Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 25
	OPINION OF LADY SMITH in the Petition DMK Petitioner; for Judicial Review of decision by (i) the Secretary of State for the Home Department dated 30 October 2010 to remove the petitioner from the United Kingdom on 4 November; and (ii) The Upper Tribunal (Immigration and Asylum Chamber) dated 11 October 2010 Respondent: ­­­­­­­­­­­­­­­­­________________

Petitioner: Forrest, advocate; Drummond Miller LLP

Respondent: Webster, advocate; Office of the Advocate General

14 February 2012

Introduction

[1] The petitioner is a Kenyan national whose asylum application has been refused. The respondent gave directions for his removal on 30 October 2010. Those directions followed the refusal by the Upper Tribunal (Immigration and Asylum Chamber) ("UT"), on 11 October 2010, of his application for permission to appeal against a decision of the First Tier Tribunal (Immigration and Asylum Chamber) ("FTT") dated 1 October 2010.

[2] In this petition for Judicial Review, he seeks reduction of those decisions.

Background

[3] Put shortly, the petitioner claimed asylum in the UK on 24 August 2010, having entered the country on 25 February 2010 on a visitor's visa. He was detained when he claimed asylum. The basis of his claim was and is his membership of a particular social group; he claims that he is homosexual and would be at risk of persecution in Kenya.

[4] The respondent has never accepted that the claimant is a homosexual or that his claim is well founded, as was explained in her decision letter of 16 September 2010. The petitioner appealed against that decision to the FTT.

The Petitioner's Legal Advice and Assistance

[5] The petitioner was interviewed by Home Office officials for screening and asylum application purposes, on 7 and 10 September. Thereafter, the Immigration Advisory Service ("IAS") - which provides "Community Legal Advice & Representation for Immigrants and Asylum Seekers" - submitted written representations on his behalf. It seems reasonable to infer that one of their counsellors had a meeting with the petitioner at some point. By letter dated 17 September 2010 - the day after the respondent had rejected the petitioner's asylum application - S. Watkins of IAS, wrote to the petitioner "to confirm my advice relating to your decision in your asylum and human rights claim" and stated:

"IAS cannot assist you by representing you at the appeal hearing due to the fact that your initial instructions to us differed significantly from the account you provided to the Home Office. There is consequently a risk that we would breach our professional duty to the court by presenting your appeal."

[6] The counsellor indicated that he would complete and lodge an appeal form for the petitioner. He did so. The form did not, however, state that IAS was the appellant's representative. In the part of the appeal form for the details of an appellant's representative, he wrote that the appellant's representative was "to be confirmed".

[7] The letter of 17 September 2010 also strongly advised the petitioner to seek alternative representation for the appeal and enclosed a list of solicitors whom he could approach.

[8] In the event, the petitioner did not instruct representation for his appeal hearing.

The Hearing before the First Tier Tribunal ("FTT")

[9] The hearing of the petitioner's appeal took place on 24 September 2010 at Harmondsworth, Immigration Judge Chana presiding. The petitioner attended with his brother, two witnesses and a video clip which was said to show homosexual life in Kenya. The petitioner asked for an adjournment as he did not have a solicitor. He said he had formerly been represented by the IAS but they said they could no longer represent him. He did not advise why that was; on the contrary, his brother told the Immigration Judge that the reason was funding. The motion to adjourn was opposed. At paragraphs 23 and 24 of her judgment, the Immigration Judge explains how and why she determined the application to adjourn:

"23. The appellant and his brother Mathew who was in court requested for an adjournment to enable them to find legal representatives. The appellant said that he had been represented by the IAS who said that they can no longer represent him. Mr. Ashgar in his submissions said that he opposed the adjournment request and that the appellant was arrested a month ago and therefore had ample time to instruct legal representatives. He said that there are many credibility issues in the appeal and that there are no exceptional circumstances which should merit an adjournment.

24. I refused to grant an adjournment. I took into account the interests of the parties to the proceedings and the wider public interest in accordance with Rule 21 of the Asylum and Immigration Tribunal (Procedure) Rules 2005. I took into account that the Tribunal must not adjourn a hearing of an appeal on the application of the party, unless satisfied that the appeal cannot otherwise be justly determined. I was of the view that if the appellant's case was within the fast track regime and he had been arrested a month ago and had sufficient time to instruct legal representation and that his case can be justly determined today as all his witnesses were in court and could give evidence." 6/3 of process"

[10] The Immigration Judge ought to have referred to the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005, Rule 28 but parties were content to approach matters on the basis that there was, for the purposes of this case, no material difference. The relevant provisions are:

"28 Adjournment
The Tribunal may only adjourn a hearing where -

...

(c) the Tribunal is satisfied by evidence filed or given by or on behalf of a party that-

(i) the appeal or application cannot be justly determined on the date on which it is listed for hearing ...".

I would observe that it was very fair of the respondent to treat the fast track rules as being not materially different from those which were applied by the Immigration Judge since if they had been applied, it would have been open to the respondent simply to point to the fact that no 'evidence' in support of the petitioner's application for adjournment was put before her at all. It is trite that submissions are not evidence.

[11] The petitioner's brother asked if they could have an hour to discuss the case. The Immigration Judge granted that application and heard another appeal prior to returning to the hearing of the petitioner's appeal.

[12] The petitioner and his brother returned to the hearing room and his brother renewed the application for adjournment because, he said, an unnamed lawyer who they had found in the corridor had said he could represent the petitioner but needed "a few days" to take instructions. That application was refused for the same reasons as before.

[13] The petitioner gave evidence at the hearing and also adopted the content of his screening and asylum interviews. He was cross examined by the Home Office presenting officer. In the event, neither his brother or his two witnesses gave evidence; they could have done but they said they were not going to do so.

The Immigration Judge's Determination And Reasons

[14] The Immigration Judge did not believe the petitioner. She did not believe that he was a homosexual. She said:

"I have found his entire story a pure fabrication and that he is using this as a ploy to remain in this country for economic reasons" (see paragraph 45 of the Immigration Judge's reasons).

[15] She gives a clear, cogent and detailed explanation of why, on the evidence before her, she reached that conclusion. She, accordingly, found that there was no real risk of persecution if the petitioner was returned to Kenya; his real reasons for not wishing to return to Kenya were economic.

[16] An aspect of the account given by the petitioner was that he said he had been going to return to Kenya but he had received what was referred to as a letter from some unknown people claiming that his male partner in Kenya had been killed in a house fire and that people were searching for the petitioner to do the same to him. The "letter" referred to is a single sheet of paper (6/8 of process) which is undated, unsigned, typewritten and contains threats aimed at someone called "Davie" on the basis that he is a homosexual. No accompanying envelope was produced. The Immigration Judge deals expressly with the matter in her account of the petitioner's case at paragraph 21 and in her findings at paragraph 42, where she explains:

"42. The appellant claims that he was going to return to Kenya until he received a letter from some unknown people telling him that his partner had been killed in a fire and that if he was to return he would suffer the same fate. The fact that the appellant was prepared to return to Kenya demonstrates to me that he did not fear anyone in that country because he claims that he was a known homosexual in Kenya and had suffered persecution on that account. I therefore, do not find it credible that he would be prepared to return. I also do not find it credible that the appellant aid [sic] that everyone knew he was a homosexual at the market, yet his own brother Mathew did not know this until last month."

[17] The whole of the petitioner's case being covered by her conclusion, at paragraph 45 (referred to above) that his entire story was pure fabrication, it is clear that she rejected the veracity of the account of unknown persons in Kenya having written 6/8 of process and being ill disposed towards the petitioner.

[18] The Immigration Judge concluded, accordingly, that the petitioner did not have a well founded fear of persecution for a convention reason and that his removal would not breach the UK's obligations under any of the relevant conventions.

Applications for permission to appeal to the Upper Tribunal

[19] The petitioner sought permission to appeal ("PTA") to the UT from the FTT. In his application for PTA, he stated that IAS had withdrawn their services "a day before the Hearing" and that all that his brother had sought on his behalf was a further two days, which was a reasonable time; that is, his position appeared to be that three days would have been sufficient for him to secure the services of a lawyer. He asserted that because of the absence of legal representation, his case was not determined justly. He also made two criticisms of the Immigration Judge's findings which are not now insisted on. His application was refused by Immigration Judge Dr R Kekic, on 1 October 2010. Regarding the adjournment matter, he said:

"The issue of the adjournment is dealt with at paragraphs 23-26. The Immigration Judge considered Rule 21 of the procedure rules. She noted that the appellant had been detained a month ago and had ample time to obtain representation. It appears he was seeking a two day adjournment; it is unclear why he would be able to obtain representation in two days when he had not done so in a month. The appellant's grounds argue that he was represented by the IAS who withdrew representation the day before the hearing but the IAS have never been on record according to the court file; indeed the Notice of Appeal records the representative is "to be confirmed". The appellant was therefore aware, certainly when he filed his appeal, that he was without a representative and there is no evidence that he made attempts to find one."

[20] The petitioner then sought PTA from the UT. His application appears to have asserted that he had found a potential representative who, contrary to the account given to the Immigration Judge, was "present in court" and that he was denied the opportunity to speak to potential witnesses. It was considered by a Senior Immigration Judge who refused it on 11 October 2010. He considered that the Immigration Judge had carried out a careful examination of the petitioner's evidence and that the decision on the application for adjournment was a matter within her discretion which she had exercised in a manner which was open to her in the circumstances. He observed that both of the above assertions appeared to be ill‑founded, given the terms of the judgment of the Immigration Judge.

[21] Following that refusal of PTA, the respondent issued removal directions on 30 October 2010. The petitioner was thereby directed that he was to be removed from the UK on 4 November 2010. That did not occur, the petitioner having presented this petition for judicial review.

Relevant Law

[22] In England and Wales, where a decision of the UT is appealable, what are commonly referred to as "second appeal criteria" apply. Those are the criteria set by the Lord Chancellor, in exercise of the power conferred on him by section 13(6) of the Tribunals Courts and Enforcement Act 2007 ("the 2007 Act") to order that permission to appeal shall not be granted unless:

"(a) the proposed appeal would raise some important point of principle or practice; or

(b) there is some other compelling reason for the relevant appellate court to hear the appeal."
[1]

[23] The same criteria currently apply to such appeals in Scotland, by virtue of Rule of Court 41.57. I understand the vires of that rule to have been challenged recently in the Inner House in the reclaiming motion in the petition of Parveen and Khan, the decision in which is, as at the date of writing this opinion, at avizandum.

[24] The petitioner's complaint is in relation to an unappealable decision of the UT to refuse PTA
[2]. It is brought by way of application for judicial review, following the decisions of the Supreme Court in the cases of R(Cart) v Upper Tribunal (Public Law Project and another intervening)
[3]. Whilst, this being an unappealable decision, Rule of Court 41.57 does not apply, parties were agreed that the applicable principles were the second appeal criteria which I have set out above, for the reasons discussed in Cart and by Lord Hope of Craighead in Eba v Advocate General for Scotland
[4]. It was conceded by Mr Forrest that he could not argue that this case fell within the first of the criteria but he did submit that it was covered by the second one.

[25] As to the meaning and import of the second of the criteria, in Cart, Lord Dyson said:

"131. ... the second limb of the test ("some other compelling reason") would enable the court to examine an arguable error of law in a decision of the FTT which may not raise an important point of principle or practice, but which cries out for consideration by the court if the UT refuses to do so. Care should be exercised in giving examples of what might be 'some other compelling reason' because it will depend on the particular circumstances of the case. But they might include (i) a case where it is strongly arguable that the individual has suffered what Laws LJ referred to at para 99 as 'a wholly exceptional collapse of fair procedure' or (ii) a case where it is strongly arguable that there has been an error of law which has caused truly drastic consequences."

[26] Then, in Eba, Lord Hope, when concluding that the Scots approach to judicial review of unappealable decisions of the Upper Tribunal ought to align itself with that determined on in Cart, observed :

"47 ... Two factors seem to me to carry particular weight. One is the familiar point that the court should be slow to interfere with decisions that lie within the expertise of specialist tribunals. As Dyson LJ said in R(Wiles) v Social Security Comr [2010] EWCA Civ 258 para 54, the reviewing court should not be astute to detect some error in their decision to refuse leave to appeal....

48. So I would hold that the phrases 'some important point of principle or practice' and 'some other compelling reason' which restrict the scope for a second appeal, provide a benchmark for the court to use in the exercise of its supervisory jurisdiction in relation to decisions that are unappealable that is in harmony with the common law principle of restraint: see, as to how these phrases are applied in practice in England and Wales, Uphill v BRB(Residuary) Ltd [2005] 1WLR 2070, paras 17 and 24, per Dyson LJ and Cramp v Hastings Borough Council (Note) [2005] 4AllER 1014, para 68, per Brooke LJ. Underlying the first of these concepts is the idea that the issue would require to be one of general importance, not one confined to the petitioner's own facts and circumstances. The second would include circumstances where it was clear that the decision was perverse or plainly wrong or where, due to some procedural irregularity, the petitioner had not had a fair hearing at all."

[27] The context is also important and is that both second appeals and judicial review applications such as the present one arise in circumstances where there will already have been multiple determinations by separate judges of a specialist tribunal. As Lord Dyson noted in Cart, when explaining why the maintenance of the rule of law did not require unrestricted judicial review:

"123. ... there are three reasons why unrestricted judicial review of unappealable decisions of the UT is neither proportionate nor necessary for maintaining the rule of law. First there is the status, nature and role of the UT to which I have already referred. Secondly, the TCEA gives those who wish to challenge the decisions of a First-tier Tribunal ("FTT") the opportunity to have the decision scrutinised on several occasions: first when the FTT decides whether or not to review its decision under section 9(1) and (2); second, if the FTT decides not to review its decision, when it decides whether or not to grant permission to appeal to the UT under section 11(4)(a); third, if the FTT refuses permission to appeal, when the UT decides whether or not to grant permission to appeal under section 11(4)(b). The UT initially decides this on the papers. In certain categories of case, there is a right to renew the application at an oral hearing ... in any event the UT has the power, if it considers it appropriate to do so, to hold an oral hearing to decide permission ...".

[28] Accordingly, the court should be slow to interfere with the decisions of specialist tribunals and where the second of the two relevant criteria is relied on it has to be recognised that "compelling" is strong language and intended as such. A reason cannot be characterised as compelling unless it is truly a cause of grave concern such as in the examples "wholly exceptional collapse of fair procedure", "error of law which has caused truly drastic consequences", or "due to some procedural irregularity the petitioner had not had a fair hearing at all" given by Lords Dyson and Hope.

[29] It is also worth noting that a reason is not likely to be regarded as compelling if the failure of the case before the tribunal was due to the fault of the petitioner. In the case of Uphill v BRB (Residuary) Ltd
[2005] EWCA Civ 60, Dyson LJ, as he then was, referred to a compelling reason as being where it is clear that the earlier decision was "perverse or plainly wrong" (at paragraph 24(1)) and he gave an illustration of a reason that would not be compelling :

"24 ... (2) ... For example, if it is the appellant's fault that the first appeal was dismissed, because he failed to refer to the authority of a higher court which demonstrates that the decision on the first appeal was wrong, the court may conclude that justice does not require this court to give the appellant the opportunity to have a second appeal. There is a reason for giving permission to appeal, but it is not compelling, because the appellant contributed to the court's mistake."

[30] In the case of PR (Sri Lanka) v Secretary of State for the Home Department
[5], Carnwath LJ, giving the opinion of the court, referred to the "compelling reason" criteria at paragraph 33:

"The introduction of the second- appeals test in 1999, following a Court of Appeal review, was designed to ensure best use of the limited judicial resources of that court. The emphasis was to be on important points of law or principle. The alternative 'compelling reasons' test, the wording proposed by senior judges, was to be an 'exceptional' remedy, a 'safety valve'. The required value-judgment was entrusted to the court."

[31] He continued, in the same vein, at paragraph 35:

"Judicial guidance in the leading case of Uphill emphasized the narrowness of the exception. The prospects of success should normally be 'very high', or (as it was put in Cart para 131) the case should be one which 'cries out' for consideration by the court. The exception might apply where the first decision was 'perverse or otherwise plainly wrong', for example because inconsistent with authority of a higher court. Alternatively a procedural failure in the Upper Tribunal might make it 'plainly unjust' to refuse a party a further appeal, since that might, in effect, 'deny him a right of appeal altogether'. In Cart Lord Dyson, following Laws LJ, characterised such a case as involving 'a wholly exceptional collapse of fair procedure' (para 131). Similarly, Lord Hope in Eba referred to cases where it was 'clear that the decision was perverse or plainly wrong' or where 'due to some procedural irregularity, the petitioner had not had a fair hearing at all.' "

[32] Accordingly, the Court of Appeal saw no reason for adopting any different approach in immigration and asylum cases to that in Cart, Eba and Uphill which is, in the circumstances, not at all surprising. The fact that the case involves an asylum or immigration application cannot, of itself, amount to a compelling reason.

[33] Nor, I would add, is a case to be judged as "compelling" simply because the petitioner feels strongly about it. The impression given by these authorities is, rather, that it is in only exceptional cases that there will be compelling reasons - cases where the interests of justice obviously require that the decision under challenge be reviewed.

[34] Turning to the issue of representation, in the case of AK(Iran) v Secretary of State for the Home Department
[6], an immigration appeal, Sedley LJ, with whom Waller LJ and Dyson LJ agreed, said that:

"25. There is ... no inalienable right to representation."

[35] The appeal was allowed in circumstances where an Immigration Judge had not adjourned a hearing where the appellant had reasonably expected that he would have representation at his hearing but had been let down by a solicitor who had withdrawn from acting for him the day before the hearing and there was no alternative representation available. The Court of Appeal expressed concern about that late withdrawal, at paragraph 13:

"I speak, I believe, not only for myself but for the court when I say that we are concerned that any lawyer should consider it permissible, and none the less so when acting pro bono as the law centre was, to withdraw from representing a client the day before the hearing, when no alternative representation is available."

[36] The case was of some complexity and was going to involve expert evidence. The appellant did not appear to have actually asked for adjournment so the Immigration Judge did not actually consider whether or not to grant one. That too concerned the Court of Appeal ; at paragraph 22, Sedley LJ said that it had been incumbent on him, in the particular circumstances of the case - which are quite different from those of the present case - to consider whether or not to grant one. The implication is that had he done so, refused the adjournment and provided cogent reasons for doing so, then it would have been difficult to interfere with his decision. There is, however, no question of the Immigration Judge in the present case having failed to consider whether or not she should grant an adjournment and she has given clear reasons for her decision not to do so.

Submissions for Petitioner

[37] Mr Forrest submitted that the UT had erred in law (i) in holding that the decision of the FTT refusing to adjourn the hearing was procedurally unfair; and (ii) in holding that the FTT had carried out a careful examination of the petitioner's evidence.

[38] Regarding (i) Mr Forrest referred to the mention of "one month" and said that the petitioner had had "representation" (a submission which he later revised to "advice and assistance") until a week before the hearing. He had not had a month to find a lawyer to represent him. The petitioner had, he said, assumed that IAS would assist and represent him at the appeal hearing and the Immigration Judge should have assumed that the petitioner was entitled so to assume. That showed that she had fallen into error. He accepted that there was no absolute right to representation but the Immigration Judge's immediate estimate of what constitutes fairness could not be conclusive: AK(Iran).

[39] Regarding (ii) Mr Forrest submitted that the Immigration Judge was bound to make findings in respect of all material matters. The "letter" (6/8) was highly material - it was a crucial part of the petitioner's case. The Immigration Judge had not referred to it and had not taken it into account. He relied on a Canadian case: Dhillon v The Minister of Citizenship and Immigration
[7] where an application for judicial review of a decision of the Immigration and Refugee Board was granted in circumstances where it had failed to have any regard to what was accepted as being highly relevant evidence contained in three documents, two of which were letters from doctors and one of which was a letter from the "Sarpanch" of the applicant's village. Mr Forrest accepted that this was a new argument, not raised before the FTT or UT when PTA was sought. He ought, however, to be allowed to raise it, he said, because it had strong prospects of success - by which I took him to mean that there were strong prospects of the evidence in document 6/8 of process satisfying an Immigration Judge that the petitioner's account was in fact to be believed. He accepted that he had to cross a high threshold and submitted that the foregoing argument did so.

Submissions for the Respondent

[40] Mr Webster's motion was for dismissal in terms of his first plea in law, which failing that the orders sought should be refused on the basis that the respondent had not erred in law in reaching her decision of 30 October 2010 nor had the UT, in reaching theirs of 11 October 2010.

[41] He submitted that the petitioner's case wholly failed to demonstrate error of law or to come within the "safety valve" mechanism provided for by the principles in Eba. He referred to the discussion of that mechanism in Cart, Eba and PR(Sri Lanka). He referred to Uphill.

[42] Regarding the adjournment matter, the petitioner had no inalienable right to representation and the issue for the FTT was one of judgment - judgment which she exercised on the basis of an apparently misleading account since there was, according to the IAS letter, no question of the reason for their not representing the petitioner having anything to do with funding. Unlike the lawyers in the AK(Iran) case, the IAS had not let the petitioner down on the eve of the hearing and he had not had any reason to believe that they were going to represent him. Nothing in the court record indicated that he would have had such an expectation. Although the Immigration Judge referred to the ordinary rules rather than those applicable to "Fast Track" cases she applied the correct test. The petitioner was present. His witnesses were present. He gave evidence. He was questioned by the Immigration Judge. He was cross examined. There was no indication that matters would have turned out differently for him if he had been represented; his problem was credibility not the law. A balance had to be struck between the petitioner's lack of representation and the public interest in the processing of cases through the fast track system. Striking that balance was a matter for the FTT and the decision reached was well within the range of options open to the Immigration Judge. Mr Webster added an observation that, as argued, the adjournment point was somewhat different from that which had been encapsulated in the applications for PTA, which did not help the petitioner when considering whether there was a compelling reason to uphold his application for judicial review.

[43] Turning to the matter of the document at 6/8 of process, Mr Webster submitted that the case of Robinson had been overtaken by Cart and Eba and did not afford the petitioner relief for his failure to raise the issue at an earlier stage; that is, again, it weighed against accepting that there was a compelling reason for allowing judicial review. In any event, it was quite wrong to suggest that it had not been considered and concluded on by the Immigration Judge, as was evident from the terms of her written reasons at paragraphs 21,42 and 45. It could be seen that, when her reasons were read as a whole, she had plainly rejected having any reliance on it. She did not require to specifically find whether all or any of the documents put before her were genuine.

[44] Mr Webster submitted that on neither of the alleged errors of law could it be said that the petitioner had crossed the threshold of "compelling reason". The FTT had required to determine whether or not the petitioner had a well founded fear of persecution and whether or not he was at risk of serious harm, in breach of the relevant convention obligations. The issue was properly considered without error of law and even if the matters referred to did point to error it was certainly not such as meet the test.

Discussion and Decision

[45] I have no hesitation in rejecting the arguments for the petitioner. The petition is ill- founded.

[46] Regarding the petitioner's application for adjournment, there was no material before the Immigration Judge from which she could have concluded that he had instructed someone to represent him at the appeal hearing and this was not a case of last minute withdrawal or other failure by a prior representative, such as occurred in the AK(Iran) case. It was not unreasonable, in the circumstances for her to refer to the period of one month that had elapsed; the information given to her about the part played by IAS was vague. Further, the petitioner had brought his witnesses and did not suggest that there was other evidence that he needed time to gather. The hearing that was to take place was to be before a specialist tribunal where - as in most tribunals - it is not unusual for parties to represent themselves. The provision of appropriate assistance to parties in such circumstances is a routine part of the work of a tribunal judge and forms part of their judicial training. The case had been allocated to the fast track. Parties do not have any absolute right to be represented at such hearings. Those were the circumstances in which the Immigration Judge had to exercise her discretion. I cannot conclude that she did so other than in a proper judicial manner. Her ultimate decision was one which was plainly open to her in all the circumstances.

[47] Turning to the matter of the document at 6/8 of process, the petitioner's argument is not tenable. The Immigration Judge did have regard to it and the fact that she has not made an express finding in relation to its credibility or reliability is neither here nor there in the circumstances; she explains how and why it did not persuade her to accept the petitioner's account and that is what matters. Further, there were other significant reasons for her disbelieving the petitioner's "entire story" and I do not accept that the document had the potential to resolve those difficulties.

[48] I am, accordingly, not satisfied that the petitioner has shown that the FTT erred in law in any respect.

[49] Further and in any event, this is not a case where the Eba threshold, which is binding on me, is overcome. There would have to have been a compelling reason for permitting resort to the supervisory jurisdiction, it being conceded that there was no important point of principle. Regarding the adjournment matter, this is not, however, a case where it could possibly be said that the petitioner was denied a fair hearing. It is not, on any view, an exceptional case of the type envisaged by the Supreme Court in Cart and Eba.

[50] Regarding the document 6/8 of process, the point is taken late in the day. It could have been raised in one or both of the PTA applications. That certainly does not help the petitioner when it comes to considering whether or not a compelling reason exists. More significantly, however, there is nothing compelling about the argument at all. As above noted, the FTT did not fail to take account of this piece of evidence but even if she had, the weight of other evidence to support her conclusions was such that it could not be said that her decision was perverse.

Disposal

[51] I will, in these circumstances, pronounce an interlocutor dismissing the petition and reserving, meantime, all questions of expenses.