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[5] In relation to the context in which the Tribunal operates, a number of salient features were identified by the Court of Appeal in Secretary of State for the Home Department v Maheshwaran [2004] Imm AR 176 at paragraph 3:
In that case (per Steyn LJ at page 420), and in subsequent cases (e.g. Gnanavarathan v A Special Adjudicator [1995] Imm AR 64), it was accepted that the adjudicator was entitled to rely on matters within his own knowledge, provided such matters were disclosed to the parties so as to afford them a fair opportunity to deal with them.
"[T]here is in our opinion force in the submission that it was unfair of the immigration judge, if he found in the absence of evidence about precautions against pregnancy ground for regarding the evidence about the relationship as implausible, not to put that point to the appellant to give him an opportunity to put forward evidence on the point. If he had done so, the appellant might, or might not, have been able to allay his concern, but the procedure would have been fair."
The court also noted that the immigration judge had speculated, in the absence of evidence, about the way in which the couple would have been likely to have acted in relation to precautions against pregnancy. The court was critical of the immigration judge's doing so, partly because there was no indication that he was alive to the possible relevance of cultural and other differences between the United Kingdom and Afghanistan .
"The weighing of the evidence before him is a matter for the special adjudicator and the fact that evidence is unchallenged by the presenting officer does not of itself oblige the special adjudicator to accept it. In the present case, however, where the evidence was not only unchallenged and uncontradicted but came from an apparently responsible source and was a vital element in this part of the petitioner's case, it was, in my view, procedurally unfair wholly to reject it without first affording to the petitioner an opportunity to adduce support for it."
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