R v. Immigration Appeal Tribunal, Ex parte Wilson Humberto Martinez-Tobon

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	24 June 1987
Citation / Document Symbol	[1987] Imm AR 536
Cite as	R v. Immigration Appeal Tribunal, Ex parte Wilson Humberto Martinez-Tobon, [1987] Imm AR 536, United Kingdom: High Court (England and Wales), 24 June 1987, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b64220.html [accessed 30 May 2023]
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R v IMMIGRATION APPEAL TRIBUNAL ex parte WILSON HUMBERTO MARTINEZ-TOBON

Queen's Bench Division

[1987] Imm AR 536

Hearing Date: 24 June 1987

24 June 1987

Index Terms:

Evidence -- explanatory statement containing hearsay -- whether appellate authorities are under a duty to enquire into veracity of all such statements -- whether they are obliged to make findings thereon -- whether in s 19(2) of the 1971 Act, 'may' means 'must'. Immigration Act 1971 s 19(2).

Held:

The applicant had appealed to the Immigration Appeal Tribunal against the decision of the Secretary of State to deport him under s 3(5)(b) of the 1971 Act. The applicant had been convicted of knowingly being concerned in the evasion of the prohibition on importation of cocaine and sentenced to four years' imprisonment. The Explanatory Statement before the Tribunal included the statement that the Secretary of State had noted 'that the appellant was believed to be a member of an organised drug smuggling operation'. That assertion the applicant had at all times denied, albeit he did not challenge the statement before the Tribunal.

The Tribunal made its decision solely on the basis of weighing the gravity of the offence for which he was sentenced against the factors in favour of the applicant. It took no account of that hearsay assertion. Nevertheless before the Court, counsel for the applicant submitted that in discharging its function under s 19(2) of the 1971 Act, the Tribunal was obliged to enquire into the truth of the assertion that the applicant had been a member of a group engaged in drug smuggling, and make a finding on it.

Held

1 The mere fact that there is in the explanatory statement, a statement of belief based on a hearsay assertion does not create a duty on the Tribunal to enquire into its veracity or make a determination as to whether it has any or no foundation.

2 Under s 19(2) the Tribunal would have the power to do so, but no obligations.

3 In the events which had happened in the instant case, where the applicant had not challenged the assertion before the Tribunal there was 'no duty' or obligation of any sort on the Tribunal to make any enquiry of its own volition.'

4 There were no grounds on which the Tribunal's determination could be attacked on Wednesbury principles.

Cases referred to in the Judgment:

Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680.

R v Immigration Appeal Tribunal ex parte Weerasuiya [1982] Imm AR 23: [1983] 1 All ER 195.

Counsel:

A Riza for the applicant;

R Jay for the respondent.

PANEL: Otton J

Judgment One:

OTTON J: This is an application for judicial review by Wilson Humberto Martinez-Tobon in respect of a decision of the Immigration Appeal Tribunal dated 2 December 1985 dismissing the applicant's appeal against the decision of the Secretary of State to deport the applicant. By its very nature this is a serious matter for the applicant.

The relevnt history can be briefly stated. The applicant is a citizen of Colombia. He arrived in the United Kingdom on 22 January 1974 and was granted leave to enter for a period of six months as a visitor. He received an extension in that capacity and embarked on 16 September 1974. On 20 September 1974 he re-entered holding a work permit for employment as a waiter. He was granted leave to enter for a further period of twelve months. He was granted sucessive extensions thereafter. He was joined by his wife and two daughters. On 28 July 1978 they were granted indefinite leave to remain on the basis of his four years in approved employment. He was subsequently joined by his three sons, who were granted indefinite leave to remain on 5 January 1979.

Unfortunately, on 13 June 1984 the appellant was convicted in the Crown Court at Snaresbrook of the offence of knowingly being concerned in the evasion of the prohibition on the importation of a controlled drug, namely cocaine. He was sentenced to four years' imprisonment. On that occasion the trial judge made no recommendation for his deportation. His sentence was confirmed by the Court of Appeal on 24 November 1984.

On 24 May 1985 the Secretary of State took a decision to make the deportation order against the applicant by virtue of the provisions of section 3(5)(b) of the Immigration Act 1971, and gave direction for his removal to Colombia. The applicant, as was his right, appealed against the decision and the directions to the Immigration Appeal Tribunal. The Tribunal considered the matter and when it came before them on 15 November 1985 it heard evidence and, on 2 December 1985, delivered its decision in the following terms:

"The appellant has been convicted of a very serious criminal offence. We have taken into account the probation officer's report and the representations on the appellant's behalf. We accept that the appellant might initially have some dificulty in finding employment in Colombia.

"In our judgment when the public interest is balanced against the compassionate circumstances of the case deportation is the right course on the merits."

It is appropriate to state briefly the circumstances which led to the applicant's conviction. The cocaine in question had a street value of about @3,000. It was sent by letter post addressed to the applicant at the restaurant where he was employed as a waiter and barman. The package was intercepted by Her Majesty's Customs and Excise. Although he made no admissions the applicant was considered by customs officers to be a member of an organised smuggling operation. Stating that, I read from paragraph 2 of the Home Office explanatory statement which was given in September 1985.

The relief sought is for an order of certiorari to bring before this Court and quash the decision of the Immigration Appeal Tribunal dismissing his appeal against the decision of the Secretary of State to deport. He further seeks an order of mandamus directing the Immigration Appeal Tribunal to reconsider his case.

Mr Riza has appeared on behalf of Mr Martinez-Tobon and has advanced a persuasive and succinct argument on his behalf. He takes as his starting point the decision letter dated 30 August 1985 from which I have already quoted. In particular he takes paragraph 11, which reads as follows:

"In accordance with HC 169 paragraph 156, the Secretary of State then carefully considered the appellant's position in the United Kingdom including every relevant factor known to him. The appellant was 43 years of age and had been resident in the United Kingdom for eleven years. He had a good employment record, having been in work for most of the time since September 1974 and it was likely in view of his age and the situation in Colombia that it would be difficult for him to find employment if he were required to return there. He had a strong connection with the United Kingdom in that his family had obtained settlement here in line with that which he had attained after four years in approved employment, his children had also completed their secondary education here, spoke English and had friends here. Furthermore, the appellant had claimed that he sent money for the support of his elderly father and invalid brothers. Nevertheless, the Secretary of State considered that the offence for which the appellant had been convicted was an extremely serious one; he noted that the appellant was believed to be a member of an organised drugs smuggling operation; he had involved his employers by having the drugs sent to his place of work, and the rest of the family were largely dependent on public funds. Furthermore, the trial judge had indicated that, had he been aware at the right time of the appellant's liability to deportation, he would have considered making a recommendation to this effect. In these circumstances, the Secretary of State was not satisfied that the compassionate circumstances were such as to outweigh the public interest and he decided to deport the appellant . . .

The most important part of that paragraph is the sentence which begins:

"Nevertheless the Secretary of State considered that the offence for which the appellant had been convicted was an extremely serious one; he noted that the appellant was believed to be a member of an organised drug smuggling operation . . . "

Mr Riza argues that that latter part of the sentence is an assertion of belief based on hearsay at best; presumably, from information provided by her Majesty's Customs and Excise officials. He points out that the applicant was never charged with any offence of conspiracy, his sole offence was being knowingly concerned in the evasion of th prohibition on importation of a Class

A drug. There was no evidence to support the contention or belief that the applicant was a member of an organised drug smuggling operation. He further points out that that was always denied by the applicant.

That being the position, Mr Riza submits that when the matter came before the Tribunal it had a duty to decide the question of whether or not the applicant was in fact a member of an organised group as had been stated. In support of that submission he relies, first of all, on the language of section 3(5)(b) of the 1971 Act, which reads as follows:

"(5) A person who is not patrial shall be liable to deportation from the United Kingdom -- (a), if having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; or (b) if the Secretary of State deems his deportation to be conducive to the public good . . . "

Mr Riza submits that there is a distinction between (a) and (b); in the latter case there is a burden upon the Secretary of State to satisfy the Tribunal on the balance of probabilities that his deportation is conducive to the public good and, Mr Riza contends there was a similar burden upon the Secretary of State, in so far as he relied upon the belief; to satisfy the Tribunal that the applicant was in fact a member of an organised ring. A mere assertion based on hearsay did not discharge either burden. In support of that contention and submission Mr Riza relies in addition on the 1984 Procedure Rules, Cmd 2041 and HC 169, in particular paragraphs 154 to 166. He also drew my attention to the well-known authority of Khawaja and the decision of Webster J in R v Immigration Appeal Tribunal, ex parte Weerasuriya [1983] 1 All ER 195. I need only refer to the headnote, which reads:

"Where an appellant gives notice of appeal under Part II of the Immigration Act 1971 against a decision of the Secretary of State to refuse the appellant leave to enter the Unied Kingdom or to grant him only conditional leave to enter or to deport him as an overstayer, an explanatory statement of the facts made by the Home Office pursuant to r8(1) of the Immigration Appeals (Procedure) Rules 1972 is not merely a pleading setting out the Secretary of State's case but is evidence in the case which may be acted on as such by the immigration adjudicator and the Immigration Appeal Tribunal.

"Having regard to the jurisdiction of immigration adjudicators as set out in s19(1) of the 1971 Act, an appeal to an adjudicaor is not an extension of the Secretary of State'as administrative function in arriving at a decision but is instead a process for enabling the Secretary of State's decision to be reviewed. Accordingly, an adjudicator has no power to admit evidence of facts which came into existence after the Secretary of State made his decision."

Thus, in a nutshell, Mr Riza submits firstly that here was an obligation on the part of the Immigration Appeal Tribunal to come to a decision and make a finding one way or the other that he was a member of such a ring, because it was sitting in its capacity as a review body not as anoriginal or administrative body. He contends that section 19(2) creates such an obligation and, where a serious matter such as this was before the Tribunal, although the word "may" is used in that subsection it should be read as a mandatory provision. He goes on to submit that in the circumstances this in itself is sufficient to impagn the decision of the Immigration Appeal Tribunal, that I should set it aside, and that it is fit to be impugned on the well-known grounds known as the

Wednesbury principles. In short, it was a flawed decision in which the Tribunal took into account not merely an irrelevant matter but one which it had never investigated and which it had never satisfied itself about one way or the other.

Mr Jay, on behalf of the Tribunal, submits that the Immigration Appeal Tribunal when arriving at its decision, made no finding at all and made no reference to the assertion that he was a member of such an organisation. He contends that it was under no obligation to do so. It was entitled to, and did, deal with the matter on the basis that this was a serious criminal offence, and came to the conclusion that the fact alone was in itself sufficient to outweigh the compassionate grounds. Secondly, he submits that the draughtsman used the word "may" and not "must" in section 19(2) and this did not create a statutory duty to review the facts in the Secretary of State's letter, only a power to do so. It is thus appropriate to look at section 19(2) which provides as follows:

"For the purposes of subsection (1)(a) above the adjudicator may review any determination of a question of fact on which the decision or action was based; and for the purposes of subsection (1)(a)(ii) no decision or action which is in acordance wcith the immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of State . . . "

Thirdly, Mr Jay contends that there was a power only to review the finding or assertion and this was not in any sense mandatory and it was not necessary for the Immigration Appeal Tribunal to make a finding one way or the other, as they clearly did not.

I have considered those submissions with great care, particularly in view of the persuasive way in which Mr Riza advanced his argument. I have come to the conclusion, however, that I must reject Mr Riza' contentions. I am satisfied that the decision letter was placed before the Immigration Appeal Tribunal in the normal course of events, and that it was not merely a "pleading" but was evidence in the case. However, when one looks at the wording of that letter it is quite clear that after the semi-colon in that sentence it merely states, "he noted that the appellant was believed to be a member of an organised drug smuggling operation".

I must reject the primary contention of Mr Riza, and I am satisfied that the mere fact that here is a statement of belief based on ahearsay a ssertion does not create a duty on the Immigration Appeal Tribunal to enquire into its veracity or to make a determination as to whether it has any or no foundation. Section 19(2) on a proper construction, in my judgment, does empower, the Immigration Appeal Tribunal to enquire if it chooses to do so, but there was no obligation to do it under the Act and there was, in my judgment, no obligation on it to do so in the particular circumstances of this case. It chose not to make such an enquiry and it was entitled so to act. It is, however, clear from its decision and the way it is expressed that the Tribunal did not take the assertion into account or allow it to form any part of the considertion. This is not surprising when one bears in mind, looking at the decision as recorded in the bundle and from the notes of evidence which were made available to Mr Riza in the course of the hearing that at no stage did theapplicant ever take upon himself the task of disproving or challenging the assertion or belief set out in the Secretary of State's letter. In the absence of any initiative on his part I can see no duty or obligation of any sort on the Tribunal to make any enquiry of its own volition.

The Tribunal clearly took as the sole reason the seriousness of the offence. It matters not whether one qualifies the word "seriousness" with the epithet "exceptionally", as did the Secretary of State, or "very" as did the Tribunal. Reading the rest of the sentence after the semi-colon it is quite clear that the belief was separate from the circumstances of the offence itself as I have described them to be, without the belief. The decision was based on that fact alone, and the Tribunal balanced that fact against the various compassionate considerations which were brought to its attemtion. Speaking for my part, I found them very powerful compassionate considerations, but the decision arrived at by the Tribunal was not assailable on Wednesbury principles. It was not an irrational or unreasonable decision to say that the circumstances of the offence were so serious that they outweighed those powerful compassionate considerations. On any basis this was a serious offence, both from its intrinsically serious nature involving Class A drug, cocaine, and also the circumstances in which the offence was committed. In my judgment, this was sufficient in itself to meet the criteria laid down in section 3(5)(b). IN so far as there was a burden of proof on the Secretary of State then it is clear, in my judgment, that that burden was discharged and that the Tribunal did not err in principle or in law.

Mr Riza makes two further but subsidiary points. the Secretary of State in his letter appears to have taken into account the indication given by the trial judge that, had he been aware at the right time of the applicant's liability to deportation, he would have considered making a recommendation to this effect. Mr Riza submits that this is an irrelevant consideration. The Court is empowered to make a recommendation or to decline to make one. That is in fact what was recorded on the face of the document. Any indication as to what the judge might have done in certain circumstances, he submits, is irrelevant. In so far as the Secretary of State relied upon that assertion by the judge, Mr Riza says that he erred in law in taking it into account. I have come to the conclusion that there is no substance in that submission. The subject matter of this application for judicial review is the decision of the Immigration Appeal Tribunal and not the reasoning of the Secretary of State. It is quite clear that the Immigration Appeal Tribunal did not take that matter into account in arriving as its conclusions. In any event, in so far as they refer to it, they merely state that the trial judge made no recommendations. As a fact this was in the applicant's favour.

Finally, Mr Riza takes exception to the passage at page 28 of the determination and reasons of the tribunal, which proceeds as follows. At the top of the page it says

"The matter falls to be considered in the light of paragraphs 159 and 156 of HC 169" -- those paragraphs are set out, and the passage then proceeds

" --, The appellant's age is a neutral factor. He has been settled in the United Kingdom for a comparatively short time."

It then goes on to record other compassionate circumstances. Mr Riza contends that it would appear that the Tribunal has erred in law in stating that the man had been settled in the United Kingdom for a comparatively short time. He points out that in paragraph 156 the relevant factor is the length of residence in the United Kingdom and not of settlement. If the correct criterion is applied the length of residence was eleven years, whereas if all that was considered was the period of settlement then the Tribunal was looking at no more than a period of some six to seven years. I have come to the conclusion that I must reject it. There could have been no misapprehension on the part of the Tribunal as to the history of this man's immigration and its character and length. It may well be that the length of residence was eleven years and that technically he only become settled in 1978 and thus he had been settled in this country for the shorter period, but there is a clear reference to the time when he first come to the country some eleven years previously. In so stating that part of the case, I doubt whether the Immigration Appeal Tribunal was using the word "settled" in any technical sense. I am satisfied that it cannot be said that they applied the wrong test. It is to be noted also that in the Secretary of State's letter he makes a clear reference to residence in this country for a period of eleven years. In those circumstances I am not satisfied that the Appeal Tribunal erred in law, or that its conclusions or determinations were flawed in any way.

For thsoe reasons I must reject this application. I do so with a heavy heart, because I am fully aware of the serious implications of my decision, but I cannot find any flaw in the process which led to this current decision.

Therefore, this application is dismissed.

DISPOSITION:

Application dismissed.

SOLICITORS:

Karim-Laxman, London W1; Treasury Solicitor.