COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(MR JUSTICE SCOTT BAKER)
Royal Courts of Justice
Thursday, 14th June 2001
B e f o r e :
LORD JUSTICE MANTELL
LORD JUSTICE KEENE
|- v -|
|IMMIGRATION APPEAL TRIBUNAL|
|ex parte FARHAD AZKHOSRAVI|
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171-421 4040 Fax No: 0171-831 8838
(Official Shorthand Writers to the Court)
MISS SHAHEEN RALMAR (instructed by Treasury Solicitors, London) appeared on behalf of the Respondent
Crown Copyright ©
Thursday, 14th June 2001
"The solicitors who have entered this application will be aware that it is not the Tribunal's practice to consider evidence which could readily have been produced before the Special Adjudicator. The only reason given for its non-production amounts to an allegation relating to the Immigration Advisory Service's conduct of the Applicant's appeal and the Applicant will need to be ready to establish the truth of that application as a preliminary matter before the Tribunal."
"... we should be being asked to make a judgment on the Immigration Advisory Service's professional conduct of the case on the basis of evidence which could only be partial. The new representative had had every opportunity to discover whether there was any merit in the Appellant's allegations but had chosen not to do so, and had full notice that the allegation was to be considered as a preliminary issue but had not prepared to establish it. Although it may be that in certain circumstances the Tribunal will act in order to remedy incompetence or misconduct by representatives, it will not do so unless properly satisfied that the Appellant has actually been prejudiced by his former representatives."
"Mr Green conceded that the Adjudicator's determination was not subject to any proper criticism on the evidence that was before him. There was and is no breach of natural justice. Before the Adjudicator the Appellant was represented by a representative of his choice, whom he retained for the whole of the hearing. He gave evidence and was not believed. There is no reason for him to have his appeal retried. His appeal to the Tribunal is dismissed."
"In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible."
"Both the applicant and the respondent agree that the decision in Ladd v Marshall is not determinative of the question which arises in asylum appeals.
In my judgment, they are right insofar as Ladd v Marshall requires the litigant to establish that the evidence could not have been obtained with due diligence. That would be an unjustifiably restrictive approach in this sensitive and difficult jurisdiction.
The second and third tests do, however, remain valid. The evidence cannot justify the grant of leave unless it is apparently credible and could affect the ultimate decision. The fact that it is tendered late is, however, a relevant consideration. There is a public policy interest in ensuring, so far as possible, that all relevant material is presented to the special adjudicator. Where where an asylum-seeker has been legally advised throughout, the Immigration Appeal Tribunal is entitled to look with scepticism at any new material submitted in support of a leave application, if it could have been obtained for the hearing before the special adjudicator. If it appears as though it is material which was withheld from the special adjudicator, although available, the Immigration Appeal Tribunal would be unlikely to allow it to support an application for leave. Even where the applicant has not been represented, the Immigration Appeal Tribunal is entitled to an explanation of why the material was not made available to the special adjudicator so that an informed decision can be made as to whether or not the applicant should be permitted to use it to support his application for leave to appeal. But where the evidence is credible and sufficiently cogent to be capable of affecting the ultimate decision, the Immigration Appeal Tribunal should be slow to decline to permit it to support an application for leave."
"The allegation against the Immigration Advisory Service be determined as a preliminary issue."
"There were further written evidence and witness statements which the Immigration Advisory Service advised me not to produce which should have been produced by way of evidence. I have also obtained further documentary evidence and also wish to call two witnesses to my Appeal Hearing as I was not aware that I was entitled to call witnesses to my hearing. My witnesses will be Ali-Reza-Laksari... and Abbas-Sefidroh... who are both prepared to give evidence as to my fear of persecution in Iran and as to the risks to me if I return to Iran."
"Nevertheless it does seem to me to be a matter of very considerable importance when arguments are advanced that there is evidence which is apparently credible and which could have affected the ultimate decision, to look very carefully at the circumstances in which it was not adduced before the Special Adjudicator, particularly where as here there was apparently competent representation of the Appellant. In my experience in the circumstances in which evidence of this kind was not adduced before the Special Adjudicator is very often closely inter-linked with the question of the credibility of the evidence."