QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF ATHAMBAWA IBRAHIM SIMEER||(CLAIMANT)|
|IMMIGRATION APPEAL TRIBUNAL||(DEFENDANT)|
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MISS S BROADFOOT (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
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"The appellant did not attend at the hearing nor was he represented. I was satisfied that the Notice of Hearing had been correctly and timeously served. I resolved to deal with the appeal on the papers, pursuant to rule 43(d) (i) (ii) Immigration and Asylum Appeals (Procedure) Rules 2000."
"(1) An appeal may be determined without a hearing under this rule if:
" ... (d) The appellate authority is satisfied, having given every party an opportunity to make representations and having regard to -
"(i) the material before it; and
"(ii) the nature of the issues raised;
"that the appeal could be so disposed of justly."
" ... there is a serious breakdown in communication even within the Immigration Appellate Authority. This is evidenced by the fact that IAA even failed to arrange an interpreter for the appeal hearing despite the "Reply to directions" dated 7th June 2002 indicating under Section A that a Tamil interpreter is required."
"The contention that neither the applicant nor his representatives received notice of hearing is without any foundation. I have checked the file and note that the notice of hearing was served upon both. It was sent out by first class post on 26th June 2002 ... "
" ... her determination is a full and fair review of the appellant's case. Based on the current objective evidence the appellant is most unlikely to succeed even if a fresh hearing were ordered."
"(1) Except where rule 43 or 44 applies, a hearing shall be conducted to determine the appeal."
" ... it would at any rate be wise for the adjudicator to seek to collect the reasons for non-appearance via, for example, a telephone call."
" ... the Vice President was careful neither to accept it nor to reject it."
"What, therefore, should the Tribunal do when the applicant asserts that the Notice, by reference to which the adjudicator has dismissed the appeal without consideration of its merits, has never been received?
"The Tribunal cannot, as it did in this case, put the assertion to one side and, in effect, ignore it. It must weigh the assertion in the normal way. If the assertion has a real prospect of being found to be true, the appeal has a real prospect of success and so, pursuant to Rule 18(7) of the Rules of 2000, leave to appeal should be granted. If, on the substantive appeal, the assertion is indeed found to be true, the appeal should be allowed and the case remitted to the adjudicator for determination on its merits."
"But it is a strong step, particularly in the light of its consequences, not to accept the assertion of any professional person that a Notice sent by post, but otherwise than by Recorded Delivery, has not been received."
"Based upon the current objective evidence, the appellant is most unlikely to succeed even if a fresh hearing were ordered."
"The reality is in our judgment that it is as yet premature to accept that everyone who has claimed asylum in this country would be able to return safely. We certainly are of the view that in the present situation and having regard to the present trends it is only the exceptional cases that will not be able to return in safety."
"(c) Identify the alleged errors of fact or law in the adjudicator's determination which would have made a material difference to the outcome, together with all the grounds relied on for the appeal."
The prominence given to Jeyachandran is illustrated in a passage in Sivarasa, where the Tribunal stated:
"There is certainly nothing to be gained from reference to any case heard before Jeyachandran came out on 10th June."
For the reasons I have given, and notwithstanding the procedural fairness point in relation to the Immigration Appeal Tribunal, this application for judicial review fails.
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