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Khan, Re Application for Judicial Review [2004] ScotCS 125 (27 May 2004)

OUTER HOUSE, COURT OF SESSION

OPINION OF LORD CARLOWAY

in the Petition of

BASHIR AHMAD KHAN

Pursuer;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

for

Judicial Review of a decision of the Immigration Appeal Tribunal to refuse the petitioner leave to appeal against the decision of an Adjudicator refusing his claim for political asylum:

________________

Petitioner: Melvin-Farr; Drummond Miller W.S.

Respondent: Lindsay; H.F. Macdiarmid (Solicitor to the Advocate General for Scotland)

27 May 2004

1. Facts and Procedure
[1] The petitioner was born on 7 September 1939 and is a national of Pakistan. He arrived in the United Kingdom on 8 April 2001, having been given leave to enter and remain until 13 June 2001. By letter dated 12 April 2001 from Ahmed & Associates, "Legal Advisors", Leicester, the petitioner applied for political asylum upon the following grounds:

"Our said client is from war effected area of Kashmir and belongs to a minority Sect in Islam called "Shia Muslims". As a result of our clients Religious beliefs, he has been subject to persecution by both freedom fighters called Kashmir Liberation Front, by majority Sunni Muslims and has been imprisoned by the local police for lodging a complaint. Our...client has well founded fear for his life."

The petitioner was invited to attend for an interview on 17 May 2001 at the premises of the respondent's Immigration and Nationality Directorate in Croydon. However, Messrs Ahmed wrote to say that he could not attend this because of a medical condition. This condition was detailed in a self-completed medical certificate which stated that the petitioner had fallen down some stairs on 14 May and was suffering from diarrhoea, vomiting and backache. The petitioner was offered a further interview on 5 June 2001. Although ultimately the petitioner maintained that he did not receive intimation of this date, Messrs Ahmed responded to the invitation by saying that the petitioner was still unable to attend. They sent in the same certificate but with an additional part of it completed by a general medical practitioner to the effect that the petitioner should refrain from work for four weeks.

[2] By letter dated 11 June 2001, the respondent refused the petitioner's application. In so doing, the respondent expressed the view that no satisfactory explanation had been given for the petitioner's failure to attend the interview scheduled for June. In particular, in holding that the petitioner had taken an unreasonable time to provide the requisite evidence to support his claim, the respondent noted that there was no medical support for the proposition that the petitioner could not have attended the interview. Nevertheless, the respondent dealt with the merits of the petitioner's application as follows:

"4. ...the Kashmir Liberation Front could not persecute you in regions of Pakistan other than Kashmir...your religious beliefs would not lead you to be persecuted within the rest of Pakistan...

5. ...Shia Muslims, who form some 20% of the 97% Muslim population of Pakistan, are recognised as Muslims...General Musharraf has openly advocated the need for religious and ethnic cohesion in Pakistan and has endeavoured to curtail the political exploitation of religion. It is not considered...that the Government of Pakistan actively or systematically persecutes Shia Muslims."

It was not until 1 November 2002 that a Notice of Appeal form was lodged, the appellant maintaining that he had not received the refusal letter until he had been arrested at some point in Leicester. The Notice was completed on the petitioner's behalf by Ali Dhanji, Solicitors, also of Leicester, where the petitioner appeared to be still living. The grounds of appeal were extremely vague, being that: the decision was not in accordance with the "Immigration Rules"; the respondent had not taken into consideration the "current political situation in the country from which the [petitioner] comes"; the repression in the country still continues; the [petitioner] had no recourse to impartial justice; and he maintained his position of well founded fear of persecution. A hearing was fixed to take place before an adjudicator at Walsall on 18 December 2002. However, on 27 November, James Kelly, whose notepaper described him as a solicitor although there was some doubt about that, contacted the Immigration Appeals secretariat in Leicester requesting a postponement of the hearing and a transfer of the case to Glasgow. This was on the grounds that: the petitioner had moved to Alloa, seemingly because his health had deteriorated; he was to attend a local doctor to assess his health; his former agents in Leicester had been asked to forward the papers to Mr Kelly; and additional grounds of appeal were being considered.

[3] The petitioner's request to postpone the hearing and transfer the case to Glasgow was granted. A further hearing was fixed for 10 February 2003. At this hearing, Mr Kelly appeared and asked for an adjournment on the grounds that he had been "instructed late". At this hearing, a date for a further hearing was fixed for 31 March 2003. As at 25 March, Mr Kelly still appeared to be acting as he faxed certain documents to the Immigration Appellate Authority in Glasgow. However, on 31 March, he did not appear. The petitioner appeared in person. Upon Mr Kelly being contacted by telephone, it would appear that he had withdrawn from acting because of the absence of instructions. Mr Kelly explained that the petitioner had appeared at his offices on the previous day with late instructions and had been advised to seek a new date for the hearing. The petitioner's case had advanced little, other than in relation to the production of certain documents, since the original letter which sought asylum almost two years earlier. There was, for example, no precognition from the petitioner for adoption as his evidence in chief, as is the norm before adjudicators following the English practice.

[4] The Adjudicator declined to fix a new date for the hearing of the petitioner's appeal. In deciding that the hearing should proceed, she stated:

"I am obliged to consider the overriding objective and rules concerning adjournments in Rules 30 and 31 of the Immigration and Asylum Appeals (Procedure) Rules 2000. I noted that the appellant had not made a formal application for asylum using the appropriate forms, had failed to attend 2 interviews due to a claim of ill health, and had only made an appeal against the refusal over 12 months later. He had been advised and assisted by 3 sets of representatives over this period although was not now represented. I also noted that the appellant's representative had attended the court on 10 February 2002 and the hearing had been adjourned on his request because he had received instructions late and wished time to obtain certain documents."

The hearing proceeded with the Adjudicator questioning the petitioner. The petitioner was then cross-examined on behalf of the respondent and then questioned again by the Adjudicator. Throughout, the petitioner had the assistance of an interpreter. The petitioner gave an account of visiting the city of Jhang in June 1999 and being attacked there by Sunni Muslims. The same year, he had been in another city, Muzafferabad, when he was attacked, detained and tortured by members of the SSP, an extremist group known to attack Shias, from Lahore. The persecution of the petitioner was just with a view to his conversion to Sunni and not for any more specific reason. On reporting the attack, the police did nothing but detain the petitioner for two days. An appeal to a judge did nothing to progress matters either. In September 2000, the petitioner was in Lahore when he was attacked again by one of the same group of SSP and hospitalised. Curiously, the SSP member registered a complaint against the petitioner for attempted murder. Arrest warrants were issued but avoided by the petitioner through bribes and absence from his home. The SSP then asked the Kashmir Liberation Front to harass the petitioner and they too attacked him, in October 2000. The petitioner closed his shop in Kotli, Kashmir, and he and his family moved to Karachi in December 2000 or January 2001. In view of the extant arrest warrants, the petitioner secured a visa for himself, but not his family, and left the country.

[5] The Adjudicator did not believe the petitioner's tale, especially of being attacked and persecuted in a variety of quite different cities in Pakistan including Karachi, which is quite a distance from Kashmir. In so concluding, the Adjudicator had regard to the Pakistan Country Assessment dated October 2002 prepared by the Country Information and Policy Unit. Several reasons were given by the Adjudicator for her rejection of the petitioner's account, but these do not require to be detailed here given the nature of the submissions. The Adjudicator refused the appeal. The petitioner sought leave to appeal first on the basis that an adjournment ought to have been granted and secondly because it was said that the Adjudicator should not have questioned the petitioner at length and thereby become his inquisitor. There were detailed criticisms also of the Adjudicator's findings on credibility. On 28 May 2003, the Immigration Appeal Tribunal refused leave to appeal. The determining member concluded:

"...[The Adjudicator] had express regard to the relevant requirements of the ... Rules ... and acted properly in accordance with them. She was entitled to have regard to the fact that the claimant had had, for whatever reason, three sets of representatives and that his last representative had withdrawn because he did not receive timely instructions. She was also entitled to have regard to the fact that the appeal had already been adjourned once because the then representative had been instructed late and had requested extra time. It was also appropriate to note that the claimant had failed to attend two interviews due to a claim of health, and did not make his asylum appeal until some twelve months after his application had been refused."

The IAT member also rejected the proposition that there should not have been an inquisitorial element where the appellant was unrepresented. He further considered that the adverse credibility finding was supported by "very substantial reasoning based on the evidence". In refusing leave to appeal, he concluded that any appeal would have no real prospect of success.

2. The Pleadings and Submissions

(a) THE PETITIONER

[6] The petitioner moved that his first and third pleas-in-law be sustained by declaring the Adjudicator's decision to refuse an adjournment to be unreasonable and by reducing the IAT's decision refusing leave as both unlawful and unreasonable. In support of this, the petitioner advanced a single proposition. This was that the Adjudicator ought to have granted an adjournment at the hearing of 31 March and that the failure to do this had meant that the petitioner had not received a fair hearing. He maintained that during the period between June 2001, when his asylum application had been refused, and December 2002, when a hearing for his appeal had been fixed, the petitioner had been "quite ill". He had come to Scotland and had been recommended to Mr Kelly by friends. He had met with Mr Kelly on 30 March, when Mr Kelly had told him that he could not represent him. Until that point, he had expected Mr Kelly to represent him at the hearing the following day.

[7] The Adjudicator should have had regard to the Immigration and Asylum Appeals (Procedure) Rules 2000 (SI 2000 No 2333) and in particular to the requirement to secure the "just" disposal of the appeal (paragraphs 30(2), 31(1)) (and see Macdonald's Immigration Law and Practice (5^th ed) para 18.142). Justice had to be seen to be done and it was the function of the Adjudicator to impart justice and not just to dispose of appeals. "Anxious scrutiny" was required where an immigration appellant provided grounds for an adjournment. Various factors should be looked at (R v Kingston-upon-Thames Justices ex parte Martin [1994] Imm AR 172, Simon Brown LJ at 178) and each side had to have a fair opportunity of preparing to deal with what the other side was going to say (R v Secretary of State for the Home Department ex parte Ghaly, unreported, 27 June 1996, Queens Bench Division per Sedley J). There is an obligation upon a tribunal to ensure that a party is properly represented by a qualified person, such as a solicitor. Looking at the factors referred to by Simon Brown LJ (supra), given the consequences of an adverse outcome to the petitioner, the proceedings were important. The petitioner was prejudiced by the hearing proceeding in the absence of representation and that outcome would have been clear at the time. The respondent would not have been prejudiced by an adjournment of, say, a week and the interests of justice generally, relative to the efficient despatch of business, would not have been effected. Since, it was said, more cases were listed for a given day than could be accommodated in that day, the Adjudicator would not have been inconvenienced and the court would not have been left empty. The petitioner had not been responsible for what had occurred. He was not familiar with legal procedures. Particular care and sensitivity had to be taken when dealing with party litigants deprived of representation on the eve of immigration hearings (R v Immigration Appeal Tribunal ex parte Dirisu [2001] EWHC Admin 970, Munby J at para 20-23, particularly under reference to the vulnerability of applicants noted at para 190 of the UNHCR's "Handbook on Procedures and Criteria for Determining Refugee Status").

[8] In all the circumstances, the Immigration Appeal Tribunal ought to have recognised the errors made and granted leave to appeal. The petitioner did not seek to attack the substance of the Adjudicator's decision on the evidence adduced before her. His position was simply that this evidence should not have been heard, especially in the way that this was done. The petitioner did not accept that this amounted to a tacit acceptance of the ultimate decision.

(a) RESPONDENT

[9] The respondent moved that his second plea-in-law, that the decisions complained of were both lawful and reasonable, be sustained and the prayer of the petition refused. If there were substance in the petitioner's criticisms of the Adjudicator's decision to refuse an adjournment, the remedy was simply to reduce the IAT's refusal of leave to appeal, leaving the Adjudicator's decision standing (Irzekevikius, Petitioner, 14 July 1999, unreported (on this point), Lord Macfadyen). The sole question was whether the IAT was entitled to refuse leave and that matter was governed by paragraph 18(7) of the Rules, which provides that leave can be granted only where the Tribunal is satisfied that the appeal has a real prospect of success or there is some other compelling reason for the appeal to be heard.

[10] The Adjudicator had correctly understood paragraphs 30-31 of the Rules and, in arriving at her decision, had taken into account all relevant and material considerations. Her refusal had not prevented "the just disposal of the appeal". It was for the petitioner to demonstrate otherwise and he had not discharged the onus upon him to do so. There were seven factors to be borne in mind: (1) the petitioner had been assisted during the hearing by an interpreter and had been asked by the Adjudicator to state the basis of his claim; (2) the petitioner had been able to give a full account to the Adjudicator; (3) there had been no difficult or novel point of law which required him to have legal assistance. His claim was a straightforward one of persecution as a member of a minority group and the government of Pakistan being unable to prevent this; (4) there was no suggestion that further witnesses or documents were needed; (5) the hearing had already been adjourned twice; (6) given the long history of the case, the petitioner had been afforded plenty of time to obtain representation; and (7) the petitioner had been aware of the case which he had to respond to. Taking these factors together, it could not be said that the refusal to adjourn was unreasonable. Furthermore, the petitioner had been unable to say what difference a representative would have made. Such a representative need not be a lawyer (Immigration and Asylum Act 1999 (c 33) section 84; paragraph 35 of the Rules) but there was Legal Advice and Assistance available from the Legal Aid Board to permit representation before an adjudicator by a solicitor. The petitioner had not been able to identify any injustice and his failure to challenge the substance of the Adjudicator's decision amounted to a tacit acceptance that the appeal had been justly disposed of.

[11] The cases dealing with the common law power to adjourn were of limited value given the express terms of paragraphs 30 and 31 of the Rules to which the Adjudicator required to have regard (R v Immigration Appeal Tribunal ex parte Ali [2001] Imm AR 67, Jackson J at 73 dealing with paragraph 10 of the previous Asylum Appeals (Procedure) Rules 1996 (SI 1996 No 2070)). The five factors referred to by Jackson J (supra at 74) as justifying the refusal of an adjournment applied equally in this case. The difficulties of representation present in cases such as R v Special Adjudicator ex parte Kotovas [2000] Imm AR 26 at 27 did not exist here, where the petitioner had been given ample time to secure adequate representation. In that regard, "just disposal" encompassed a consideration of a party's own conduct.

3. Decision
[12] The normal practice of courts is to fix diets for hearings sufficiently far in advance as to provide parties with sufficient time to prepare their own cases and to meet those of any opponent. The time allowed depends on the nature and importance of the hearing. As a generality, a court is entitled to expect parties to be adequately prepared by the time of the hearing. This is primarily because postponement of hearings often leads to systemic problems, disrupting a court's programme in a way that tends to prevent litigants in other causes from having their cases heard within a reasonable time. It can be important, if a court system is to work with some degree of efficiently, to guard against a situation where a culture of adjournments is allowed to develop. The courts will also be conscious of the expense which adjournments can cause to the parties, to witnesses and others cited to attend and to the courts themselves in the form of administrative and wasted time. They are also aware that in some cases it may not be in the perceived interest of a particular party that the case should proceed to a conclusion.

[13] Nevertheless, the courts have also been accustomed to grant adjournments of hearings for a variety of different reasons, primarily to secure procedural or substantive fairness in the conduct of a particular case. At common law, a court will ask itself whether it is in the interests of justice to grant an adjournment in the particular circumstances of that case; albeit bearing in mind a general desirability to have hearings proceed at the diet fixed. In answering that question, a court will require to consider carefully, indeed to scrutinise anxiously, the various interests which may be prejudiced by the grant or refusal of the motion. A number of factors might come into play. There are, of course many Scottish cases on the subject, but few would quarrel with the illustrations catalogued by Simon Brown LJ in the extraordinary case of R v Kingston-upon-Thames ex parte Martin (supra). Although there may be a problem in applying a stricter than normal test for reviewing adjournment decisions a suggested by Sedley J (in R v Secretary of State for the Home Department ex parte Ghaly (supra), cf Richards J on the standard review test in R v Special Adjudicator ex parte Kotovas (supra) at 29), his general analysis is worth keeping in mind for two reasons. First, it stresses that adjournment decisions can involve fundamental questions of fairness. Secondly, it explains that the need is for the court or tribunal to provide opportunities to parties to enable their cases to be fairly heard.

[14] Although at common law the courts have customarily had a wide discretion in determining where the balance of justice comes to rest, in certain regulatory regimes it has been deemed appropriate for the legislature to lay down specific rules governing when adjournments should or should not be granted. Such is the position in asylum cases where an adjudicator must heed the terms of the applicable rules and not simply make a determination solely balancing the various interests involved (see Jackson J in R v Immigration Appeal Tribunal ex parte Ali (supra). Indeed, it would appear, from looking at the historical progression of changes to the Rules, that the intention of the legislature has been to restrict the number of adjournments being granted, presumably with a view to improving overall efficiency in the system. Where specific rules are enacted, they displace the common law position and require the decision maker to act in accordance with their terms, albeit construing them so far as possible within the general principle of ensuring fairness.

[15] In relation to the conduct of appeals generally, the Rules provide:

"30(1) The overriding objective shall be to secure the just, timely and effective disposal of appeals..."

Specifically in relation to adjournments, they state:

30(1) Where an adjournment of the appeal is requested, the appellate authority shall not adjourn the hearing unless it is satisfied that refusing the adjournment would prevent the just disposal of the appeal."

This provision places a heavier onus upon the person seeking an adjournment than he would face were the Rules not in force. He requires to persuade the authority not simply where the interests of justice might lie but that the refusal of an adjournment would positively prevent the just disposal of the appeal. That is not an easy test to satisfy in circumstances where a motion is made, as here, before the authority is aware of the likely effect of any evidence to be adduced. A court or tribunal must provide a party with a fair opportunity to prepare and this will usually involve allowing him sufficient time to secure representation. But it can be difficult for a court or tribunal to do more than that. A court or tribunal cannot ensure, in the sense of guaranteeing, that a party's case is either adequately prepared or that it is properly represented. It can only afford the parties sufficient time in which to secure these objectives. Similarly, a court or tribunal cannot ensure that a litigant is properly represented. In the case of the courts, they do not have exclusive control over rights of audience and the legislature has determined, to a degree, the class of persons deemed capable of appearing. Many tribunals have no rules concerning the qualifications and capabilities of representatives. Indeed, to a degree, the purpose of establishing a tribunal to conduct cases rather than a court has, in part, been intended to relax the need for legal representation. In the field of immigration, there has been a tightening up of the rules on representation with the introduction of a registration system under section 84 of the 1999 Act (supra). However, a tribunal before which a litigant is being represented by a permitted person is seldom, other than in extreme cases, going to be in any position to judge at the time whether a person is being adequately represented or whether his case is being sufficiently put before it.

[16] If it is an asylum seeker who is moving for an adjournment in an immigration case and a refusal will leave him without representation, the court or tribunal must, of course, proceed with particular care and sensitivity given his potential vulnerability (Munby J in R v Immigration Appeal Tribunal ex parte Dirisu (supra)). But subject to the rules and the various qualifications mentioned above, adjournment remains an area where much has to be left to the discretion of the decision maker at first instance who has heard all of the circumstances and is also, no doubt, fully familiar with the problems of adjournments generally and in specific cases in the particular tribunal concerned.

[17] Looking at the circumstances of this case, the question for the Court is whether the IAT erred in refusing leave to appeal. That question too has to be answered in the context of the Rules which provide:

"18 (7) Leave to appeal shall be granted only where -

(a) the Tribunal is satisfied that the appeal would have a real prospect of success;

or (b) there is some other compelling reason why the appeal should be heard."

The grounds of appeal focused only on considerations relevant to (a). In looking at the prospects of success upon the adjournment point, the member of the IAT determining the issue of leave held that the Adjudicator had correctly directed herself as to the Rules and was entitled to have regard to the factors which she considered. On that basis he held that there was no real prospect of success. In deciding whether he was correct to do so, it is necessary to look once more at the Adjudicator's reasoning to see if there is any discernible error in her approach and upon which an appeal with prospects of success might be based. If there is then the IAT must have erred in refusing leave.

[18] There is no error in the Adjudicator's approach. She correctly looked first at the provisions in the Rules which govern procedure before her. She asked herself the correct question, namely: whether, within the general context of a need to secure the just, timely and effective disposal of appeals, she was satisfied that refusing an adjournment would prevent the just disposal of the appeal. Having done so, she took into account the various facts which were capable of objective verification. These included: the petitioner's failure to attend two interviews; the time taken to appeal; the departure of three sets of representatives; and the previous adjournment granted on the ground of late instructions. In fact, as noted above, the petitioner's case had been adjourned not once but twice. The IAT analysed the various matters and determined that the Adjudicator was entitled to take them into account. That conclusion is a sound one. The petitioner had various explanations for the failures in attendance, preparation and representation but none of these was supported by any objective evidence. In particular, there was never any medical certificate vouching ill health of the petitioner of such gravity as would have prohibited his attendance at interview or restricted his ability to prepare his case and instruct legal representation. Although ill health was re-asserted at the first hearing, the absence of a medical certificate remained a significant feature of the case.

[19] It may often seem the simplest solution for a court or tribunal to grant an adjournment when requested to do so. However, if proper regard is had to the principles to be applied, such a course can often be seen as erroneous. In this case, the objective factors were such that the Adjudicator was almost bound to refuse the adjournment. She certainly cannot be faulted for doing so and, in that regard, the IAT was correct in holding that there was no real prospect of a successful appeal against that part of her decision. In these circumstances, I will repel the petitioner's first to third pleas-in-law, sustain the respondent's second plea-in-law and refuse the prayer of the petition contained in the sixth paragraph thereof.

[20] I should add that, even if the Adjudicator had erred in refusing an adjournment, in order to demonstrate a real prospect of success, the petitioner would have to have satisfied the member of the IAT considering leave and the Court that the refusal of an adjournment had a material effect upon the proceedings which followed and that the ultimate outcome could have been different. In this case, it is not immediately obvious that the petitioner has achieved this. His complaint is that the refusal of the adjournment deprived him of representation. It is not that it resulted in the loss of evidence in the form of potential witnesses or productions. Although it was said that the representative could have presented the case in a different fashion, including the preparation of the pre-hearing precognition for adoption as evidence, it was not said that the questioning of the petitioner by the Adjudicator failed to reveal the substance of the petitioner's case or that a particular line was not properly developed or explored. It was not said that the petitioner's case was not properly before the Adjudicator for consideration. In these circumstances, had it been necessary to do so, I would have decided that it had not been demonstrated that the refusal to adjourn had a material bearing on the outcome of the case such that the IAT ought to have held that there was a real prospect of success upon appeal.