Thapar v Upper Tribunal (Immigration Asylum Chamber) [2012] EWHC 3997 (Admin)

Case No CO/2928/2012[2012] EWHC 3997 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 14 November 2012
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE ANTHONY THORNTON QC
(Sitting as a High Court Judge)
Between
THAPARApplicantv
Between
UPPER TRIBUNAL (IMMIGRATION ASYLUM CHAMBER)Respondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
The Applicant appeared in person for in person for The Respondent was not present and was not representedMr M Donmall (instructed by the Treasury Solicitors) appeared for Interested Party
Judgment
[1]THE JUDGE: Ms Amita Thapar seeks permission, in a renewed application to apply for judicial review, of the decision of an Upper Tier Tribunal judge dated 31 January 2012. The Upper Tier Tribunal judge refused Ms Thapar’s renewed application for permission to appeal.[2]The refusal was, of course, a second refusal because the First Tier Tribunal in a decision of a judge of that Tribunal, dated 9 January 2012, had also refused permission to appeal. The substantive decision that those refusals related to was that of the First Tier Tribunal, dated 14 December 2011. That substantive decision had dismissed an appeal that Ms Amita Thapar had brought against the decision of the Secretary of State dismissing her application for further leave to remain in the United Kingdom as a victim of domestic violence in reliance on paragraph 289 of the Immigration Rules in its amended form. The First Tier Tribunal had also dismissed her appeal pursuant to Article 6, in relation to the right to a fair hearing, and Article 8 in relation to her family and private life.[3]Ms Thapar, in applying for judicial review of the Upper Tier Tribunal refusal decision is, of course, heavily constrained by the Cart decision, and it is clear that permission should only be granted for a judicial review of the Upper Tribunal’s refusal decision if there is a good prospect of success in the judicial review of obtaining a quashing order of the Upper Tribunal because there is a very obvious error of law in the substantive decision of the First Tier Tribunal or there is some other compelling reason why there should be an appeal. Of course, there must also be a very high prospect of success in the appeal itself, if it were allowed to proceed.[4]Now, at the heart of the matter that Ms Thapar wishes to raise on appeal is the question of whether she had, at the time that she was married, suffered or been the victim of domestic violence. Her complaints of domestic violence, which were the basis of her application for further permission to remain, relate to the time when she was married, which was a very unhappy time in Ms Thapar's life. Those complaints can understandably, even now some years after the ending of her marriage, give rise to very strong and unhappy memories for her.[5]The issue, however, for the Immigration Judge was whether she was able to establish that the harassment and violence that she says she had suffered at the hands of her ex-husband and his family was sufficient and serious enough to come within the definition of domestic violence contained in the relevant Immigration Rule so as to enable her to claim to be allowed to remain as the result of somebody who has been the victim of that domestic violence.[6]It is important in any consideration of her case, even at this level, when I am concerned with the narrow appeal issues that I have outlined, to remember that Ms Thapar had to show that the treatment and violence and harassment and mental cruelty and all the other unhappy possible ways in which domestic violence can be brought was sufficiently serious and within the kind of treatment that is referred to by the words "domestic violence" in the Immigration Rules.[7]There is a great deal of very unhappy and unsatisfactory spousal behaviour that can occur which does not come within that definition and which in consequence does not enable the victim of that spousal behaviour to rely on the relevant rule for the purpose of an application for permission to remain.[8]Clearly at the heart of Ms Thapar's hearing before the Immigration Judge in December 2011 was a consideration of the long history of her unhappy relationship with her husband which ultimately ended in divorce. However, as the Immigration Judge made clear in his judgment, the purpose of considering that history was purely for the purpose of considering whether domestic violence sufficient to bring her within the relevant rule had occurred.[9]The Immigration Judge at the hearing was provided with a great deal of evidence including both the written and oral evidence submitted by Ms Thapar. This was, it is true, a hearing at which neither Ms Thapar nor the Secretary of State were represented. And Ms Thapar presented her own case. In addition to her evidence, there was a great deal of documentary evidence that had come into being as a result of the long immigration history relating to Ms Thapar's applications for permission to remain.[10]There was also documentary evidence from the divorce proceedings and from a further case in the county court, which is still ongoing, in which Ms Thapar is making a claim for damages against her former husband and her former husband's parents. In that county court case, there is evidence of the way that Ms Thapar says that she was treated during the course of her marriage which she relied on before the immigration judge.[11]All that material was highly relevant, and it is clear from the judge's judgment that the judge was well aware of, and took full account of all of it. Included in the material were two previous Immigration Tribunal decisions, at least one of which was concerned with the issue of domestic violence, although both the earlier decisions were also concerned with Ms Thapar's related claim for an entitlement to remain, based on her Article 8 rights.[12]Those earlier decisions are not decisions that give rise to an estoppal or binding decision on the question of domestic violence, but clearly the findings that are relevant to the issue of domestic violence that were reached by the earlier two decisions would carry weight and could form part of the evidence on which this Immigration Judge's decision was based.[13]It is at the heart of today's application that Ms Thapar contends that the earlier evidence of domestic violence was severely tainted by the fact that the evidence was, to some extent, dependent upon the fraudulent and dishonest reporting of her behaviour in the marriage and of his good behaviour in the marriage, that her former husband made, presumably to the police and in the divorce proceedings, and possibly to other people as well.[14]In other words, Ms Thapar contends that the earlier decisions that lend support to a finding that there had not been domestic violence were based upon evidence which had been obtained by her then husband by fraudulent and dishonest means.[15]Of course, it is not for me to form any view about the rightness or wrongness of her allegations, including her allegations that earlier evidence had been obtained by fraud, but it is clear that all those considerations were presented to the Immigration Judge who took the decision that I am concerned with and that that Immigration Judge took all that into account and in a passage of his judgment which follows a review of the evidence that the judge was presented with, he found:
"I am unable to accept that the appellant has been the subject of domestic violence, as she claims."
It is that finding that is at the very heart of Ms Thapar's application today. Unless and until that finding is overturned or can be seen as having good prospects of being overturned on some legal basis, it is not, as I see it, possible for Ms Thapar to succeed, both in her appeal application today and any application for judicial review and in her subsequent further application for permission and in the appeal itself.[16]In other words, that finding of fact has the effect that Ms Thapar's application for permission to remain on the basis of domestic violence cannot succeed. The reason for that is that she had to show that she was been the victim of domestic violence, and immigration judge’s finding that she had not proved this is a finding of fact, and is not a finding, in the absence of procedural irregularity, that can be appealed, let alone be subject to a Cart judicial review.[17]Ms Thapar does raise as an issue of law the question of whether the judge applied the right test to the evidence in determining that there had been no evidence of domestic violence. However, it is clear to me from reading the judge's judgement in full that the judge was making a factual finding that conduct of the kind referred to in the immigration rule had not been provide to have occurred. In other words, all the matters that Ms Thapar replied upon, including both physical and non-physical harassment and harassment, that she relied on, was found not to have been proved sufficiently to come within the wording "domestic violence". Thus, the factual basis for contending that there had been domestic violence was not found to have occurred.[18]I am not alone in analysing the immigration judge’s decision in that way. It was also the analysis of the First Tier and Upper Tier Tribunal judges when reaching their respective refusals of permission to appeal. The First Tier Judge, at paragraph 3 of the decision, dated 9 January, concluded:
"The Immigration Judge considered the aspect of domestic violence according to the appellant's oral and documentary evidence from paragraphs 17-36. The Immigration Judge's conclusion that he was not able to find that the appellant had been subject to domestic violence on the basis of his consideration was open to him, and no arguable error of law arises. Whilst the Immigration Judge refers to the decision of Immigration Judge Taylor in March 2011, it is clear that the Immigration Judge carried out his own assessment on the evidence that was presented."
And in the Upper Tier Tribunal decision, the Upper Tier Tribunal

Judge found as follows:

"The Judge took previous determinations as a starting point, as he was required to do, and found that there was nothing in the evidence to alter the previous findings that the appellant was not a victim of domestic violence."
[19]In those circumstances, it is clear that there is no prospect of a judicial review of the refusal of permission to appeal succeeding, since the appeal that Ms Thapar is seeking to bring is an appeal against the finding of the Immigration Judge that there was no evidence of domestic violence.[20]That was a finding of fact which displayed no error of law. Thus, in this case, it is not merely that there is no basis for there being a judicial review of the refusal of permission to appeal, but it is clear that the refusal for permission to appeal was based on wholly correct legal principles, namely that there was no appeal open to Ms Thapar because the First Tier Judge had properly considered all the evidence and reached a finding of fact which made it inevitable that he would, as he did, dismiss her appeal.[21]Ms Thapar, quite separately, seeks to challenge the conclusion that she had no basis for relying on Article 8. That ground of appeal was fully considered by the Immigration Judge who concluded that on balance there would be no interference with her Article 8 rights if she was required to return to India with her young son. In those circumstances, her appeal was dismissed on Article 8 grounds as well.[22]The Article 8 decision by the Immigration Judge was also considered and permission to appeal refused on Article 8 grounds by both the subsequent judges. In this court, Ms Thapar raises what would appear to be a ground not expressly raised by her in her notice of appeal, which was relied on by the two earlier judges in refusing her permission to appeal.[23]She contends that if she is unable to remain in this country, her young son will inevitably also not be able to remain in this country, and both will, in Ms Thapar's case return to, and in her son's case go to, live in India.[24]That, as I say, was not raised in her notice of appeal at all. That is not to say that the substantive decision of the immigration judge would not open to review if it could be shown, even at the stage when the permission to appeal decisions were taken in the courts below, that there was a clear failure, in circumstances amounting to illegality, to consider the best interests of the infant son.[25]However, it is clear that there was evidence before the Immigration Judge which he took into account, even though that evidence is not expressly referred to in his decision. Ms Thapar has shown me a copy of her witness statement that deals with the interests of her son. That evidence was before the Immigration Judge. Without going into the details, I am fully satisfied that the evidence that she presented was evidence that was taken into account and could have reasonably formed the basis of the decision that Ms Thapar, and inevitably therefore her infant son, should not be granted permission to remain.[26]Thus, the position of her son was, at each level, fully and fairly taken into account, and the decision of the Immigration Judge cannot be faulted on that ground, and the decisions to refuse permission to appeal equally cannot be faulted.[27]So, for all those reasons, I dismiss Ms Thapar's renewed application for permission to appeal.[28]I would like to stay in conclusion that I am very appreciative of the full, clear and extremely courteous presentation by Ms Thapar of her application in this court of her application. She does not have legal representation. This appreciation extends to the detailed documentary materials and the skeleton submissions that she has presented. Because of that presentation, that I have considered in greater detail than would normally be the case in an application for permission to apply for judicial review.[29]But having paid all her submissions, written and verbal, most anxious scrutiny, I am wholly satisfied that this application must be dismissed. Thank you very much.[30]MR DONMALL: My Lord, there is just one very small matter arising. When this matter was considered on the papers by McCombe J, he awarded £90 in respect of the acknowledgement of service. That sum was notified to the Claimant to pay the Defendant rather than the interested party. It was clear that it was meant to be paid to the Interested Party, obviously which I represent.

JUDGE THORNTON:

[31]It was clearly meant to be, but I do not think the rules permit the costs against an interested party at the first stage of permission. I would be inclined to revoke that order.[32]MR DONMALL: My Lord, with respect, it is possible for a costs order, as I understand it, against the Claimant in respect of her costs incurred by an Interested Party even at permission stage.

THE JUDGE: So far as the costs order against the Upper Tribunal is concerned, I do revoke them.

[34]MR DONMALL: In favour of the Upper Tribunal, you mean?[35]THE JUDGE: Yes. You are applying afresh for the costs before the adjournment?[36]MR DONMALL: For the costs of acknowledgement of service in the sum of £90, not, obviously, for today, but for those costs.

THE JUDGE: Well, I am not inclined to grant that.

[38]MR DONMALL: I am grateful.