R v Immigration Appeal Tribunal ex parte Kwok on Tong [QBD]
| Jurisdiction | England & Wales |
| Judgment Date | 01 December 1981 |
| Date | 01 December 1981 |
| Court | Queen's Bench Division |
Queen's Bench Division
Glidewell J
K. S. Nathan for the applicant.
Andrew Collins for the respondent.
Jurisdiction Appellate authorities' powers when hearing appeals Determination as to whether decision of immigration authority not in accordance withany immigration rules applicable to the case Appellate authorities not restricted to considering only the reasons for refusal given by immigration authority in written statutory notice If at appeal hearing other reason shown to be relevant appellant may be required to meet it Appropriate action (e.g. adjournment of hearing) may be necessary in fairness to appellant if he was taken unawares Immigration Act 1971, ss 18(1), 19(1), 20(1) Immigration Appeals (Notices) Regulations 1972 (S.I. 1972 No. 1683), regs 3(1), 4(1)(a).
Evidence Findings of fact Facts found (i) on assessment of witnesses' credibility, (ii) as inferences drawn from documents or depending on established facts Whether and when Tribunal may properly overturn findings of fact made by adjudicator Analogy with Court of Appeal when dealing with an appeal against a finding of fact by a judge at first instance Immigration Act 1971, s 19(2).
Business man Intention to set up in business partnership Refusal of aplication on grounds which did not allege that appellant was not devoting assets of his own to the business Whether adjudicator and Tribunal had right or duty to refer to this aspect of the relevant rule and base their determinations on it Immigration Appeals (Notices) Regulations 1972 (S.I. 1972 No. 1683), regs 3(1), 4(1)(a) HC 80, para 21.
Business man Intention to set up in business partnership Refusal of application in May 1978 Appeal in 1980 Determination to be based on position in May 1978 Subsequent facts to be taken into account only as a guide to deciding what might have been reasonably expected from the standpoint of 1978 Immigration Act 1971, s 19(1) HC 80, para 21.
When hearing appeals under the Immigration Act 1971 the immigration appellate authorities are required under s 19(1) (the adjudicators) and s 20(1) (the Tribunal) to consider whether the decision of the immigration authority which is appealed was not in accordance withany immigration rules applicable to the case.1
Thus in the present case concerning an appeal against a decision of the Secretary of State, refusing an application for leave to set up as a business man, the Divisional Court held that the adjudicator and the Tribunal were entitled to take into account a reason which might have justified refusal of that application under para 21 of HC 802, though that reason had not figured in the statutory notice of refusal which had specified a number of other reasons for refusal contained in that relevant rule.
Per curiam: The immigration appellate authorities were required to look at the whole of any relevant rule to see whether the circumstances of a particular case appeared to comply with it; if some part of it had not been specifically referred to in the notice of reasons for refusal that did not remove that duty or right from the adjudicator or Tribunal (p 219).
However, if on any appeal such a matter was raised, whether by the representative of the immigration authority or by the adjudicator or Tribunal of its own motion, it might be that an adjournment of the hearing would be necessary so that the appellantif not ready to meet the particular pointshould have a proper opportunity to consider whether to call further evidence and/or to think about further argument.
The Court (quashing the decision of the Tribunal) held that the Tribunal was not entitled to overturn the findings of fact made by the adjudicator on two issues in this case, because (i) the finding that the appellant's claimed capital from his father was a free gift, and not simply an investment by his father in an existing business to secure employment for his son, was a finding based on the adjudicator's view that the evidence of the witnesses called before him on this point was worthy of credit; and (ii) the finding that the firm was viable and the liabilities incurred were largely secured was not shown to be wrongly based (p 223).
Per curiam: The position of the Tribunal was very similar to that of the Court of Appeal when dealing with an appeal against a finding of fact by a judge at first instance. If the finding depended in whole or in part upon the credibility of some of the witnesses, then the judge at first instance would have had an opportunity of hearing and considering the witnesses' evidence which was denied to the Court of Appeal, and the latter would then be very slow to differ from such a finding of fact, if indeed it ever would. If, on the other hand, the finding of fact was one which depended upon established facts or on documents, and it was a matter of drawing an inference, then the Appeal Court would be in just as good a position as was the court of first instance (p 222).
Adverting to the lapse of some 21/2 years between the date of the application for leave to remain in this country as a business man, August 1977, followed by the refusal of that application in May 1978 (under para 21 of HC 80) and the appeal to the adjudicator who heard the case in February 1980, the Court approved the submission of counsel for the respondent, namely that when considering whether the Secretary of State had reasonable grounds for his decision the adjudicator was obliged to look at the position as it was at the time of the notice of refusal, and in so far as he was entitled to look at anything that had happened since, he was only entitled to do so as a guide to what could reasonably have been expected to happen viewed from the standpoint of May 1978. It did not appear that the adjudicator had erred in this respect.
Per curiam: What actually happened was to be taken into account in deciding what, had one been looking forward from two years back, would have been likely to happen (p 221).
The facts are set out in the judgment.3
Glidewell J: This is an application for an order of certiorari to quash a decision of an Immigration Appeal Tribunal given on 1 December 1980, and for an order of mandamus directed to the Tribunal to determine the appeal in accordance with law.
The applicant, Mr Kwok on Tong, is a member of a family who originate from Hong Kong. During the course of this judgment I shall be referring to a number of other members of that family:
Mr Kun Fat Tong, who is the father of the applicant; Mr Sun Fat Tong, who is the applicant's paternal uncle; and Mr Kee Fook Tong, who was the father of the two last named gentlemen, that is the applicant's paternal grandfather. I shall refer to them from now on respectively as the son, the father, the uncle and the grandfather.
The decision of the Tribunal, to which I have referred, allowed an appeal by the Home Secretary against a decision of an adjudicator, who had allowed an appeal by the applicant against a decision of an immigration officer, dated 19 May 1978, refusing to extend the permission for the applicant to stay in this country.
The matter has, of course, been going on, as will be apparent from those dates, for some considerable time now. Although...
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