Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01837/2016

THE IMMIGRATION ACTS

Heard at Manchester
Sent to all parties
On October 28, 2016
On November 16, 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

MR RONG CHEN
(NO ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
Appellant Ms Hashmi (Legal Representative)
Respondent Mr McVeety (Home Office Presenting Officer)

DECISION AND REASONS

1. I do not make an anonymity order under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended).

2. The appellant is a national of China. On August 20, 2009 the appellant entered the United Kingdom as a Tier (General) Student with a visa valid until August 1, 2010. He then made an application for leave to remain as Tier 4 (General) Student and this was granted until September 8, 2011. He then lodged two similar applications on August 9, 2011 and August 26, 2011. On each occasion he withdrew the application the same day.

3. On January 20, 2015 he lodged an application for leave to remain on the grounds of family and private life. This was refused without a right of appeal on February 27, 2015.

4. He was arrested working illegally on December 14, 2015 and served with enforcement notification as an overstayer. On December 29, 2015 he applied for leave to remain on the grounds of family and private life. This was refused without a right of appeal on January 14, 2016. He was the served with removal directions for January 23, 2016.

5. On January 21, 2016 he applied for asylum. The respondent refused his application on February 15, 2016 under paragraph 336 HC 395.

6. The appellant appealed that decision on February 23, 2016 under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 and his appeal came before Judge of the First-tier Tribunal Geraint Jones QC (hereinafter referred to as "the Judge" on March 24, 2016. In a decision promulgated on March 30, 2016 he dismissed his claims.

7. The appellant appealed the Judge's decision on April 12, 2016 and permission to appeal was refused by Judge of the First-tier Tribunal Martin on April 22, 2016. The grounds were renewed and permission to appeal was granted on a narrow basis by Upper Tribunal Judge Southern on June 8, 2016 on the ground there may have been a procedural unfairness. He gave directions for the filing of a statement of truth by the two representatives and their contemporaneous notes of the hearing with a view to establishing whether the Judge had been mistaken in his recollection.

8. The matter came before me on the above date and on that occasion I heard submissions from both representatives. I reserved my decision.

PRELIMINARY ISSUES

9. I raised as a preliminary issue that Ms Hashmi appeared to be taking on two roles namely that of witness and advocate. I informed her that depending on her answers to certain matters I may have to adjourn the case.

10. I enquired from representatives whether any statements had been filed and where their notes of hearing were.

11. Mr McVeety indicated to me that no statement had been filed by his colleague because there were no contemporaneous notes of the hearing apart from a memo typed up after the hearing.

12. Ms Hashmi referred me to her statement dated March 29, 2016 (supposed to be June 29, 2016). I raised with her where her notes were and she indicated she had none. She later confirmed that she had notes but they were silent on this issue.

13. I pointed out to her that her statement did not address the issue raised by the Judge but she submitted it did and in those circumstances I invited her submissions.

SUBMISSIONS

14. Ms Hashmi argued that the Judge would not allow an adjournment and his decision was in accurate at paragraph [16] because he made no reference to refusing an adjournment. She had asked for an adjournment because the appellant was unhappy the interpreter was the same as at his interview and there had been issues raised about the interpreter. She also identified in paragraph [19] that the Judge had not checked the names written down by the interpreter. She emphasised that she could not go against what the Judge did and she had proceeded with the hearing. Her client raised issues about the interpreter after the hearing.

15. I the asked Ms Hashmi if she could assist me with what the Judge stated in paragraph [18] and she stated she could not as she had no contemporaneous note.

16. Ms McVeety submitted that the court record confirmed what was recorded in the decision and in the absence of any other record or evidence to the contrary then the record must be taken to be accurate.

DISCUSSION AND FINDINGS

17. In granting permission to appeal Upper Tribunal Judge Southern identified a narrow issue for me to consider.

18. I had the benefit of the Judge's hearing notes and these recorded that an issue was raised about using the same interpreter that had been used in the interview as it was alleged the interpreter was not good enough. He recorded that Ms Hashmi argued that using the same interpreter was wrong because of the allegations made by the appellant and in any event he wanted an interpreter familiar with the Roman Catholic religion. Importantly the notes refer then to a conversation in Mandarin between the appellant and the interpreter which culminated with the interpreter saying in open court, "The appellant agrees we can go ahead with the appeal and with the present interpreter". The Judge then noted down he advised the appellant and interpreter to alert him if there were any interpretation problems.

19. This is the only contemporaneous note of the hearing. Ms Hashmi's statement did not address the issue and when I specifically asked her about this she was unable to say whether it happened or did not happen.

20. Based on the evidence presented to me I am in no doubt that the judge's record of proceedings is accurate and he then reflected this in his decision. There is no evidential basis to challenge the decision as Ms Hashmi cannot actually say that this is not what happened.

21. I should add that Ms Hashmi has notes of the hearing but informed me they did not address the issue. I did not therefore request her notes as they would not have assisted me.

DECISION

22. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law. I dismiss the appeal.

Signed: Dated:

Deputy Upper Tribunal Judge Alis

FEE AWARD
TO THE RESPONDENT

I make no fee award as I dismissed the appeal.

Signed: Dated:

Deputy Upper Tribunal Judge Alis