England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE HIDDEN: The decision sought to be impugned in this case is that of the special adjudicator, Mr Michael Rush, dated 5th October 1998 when he upheld the Secretary of State's refusal of asylum and certification of the case. Before the special adjudicator the appellant did not appear and sought an adjournment by sending along his wife who had a medical certificate which was dated the day before the hearing, namely 27th July 1998, but which did not refer to the hearing and merely indicated the appellant should refrain from work for one week because he had chest pains and was under review. The special adjudicator did not regard the production of such a certificate on the morning of the hearing, the patient having been seen the evening before, as a sufficient justification or credible explanation of ill health, particularly as the certificate did not refer to the fact that the appellant was unable to attend the hearing. He proceeded to ask the applicant's wife whether she had any knowledge of the circumstances of her husband's claim for asylum and she had no knowledge; she said it was based on unpleasant circumstances, difficult circumstances, and problems that had arisen. Whenever the adjudicator asked her to specify what the problems had arisen about, she said she had no knowledge and no knowledge of the instant claim by the appellant in his asylum interview record. The special adjudicator noted that he had on his file a letter sent by the instructing solicitors of the applicant which stated that the applicant had failed to respond to their request for conformation or representation at the hearing and indicating that they would not be attending the hearing as they were without instructions from the appellant that he wanted them to proceed. He considered the matters and decided to proceed in the absence of the applicant to the hearing of the appeal. It happened by coincidence that the presenting officer was also absent because of his own ill-health.

2. The special adjudicator's decision is attacked by Mr Lanlehin on behalf of the applicant on the basis that he submits that the adjournment should have been granted by the special adjudicator, he should have given a period of time (no matter how short) before proceeding to decide upon the questions before him. Mr Lanlehin relies on the case of Awadh v Secretary of State for the Home Department [1997] INLR 39. In that case it was held that where a party fails to attend a hearing a special adjudicator is obliged to provide any representative who is present with an opportunity to address the court on the merits of the case, but if the special adjudicator is not satisfied of the medical evidence submitted by the absent party then it is open to him to hear submissions from the representative on the first occasion and to indicate that unless it is forwarded within a period of time the appeal will be determined on those submissions. If the special adjudicator does not provide the representative with an opportunity to make submissions on the first occasion such an opportunity must be provided on the later occasion. The tribunal in that case, in an understandable attempt to be fair to the appellant, could not produce satisfactory evidence of his ability to attend the hearing and erred in the procedure that was adopted.

3. Mr Lanlehin goes on to his second point. He says that the adjudicator found the applicant not to be credible and relied on a number of findings including the fact that the wife had little knowledge of the whole matter, and that he was wrong to come to those findings.

4. Miss Giovannetti, who appears for the respondent, draws my attention to the fact that the Asylum Appeals (Procedure) Rules 1996 are the rules which govern this case and rule 33(3) is the particular one which matters. That provides:

5. She submits that that really means that the old rule 34(3) has been substantially altered. The old rule was that:

6. That rule therefore provided an injunction against proceeding with a hearing if the absent party had furnished an explanation with no qualifying adjective. That was the position under the old rules but the position is reversed under the new rules, under rule 33(3) of the present rules, in that it indicates that:

7. There is therefore an injunction to proceed unless a satisfactory explanation has been provided.

8. Miss Giovannetti says that in this particular case it is quite clear that no satisfactory explanation had been provided and therefore the adjudicator had to proceed under the terms of 33(3). I regard that as a statement of the law in the argument of Miss Giovannetti.

9. She also took me to the case of R v IAT ex parte Charity Baira [1994] Imm.A.R 487 where an applicant was due to appear before the special adjudicator and sent her representative with a medical certificate saying that she was suffering from migraine and could not attend work for a week. The adjudicator concluded the certificate did not show the applicant could not attend the hearing, refused an adjournment and put the case further back in the list. The applicant declined to attend later in the day and the adjudicator heard and determined the case in the absence of the applicant. In that case the court dealt with the then existing rule, which was then rule 34(3) and in a short judgment said:

10. Miss Giovannetti submits that the case of Baira is on all fours with this case. Mr Lanlehin draws my attention to the fact that in that case the adjudicator did put the case back for a short period during the day and then went on to deal with the matter. That, while being true, in my view in no way forms part of the ratio of the case of Baira and does not in any way distinguish it.

11. I have come to the conclusion that the arguments on behalf of the respondent are valid ones. The adjudicator was bound under the rules to act as he did unless there had been provided a satisfactory explanation. The explanation that was put before him was not a satisfactory one but on the evidence before him he was perfectly entitled to proceed and hear the matter. He was entitled to come to the conclusion he did as to credibility. He bore in mind the burden of proof and dealt with it correctly. He bore in mind the opinion of the Secretary of State as to credibility on major matters. That decision as to credibility was open to be considered by the adjudicator at the hearing but nothing was put forward against the decision of the Secretary of State in relation to his credibility. There were further matters which the adjudicator was entitled to look at and in particular the adjudicator concluded that the applicant's personal credibility was clearly of considerable importance in this case:

12. Those were conclusions, in particular that he had avoided attending to avoid cross-examination and the testing of his story, to which the special adjudicator was entitled to come.

13. In all the circumstances, including the fact that no explanation has as yet been put forward for the absence of the applicant from the hearing, despite the fact that the certificate only referred to absence from work, I am satisfied that there is no arguable case here and that it is clear that were the matter to go forward there would inevitably be an unsatisfactory result for the applicant. I do not see that his case is arguable in any event. It follows that I dismiss this application.

14. Mr Lanlehin, would you like legal aid taxation?

15. MR JUSTICE HIDDEN: Yes. You may have it.