R v. Immigration Appeal Tribunal, Ex parte Mawji

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	25 November 1982
Citation / Document Symbol	[1982] Imm AR 97
Type of Decision	TH/33564/73
Cite as	R v. Immigration Appeal Tribunal, Ex parte Mawji, [1982] Imm AR 97, United Kingdom: High Court (England and Wales), 25 November 1982, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b64d18.html [accessed 4 November 2019]
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R v IMMIGRATION APPEAL TRIBUNAL Ex parte MAWJI, TH/33564/73

Queen's Bench Division

[1982] Imm AR 97

Hearing Date: 25 November 1982

25 November 1982

Index Terms:

Businessman -- Information required when making application -- Whether must specify a particular business -- HC 80 para 21.

Political asylum -- Whether the Immigration Appeal Tribunal correct in indicating its opinion of the evidence although deportation order had not been made -- HC 80 para 30.

Held:

The principal applicant, the others being his wife and child, was driven from Uganda by Amin in 1972. He first went to Pakistan, and was admitted from there to the United Kingdom on 4 October 1977 for one month as a visitor. On 28 October 1977 he applied to remain permanently; this was interpreted as an application to set up in business. In his interview at the Home Office he said that he had no specific business in mind. On appeal first to an adjudicator and then to the Immigration Appeal Tribunal he also proposed no specific business: the Tribunal, in dismissing the appeal, stated that "unless a specific business is proposed it is in our view impossible to determine whether the requirements of paragraph 21 of (HC 80) are to be met".

Held: (i) The Immigration Appeal Tribunal's approach (as set out above) could not be criticised, and was relevant, with regard to the facts in the particular case. That approach however would not be an appropriate test to apply if the words "must specify a particular business" were viewed as requiring a firm proposal identifying in detail the exact nature of the business.

(ii) The Immigration Appeal Tribunal had not erred in stating in its determination that the evidence had fallen short of establishing the necessary case, in respect of the principal applicant's claim to political asylum, even though no decision to deport had been made.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Joseph [1977] Imm. A.R. 70. R v Immigration Appeal Tribunal ex parte peikazadi [1980] Imm. A.R. 191. Fernandez v Government of Singapore and others [1971] 1 WLR 987.

Counsel:

K. S. Nathan for the applicants.

A. Moses for the respondent.

PANEL: Woolf J

Judgment One:

WOOLF J. This is an application for judicial review in respect of a decision by the Immigration Appeal Tribunal given on 30th October 1981. The application is made in respect of a husband and wife and their child, but really it is the case of the male applicant, the father, whose position has to be primarily considered, because that of his wife and child succeeds or fails with his case.

There is a long history to this matter and one has got to go back to 1972, at a time when the applicant left Uganda, having been driven out by Amin. He went from there to Pakistan and stayed in that country for five years, then he came to this country in October 1977. He was admitted for a period of one month. Having been admitted for a period of one month on 4 October as a visitor, on 28 October he made an application through his solicitor to be allowed to remain permanently. The application, which he made to be allowed to remain permanently was regarded as being an application to remain for the purpose of setting up business.

The first issue which is raised on the application is a contention that the Tribunal have adopted a wrong standard in considering such an application, in particular the Tribunal having stated, "It is our view that any application under this section, in order to be successful, must specify a particular business." It is submitted that that is a wrong approach. The second ground of application is that the Tribunal also misdirected itself in its approach to the question of political asylum. What is argued with regard to that is that the Tribunal were not, as they should have done, determining the matter on material before them, but wrongfully postponing the issue to be decided at a later stage when an attempt was being made to deport.

With regard to the first issue, it is convenient that I should say a little bit more about the material which was available as to the setting up of a business. First of all in the letter of application dated 28th October, solicitors on behalf of the applicant, having indicated that the applicant had a sum of almost @40,000 to be invested in this country in the joint names of the applicant and his brother, went on to say, "Our client has informed us that the sum invested is owned equally between himself and his brother. In the circumstances it will be apparent that our Client has more than sufficient funds so that his remaining in this country would not be a burden on the State. Our Client has stated that he would like in due course to set up a business in this country although it would be appreciated that he does not at present have a definite business in mind in view of the fact that it is only in the last few days that he has formed an intention to remain in this country on a permanent basis should he be granted permission to this effect."

He was interviewed by the Home Office in consequence of his having made that application and what happened during the course of the interview is set out in the Home Office statement. He confirmed to the Home Office representative that he wished to remain in the United Kingdom permanently in order to set up in business. "He said that when granted permission to stay here he would invest his money in a business, probably a shop which he would run with his wife; he had no specific business in mind and did not intend to join an existing business as a partner. The principal appellant could offer no evidence that he would be devoting assets of his own to any business, but did have a statement for the account which he claimed contained his assets." That is a reference again to the @40,000 to which I have already made reference.

There were two hearings before Adjudicators. The first hearing was ineffective and unsatisfactory. There was a second hearing. With regard to the second hearing I have a transcript of the evidence, in which the applicant is recorded as saying: "I might set up in business as a tobacconist," Just before cross-examination he said "I am not trained in any business. I was in charge of a farm consisting of sugar plantations and some cattle. I might go for trading, or open a small tobacconist's or supermarket. I made enquiries when I came here."

It is in the light of those passages, and the nature of the application that was being put forward, that I regard the decision of the Tribunal as having to be considered. In their decision the Tribunal said "no specific business was proposed by the appellant and there was no suggestion that he wished to join any existing business as a partner." The Tribunal set out the provision of the relevant rule, which is paragraph 21 of HC 80 and then make the statement "It is our view that any application under this section, in order to be successful, must specify a particular business. If it is not so, how can it be determined whether e.g. the applicant will be devoting assets of his own to the business proportional to his interest in it, or whether he will be able to bear his share of any liabilities the business may incur, or whether his share of its profits will be sufficient to support him and any dependants? Unless a specific business is proposed it is in our view impossible to determine whether the requirements of paragraph 21 are to be met."

There was then a reference to a decision of a previous Tribunal in the case of Kamry, where that Tribunal had said: "In our view the rules relating to businessmen... do not contemplate, and have not provided for, leave being granted to persons to remain in the general role of would-be hotelier or greengrocer or such-like. The rules provide for a person making application to set up in a specific business and to succeed in his application an applicant has to show that certain matters, set out in the rules, have been met or will be compiled with."

The general approach to the provisions of paragraph 21 have now been considered in a series of cases. There are two particular cases which provide assistance. One is the case of R v Immigration Appeal Tribunal Ex parte Joseph [1977] Imm. App. R 70 and the other is R v Immigration Appeal Tribunal Ex parte Peikazadi [1980] Imm. App. r 191. The second case approved the approach adopted in the earlier case.

What had been said by Robert Goff J in the earlier case was that in approaching rule 21, you had to adopt a broad common sense construction, it had to be looked at in the round, and with regard to certain of the matters, at any rate, in paragraph 21, no doubt they are not conditions precedent to being granted leave, they are, as was said by Lord Justice Donaldson in the later case, general criteria. I quote from page 193 of the later case, where, having referred to the fact that they were general criteria, the learned Lord Justice went on to say: "The intention is of course that the applicant shall be the controller of the business; that the applicant shall not front for somebody else; that he shall have a stake in the business so that he has an incentive to make certain that the business is viable. The Secretary of State wants to be satisfied indeed that the business will be viable and it is not being run for the benefit of others who may suddenly wind the business up or withdraw the assets, because in the end paragraph 19 of HC 82 is not directed so much to the welfare of the immigrant seeking to set up a business as to the welfare of this country. Obviously the thing has to be looked at 'in the round'."

It seems to me quite clear, on the facts of the case that I have enunciated, that no assessment could possibly be made of whether or not the applicant's proposal to set up in business was in the interests of this country or otherwise, or as to whether or not it met any of the criteria set out in paragraph 21, on the extremely limited information that the applicant had put before the Tribunal. He had only the vaguest idea of the nature of the activity he would like to embark upon. Therefore the approach of the Tribunal in this case cannot be criticised.

I would however emphasise that the approach indicated by the Tribunal is one which was relevant with regard to the facts of this case. The words "must specify a particular business" are capable of being understood in a different sense: as requiring that a firm proposal being put forward which identifies in detail the exact nature of the business which it is intended to be operated if leave is granted.

If viewed in the later sense, the statement would not be the appropriate test to apply as a general rule. The vaguer the proposal that the applicant puts forward, the more difficult it will be for him to satisfy in the round the test to be applied under rule 21. However, as has been indicated in my view by the earlier authorities, the question is one of seeing whether or not the applicant has made proposals which, when judged by rule 21, lead the Tribunal to come to a view favourable to him. Rather than regarding any particular proposal as being ruled out by some general rule, it is much the better course for the Tribunal to approach each case on the facts as against the criteria set out in rule 21, and I would not therefore wish to treat what was said by the Tribunal as being applicable otherwise than in the circumstances of this particular case.

For the reasons I have indicated, the first argument advanced on behalf of the applicant, in my view, was bound to fail before the Tribunal and is bound to fail before this Court.

Turning to the second argument, in relation to which the Tribunal said:

"Mr Nathan's submission is that this evidence is sufficient to establish that the appellant is a refugee and should be granted political asylum. However we have to consider the application under the provisions of paragraph 30 of HC 80 the provisions of which are as follows: '30. A person who does not otherwise qualify for an extension of stay may claim that, if an extension were not granted, he would have to go to a country to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Any such claim is to be carefully considered in the light of all the relevant circumstances.'

"In order to succeed under this section it was incumbent upon the appellant to show upon the balance of probabilities that -- if refused an extension -- he would have to go to a country where he had a well-founded fear of persecution for the reasons set out in the paragraph.

"In our view the evidence fell far short of establishing these requirements, even on a balance of probabilities, irrespective of whether or not the appellants were stateless. This is a matter which no doubt will receive further consideration should it become necessary to decide to make a deportation order against the appellants, as will other matters raised in this appeal such as the presence in this country of other members of the appellants' family and the fact that -- had the appellant come to this country in 1972 instead of going to Pakistan, he would probably have been allowed to stay."

Viewed as a whole, that passage of the Tribunal's decision cannot be faulted. They were not defering a decision until the applicant was the subject of deportation procedures. They were indicating on the material before them that the applicant had fallen short of establishing the necessary case under rule 30, which rule is very much an exception to the general rule. They were however leaving open the matter being reconsidered, if appropriate at a later stage under rule 50, upon deportation:

The situation was that this was a case where it was by no means clear that the appellant would have to go back, for example, to Uganda. If he had to go back to Uganda, he might well be able to show that the could bring himself within paragraph 30 of HC 80. The situation was that he had come from pakistan. The evidence before the Tribunal was that the appellant could visit Pakistan, provided he obtained a valid international passport of Uganda, for a period of up to three months' stay without a visa. It may be true that he could not get the passport. It is right that he had at that time been making use of a passport the provenance of which was, to say the least, unsatisfactory. But the Tribunal at that stage were not in a position to say that he would have to go to a country where he would have cause to fear being persecuted for the reasons set out in the rule.

The matter was a question of fact for the Tribunal. Certainly there does not seem to me to be any error of law in their approach.

I was referred to the case of Fernandez v Government of Singapore and Others [1971] 1 WLR 987 a decision of the House of Lords, in which Lord Diplock dealing with section 4(1)(c) of the Fugitive Offenders Act 1967 did make certain comments on adopting the approach of balance of probabilities in relation to that provision. The terms of that provision are different from those of the rule and what Lord Diplock was objecting to was the departure from the terms of the subsection and application of different tests from that provided for in the subsection. The same criticism cannot be made of the Tribunal in relation to this rule. They have applied the rule and have asked themselves whether the applicant has brought himself within the rule. Their decision was that he had not and I am afraid that this application in respect of the second ground must also be dismissed.

Before I leave the matter I should make it clear however that there is of course the further protection open to the appellant indicated by the Tribunal if it should be decided that a deportation order has to be made.

MR MOSES. I ask the application be dismissed and no other relief.

WOOLF J. Yes.

DISPOSITION:

Application dismissed.

SOLICITORS:

Messrs Farmer Miller & Turnsek; Treasury Solicitor.