R v Immigration Appeal Tribunal ex parte Susikanth
| Jurisdiction | England & Wales |
| Judgment Date | 20 November 1997 |
| Date | 20 November 1997 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Hobhouse, Millett, Otton LJJ
N Blake QC and F Slevin for the appellant
S Kovats for the respondent
Cases referred to in the judgments:
R v London County Quarter Sessions Appeals Committee ex parte RossiELRUNK [1956] 1 QB 682: [1956] 1 All ER 670.
R v Immigration Appeal Tribunal ex parte Zaman and anr [1982] Imm AR 61.
R v Immigration Appeal Tribunal ex parte Ross Wayne Jones [1986] Imm AR 496.
Secretary of State for the Home Department v Shahib Al-MehdawiELR [1990] 1 AC 876: [1990] Imm AR 140.
R v Secretary of State for the Home Department ex parte Murugesu Sivanantharajah [1995] Imm AR 52.
R v Secretary of State for the Home Department ex parte Susikanth [1997] Imm AR 83.
Appeal asylum notice of hearing sent to appellant but not to representative Post Office recorded receipt of notice at appellant's address no appearance by appellant before special adjudicator appeal determined in absence of appellant in discretion of adjudicator application for leave to appeal to Tribunal appellant asserted he had never received notice leave to appeal refused whether Tribunal erred in failing to consider whether in light of assertion by appellant special adjudicator's discretion had been properly exercised appropriate procedure for the Tribunal. Immigration Appeals (Procedure) Rules 1984, rr. 34(2), 34(3): Asylum Appeals (Procedure) Rules 1993 rr. 13(5), 32.
Appeal from Hidden J who had refused leave to move for judicial review of the refusal of the Tribunal to grant leave to appeal from the dismissal by a special adjudicator of his appeal against the refusal by the Secretary of State to grant him asylum.
There had been no appearance by the appellant before the adjudicator who noted that the notice of hearing had been sent by recorded delivery to his address. The adjudicator accordingly determined the appeal in the absence of the appellant. On application for leave to appeal to the Tribunal the appellant asserted he had never received the notice of hearing. The Tribunal ascertained that the Post Office had delivered the notice to the appellant's address and refused leave. Before the court it was argued that the Tribunal had to exercise a discretion and had failed to do so, in the light of the appellant's assertion.
Held:
1. The adjudicator on the evidence before him had been entitled to proceed but in the light of the appellant's assertion in seeking leave to appeal to the Tribunal, the Tribunal was bound to consider if that discretion had been properly exercised in all the circumstances. That it had failed to do.
2. The Tribunal should have called for further evidence from the appellant or held an oral hearing of the application: if the time constraints would have made that difficult they should have granted leave and dealt with the issue at a full hearing.
3. Per Otton J, if such a point were to be raised in an application for leave to appeal to the Tribunal then as a rule a bare assertion would not suffice and an applicant's contention should be supported by an affidavit.
Hobhouse LJ: This is an appeal with the leave of this court from a judgment of Hidden J dated 7 October 1996, whereby he refused judicial review to the applicant, Mr Susikanth, in relation to a matter arising under the Asylum Appeals Procedure Rules 1993. The point with which we are concerned relates to proceeding with a hearing before the special adjudicator in the absence of the applicant.
Before coming to the facts of this case, it is necessary to explain shortly the scheme within which this matter arises. An applicant who is refused asylum has a right of appeal to the special adjudicator. The special adjudicator has to hold a hearing in respect of that appeal. Under rule 6 of the 1993 Rules it is the obligation of the special adjudicator not later than five days after receiving notice of appeal to serve on the appellant and the immigration officer or Secretary of State, as the case may be, and any other relevant person, a notice of the date, time and place fixed for the hearing of the appeal.
Rule 44 of the Rules of 1984, which applied by incorporation into the 1993 Rules, provides that:
Any notice or other document required or authorised by these Rules to be sent or given to any person or authority may be sent by post in a registered letter or by the recorded delivery service or delivered
(e) in the case of a document directed to any other person, to his address for service specified in any notice given under these Rules, or to his last known or usual place of abode,
and, if sent or given to a person representing a party to an appeal in accordance with Rule 26(1), shall be deemed to have been sent or given to that party.
When the adjudicator holds his hearing there is always the risk that the applicant or one of the other parties may not turn up. That possibility is covered by rule 34, paragraph (2) of the 1984 Rules. That reads:
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 [and in the 1984 version it is Rule 24, but when incorporated into the 1993 rules it is Rule 6], has been given.
Paragraph (3) reads:
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.
There is a paragraph (5), to which I will revert later.
The structure of the rules that I have so far referred to is that they require notice of the hearing to be given to the appellant, and they prescribe the method by which that notice is to be given. Under rule 34, paragraph (2), if the adjudicator is satisfied that such notice has been given as required by that rule and as explained, that includes giving it by sending a letter...
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