SZDKO v Minister for Immigration
[2006] FMCA 28
•18 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDKO v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 28 |
| MIGRATION – Review of decision of Refugee Review Tribunal – transitional provisions applying s.91R Migration Act 1958 – illogical or irrational findings – relevant considerations – no evidence – procedural fairness – invitation to comment under s.424A – reason or part of reason for decision – jurisdictional error – decision set aside. |
| Migration Act 1958, ss.91R, 424A Migration Legislation Amendment Act (No.6) 2001 |
| SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 |
| Applicant: | SZDKO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1229 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing date: | 24 November 2004 |
| Heard at: | Sydney |
| Delivered at: | Canberra |
| Delivered on: | 18 January 2006 |
REPRESENTATION
| Advocate for the Applicant: | Ms S Stanton |
| Solicitors for the Applicant: | Brett Slater Solicitors |
| Counsel for the First Respondent: | Mr D Jordan |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Refugee Review Tribunal be joined as second respondent.
The decision of the second respondent of 9 March 2004 and handed down on 1 April 2004 be set aside.
The application for a protection visa be remitted to the second respondent for determination according to law.
The first respondent pay the applicant’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1229 of 2004
| SZDKO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application brought under s.39B of the Judiciary Act 1903 with respect to a decision of the Refugee Review Tribunal made on
9 March 2004 and handed down on 1 April 2004. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant a protection visa to the applicant.
Consistent with SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 I join the Tribunal as a party to these proceedings. References to the respondent in these reasons are to the Minister, the first respondent.
Background
The applicant, who is a citizen of Algeria, arrived unlawfully in Australia on 7 September 2000 on a false passport. On 18 October 2000 he applied for a protection visa with the then Department of Immigration and Multicultural Affairs. That application was refused by a delegate of the Minister on 15 March 2001 and on 5 April 2001 the applicant sought review of that decision with the Tribunal.
Grounds for judicial review
In his further amended application, together with his written submissions, the applicant alleges four grounds:
a)The Tribunal incorrectly applied s.91R of the Migration Act 1958;
b)The Tribunal failed to take into consideration the applicant’s evidence that he only worked during part of the night, and in making a finding that the applicant would have had little rest had he done so, made a finding that lacked any evidentiary basis;
c)The Tribunal failed to take into consideration the possible differences in the role of physiotherapists in Algeria and Australia; and
d)The Tribunal failed to afford the applicant procedural fairness by not putting to him perceived inconsistencies in his evidence.
Claims before the Department and the Tribunal
The applicant claimed to the Department and to the Tribunal that:
a)He was working in a hospital as an intern physiotherapist when he started to be harassed by a night guard who was a member of an Islamic fundamentalist group, GIA. The night guard wanted the applicant to steal medicine for his organisation’s use.
b)The applicant complained to the Director of the Hospital who said that he could not help the applicant. The applicant was particularly scared because he claims another employee was killed for refusing to comply with the GIA.
c)The applicant left the hospital without completing his training soon after this incident because of his fear, but he was visited at his home and threatened. So he left the country. He claims that after he left, police came to his house and asked his family where he was. They wanted to charge him with stealing medicine, about which they were informed by the Director of the Hospital and the night guard.
d)The applicant’s brother was granted a protection visa in 1997 and was now an Australian citizen. He had been granted a visa because he also had worked in a pharmacy and had access to medical supplies which he had been asked to obtain for the fundamentalist cause. The Tribunal had considered the brother’s claims on the basis of conscription and the implications of not answering call up notices.
e)The applicant submitted evidence that he had good marks in his course. He left before he was finished. This demonstrated that that he was in real fear.
f)The applicant was further concerned that he had avoided military service and would get into trouble for leaving the country. The applicant supplied to the Tribunal information that draft evaders can face up to five years imprisonment in peace time and ten years in war. He presented evidence that the Canadian Immigration Review Board found that draft evaders were at risk if they ignored call up demands as the Government might suspect the people to be sympathetic or supporters of anti-terrorist Islamic groups. The applicant claimed that as he did not have permission to leave the country he could be in greater difficulty.
Tribunal consideration
The applicant gave oral evidence before the Tribunal on 20 September 2002 and his adviser lodged written submissions on 19 September 2002 and 25 February 2004. He was assisted by an Arabic interpreter and his adviser at the Tribunal hearing on 20 September 2002.
The Tribunal found that the applicant was a citizen of Algeria. It accepted that he was born and educated in Algeria and that he and his family lived in Ain Beida. It accepted that he enrolled in the Paramedical School in Constantine in 1997 and that he lived in Constantine when he was training to be a physiotherapist. It found that the applicant had not completed his final year of training before he left Algeria. The Tribunal accepted that he had engaged in practical training in hospitals in his final year of studies. In particular, the applicant undertook training for three months in a hospital in Algiers and then three months in a hospital in Seraidi.
The Tribunal expressed reservations about the applicant training in Ain Beida but nevertheless for the purpose of its decision it accepted that he undertook training in that hospital. The Tribunal’s reservations arose from the applicant’s inability to explain how he was supervised or assessed whilst in Ain Beida. The Tribunal noted that he was unclear on the name of his medical supervisor at the Ain Beida hospital and his evidence was vague and confused when he attempted to discuss the operation of the hospital and the working relationships of medical staff. The Tribunal found that his evidence was in contrast to his answers to questions about his period of traineeship in hospitals in Algiers and Seraidi.
The Tribunal did not accept that the applicant was befriended by a security guard at the Ain Beida hospital or that that person was a member of the GIA (an extremist Islamic group). It did not accept that the guard asked the applicant to assist the GIA by providing medical supplies. Nor did it accept that the applicant was threatened by this guard or other members of the GIA armed terrorist group. The Tribunal’s reasons for rejecting these particular claims are set out at page 136 to 137 of the Court Book. It said:
Firstly in his written claims he states that he was working in the hospital at Ain Beida for 6 months in 2000 and that during this time one of the nights guards befriended him. In his oral evidence he claimed that in 2000 he had been a trainee at a hospital in Algiers for 3 months and then Seraidi for 3 months before coming to the hospital in Ain Beida. The documents lodged to show details of his internships showed that he had completed practical training in a hospital in Seraidi between 25 March 2000 and 11 May 2000. The applicant told me at hearing that he spent 4 weeks at the hospital in Ain Beida.
Secondly he claimed that he came to know the security guard when he used to work as a volunteer in the evenings at the hospital. I do not accept that after working all day as a trainee physiotherapist the applicant would then elect to work in the evenings as a volunteer. The applicant claimed that he was trained in nursing care and wanted to learn as much as he could about patient treatment. I do not accept that the type of work undertaken by physiotherapists is the type of medical care that is required at night when patients are generally asleep. If the applicant had worked in the night he would have had little rest so as to continue his traineeship during the daytime.
The applicant claimed that the night guard was a member of the GIA. The Tribunal relied on country information that confirmed that the two major terrorist groups operating in Algeria in 2000 were the GIA and the GSPC. The information indicated that the GIA’s size and effectiveness had diminished since the worst years of Algerian terrorism from 1993 to 1997 and noted that in 2000 it was generally operating in the central and northwest areas of Algeria.
The country information relied upon by the Tribunal indicated that the GIA recruited amongst young men who were unemployed or on the fringes of society. The Tribunal noted that the GIA made threats to obtain money and supplies from civilians. But the Tribunal said that they required some level of commitment from members. The Tribunal did not accept that the GIA would forcibly try to recruit the applicant and threaten to kill him if he did not co-operate. The Tribunal accepted that any civilian in Algeria could be harmed by members of extremist groups when faced with hostile demands for money or essential supplies but such harm did not fall within the ambit of the Refugee Convention. The Tribunal found that the country information suggested that the GIA were quite indiscriminate in their violence and used threats to obtain money and supplies from any available source.
The Tribunal noted that the applicant chose not to report the threats to either police or security authorities. This was despite country information which suggested that the authorities had been successful in protecting the larger cities and towns and had strongly committed to anti-terrorist operations.
The Tribunal noted that the applicant did not ask the Paramedical School to be reassigned to another hospital for safety reasons. The Tribunal did not accept that the applicant was afraid, as claimed, to travel to Constantine to ask that he be reassigned to another hospital.
In its assessment of these matters the Tribunal found that it did not accept that the applicant was threatened with harm by a member or members of the GIA or any other terrorist group whilst working at the hospital in Ain Beida. Nor did it accept that members of the GIA with the connivance of the Director of the Hospital arranged for the applicant to be falsely accused or charged with theft of medical supplies from the hospital. The Tribunal noted that there was no credible corroborative evidence before it to support this claim and found that the applicant’s accounts of these events were implausible.
The Tribunal noted that the country information suggested that the GIA was a violent extremist group engaged in terrorist tactics and criminal banditry. The Algerian police and security officials were engaged in a longstanding and relentless campaign against the extremist groups and have taken strong measures against persons who were suspected of being active members.
If members of the GIA wanted medical supplies they would steal them themselves or coerce someone to steal them on their behalf. If the applicant had refused to steal supplies for them they would take direct and immediate action against him. The Tribunal did not accept that GIA members would instead threaten the applicant with false accusations of theft which he might disprove in court. This would place the local organisation under threat from government authorities. Accordingly, the Tribunal did not accept that the applicant had been charged with any criminal offence and that government authorities had any adverse interest in the applicant because he was suspected of helping the GIA.
The Tribunal accepted that the applicant left Algeria without completing his military service whilst he was a student. It did not accept however that the applicant left Algeria by obtaining a passport and a departure stamp at the border through bribery. The Tribunal’s reasons for this are set out at pages 138 to 139 of the Court Book.
The applicant stated in his protection visa application that he only had a photocopy of his Algerian passport. He later stated that he destroyed his passport because he feared he would face deportation. The Tribunal found this action to be inconsistent with a full disclosure of all relevant details to support his protection visa application.
Further, the Tribunal noted that the applicant’s brother had obtained refugee status on similar grounds a number of years ago. Since the applicant’s arrival in Australia he has shared his brother’s home and he has been financially and socially supported by him. The Tribunal stated that the applicant’s brother would have been aware of the importance of retaining the Algerian passport for the purposes of the proper determination of the applicant’s claim. The Tribunal did not accept that the applicant would have destroyed his passport unless he knew that the entries would not have supported his claims.
The Tribunal accepted that the applicant may have left Algeria through the border town of the Te Bessa and flown to Thailand from Tunis. However, the Tribunal did not accept that the applicant obtained an Algerian passport illegally or that he left Algeria through bribery. The applicant was issued a passport in Ain Beida. He entered Australia on a false French passport on 7 September 2000 with an electronic travel authority.
The Tribunal found that the applicant would not be imputed with an anti-government opinion because he left Algeria without completing military service. The Tribunal noted that country information suggested that students were entitled to an exemption from military service whilst completing their studies. The applicant was in his final year of Paramedical School and could have applied for exemption from military service requirements when he left Algeria in August 2000. As the applicant had chosen to destroy his passport and only had a photocopy of an extract he was not able to verify his claim that he left the country without exemption.
The Tribunal accepted country information that suggested that many young Algerian men have not completed military service and that government authorities have provided a general exemption for men born before 31 December 1980. The applicant was born prior to that date. He thus would have been in a position to apply for a new passport with an exemption from military service and could return to Algeria without any obligation to complete military service.
As the Tribunal had rejected the applicant’s claims that he had been charged with theft for stealing medical supplies or that he faced punishment for not completing military service, the Tribunal held that the applicant would not face a real chance of persecution by government authorities for real or imputed political opinion. It also accepted the country information that failed returning asylum seekers had nothing to fear from government authorities because of any application for refugee status.
At page 140 of the Court Book the Tribunal rejected claims that the applicant would face a well-founded fear of persecution from the GIA or members of extremist Islamic groups if he returned to Algeria. Moreover, the Tribunal considered that there was adequate state protection available to the applicant if he were to return to Algeria.
At page 142 of the Court Book the Tribunal concluded
If he returns to Algeria I find that he will be of no adverse interest to government authorities and faces no real chance of persecution for reasons of political opinion or imputed political opinion.
I have already found that the applicant faces no real chance of persecution from members of the extremist groups if returned to Algeria.
The Tribunal therefore found that the applicant did not satisfy the criteria for grant of a protection visa.
Consideration
Application of section 91R of the Migration Act
The applicant contended that the Tribunal fell into jurisdictional error in applying s.91R. He submitted that on a correct application of the transitional provisions in Schedule 1, Part 2, Item 7 of the Migration Legislation Amendment Act (No. 6) 2001, s.91R of the Act did not apply to the Tribunal’s decision.
It is unnecessary to set out s.91R which provides a legislative gloss to the concept of persecution under the Refugees Convention. Section 91R and Item 7 commenced operation on 1 October 2001. Item 7 relevantly provides that s.91R applies in relation to:
(c)an application for a protection visa made before the commencement of this item, where:
(i) a decision to refuse to grant the visa was made before that commencement; and
(ii) an application for review of that decision is or was made to the Refugee Review Tribunal or the Administrative Appeals Tribunal (whether before, at or after that commencement); and
(iii) the Refugee Review Tribunal or the Administrative Appeals Tribunal made a decision on that review after that commencement.
It is not in dispute that the applicant’s protection visa application was lodged and refused prior to the commencement of Item 7 and that the application for review to the Tribunal was made prior to the commencement of Item 7. The applicant asserted that Item 7(c)(iii) was not satisfied. Thus the Tribunal misconstrued the law in applying s.91R.
Advocate for the applicant, Ms Stanton argued that the effect of Item 7(c)(iii) was that the section applied where a decision had been made but not where a decision had yet to be made. Here the Tribunal had not yet “made a decision” when it applied s.91R. Ms Stanton suggested that as Item 7(c)(iii) had not been met s.91R had no application to the making of the decision.
In support Ms Stanton relied on the decision of Walters FM in VOAO & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 441. His Honour found that s.91R had no application in similar circumstances. He said at [77]:
Item 7(c)(iii), including the word “made”, is in active form. In my opinion, its meaning is clear. For the relevant subdivision (incorporating section 91R) to apply in relation to an application for a protection visa made prior to the commencement of item 7, the RRT must have already made a decision on any relevant review after the commencement date. Whether or not a perceived hiatus exists is not to the point. The variety of tenses and expressions used in item 7 reveals that the draftsman clearly intended that the various words used should be given their usual meaning. Why else would one form of words be used in one provision and not in another? Item 7(c)(iii) could have been drafted to read:
(a)A decision on that review is or was made by the Refugee Review Tribunal or the Administrative Appeals Tribunal after that commencement (see item 7(c)(ii)); or
(b)the Refugee Review Tribunal or the Administrative Appeals Tribunal makes a decision on that review after that commencement.
His Honour’s decision was the subject of an appeal to the Full Federal Court (Minister for Immigration & Multicultural & Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50). The Full Court dismissed the Minister’s appeal but at [18] of its reasons their Honours said:
Having regard to the time that has now elapsed since the commencement of Subdivision AL, we suspect there will be few cases in which this point will arise. However, we intimate, without going into the issue at any length, that we respectfully disagree with the view expressed by Walters FM. There is no apparent reason why Parliament would have wished to confine the operation of item (iii) to cases where the Tribunal is carrying out a second, or subsequent, hearing of a particular application for review, as distinct from a first hearing of that application. It is difficult to see any rational basis for such a distinction. We think it likely that the word ‘made’ was used in the sense of ‘makes’; that is, it was intended to cover both first and subsequent Tribunal decisions.
I agree with the Full Court’s reasoning and respectfully disagree with that of Walter FM. My approach is consistent with that of Barnes FM in VBB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 117 at [12], [18] which was subsequently affirmed on appeal [2003] FCA 1141 at [2], and SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1315, at [3] – [4], [93] – [94], per Lander J.
Furthermore, I accept the respondent’s contention that the qualifications imposed by s.91R did not play any part in the Tribunal’s decision. The applicant’s counsel was unable to identify any sound basis where s.91R made “any difference to the practical conduct of the present case” ( see VBB per Heerey J at [26]).
Accordingly, this ground is rejected.
The night work issue
This ground in the further amended application is:
The Tribunal did “not accept that after working all day as a trainee physiotherapist the applicant would then elect to work in the evenings as a volunteer … If the applicant had worked in the night he would have had little rest so as to continue his traineeship during the daytime”. By inference, the Tribunal found that the applicant worked throughout the night, and in doing so the Tribunal failed to take into account a relevant consideration or made a finding that had no evidentiary or logical basis;
The applicant contended that the Tribunal failed to take into consideration the applicant’s evidence that he only worked during part of the night. Further in reaching a finding that the applicant would have had little rest had he worked in the night, the Tribunal made a finding that lacked any evidentiary basis.
At pages 136 to 137 of the Court Book the Tribunal found that it did not accept that after working all day as a trainee physiotherapist the applicant would then elect to work in the evenings as a volunteer. The applicant claimed to the Tribunal that he trained in nursing care but wanted to learn as much as he possibly could about patient treatment. The Tribunal did not accept that the type of work undertaken by physiotherapist was the type of medical care that would be required at night when patients would normally be sleeping. The Tribunal found that if the applicant had worked in the night he would have had little rest so as to continue his traineeship during the daytime.
This ground must be rejected. It is essentially as the respondent submitted an attempt at merits review based on fine tooth-combing of a couple of sentences in the Tribunal’s reasons. The High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 290 has enjoined that reasons of administrative decision-makers are not “to be scrutinised upon over-zealous judicial review”.
It is clear that the Tribunal considered the applicant’s evidence and there was no failure to consider a relevant consideration. I agree with Mr Jordan’s submission that the comment about little rest was merely “one small observation in a context of findings and observations” leading to the Tribunal’s rejection of the applicant’s claim that he had been approached by a hospital security guard. Such a comment cannot be described as illogical or irrational.
The physiotherapist issue
The further amended application sets out this ground:
The documentary evidence before the Tribunal and the evidence given by the applicant at the hearing indicated that the role of physiotherapists in Algiers differs to the role of physiotherapists in Australia. The Tribunal found that it did “not accept that the type of work undertaken by physiotherapists is the type of medical care that is required at night when patients are asleep”. In making such a finding, the Tribunal failed to take into account a relevant consideration;
The applicant contended that the Tribunal failed to take into consideration the possible differences in the role of physiotherapists in Algeria and Australia. In the alternative he argued that the finding lacked an evidentiary basis.
In most respects this ground merely raises the same matters put for the previous ground. It should be rejected principally for the same reasons. The Tribunal considered the evidence and made findings of fact reasonably open to it. The weight to be accorded various items of evidence is for the Tribunal not this Court. The Tribunal is not obliged to refer in its reasons to every item of evidence that was before it. The applicant’s unhappiness with these findings is an attempt to traverse the merits of the decision.
Procedural fairness
Finally, the applicant asserted that the Tribunal failed to afford him procedural fairness by not putting to him perceived inconsistencies in his evidence, namely the amount of time he spent as an intern at various hospitals and/or the location of the issue of his Algerian passport.
In particular it was contended that inconsistencies between the applicant’s evidence with regard to both the duration of the traineeship at Ain Beida and the place of issue of the passport should have been put to the applicant. The Tribunal was under an obligation to invite the applicant to comment on these inconsistencies.
In effect the applicant argued that the Tribunal should have given him an opportunity to comment upon its reasoning and evaluation of his claims. However, there was no obligation on the Tribunal to disclose to the applicant matters relating to its reasoning process (ReRefugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 at [76], per Gaudron and Gummow JJ). In that case their Honours said:
There is no universal proposition that before the Tribunal ever makes a finding adverse to an appellant, it is necessary for the Tribunal to put to the appellant the concerns which are inclining the Tribunal towards an adverse finding. The procedure is inquisitorial and not adversarial.
(See also Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154 of 2002 (2003) 201 ALR 437 at [54]; Commissioner for ACT Revenue v Alphaone Pty Limited (1994) 49 FCR 576 at 591-592; NAJK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 163 at [98]–[105].)
It follows from these principles that the Tribunal was not obliged at common law to put these inconsistencies to the applicant.
Section 424A
The applicant did not pursue any issue based on s.424A at the hearing. However, in the meantime the High Court has given judgment in SAAP. Allsop J relevantly considered SAAP in SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200 at [14]-[15]:
14 In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 a majority of the High Court said that any failure whatever to comply with s 424A of the Migration Act 1958 (Cth) (irrespective of any conclusion one could reach from the surrounding circumstances that the applicant had been accorded substantive procedural fairness) amounted to jurisdictional error vitiating the decision.
15 SAAP must be read together with Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 in which it was held that the reference in s 424A(3)(b) to the information "that the applicant gave for the purposes of the application" was a reference to the information given by the "applicant" for the purpose of the "application" for review: that is, to the Tribunal. Thus, s 424A(3)(b) does not encompass information provided to the Department or the delegate by the person who subsequently becomes the applicant to the Tribunal for review.
Section 424A is in the following terms:
(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies- by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention- by a method prescribed for the purposes of giving documents to such a person.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information.
As a result of SAAP and Al Shamry it is necessary to consider whether the Tribunal breached s.424A in respect of information in the applicant’s protection visa application to the Department.
Two items of information referred to under the procedural fairness ground above are relevant
·information that the applicant had worked at the Ain Beida (or Ain Baida) hospital for six months prior to his departure for Australia, and
·information that the applicant had left Algeria by obtaining a passport and departure stamp at the border through bribery.
At [18] Allsop said three considerations arise:
| (a) | whether there is "any information" for the purposes of s 424A(1)(a); |
| (b) | if so, whether it can be said to be information that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review; and |
| (c) | whether in the light of any questioning about the earlier statement the information can be said to have been given for the purpose of the Tribunal review application. |
It is clear that the passport information was put directly to the Tribunal in written submissions at page 66 of the Court Book. The Tribunal also indirectly referred to it in a “s.424A” letter at page 91 of the Court Book. Section 424A has not been breached in relation to that information.
However, I have reached a different conclusion on the hospital evidence – that the applicant worked at the Ain Beida hospital for a period of six months. This is clearly information. The only time that I can find where this specific piece of evidence was provided was in the statutory declaration attached to the protection visa application at page 31 of the Court Book.
Did this information form the reason or part of the reason for the Tribunal’s decision? The respondent accepted that it did in her written submissions at [28(i)]:
The reference to the amount of time spent by the applicant at various hospitals was one of the reasons for the tribunal not accepting that the applicant had been approached, and later threatened, by a night security guard and other GIA members.
In my view a reading of the Tribunal’s reasons at page 136 of the Court Book confirms the respondent’s submissions. The Tribunal’s knowledge of the contents of the statutory declaration “can be seen to be a part of the reason for the decision because its … content [was] instrumental in the Tribunal reaching a conclusion” on contact with the night security guard and other GIA members (see SZECF at [34]).
This information was not put to the applicant following the mandatory procedure under s.424A. The Tribunal therefore fell into jurisdictional error. I am unaware of any reason for withholding discretionary relief (see SAAP at [84]).
Conclusions
I have found no merit in any of the grounds asserted by the applicant.
However, following the reasoning in SAAP and Al Shamry I am satisfied that the Tribunal committed jurisdictional error by breaching s.424A.
The decision must be set aside and the respondent pay the applicant’s costs.
I certify that the preceding sixty paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Natasha Werner
Date: 18 January 2006
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