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R (SARKISIAN) v. IMMIGRATION APPEAL TRIBUNAL [2001] EWHC Admin 486 (28th June, 2001)
Neutral Citation Number: [2001] EWHC Admin 486
IN THE HIGH COURT OF JUSTICE CO/3392/2000
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE MUNBY
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 28th June 2001
Before:
MR JUSTICE MUNBY
- - - - - - - - - - - - - - - - - -
R (SARKISIAN)
v
IMMIGRATION APPEAL TRIBUNAL
- - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - -
Ms Frances Webber appeared on behalf of the claimant
Mr Michael Fordham appeared on behalf of the Secretary of State
- - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE MUNBY:
1 Alina Sarkisian is an Armenian. She arrived in the United Kingdom on 10
October 1995 and made an application for leave to enter as her husband's
dependant. On 11 October 1995 she made a voluntary departure to Germany. On 7
April 1997 she returned to the United Kingdom and made, on her arrival, an
application for asylum in her own right. For reasons contained in a letter
dated 25 March 1998 the Secretary of State refused her asylum and certified her
claim as one to which paragraph 5(4)(a) of Schedule 2 to the Asylum and
Immigration Appeals Act 1993 (as amended) applied and paragraph 5(5) did not
apply. On 13 May 1999 her appeal was allowed by the Special Adjudicator (Mr J G
MacDonald). The Secretary of State applied for leave to appeal to the
Immigration Appeal Tribunal. On 18 June 1999 the Tribunal (Professor D C
Jackson) granted the Secretary of State leave to appeal. On 25 April 2000 the
Tribunal (Chairman: Mr J R Disley) allowed the Secretary of State's appeal to
the extent of directing that it be remitted to an adjudicator other than Mr
MacDonald for hearing de novo. On 22 November 2000 Harrison J granted the
applicant permission to apply for judicial review to quash that decision. The
application came on for hearing before me on 19 June 2001.
2 In the light of the recent judgment of Scott Baker J in R (Secretary of
State for the Home Department) v Immigration Appeal Tribunal [2001] EWHC Admin 261 (2001) Times June 12, Ms Frances Webber on behalf of the
applicant does not dispute the power of the Tribunal to make the order it did.
She challenges the manner in which, in this case, the Tribunal chose to
exercise its powers.
3 The Tribunal's powers in this respect were at the relevant date governed by r
17(2) of The Asylum Appeals (Procedure) Rules 1996. Those rules, made by the
Lord Chancellor pursuant to the powers vested in him by section 22 of the
Immigration Act 1971, came into force on 1 September 1996. Rule 17(2), which
has since been replaced by the materially identical r 23 of The Immigration and
Asylum Appeals (Procedure) Rules 2000, provided as follows:
"Unless it considers -
(a) that it is necessary in the interests of justice, and
(b) that it would save time and avoid expense
1(b) that it would save time and avoid expense(b) that it would save time and
avoid expense
to remit the case to the same or another special adjudicator for determination
by him in accordance with any directions given to him by the Tribunal, the
Tribunal shall determine the appeal itself."
4 Ms Webber contrasts that language with the language which was previously to
be found in r 21(1) of the Immigration Appeals (Procedure) Rules 1984 and r
17(3) of the Asylum Appeals (Procedure) Rules 1993, where the Tribunal's power
to remit was expressed as arising if the Tribunal considered it "appropriate"
to do so. She submits, and this must be right, that the test in r 17(2) is more
stringent.
5 On this point Ms Webber has referred me to the judgment of Maurice Kay J in
R v Immigration Appeal Tribunal ex p Lou Bogou [2000] Imm AR 494. In
that case an unrepresented appellant sought an adjournment from the special
adjudicator. The special adjudicator refused, concluding that it was not
necessary for the just disposal of the appeal and that he therefore had no
discretion to grant it. In those circumstances the judge had to consider the
contrast between r 10(1) of the 1993 Rules (which conferred on a special
adjudicator power to adjourn "upon being satisfied that there is good cause for
the adjournment") and r 10 of the 1996 Rules (which provided that a special
adjudicator "shall not adjourn a hearing unless he is satisfied that an
adjournment is necessary for the just disposal of the appeal" and further
required the special adjudicator to have "particular regard to the need to
secure the just, timely and effective conduct of the proceedings"). The judge
commented at p 496 (para 4) that the later rule was "undoubtedly more
stringent" than the earlier one.
6 At pp 494-495 (paras 5-6) Maurice Kay J said this:
"In the present case the special adjudicator was clearly aware of this change.
He stated:
"The words `shall not adjourn' in sub-rule (1) are mandatory. Adjournment is
prohibited unless I am satisfied of its necessity for the just disposal
of the appeal. I have no discretion as to whether to grant an adjournment
unless its necessity for that purpose is established. The use of the
word `necessary' indicates that the test is more stringent than if the word
`desirable' or `appropriate' had been used. Even bearing in mind the potential
gravity in an asylum appeal, if a wrong decision is made, (and it is
inconceivable that the potential consequences were not in the draftsman's
mind), `necessary' cannot be equated with `desirable' or `appropriate'.
`Necessary' must be given its ordinary and natural meaning. I had in mind the
general desirability that any asylum appellant should be represented, if that
is his wish, but as I have indicated, `desirable' is not the test. The question
is whether it is, necessary for the just disposal of the appeal that Mrs Bogou
should be represented."
In the course of his submissions Mr Fripp described that analysis by the
special adjudicator as "over academic and legally erroneous". I do not agree
with his submission. In my judgment the analysis by the special adjudicator was
rigorous and correct."
7 Another part of the judgment is equally important. The judge recorded at p
498 (para 9) the submission of counsel that the authorities in the Tribunal
pointed to a general presumption in favour of representation and of the
granting of adjournments to facilitate it and counsel's further submission that
the approach of the special adjudicator had been flawed by his failure to refer
to those authorities. Having referred himself to those authorities Maurice Kay
J continued at p 499 (para 14):
"In my judgment there are curious features about this series of Tribunal
decisions. One is that Ajeh has continued to permeate them, no reference
being made to the fact that it was decided under the 1993 Rules and not the
more stringent 1996 Rules. Secondly, in none of the decisions is reference
expressly made to rule 10, either in its 1993 form or in its 1996 form. Nowhere
is rule 10 subjected to the kind of analysis to which the special adjudicator
subjected it in the present case. As I have said, I consider his analysis to
have been entirely correct. In these circumstances, I do not accept that
representation is a matter of presumption, nor is it axiomatic. There will be
cases where it will be necessary to adjourn an appeal because the just disposal
of the case requires representation. There will be other cases where it does
not. What is most important is that special adjudicators have regard to the
provisions of rule 10 of the 1996 Rules and that they do not simply regard the
situation as one of discretion or presumption."
8 If I may I should like to express my vigorous support for Maurice Kay J's
approach. The task of the Tribunal in a case such as this is to have regard to
and apply the provisions of r 17(2) or, as it now is, r 23. Whatever the
blandishments of advocates the Tribunal should resist the temptation to depart
from the statutory language. The search for some seemingly appropriate synonym,
for example, a synonym for the statutory word "necessary", merely encourages
ultimately sterile semantic debate and exposes litigants to the risk that the
matter is being decided not by reference to the statutory criteria but by
reference to some other and impermissible test. Likewise, for the reasons so
cogently expressed by Maurice Kay J, the temptation to have recourse to
presumptions, assumptions, starting points, or other similar expressions, call
them what one will, is in my judgment to be resisted. All I would add is that
the reference in r 17(2) to the "interests of justice" must be to the interests
of justice as seen not merely from the no doubt differing perspectives of the
individual asylum seeker and the Secretary of State but also in the wider
context of the public's interest in the proper administration not only of
justice in the abstract but also and particularly of justice in this discrete
area of the law. Likewise the reference in r 17(2) to "time and expense" is a
reference not merely to the time and expense of the parties but also to the
"time" of the special adjudicators and the Tribunal and the "expense" to the
public of funding the asylum appeal system.
9 Ms Webber submits that r 17(2) creates what she calls a presumption against
remitter, a presumption that the Tribunal will hear the appeal itself. With all
respect to her argument I do not think that is quite the correct way of putting
it. The rule provides in mandatory terms ("the Tribunal
shall determine the appeal itself") that there is to be no
remitter "unless it considers" that certain conditions are satisfied
(emphasis added). It follows that the first thing the Tribunal has to do is to
decide whether or not it
"considers - (a) that it is necessary in the interests of justice and (b) that
it would save time and avoid expense to remit the case ... "
If it does not so consider, then that is the end of the matter; the Tribunal
will have no power to remit and will be required to determine the appeal
itself. If, on the other hand, it does so consider, then the Tribunal will have
power to remit; indeed, given the matters of which, ex hypothesi, it will in
those circumstances be satisfied it will almost inevitably decide in such a
case to remit.
10 Having got to that point the Tribunal will then have to decide whether to
remit the case to the same special adjudicator or to another special
adjudicator. The manner in which that discretion is to be exercised is not
spelt out in so many words in r 17(2). But Ms Webber and Mr Michael Fordham,
who appears for the Secretary of State, are at one in submitting, and I agree,
that by implication r 17(2) requires the Tribunal, once it has determined that
there is to be a remitter, to decide to whom that remitter should be by
reference to the same criteria: that is, by reference to what the interests of
justice necessitate and paying proper regard to the fact that the saving of
time and avoiding of expense is not merely one of the statutory factors
referred to in r 17(2) but is itself a very important aspect of the
administration of justice. No doubt, in an appropriate case, the consideration
of that question may be closely intertwined with consideration of whether the
Tribunal should be giving any, and if so what, directions to the special
adjudicator, including, it may be, directions designed to limit or define the
ambit of the remitted hearing.
11 Ms Webber's case can be summarised as follows: (1) Given the terms of r
17(2) the Tribunal should have dealt with the matter itself rather than
remitting the case. (2) Alternatively, and particularly in the light of its own
case-law, the Tribunal should have remitted the case to Mr MacDonald and not to
another special adjudicator.
12 In relation to the second point Ms Webber helpfully took me through a number
of decisions of the Tribunal, which she relied on as supporting two
propositions. On the one hand, she said, remitter for a hearing de novo before
another special adjudicator is the rule when a determination of a special
adjudicator is utterly vitiated by such matters as procedural unfairness, a
failure to make findings as to credibility, findings as to credibility which
are unreasoned or irrational, or such delay in promulgating a determination as
to render factual findings unsafe. On the other hand, remitter to the same
special adjudicator is, she says, the norm when the historical facts relating
to the appellant are fairly and rationally decided but the special adjudicator
has failed to deal with a particular aspect of the case (such as the
possibility of internal relocation) or fresh evidence has come to light which
might have a bearing on the determination (such as relevant medical evidence,
or further country information which may cast fresh light on a decision that a
fear of persecution is or not well-founded).
13 Now I entirely accept that the authorities to which Ms Webber directed my
attention suggest that frequently - indeed it may even be typically - cases of
the kind she has identified will be dealt with by the Tribunal in the manner
she describes. That said I find these authorities of very limited value to the
task with which I am concerned. In the first place, many of the decisions of
the Tribunal were in fact with the consent of both parties. Moreover, and in
this respect my reaction to the Tribunal authorities I was shown is somewhat
similar to the reaction of Maurice Kay J to the authorities he was shown, it is
a fact that hardly any of these decisions contained any reference to r 17(2) or
even any reference, however oblique, to the language of r 17(2). Furthermore,
with only one possible exception, to which I shall refer shortly, none of these
authorities as I read them even purported to state or apply any particular
principle or approach.
14 All that said, there is, as it seems to me, a more fundamental difficulty in
seeking to use such decisions in the way in which Ms Webber would have me use
them. To say that because in a particular class of case the Tribunal very often
or usually comes to a particular decision it therefore follows that in such
cases it ought to come to that decision is not merely to stand legal logic on
its head but to fall into precisely the kind of error exposed by Maurice Kay J
in Bogou. The task of the Tribunal in every case is to apply the
statutory criteria. The danger of all attempts, however careful, to construct
some gloss to the statute out of what is said to be the jurisprudence of the
Tribunal (particularly, I might add, if there is nothing to suggest that the
Tribunal saw itself as embarked upon any such task) is precisely that one ends
up with the kind of "presumption" (the word used in Bogou by Mr Fripp)
or the kind of "rule" or "norm" (the words used by Ms Webber) the application
of which is for the reasons given by Maurice Kay J calculated to lead one into
the error of not in fact applying the statute.
15 Ms Webber referred me to the decision of the Tribunal in Secretary of
State v Doutlik (1998) HX/66367/96(16152) where, in explaining its decision
to remit a case for hearing before the same special adjudicator, the Tribunal
said:
"As we indicated to the parties at the hearing, we think the appropriate course
in this appeal is remittal. The adjudicator, Mr Poole, does not appear to have
been asked to consider the appellant's claim as based on present unwillingness
owing to a well-founded fear of persecution for a Convention reason. The point
on which he made his decision is essentially discrete. He made a
clear finding of credibility in favour of the claimant, and it is right that
she should retain the benefit of that whilst her appeal is further
considered. For these reasons we have decided to remit this appeal to Mr
Poole."
Understandably Ms Webber placed reliance on the words I have emphasised.
16 Now I entirely recognise that this particular factor is one which often -
indeed it may be very often - will operate as a more or less powerful reason
why the Tribunal should decide to remit to the same special adjudicator. But
that is all. If I may adopt Maurice Kay J's language, in a case such as
Doutlik remitter to the same special adjudicator is neither a matter of
presumption nor is it axiomatic, any more than is the need for representation
in a case such as Bogou. There will be cases where the matter should be
remitted to the same special adjudicator because that is what the interests of
justice necessitate. There will be other cases where it does not. Whether in a
particular case there ought to be such a remitter can only be determined by an
application of the statutory criteria to the circumstances of the particular
case, and that is a task entrusted not to this court but to the Tribunal. This
court can interfere with the Tribunal's decision only if satisfied that the
Tribunal has fallen into judicially reviewable error.
17 In approaching that question I think it useful to recall the passage in the
speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360
at p 1372G where he said that judicial reasons
"should be read on the assumption that, unless he has demonstrated the
contrary, the judge knew how he should perform his functions and which matters
he should take into account. This is particularly true when the matters in
question are so well known as those specified in section 25(2). An appellate
court should resist the temptation to subvert the principle that they should
not substitute their own discretion for that of the judge by a narrow textual
analysis which enables them to claim that he misdirected himself."
That was an appeal relating to matrimonial ancillary relief, hence Lord
Hoffmann's reference to section 25(2) of the Matrimonial Causes Act 1973. But
the principle is of general application to all courts exercising appellate
functions and in similar fashion to courts exercising the supervisory role of
judicial review.
18 I recognise, of course, that every asylum case demands the most anxious
scrutiny from the court. But that does not mean that the court should strive by
tortuous mental gymnastics to find error in the decision under review when in
truth there has been none. The concern of the court ought to be substance not
semantics. As Sullivan J said in R (Puspalatha) v Immigration Appeal
Tribunal [2001] EWHC Admin 333, when referring (at para 43) to the special
adjudicator:
"In my judgment it is very important that special adjudicators' determinations
are read as a whole in a common sense way. It is not appropriate to focus on
particular sentences and to subject them to the kind of legalistic scrutiny
that might perhaps be appropriate in the case of a statutory instrument,
charter party or trust deed."
I agree. In my judgment, moreover, when dealing with an expert body such as the
Tribunal, this court is entitled to assume that the Tribunal understands not
merely how it should perform its functions but also which matters the relevant
statute requires it to take into account, unless, that is, there is something
in the Tribunal's reasoning to indicate the contrary.
19 I return to the facts of the present case.
20 In his decision letter dated 25 March 1998 the Secretary of State rejected
the applicant's claim that she was entitled to asylum, a claim that has
throughout been based on what she says is a well-founded fear of persecution as
a member of her husband's family based on his suspected connection with the
ARF, the Armenian Revolutionary Federation, also known as Dashnak. The
Secretary of State pointed to certain matters which he said (paragraphs 8 and 9
of the decision letter):
"cast severe doubt on the credibility of your claim and thereby your general
veracity"
and
"gave rise to the most compelling doubt as to your credibility as an asylum
seeker and your general veracity."
He concluded (paragraphs 4 and 11) that the applicant's claim was based rather
on fear of return because of the war and the resulting economic situation and
that her motivation was a desire for economic betterment and not a fear of
persecution. He said (paragraph 5) that those who had threatened the applicant
were simply engaging in criminal activities and therefore could not be regarded
as `agents of persecution'.
21 The special adjudicator was critical of the Secretary of State's
conclusions. He said:
"In my view there is no basis for the Home Office concluding that the appellant
has a fear of return to the conflict referred to and the resulting economic
situation ... In my view there is no proper factual basis for the Home Office
suggesting that the appellant was applying for asylum purely for economic
betterment."
He held that those threatening the applicant should be regarded as agents of
persecution. It is apparent that he treated the ARF as still being "suspended"
at the date of his Determination (13 May 1999).
22 The special adjudicator concluded as follows:
"In my view the current objective evidence backs up the fear of the appellant
that she would be likely to suffer persecution if she was returned to
Armenia.
Looking at all the evidence my conclusion is that the appellant has proved she
had a well-founded fear of persecution for reasons already stated if she is
returned to Armenia."
23 The Secretary of State, as I have said, sought leave to appeal, the only
ground of appeal being that:
"The Special Adjudicator erred in finding that the ARF was suspended at the
date of the hearing. Following President Ter-Petrosian's resignation in
February 1998, the ARF was permitted to register and many political prisoners
were released (a copy of the Amnesty International report concerns in Europe
January - June 1998 is attached). The appellant, as the wife of a man imputed
to be a member of ARF, is not likely to suffer persecution if returned to
Armenia."
As Ms Webber points out, the Secretary of State did not seek to challenge the
special adjudicator's findings either as to the applicant's credibility or in
relation to events which had taken place prior to her departure from Armenia in
1995. His complaint was simply that the special adjudicator had proceeded in
ignorance of what had happened in Armenia in and since February 1998 and that
this accordingly vitiated his finding that the applicant had a well-founded
fear of persecution if she was returned to Armenia, that is, returned in 1999.
Leave, as I have said, was granted.
24 When the Secretary of State's appeal came on for hearing before the Tribunal
the applicant was represented by Ms Beach of counsel and the Secretary of State
by the Home Office Presenting Officer, Mr Jones. It appears from the
contemporaneous attendance note of the hearing prepared by the applicant's
legal representative that the applicant's submission was that the case should
be dealt with by the Tribunal, in the alternative that the case should be
remitted to Mr MacDonald so that he could consider the new evidence in relation
to events in and since February 1998. That evidence consisted of the Amnesty
International report relied on by the Secretary of State and an expert report
obtained by the applicant from Dr D C Lewis. There is no suggestion in that
attendance note of any indication from Mr Jones that the Secretary of State was
seeking either to put the applicant's credibility in issue or to cross-examine
her. The note records the Chairman, Mr Disley, as saying
"that it was `inappropriate' to remit it to the same Adjudicator because he
would not consider it with an open mind given the conclusions he had reached
with respect to the appellant's credibility etc."
25 The Tribunal in its written Determination and Reasons said this:
"2. Ms Beach submitted that the Tribunal should consider the appeal because
credibility was not an issue and it would be more appropriate for the Tribunal
to consider the appeal rather than remitting the same for hearing de novo by
another adjudicator.
3. Mr Jones was content for the appeal to be remitted de novo before
another adjudicator.
4. The Tribunal considered that there was merit in Ms Beach's submission.
However, the effect of the Tribunal having already admitted two reports, the
Amnesty International report and the report of Dr D C Lewis, was that the
Tribunal would not be hearing an appeal on the same evidence as was before the
adjudicator.
5. The Tribunal considered that the appeal should be heard de novo by
another adjudicator who would be best equipped to consider the whole of the
evidence, both that before the previous adjudicator and that subsequently
admitted, rather than the Tribunal having to consider an appeal including much
additional evidence that was not before the original adjudicator.
6. The appeal is therefore allowed to the extent that it is remitted to an
adjudicator other than Mr J G MacDonald for hearing de novo."
26 I can summarise the essence of the applicant's complaint as follows: (1)
There was no disagreement as to her credibility but only as to the objective
circumstances in Armenia at the date of the hearing. The historical facts as
found by the special adjudicator did not need to be re-determined, only whether
there was any objective basis for her continued fear of persecution. (2) That
dispute turned on the two additional reports which had come to hand since the
hearing before the special adjudicator. It could thus be determined on the
basis of submissions only and without hearing any further oral evidence. (3) In
those circumstances it could not be said either that it was necessary in the
interests of justice to remit the case or that it would save time or avoid
expense to do so. (4) Alternatively, and for essentially the same reasons, even
if a remitter to a special adjudicator was necessary it was neither necessary
in the interests of justice to remit the case to another special adjudicator
nor would it save time or avoid expense to do so. (5) On the contrary, those
factors pointed clearly in favour of any remitter being to the same special
adjudicator, since a hearing de novo before another adjudicator would not
merely add to the costs and increase delay but also deny the applicant the
right to retain the benefit of the clear findings of fact in her favour. (6) To
deprive her of that benefit would expose her to unnecessary trauma and also
risk a sitiuation where two different special adjudicators reach different
findings of fact. (7) The Tribunal erred in law in failing to have proper
regard to and to apply r 17(2). The Tribunal's Determination contains no
reference either to r 17(2) or to the criteria in r 17(2) and there is no
evidence that those criteria were ever in fact considered by the Tribunal. (8)
The Tribunal's decision was unreasonable and perverse. (9) Finally, the
Tribunal never considered its power, by the giving of appropriate directions
under r 17(2), to confine or limit the ambit of the remitted hearing.
27 In my judgment the applicant had a strong case for arguing before the
Tribunal that it should not remit the matter or, if it did, that it should
remit to the same special adjudicator. The Tribunal, as it seems to me,
recognised that fact when it acknowledged what it called the "merit" in Ms
Beach's submissions. But however strong the applicant's case may have been it
was not, in my judgment, so compelling as to lead inevitably or inexorably to
the conclusion that there could be no remitter or so compelling as to lead
inevitably or inexorably to the conclusion that any remitter had to be to the
same special adjudicator. Her case was a strong one but not, in my judgment, so
strong as to drive the Tribunal to only one possible conclusion. It cannot be
said that no Tribunal properly directing itself in accordance with r 17(2)
could have arrived at the conclusion at which the Tribunal did. I cannot accept
the submission that the Tribunal's decision was unreasonable let alone perverse
or irrational.
28 Whether or not I would myself have come to the same decision (something
which is wholly beside the point) it is, as Mr Fordham submitted, not too
difficult to see why the Tribunal, correctly directing itself by reference to
the stringent test in r 17(2), could reasonably consider that a remitter, and a
remitter moreover to another special adjudicator, was necessary in the
interests of justice, having regard to the facts (i) that fresh evidence was
being relied on by both parties, (ii) that that evidence went to the heart of
the ultimate issue of whether, as matters stood at the date of the hearing, the
applicant had a well-founded fear of being persecuted if she was
returned to Armenia and (iii) that this was not an aspect of the case or of the
evidence which the special adjudicator had overlooked but rather one on which,
albeit through no fault of his own, he had come to definite conclusions without
the benefit of material which (to put it no higher) suggests that an essential
part of his reasoning was based on a wholly false factual premiss. Mr Fordham
submits, and I agree, that in all the circumstances the Tribunal, correctly
directing itself by reference to the stringent test in r 17(2), could
reasonably consider that it was necessary for the full evidential picture to be
reassessed by a fresh mind examining the case as a whole and in the round and,
moreover, in such a way as would permit a further appeal to the Tribunal. In my
judgment it was open to the Tribunal to conclude that this important fresh
evidence required of necessity, in the interests of justice to all concerned,
to be looked at not in the narrow context for which Ms Beach was understandably
contending but rather as part of the overall case looked at as a whole and
that, in those circumstances, it would save time and expense for the necessary
rehearing of the case to be before a special adjudicator rather than the
Tribunal.
29 Can Ms Webber point to any error of law on the part of the Tribunal or
anything to suggest that it either misunderstood the test which it had to apply
or in some other way misdirected itself? She says, correctly, that there is no
reference anywhere to be found to r 17(2) nor any reflection in the Tribunal's
Determination of the relevant statutory language. But that, for reasons I have
already explained is not of itself enough. The question, as it seems to me, is
whether there is anything to be discerned in the Tribunal's reasoning to
indicate that in some way the Tribunal misunderstood how it was required to
perform its functions or in some way misunderstood or failed to take into
account the statutory test as laid down in r 17(2). Is there any such
indication? In my judgment there is not. On the contrary, it seems to me clear,
both from what is recorded in the passages from the attendance note which I
have referred to and also from what it said in paragraphs 4 and 5 of its
Determination, that the Tribunal was directing itself by reference to
what the interests of justice required and was conscious of the
arguments in relation to time and expense. The Tribunal's use of the phrase
"best equipped", when read in the context of the Tribunal's reasoning as a
whole, seems to me to indicate that the Tribunal was applying the appropriately
stringent test. It gave fair weight to Ms Beach's submissions to the contrary
but then identified, albeit in briefly expressed words, what I have to say seem
to me to have been cogent reasons for concluding that in the interests of
justice it was necessary for the matter to be dealt with not by the Tribunal
but "de novo by another adjudicator" because, as the Tribunal expressed it, he
"would be best equipped to consider the whole of the evidence". Despite Ms
Webber's arguments I can detect no error of law or error of principle in the
Tribunal's reasoning.
30 In my judgment there was no error on the part of the Tribunal and its
decision, however upsetting for the applicant, was a lawful and reasonable
exercise of its statutory powers. Her application must therefore be dismissed.
31 I should like to add one final observation. It is of course for the Tribunal
to decide the form in which it expresses its reasons and it is not for me to
tell it how to go about the exercise of a jurisdiction which Parliament has
given to it and not to me. Nor do I wish to be thought to be watering down or
qualifying in any way what I have already said. I have however been struck, as
was Maurice Kay J before me, by how infrequently when deciding these matters
the Tribunal appears to refer either to the relevant rule or even, and however
obliquely, to the language of the rule. With a view to avoiding future
unnecessary applications for judicial review the Tribunal might think it useful
to do two things: (i) Even if it does not refer expressly to what is now r 23
the Tribunal might at least adopt in its reasoning enough of the language of
the rule as to put beyond argument that it has applied its mind to the relevant
statutory test. (ii) It might also make clear that it has given separate
consideration both to the question of whether there should be a remitter and
also to the question of whether, if there is to be a remitter, it should be to
the same or to a different adjudicator. Let me make it absolutely clear: I am
not suggesting that reasons in cases such as this need to be either
elaborate or particularly lengthy. All I am suggesting is that if the Tribunal
were to adopt the practice of making brief reference to the two particular
matters I have mentioned, there would be less scope in future for ultimately
unsuccessful applications for judicial review.
© 2001 Crown Copyright
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