.
R v Hillingdon London Borough Council ex parte PuhlhoferELRUNK [1986] AC 484: [1985] 3 All ER 734.
Bugdaycay and ors v Secretary of State for the Home DepartmentELR [1987] AC 514: [1987] Imm AR 250.
Borrisov v Secretary of State for the Home Department [1996] Imm AR 524.
Smith v Cosworth Casting ProcessesWLRUNK [1997] 1 WLR 1538: [1997] 4 All ER 840.
R v Immigration Appeal Tribunal ex parte Balendran and anr (unreported, QBD, 30 July 1997).
R v Secretary of State for the Home Department ex parte Nader [1998] Imm AR 33.
Appeals — asylum — allowed by special adjudicators — Secretary of State granted leave to appeal to Tribunal — whether lawful for Tribunal to grant leave on issues of primary fact or the evaluation of background material. Immigration Act 1971 s. 20(1).
The applicants were citizens of Sri Lanka. They had been refused asylum by the Secretary of State. They appealed. Their appeals were allowed by special adjudicators. The Secretary of State applied for and was granted leave to appeal to the Tribunal.
The grants of leave were challenged and judicial review sought of the decisions to do so by the Tribunal. Counsel argued that the Tribunal would not be entitled to reverse a finding of fact by a special adjudicator nor differ from the special adjudicator's evaluation of background documentary material, unless the special adjudicator's conclusions were perverse. It followed that leave to appeal should not have been granted.
Held:
1. The Tribunal was entitled to review a special adjudicator's determination on matters of fact and his assessment of background material. Those Tribunal decisions which suggested the contrary as a matter of law were wrongly decided.
2. The Tribunal could not lawfully adopt a policy which would fetter its jurisdiction by declining in appropriate circumstances to entertain an appeal which turned on matters of fact or the assessment of background material, the assessment of such material being part of the fact-finding exercise and not an exercise of discretion.
3. The Tribunal would of course have regard to the expertise of the special adjudicator, but it had its own expertise.
Jowitt J: These are two applications for judicial review of the decisions by the Immigration Appeal Tribunal to grant leave to appeal in the case of the determinations in each applicant's case allowing his appeal against the refusal by the Secretary of State for the Home Department of his application for asylum. They apply by leave of Laws J.
Both the applicants are Tamils from Sri Lanka. They came to this country and they applied for asylum. The Secretary of State refused their applications; thereafter they appealed. The appeal of each of them was heard separately and by different special adjudicators, Mrs Symons and Mrs Martins, who allowed their appeals. The Secretary of State then sought leave to appeal from the Tribunal and was granted it.
Mr Lewis, for the applicants, submits that the grant of leave to appeal was unlawful. If it was not unlawful it was contrary to a policy adopted by the Tribunal and though a policy must admit of exceptions, when exceptionally leave is given the ground should be accompanied by reasons. If these were exceptional cases, reasons should have been given and they were not.
Mr Lewis spoke of the policy, although his principal contention was not that there was merely a policy adopted by the Tribunal but that it had in other decisions, to which I shall refer, correctly directed itself in law in reaching a conclusion which he urges upon me is the correct one.
He accepts that in order to decide whether leave should be given in a particular case it is necessary to consider what the Tribunal's powers are when it hears an appeal, since it will be pointless and inappropriate to grant leave to appeal in a case in which, because of the legal constraints upon the Tribunal, it would have no power to allow the appeal.
Mr Lewis submitted that the Tribunal was not entitled to substitute a different view of its own from that of the special adjudicator about the facts, unless it could identify an error of approach on the special adjudicator's part, an error of approach which amounted to an error of law.
Of course inferences are drawn from findings of primary fact. Conclusions are also reached in a case of this kind from the documents relating to human rights which are, in many asylum cases, placed before the special adjudicator. Mr Lewis submitted that the special adjudicator's assessment of those materials is not to be interfered with by the Tribunal simply because it disagrees with the special adjudicator's assessment but only if he or she has erred in such a way that the error was one of law. In other words, he submitted that the decision-maker's conclusion was perverse. Any other approach would, Mr Lewis submits, subvert the role of the special adjudicator and it ignores the importance of his expertise. However, he accepts that the Tribunal members themselves have a similar expertise.
The case advanced by Mr Lewis can be put very simply. The Tribunal is not entitled to reverse a finding of fact by the special adjudicator, whether of primary fact or in relation to the assessment of the written materials, unless it can identify an error of law which in practice is likely to mean that the conclusion under attack was Wednesbury unreasonable.
In support of this argument Mr Lewis referred to four decisions of the Tribunal. The first of them is Srithara, 1 December 1966, in which the reasons state:
‘The Tribunal has said on many occasions that it would not be right for it to interfere with a special adjudicator's determination, simply because it might not agree with the conclusion unless of course, as Mr Lewis quite rightly says, the adjudicator's or special adjuicator's findings are so perverse that they amount to an error in law.’
This decision was followed in Paramananthan, 2 April 1997 and Logarajan, 16 July 1997, and to substantially the same effect is Ketheeswaran, 26 March 1997.
Mr Lewis submitted that he found support for what is set out in these four decisions from the decision of the House of Lords in Edwards v BairstowELR [1956] AC 14. That was a tax appeal and...
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