England and Wales High Court (Administrative Court) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Sarkisian, R (on the application of) v Immigration Appeal Tribunal [2001] EWHC Admin 486 (28th June, 2001)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/486.html
Cite as: [2001] EWHC Admin 486

[New search] [Printable RTF version] [Help]

R (SARKISIAN) v. IMMIGRATION APPEAL TRIBUNAL [2001] EWHC Admin 486 (28th June, 2001)

Neutral Citation Number: [2001] EWHC Admin 486
IN THE HIGH COURT OF JUSTICE CO/3392/2000
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE MUNBY
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 28^th June 2001

Before:
MR JUSTICE MUNBY
- - - - - - - - - - - - - - - - - -
R (SARKISIAN)
v
IMMIGRATION APPEAL TRIBUNAL
- - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - -
Ms Frances Webber appeared on behalf of the claimant
Mr Michael Fordham appeared on behalf of the Secretary of State
- - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©

MR JUSTICE MUNBY:
1 Alina Sarkisian is an Armenian. She arrived in the United Kingdom on 10 October 1995 and made an application for leave to enter as her husband's dependant. On 11 October 1995 she made a voluntary departure to Germany. On 7 April 1997 she returned to the United Kingdom and made, on her arrival, an application for asylum in her own right. For reasons contained in a letter dated 25 March 1998 the Secretary of State refused her asylum and certified her claim as one to which paragraph 5(4)(a) of Schedule 2 to the Asylum and Immigration Appeals Act 1993 (as amended) applied and paragraph 5(5) did not apply. On 13 May 1999 her appeal was allowed by the Special Adjudicator (Mr J G MacDonald). The Secretary of State applied for leave to appeal to the Immigration Appeal Tribunal. On 18 June 1999 the Tribunal (Professor D C Jackson) granted the Secretary of State leave to appeal. On 25 April 2000 the Tribunal (Chairman: Mr J R Disley) allowed the Secretary of State's appeal to the extent of directing that it be remitted to an adjudicator other than Mr MacDonald for hearing de novo. On 22 November 2000 Harrison J granted the applicant permission to apply for judicial review to quash that decision. The application came on for hearing before me on 19 June 2001.
2 In the light of the recent judgment of Scott Baker J in R (Secretary of State for the Home Department) v Immigration Appeal Tribunal [2001] EWHC Admin 261 (2001) Times June 12, Ms Frances Webber on behalf of the applicant does not dispute the power of the Tribunal to make the order it did. She challenges the manner in which, in this case, the Tribunal chose to exercise its powers.
3 The Tribunal's powers in this respect were at the relevant date governed by r 17(2) of The Asylum Appeals (Procedure) Rules 1996. Those rules, made by the Lord Chancellor pursuant to the powers vested in him by section 22 of the Immigration Act 1971, came into force on 1 September 1996. Rule 17(2), which has since been replaced by the materially identical r 23 of The Immigration and Asylum Appeals (Procedure) Rules 2000, provided as follows:
"Unless it considers -
(a) that it is necessary in the interests of justice, and
(b) that it would save time and avoid expense
1(b) that it would save time and avoid expense(b) that it would save time and avoid expense
to remit the case to the same or another special adjudicator for determination by him in accordance with any directions given to him by the Tribunal, the Tribunal shall determine the appeal itself."
4 Ms Webber contrasts that language with the language which was previously to be found in r 21(1) of the Immigration Appeals (Procedure) Rules 1984 and r 17(3) of the Asylum Appeals (Procedure) Rules 1993, where the Tribunal's power to remit was expressed as arising if the Tribunal considered it "appropriate" to do so. She submits, and this must be right, that the test in r 17(2) is more stringent.
5 On this point Ms Webber has referred me to the judgment of Maurice Kay J in R v Immigration Appeal Tribunal ex p Lou Bogou [2000] Imm AR 494. In that case an unrepresented appellant sought an adjournment from the special adjudicator. The special adjudicator refused, concluding that it was not necessary for the just disposal of the appeal and that he therefore had no discretion to grant it. In those circumstances the judge had to consider the contrast between r 10(1) of the 1993 Rules (which conferred on a special adjudicator power to adjourn "upon being satisfied that there is good cause for the adjournment") and r 10 of the 1996 Rules (which provided that a special adjudicator "shall not adjourn a hearing unless he is satisfied that an adjournment is necessary for the just disposal of the appeal" and further required the special adjudicator to have "particular regard to the need to secure the just, timely and effective conduct of the proceedings"). The judge commented at p 496 (para 4) that the later rule was "undoubtedly more stringent" than the earlier one.
6 At pp 494-495 (paras 5-6) Maurice Kay J said this:
"In the present case the special adjudicator was clearly aware of this change. He stated:
"The words `shall not adjourn' in sub-rule (1) are mandatory. Adjournment is prohibited unless I am satisfied of its necessity for the just disposal of the appeal. I have no discretion as to whether to grant an adjournment unless its necessity for that purpose is established. The use of the word `necessary' indicates that the test is more stringent than if the word `desirable' or `appropriate' had been used. Even bearing in mind the potential gravity in an asylum appeal, if a wrong decision is made, (and it is inconceivable that the potential consequences were not in the draftsman's mind), `necessary' cannot be equated with `desirable' or `appropriate'. `Necessary' must be given its ordinary and natural meaning. I had in mind the general desirability that any asylum appellant should be represented, if that is his wish, but as I have indicated, `desirable' is not the test. The question is whether it is, necessary for the just disposal of the appeal that Mrs Bogou should be represented."
In the course of his submissions Mr Fripp described that analysis by the special adjudicator as "over academic and legally erroneous". I do not agree with his submission. In my judgment the analysis by the special adjudicator was rigorous and correct."
7 Another part of the judgment is equally important. The judge recorded at p 498 (para 9) the submission of counsel that the authorities in the Tribunal pointed to a general presumption in favour of representation and of the granting of adjournments to facilitate it and counsel's further submission that the approach of the special adjudicator had been flawed by his failure to refer to those authorities. Having referred himself to those authorities Maurice Kay J continued at p 499 (para 14):
"In my judgment there are curious features about this series of Tribunal decisions. One is that Ajeh has continued to permeate them, no reference being made to the fact that it was decided under the 1993 Rules and not the more stringent 1996 Rules. Secondly, in none of the decisions is reference expressly made to rule 10, either in its 1993 form or in its 1996 form. Nowhere is rule 10 subjected to the kind of analysis to which the special adjudicator subjected it in the present case. As I have said, I consider his analysis to have been entirely correct. In these circumstances, I do not accept that representation is a matter of presumption, nor is it axiomatic. There will be cases where it will be necessary to adjourn an appeal because the just disposal of the case requires representation. There will be other cases where it does not. What is most important is that special adjudicators have regard to the provisions of rule 10 of the 1996 Rules and that they do not simply regard the situation as one of discretion or presumption."
8 If I may I should like to express my vigorous support for Maurice Kay J's approach. The task of the Tribunal in a case such as this is to have regard to and apply the provisions of r 17(2) or, as it now is, r 23. Whatever the blandishments of advocates the Tribunal should resist the temptation to depart from the statutory language. The search for some seemingly appropriate synonym, for example, a synonym for the statutory word "necessary", merely encourages ultimately sterile semantic debate and exposes litigants to the risk that the matter is being decided not by reference to the statutory criteria but by reference to some other and impermissible test. Likewise, for the reasons so cogently expressed by Maurice Kay J, the temptation to have recourse to presumptions, assumptions, starting points, or other similar expressions, call them what one will, is in my judgment to be resisted. All I would add is that the reference in r 17(2) to the "interests of justice" must be to the interests of justice as seen not merely from the no doubt differing perspectives of the individual asylum seeker and the Secretary of State but also in the wider context of the public's interest in the proper administration not only of justice in the abstract but also and particularly of justice in this discrete area of the law. Likewise the reference in r 17(2) to "time and expense" is a reference not merely to the time and expense of the parties but also to the "time" of the special adjudicators and the Tribunal and the "expense" to the public of funding the asylum appeal system.
9 Ms Webber submits that r 17(2) creates what she calls a presumption against remitter, a presumption that the Tribunal will hear the appeal itself. With all respect to her argument I do not think that is quite the correct way of putting it. The rule provides in mandatory terms ("the Tribunal shall determine the appeal itself") that there is to be no remitter "unless it considers" that certain conditions are satisfied (emphasis added). It follows that the first thing the Tribunal has to do is to decide whether or not it
"considers - (a) that it is necessary in the interests of justice and (b) that it would save time and avoid expense to remit the case ... "
If it does not so consider, then that is the end of the matter; the Tribunal will have no power to remit and will be required to determine the appeal itself. If, on the other hand, it does so consider, then the Tribunal will have power to remit; indeed, given the matters of which, ex hypothesi, it will in those circumstances be satisfied it will almost inevitably decide in such a case to remit.
10 Having got to that point the Tribunal will then have to decide whether to remit the case to the same special adjudicator or to another special adjudicator. The manner in which that discretion is to be exercised is not spelt out in so many words in r 17(2). But Ms Webber and Mr Michael Fordham, who appears for the Secretary of State, are at one in submitting, and I agree, that by implication r 17(2) requires the Tribunal, once it has determined that there is to be a remitter, to decide to whom that remitter should be by reference to the same criteria: that is, by reference to what the interests of justice necessitate and paying proper regard to the fact that the saving of time and avoiding of expense is not merely one of the statutory factors referred to in r 17(2) but is itself a very important aspect of the administration of justice. No doubt, in an appropriate case, the consideration of that question may be closely intertwined with consideration of whether the Tribunal should be giving any, and if so what, directions to the special adjudicator, including, it may be, directions designed to limit or define the ambit of the remitted hearing.
11 Ms Webber's case can be summarised as follows: (1) Given the terms of r 17(2) the Tribunal should have dealt with the matter itself rather than remitting the case. (2) Alternatively, and particularly in the light of its own case-law, the Tribunal should have remitted the case to Mr MacDonald and not to another special adjudicator.
12 In relation to the second point Ms Webber helpfully took me through a number of decisions of the Tribunal, which she relied on as supporting two propositions. On the one hand, she said, remitter for a hearing de novo before another special adjudicator is the rule when a determination of a special adjudicator is utterly vitiated by such matters as procedural unfairness, a failure to make findings as to credibility, findings as to credibility which are unreasoned or irrational, or such delay in promulgating a determination as to render factual findings unsafe. On the other hand, remitter to the same special adjudicator is, she says, the norm when the historical facts relating to the appellant are fairly and rationally decided but the special adjudicator has failed to deal with a particular aspect of the case (such as the possibility of internal relocation) or fresh evidence has come to light which might have a bearing on the determination (such as relevant medical evidence, or further country information which may cast fresh light on a decision that a fear of persecution is or not well-founded).
13 Now I entirely accept that the authorities to which Ms Webber directed my attention suggest that frequently - indeed it may even be typically - cases of the kind she has identified will be dealt with by the Tribunal in the manner she describes. That said I find these authorities of very limited value to the task with which I am concerned. In the first place, many of the decisions of the Tribunal were in fact with the consent of both parties. Moreover, and in this respect my reaction to the Tribunal authorities I was shown is somewhat similar to the reaction of Maurice Kay J to the authorities he was shown, it is a fact that hardly any of these decisions contained any reference to r 17(2) or even any reference, however oblique, to the language of r 17(2). Furthermore, with only one possible exception, to which I shall refer shortly, none of these authorities as I read them even purported to state or apply any particular principle or approach.
14 All that said, there is, as it seems to me, a more fundamental difficulty in seeking to use such decisions in the way in which Ms Webber would have me use them. To say that because in a particular class of case the Tribunal very often or usually comes to a particular decision it therefore follows that in such cases it ought to come to that decision is not merely to stand legal logic on its head but to fall into precisely the kind of error exposed by Maurice Kay J in Bogou. The task of the Tribunal in every case is to apply the statutory criteria. The danger of all attempts, however careful, to construct some gloss to the statute out of what is said to be the jurisprudence of the Tribunal (particularly, I might add, if there is nothing to suggest that the Tribunal saw itself as embarked upon any such task) is precisely that one ends up with the kind of "presumption" (the word used in Bogou by Mr Fripp) or the kind of "rule" or "norm" (the words used by Ms Webber) the application of which is for the reasons given by Maurice Kay J calculated to lead one into the error of not in fact applying the statute.
15 Ms Webber referred me to the decision of the Tribunal in Secretary of State v Doutlik (1998) HX/66367/96(16152) where, in explaining its decision to remit a case for hearing before the same special adjudicator, the Tribunal said:
"As we indicated to the parties at the hearing, we think the appropriate course in this appeal is remittal. The adjudicator, Mr Poole, does not appear to have been asked to consider the appellant's claim as based on present unwillingness owing to a well-founded fear of persecution for a Convention reason. The point on which he made his decision is essentially discrete. He made a clear finding of credibility in favour of the claimant, and it is right that she should retain the benefit of that whilst her appeal is further considered. For these reasons we have decided to remit this appeal to Mr Poole."
Understandably Ms Webber placed reliance on the words I have emphasised.
16 Now I entirely recognise that this particular factor is one which often - indeed it may be very often - will operate as a more or less powerful reason why the Tribunal should decide to remit to the same special adjudicator. But that is all. If I may adopt Maurice Kay J's language, in a case such as Doutlik remitter to the same special adjudicator is neither a matter of presumption nor is it axiomatic, any more than is the need for representation in a case such as Bogou. There will be cases where the matter should be remitted to the same special adjudicator because that is what the interests of justice necessitate. There will be other cases where it does not. Whether in a particular case there ought to be such a remitter can only be determined by an application of the statutory criteria to the circumstances of the particular case, and that is a task entrusted not to this court but to the Tribunal. This court can interfere with the Tribunal's decision only if satisfied that the Tribunal has fallen into judicially reviewable error.
17 In approaching that question I think it useful to recall the passage in the speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360 at p 1372G where he said that judicial reasons
"should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2). An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."
That was an appeal relating to matrimonial ancillary relief, hence Lord Hoffmann's reference to section 25(2) of the Matrimonial Causes Act 1973. But the principle is of general application to all courts exercising appellate functions and in similar fashion to courts exercising the supervisory role of judicial review.
18 I recognise, of course, that every asylum case demands the most anxious scrutiny from the court. But that does not mean that the court should strive by tortuous mental gymnastics to find error in the decision under review when in truth there has been none. The concern of the court ought to be substance not semantics. As Sullivan J said in R (Puspalatha) v Immigration Appeal Tribunal [2001] EWHC Admin 333, when referring (at para 43) to the special adjudicator:
"In my judgment it is very important that special adjudicators' determinations are read as a whole in a common sense way. It is not appropriate to focus on particular sentences and to subject them to the kind of legalistic scrutiny that might perhaps be appropriate in the case of a statutory instrument, charter party or trust deed."
I agree. In my judgment, moreover, when dealing with an expert body such as the Tribunal, this court is entitled to assume that the Tribunal understands not merely how it should perform its functions but also which matters the relevant statute requires it to take into account, unless, that is, there is something in the Tribunal's reasoning to indicate the contrary.
19 I return to the facts of the present case.
20 In his decision letter dated 25 March 1998 the Secretary of State rejected the applicant's claim that she was entitled to asylum, a claim that has throughout been based on what she says is a well-founded fear of persecution as a member of her husband's family based on his suspected connection with the ARF, the Armenian Revolutionary Federation, also known as Dashnak. The Secretary of State pointed to certain matters which he said (paragraphs 8 and 9 of the decision letter):
"cast severe doubt on the credibility of your claim and thereby your general veracity"
and
"gave rise to the most compelling doubt as to your credibility as an asylum seeker and your general veracity."
He concluded (paragraphs 4 and 11) that the applicant's claim was based rather on fear of return because of the war and the resulting economic situation and that her motivation was a desire for economic betterment and not a fear of persecution. He said (paragraph 5) that those who had threatened the applicant were simply engaging in criminal activities and therefore could not be regarded as `agents of persecution'.
21 The special adjudicator was critical of the Secretary of State's conclusions. He said:
"In my view there is no basis for the Home Office concluding that the appellant has a fear of return to the conflict referred to and the resulting economic situation ... In my view there is no proper factual basis for the Home Office suggesting that the appellant was applying for asylum purely for economic betterment."
He held that those threatening the applicant should be regarded as agents of persecution. It is apparent that he treated the ARF as still being "suspended" at the date of his Determination (13 May 1999).
22 The special adjudicator concluded as follows:
"In my view the current objective evidence backs up the fear of the appellant that she would be likely to suffer persecution if she was returned to Armenia.
Looking at all the evidence my conclusion is that the appellant has proved she had a well-founded fear of persecution for reasons already stated if she is returned to Armenia."
23 The Secretary of State, as I have said, sought leave to appeal, the only ground of appeal being that:
"The Special Adjudicator erred in finding that the ARF was suspended at the date of the hearing. Following President Ter-Petrosian's resignation in February 1998, the ARF was permitted to register and many political prisoners were released (a copy of the Amnesty International report concerns in Europe January - June 1998 is attached). The appellant, as the wife of a man imputed to be a member of ARF, is not likely to suffer persecution if returned to Armenia."
As Ms Webber points out, the Secretary of State did not seek to challenge the special adjudicator's findings either as to the applicant's credibility or in relation to events which had taken place prior to her departure from Armenia in 1995. His complaint was simply that the special adjudicator had proceeded in ignorance of what had happened in Armenia in and since February 1998 and that this accordingly vitiated his finding that the applicant had a well-founded fear of persecution if she was returned to Armenia, that is, returned in 1999. Leave, as I have said, was granted.
24 When the Secretary of State's appeal came on for hearing before the Tribunal the applicant was represented by Ms Beach of counsel and the Secretary of State by the Home Office Presenting Officer, Mr Jones. It appears from the contemporaneous attendance note of the hearing prepared by the applicant's legal representative that the applicant's submission was that the case should be dealt with by the Tribunal, in the alternative that the case should be remitted to Mr MacDonald so that he could consider the new evidence in relation to events in and since February 1998. That evidence consisted of the Amnesty International report relied on by the Secretary of State and an expert report obtained by the applicant from Dr D C Lewis. There is no suggestion in that attendance note of any indication from Mr Jones that the Secretary of State was seeking either to put the applicant's credibility in issue or to cross-examine her. The note records the Chairman, Mr Disley, as saying
"that it was `inappropriate' to remit it to the same Adjudicator because he would not consider it with an open mind given the conclusions he had reached with respect to the appellant's credibility etc."
25 The Tribunal in its written Determination and Reasons said this:
"2. Ms Beach submitted that the Tribunal should consider the appeal because credibility was not an issue and it would be more appropriate for the Tribunal to consider the appeal rather than remitting the same for hearing de novo by another adjudicator.
3. Mr Jones was content for the appeal to be remitted de novo before another adjudicator.
4. The Tribunal considered that there was merit in Ms Beach's submission. However, the effect of the Tribunal having already admitted two reports, the Amnesty International report and the report of Dr D C Lewis, was that the Tribunal would not be hearing an appeal on the same evidence as was before the adjudicator.
5. The Tribunal considered that the appeal should be heard de novo by another adjudicator who would be best equipped to consider the whole of the evidence, both that before the previous adjudicator and that subsequently admitted, rather than the Tribunal having to consider an appeal including much additional evidence that was not before the original adjudicator.
6. The appeal is therefore allowed to the extent that it is remitted to an adjudicator other than Mr J G MacDonald for hearing de novo."
26 I can summarise the essence of the applicant's complaint as follows: (1) There was no disagreement as to her credibility but only as to the objective circumstances in Armenia at the date of the hearing. The historical facts as found by the special adjudicator did not need to be re-determined, only whether there was any objective basis for her continued fear of persecution. (2) That dispute turned on the two additional reports which had come to hand since the hearing before the special adjudicator. It could thus be determined on the basis of submissions only and without hearing any further oral evidence. (3) In those circumstances it could not be said either that it was necessary in the interests of justice to remit the case or that it would save time or avoid expense to do so. (4) Alternatively, and for essentially the same reasons, even if a remitter to a special adjudicator was necessary it was neither necessary in the interests of justice to remit the case to another special adjudicator nor would it save time or avoid expense to do so. (5) On the contrary, those factors pointed clearly in favour of any remitter being to the same special adjudicator, since a hearing de novo before another adjudicator would not merely add to the costs and increase delay but also deny the applicant the right to retain the benefit of the clear findings of fact in her favour. (6) To deprive her of that benefit would expose her to unnecessary trauma and also risk a sitiuation where two different special adjudicators reach different findings of fact. (7) The Tribunal erred in law in failing to have proper regard to and to apply r 17(2). The Tribunal's Determination contains no reference either to r 17(2) or to the criteria in r 17(2) and there is no evidence that those criteria were ever in fact considered by the Tribunal. (8) The Tribunal's decision was unreasonable and perverse. (9) Finally, the Tribunal never considered its power, by the giving of appropriate directions under r 17(2), to confine or limit the ambit of the remitted hearing.
27 In my judgment the applicant had a strong case for arguing before the Tribunal that it should not remit the matter or, if it did, that it should remit to the same special adjudicator. The Tribunal, as it seems to me, recognised that fact when it acknowledged what it called the "merit" in Ms Beach's submissions. But however strong the applicant's case may have been it was not, in my judgment, so compelling as to lead inevitably or inexorably to the conclusion that there could be no remitter or so compelling as to lead inevitably or inexorably to the conclusion that any remitter had to be to the same special adjudicator. Her case was a strong one but not, in my judgment, so strong as to drive the Tribunal to only one possible conclusion. It cannot be said that no Tribunal properly directing itself in accordance with r 17(2) could have arrived at the conclusion at which the Tribunal did. I cannot accept the submission that the Tribunal's decision was unreasonable let alone perverse or irrational.
28 Whether or not I would myself have come to the same decision (something which is wholly beside the point) it is, as Mr Fordham submitted, not too difficult to see why the Tribunal, correctly directing itself by reference to the stringent test in r 17(2), could reasonably consider that a remitter, and a remitter moreover to another special adjudicator, was necessary in the interests of justice, having regard to the facts (i) that fresh evidence was being relied on by both parties, (ii) that that evidence went to the heart of the ultimate issue of whether, as matters stood at the date of the hearing, the applicant had a well-founded fear of being persecuted if she was returned to Armenia and (iii) that this was not an aspect of the case or of the evidence which the special adjudicator had overlooked but rather one on which, albeit through no fault of his own, he had come to definite conclusions without the benefit of material which (to put it no higher) suggests that an essential part of his reasoning was based on a wholly false factual premiss. Mr Fordham submits, and I agree, that in all the circumstances the Tribunal, correctly directing itself by reference to the stringent test in r 17(2), could reasonably consider that it was necessary for the full evidential picture to be reassessed by a fresh mind examining the case as a whole and in the round and, moreover, in such a way as would permit a further appeal to the Tribunal. In my judgment it was open to the Tribunal to conclude that this important fresh evidence required of necessity, in the interests of justice to all concerned, to be looked at not in the narrow context for which Ms Beach was understandably contending but rather as part of the overall case looked at as a whole and that, in those circumstances, it would save time and expense for the necessary rehearing of the case to be before a special adjudicator rather than the Tribunal.
29 Can Ms Webber point to any error of law on the part of the Tribunal or anything to suggest that it either misunderstood the test which it had to apply or in some other way misdirected itself? She says, correctly, that there is no reference anywhere to be found to r 17(2) nor any reflection in the Tribunal's Determination of the relevant statutory language. But that, for reasons I have already explained is not of itself enough. The question, as it seems to me, is whether there is anything to be discerned in the Tribunal's reasoning to indicate that in some way the Tribunal misunderstood how it was required to perform its functions or in some way misunderstood or failed to take into account the statutory test as laid down in r 17(2). Is there any such indication? In my judgment there is not. On the contrary, it seems to me clear, both from what is recorded in the passages from the attendance note which I have referred to and also from what it said in paragraphs 4 and 5 of its Determination, that the Tribunal was directing itself by reference to what the interests of justice required and was conscious of the arguments in relation to time and expense. The Tribunal's use of the phrase "best equipped", when read in the context of the Tribunal's reasoning as a whole, seems to me to indicate that the Tribunal was applying the appropriately stringent test. It gave fair weight to Ms Beach's submissions to the contrary but then identified, albeit in briefly expressed words, what I have to say seem to me to have been cogent reasons for concluding that in the interests of justice it was necessary for the matter to be dealt with not by the Tribunal but "de novo by another adjudicator" because, as the Tribunal expressed it, he "would be best equipped to consider the whole of the evidence". Despite Ms Webber's arguments I can detect no error of law or error of principle in the Tribunal's reasoning.
30 In my judgment there was no error on the part of the Tribunal and its decision, however upsetting for the applicant, was a lawful and reasonable exercise of its statutory powers. Her application must therefore be dismissed.
31 I should like to add one final observation. It is of course for the Tribunal to decide the form in which it expresses its reasons and it is not for me to tell it how to go about the exercise of a jurisdiction which Parliament has given to it and not to me. Nor do I wish to be thought to be watering down or qualifying in any way what I have already said. I have however been struck, as was Maurice Kay J before me, by how infrequently when deciding these matters the Tribunal appears to refer either to the relevant rule or even, and however obliquely, to the language of the rule. With a view to avoiding future unnecessary applications for judicial review the Tribunal might think it useful to do two things: (i) Even if it does not refer expressly to what is now r 23 the Tribunal might at least adopt in its reasoning enough of the language of the rule as to put beyond argument that it has applied its mind to the relevant statutory test. (ii) It might also make clear that it has given separate consideration both to the question of whether there should be a remitter and also to the question of whether, if there is to be a remitter, it should be to the same or to a different adjudicator. Let me make it absolutely clear: I am not suggesting that reasons in cases such as this need to be either elaborate or particularly lengthy. All I am suggesting is that if the Tribunal were to adopt the practice of making brief reference to the two particular matters I have mentioned, there would be less scope in future for ultimately unsuccessful applications for judicial review.