Tribunal decisions

The decision

MS (Adjournment Refused) India [2004] UKIAT 00287
IMMIGRATION APPEAL TRIBUNAL

Date of Hearing:
Date Signed:
Date Determination Notified:

17 September 2004
14 October 2004
19 October 2004

Before:

Mr J Perkins
(Vice President)
Mr C P O'Brian
Mr C Thursby

Between

Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DETERMINATION AND REASONS

For the Appellant:
Ms S Ahmad from Ahmad & Williams Solicitors
For the Respondent:
Mr R Holmes, Home Office Presenting Officer

1. The appellant is a citizen of India. She was born on 13 October 1974 and so is now twenty nine years old. She appeals the decision of an Adjudicator, Mr D N Bowen, who in a determination promulgated on 5 December 2003 dismissed her appeal against the decision of the Secretary of State that she was not entitled to refugee status and that removing her from the United Kingdom was not contrary to her rights under the European Convention on Human Rights.
2. It was the appellant's case that he feared persecution or other serious ill-treatment at the hands of an international criminal gang known as Gazie Baba. The Adjudicator noted diverse discrepancies in the various versions of the appellant’s story and found him unreliable. In any event the Adjudicator found that if the appellant did have any problems he could have avoided them by removing to a different part of India.
3. He dismissed the appeal.
4. The grounds of appeal do not criticise the determination that the Adjudicator prepared except in one respect. According to the grounds:
“a valid medical certificate was presented which clearly stated that the patient cannot travel and according to the instructions of the Chief Adjudicator, the Adjudicator should have taken into consideration the medical problems he was having at the time of his court hearing. The Adjudicator by not adjourning the case prejudiced the appellant’s right of giving oral evidence.”
The grounds continue:
2. The appellant should be given a chance as it is not fair that even on presenting a medical certificate no attention was given to his oral evidence. The case should be remitted to another Adjudicator for a full hearing.
5. The Adjudicator was well aware of the medical evidence. He had before him a certificate from a General Medical Practitioner, Dr N G Shaffu, who practices from an address in Leicester. The certificate stated:
This is to certify that [ ] of [an address in Leicester] was under my care from 30 September 2003 to present and has attended surgery on 24 October 2003. Will need rest for the next three days.
6. It was signed and dated 24 October 2003. The medical certificate is in a form commonly used by General Medical Practitioners. It is partially printed and it leaves spaces for the doctor to add comments. We note that the words “is now unable/able to attend his/her occupation” have been struck through. That clearly required a conscious act. It is very hard to look at that certificate and conclude that the doctor intended a reader to find that the appellant was unable to attend an Immigration Appeal hearing. Mrs Ahmad, who then appeared for the appellant, asked for the hearing to be adjourned. The Adjudicator did not adjourn the hearing. The Adjudicator indicated that the report was inadequate. It did not say that the appellant was unfit to attend court. Mrs Ahmad could not take advantage of the opportunity given her to provide better evidence that day. However, she did provide a letter sent by facsimile to the Immigration Appellate Authority on 27 October indicating that she had spoken to the appellant's General Medical Practitioner and had been informed that the appellant had been involved in an accident a week ago and had suffered injuries. The letter indicates that the General Medical Practitioner attended to the appellant regarding that and also “to a bout of food poisoning as the appellant was suffering from diarrhoea”.
7. The Adjudicator then instructed his clerk to write to the appellant’s solicitors in a letter dated 27 October 2003 telling them that he would decide the case on the papers before him unless a more detailed medical certificate was supplied within seven days. It is not entirely clear that the Adjudicator had any power to do this under the rules but it shows that the Adjudicator was not acting with undue haste and had not forgotten that he should act very carefully before deciding a case of this kind when the appellant had not given evidence. If there had been a mistake or a misunderstanding the appellant had a chance to remedy it.
8. No further medical evidence was produced.
9. At paragraph 9 of the determination the Adjudicator shows that he addressed his mind to the requirements of rule 44(1)(a)(b) of the Immigration and Asylum Appeals (Procedure) Rules 2003. These say:
(1) An Adjudicator … must hear an appeal in the absence of a party or his representative, if satisfied that the party or his representative –
(a) has been given notice of the date, time and place of the hearing; and
(b) has given no satisfactory explanation for his absence.
10. It is plain that this rule imposes an obligation on the Adjudicator to decide the case unless there is a satisfactory explanation for absence. The Adjudicator did not regard the explanation for absence as satisfactory. We do not see how he could have found it satisfactory. There was no medical evidence that the appellant was not fit to attend. Indeed, the parts of the standard form prompted the Medical Practitioner to say that the appellant was unfit to attend had been struck through. The opinion that the appellant needed to rest does not mean he was unfit to attend the hearing. Very much depends on the kind of rest the medical practitioner had in mind and the reasons for rest being needed. The medical report before the Adjudicator gave no indication of the reasons for needing rest. Subsequent information refers to an accident. The details are not explained and it is not suggested that that was an explanation for the appellant not attending. The fact that the appellant suffered from diarrhoea, if he did, is not a reason, of itself, for concluding that he could not attend the hearing. We know that diarrhoea can vary from a life threatening condition to a minor nuisance. So much depends on the nature of the complaint.
11. Mrs Ahmad appeared before us. We cannot think that she would have been in any way hesitant or obscure in indicating to the Medical Practitioner the kind of evidence that was necessary. If there had been any sort of error there has been plenty of time for it to be corrected and explained in a statement before the Tribunal.
12. It is quite clear to us that the Adjudicator was absolutely right to find the evidence before him did not amount to a satisfactory explanation for the appellant's absence and decide the case before him.
13. As indicated above the grounds of appeal make no criticism of the Adjudicator’s approach to the evidence that was before him. He was entitled to disbelieve the appellant and on the evidence before him he was entitled to conclude that internal flight was available in any event.
14. In the circumstances we dismiss this appeal.

Jonathan Perkins
Vice President.

APPROVED FOR ELECTRONIC DISTRIBUTION