SZECO v Minister for Immigration
[2005] FMCA 127
•25 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZECO & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 127 |
| MIGRATION – Refugee – failure to take evidence into account. |
| Migration Act 1958 |
| WAID v Minister for Immigration and Multicultural Affairs [2003] FCA 220 Applicant NAHV of 2002 vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 102 Mazhar v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 183 ALR 188 |
| Applicant: | SZECO & ORS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2437 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 13 December 2004 |
| Delivered at: | Sydney |
| Delivered on: | 25 February 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr J Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
A writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 19 March 1999.
The matter be remitted to the Refugee Review Tribunal, differently constituted, to redetermine the review application according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2437 of 2004
| SZECO & ORS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This judgment arises from an application filed in this Court by the applicants on 2 August 2004 seeking judicial review of the decision of the Refugee Review Tribunal (“The Tribunal”) made on 28 June 2004 and handed down on 20 July 2004 to affirm the decision of the delegate of the respondent Minister made on 29 August 2003 to refuse protection visas to the applicants.
The applicants are husband and wife and their son, aged 11 years. Pursuant to Rule 11.08 of the Federal Magistrates Court Rules 2001,
I appointed the first and second named applicants, that is, the applicant husband and applicant wife, as joint litigation guardians for the applicant son in relation to these proceedings.
The three applicants made application to the Respondent’s Department for protection visas. This was received on 14 July 2003 [see Court Book 1]. The applicant son made application as a member of the family of a person who made refugee claims. He did not make claims in his own right and filled out “Part D” of the application form which is provided for family members who do not have their own separate claims [see CB 25-29]. The applicant wife also applied as a family member and lodged a “Part D” of the application form [see CB 30-31]. Only the first named applicant husband made specific refugee claims. The applicant wife and son therefore relied on membership of his family in making their application.
The applicants are citizens of The People’s Republic of China and arrived in Australia on 13 June 2002. They lodged an application for protection visas with the Department of Immigration and Multicultural Affairs on 14 July 2003. On 29 August 2003 a delegate of the respondent Minister refused to grant protection visas and on 23 September 2003 the applicants applied to the Tribunal for review of that decision.
The first named applicant husband (“the applicant”) claims that he and his family are Christians, and that his father and grandfather had been persecuted in China because of their Christianity. The applicant claims that between 1997 and 2001, he was persecuted and arrested for attending Christian gatherings. In May 2001, he suffered a serious injury to his hand while in detention and was sent to hospital. From then on, he was prevented from attending religious activities and had to report to the police station once a week. From July 2001 until June 2002, the applicant claims to have organised hundreds of “religious” materials which were widely used and circulated by an underground church he had established with others in December 1998.
The applicant filed an amended application in this Court on 3 November 2004.He relies on two broadly stated grounds:
a)There was an error of law in the Tribunal’s decision constituting jurisdictional error.
b)There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Both grounds are particularised. However, the particulars appear to raise additional grounds and the following reformulation encompasses the matters asserted by the applicant:
1)The Tribunal relied on certain country information in making its decision and in so doing did not comply with ss.424A and 441A of the Migration Act 1958 (“the Act”).
2)The Tribunal failed to provide the applicant with a fair hearing in that:
a)It was almost impossible for the interpreter to accurately and clearly translate relevant independent country information or the information used by the Tribunal containing special religious terms;
b)The Tribunal failed to pay attention to the fact that the applicant’s strong Fujian accent made it difficult to communicate with the interpreter;
c)The Tribunal interrupted the applicant’s responses many times.
3)The Tribunal failed to make enquiries or to take into account one piece of strong evidence in support of the applicant’s claim – photographs showing an injury to the applicant’s hand.
The applicant appeared unrepresented before me. He did have the opportunity to access the Court’s Legal Advice Scheme. He was assisted by an interpreter in the Mandarin language. The second named applicant wife was for most of the relevant part of the hearing able to participate through audio link from the Villawood Immigration Detention Centre. Her presence at the Centre was not known to the Court or Counsel for the Respondent until after the commencement of the hearing when arrangements were then made to allow the second applicant to participate. It would of course greatly assist the Court in all matters involving the respondent Minister, where a party to proceedings before the Court who is in the custody and care of the Minister, that the appropriate steps are taken to present that applicant to the Court. The second applicant in this case did not present claims additional to those presented by her husband to the Tribunal. She relied on his claims. Nonetheless she was an applicant before the Court and as such was entitled to be given an opportunity to participate in the hearing before the Court.
In relation to the first ground the applicant asserts that the Tribunal cited numerous sources and material, being independent country information, relied on this material, and in doing so did not comply with its obligations under section 424A of the Act. He also claims that the Tribunal did not comply with section 441A of the Act in failing to provide this information to the applicant by one of the methods as required under that section. In the application, the applicant particularly referred to documents and information regarding unregistered churches, smuggling Bibles or other religious material into China, and to a document regarding passport and exit procedures in China. At the hearing before me the applicant referred to the large volume of country information beginning at CB 106 [and continuing until CB 294]. He emphasised that the Tribunal did not give him an opportunity to comment on this information “completely, clearly, thoroughly” and that this coupled with the fact that given the “specialised” nature of this information, the interpreter was unable to clearly translate and interpret this great deal of information. I did not understand this to be a complaint, at this point, about the interpreter (this was a separate complaint with which I will deal below) but was a complaint about the volume and complexity of this information and the alleged failure of the Tribunal to give him a proper opportunity to look at this information and comment on it.
From a reading of the material in the Court Book and the Tribunal’s decision record, the independent country material relied on by the Tribunal was essentially information relating to the issue of passports and security [see CB 93.9, CB 99.1 and CB 285 to 294] and information relating to situation of Christians in China and in particular Fujian province [see CB 94.5, CB 95-98 and CB 106-114, CB 129-137, CB 189-202, CB 230-237, CB 240, and CB 266-284].
Mr. Potts of Counsel submitted for the respondent that section 422B of the Act applies to this case and that section 424A is therefore the exclusive source of the Tribunal’s obligation to put information that it intends to rely upon as the reason for its decision. In any event, the applicant does not appear to assert any common law failure of procedural fairness, and in his application summarises the relevant particulars with a reference to a failure to comply with section 424A.
In WAID v Minister for Immigration and Multicultural Affairs [2003] FCA 220 at [57] Justice French, after referring to the explanatory memorandum for the Bill which introduced section 422B into the Parliament, held that Division 4 of Part 7 (which includes section 424A) so far as it is referable to the requirements of procedural fairness is to be treated as exhaustive of the matters that it deals with. This approach was also taken by the Full Federal Court in VAAC v Minister for Immigration and Multicultural Affairs [2003] FCARC 74 at [30] and more recently followed by Hill, J in the Full Court decision WABZ v Minister for Immigration and Multicultural Affairs [2004] FCARC 30 at [91]. Merkel and Hely JJ, in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW[2004] FCAFC 264 (to which I will also refer below) also looked at this issue recently and observed that:
“the situation may have changed as a result of the subsequent enactment of section 422B, which seeks to exclude the rules of natural justice at least in respect of the matters dealt with in the procedural code relating to conduct of review by the RRT” [132].
This comment was made in the context of a discussion on the relationship between section 424A and procedural fairness. Their Honours also observed that as a result of the enactment of section 422B the Tribunal no longer has an obligation to afford applicants before it a fair hearing, but that despite the absence of an obligation to comply with procedural fairness it may be desirable for the Tribunal to do so [at 139].
The independent country information referred to by the Tribunal, being information regarding the Christian religious situation in China and passport and exit procedures from that country, is information which is at least part of the reason for affirming the decision which was the subject of the Tribunal’s review. The Tribunal in its decision record says:
"The Tribunal also has had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources." [see CB 87.7]
"The Tribunal did not find the applicant to be a convincing or credible witness as there were a number of inconsistencies in his claims and his story was inconsistent with the independent information before the Tribunal." [see CB 100.5]
"The applicant’s claims that the underground churches are not allowed and that the government forces people to join public churches and that he was detained because of his religious activities, is inconsistent with the independent information before the Tribunal." [see CB 102.5]
"The independent information before the Tribunal indicates that applications for passports are vetted by the PSB and that it would be difficult for a PRC national to depart China without their intended departure coming to the attention of the authorities. Given this independent information the fact that the applicant was able to obtain a passport in his own name and left China legally is inconsistent with his claims that the PSB watched him closely and that he was required to report to the local police station." [CB 102.8]
In summary the Tribunal found the applicant’s account to be inconsistent with the independent information before it, and this coupled with the finding that he was not a convincing or credible witness, and the fact that he delayed seeking protection after arriving in Australia indicating that he had fabricated his claims to extend his stay in Australia, led the Tribunal to affirm the decision to refuse his application. On the face of it this information is caught by section 424A(1).
However, section 424A(3) of the Act operates to exclude certain information from the operation of section 424A. It provides that the Tribunal is not required to invite an applicant to comment on adverse information:
"that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member."
The exact meaning of the wording in section 424A(3) has been the subject of consideration in a number of cases, and two lines of authority have emerged as to the meaning of section 424A(3). The preferable view appears to be that adverse country information would fall within the exception if it is not specifically about the applicant, and its relevance to the Tribunal’s decision is that it concerns a class of persons of which the applicant is a member. This is consistent with the recent Full Federal Court decision in NAMW v Minister for Immigration and Multicultural Affairs [2004] FCAFC 205, and in particular Justices Merkel and Hely at [138] and [134] and Justice Beaumont at [64] to [71] in which he agreed with the view taken by the Full Federal Court in the earlier case of VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82.
The information fell within the provision of section 424A(3), and as section 424A(1), is subject to section 424A(3), it did not apply to this independent country information and this ground should be rejected for this reason.
In the alternative the respondent submitted that even if there was some information to which section 424A applied, and which was not put to the applicant by way of one of the methods set out in section 441A, the Tribunal did put all critical information to the applicant at the hearing and invited his comments. The Tribunal record of decision refers to two instances where the general issues were put to the applicant. See CB 94.1 for references to the passport issue and CB 94.5 for Christians in Fujian. The applicant is recorded as saying that such country information was incorrect. The respondent continues that in these circumstances the only possible breach, would have been a breach of section 424A(2). The respondent relies on a number of authorities to support the proposition that when the applicant was afforded natural justice in relation to relevant information, any breach of section 424A(2)(a) does not constitute a jurisdictional error. See for example, Applicant NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 102 and at [25]-[27] and NANF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 292 at [54]-[56].
Given that I have already found that section 424A(3) applied it is not necessary to deal in substance with this alternate argument. But it is clear that the substance of the information on which the Tribunal relied – namely the situation of Christians in Fujian province and relevant passport issues – were put to the applicant.
The applicant complains that the Tribunal hearing was unfair. A clear principle of law is that the Tribunal must give an applicant a fair hearing. It is basic that an applicant should have a reasonable opportunity to present his case and to meet the case against him. The Tribunal is under a statutory obligation to provide a competent interpreter who does in fact provide a competent interpretation. Sections 425 and 427 of the Act relevantly require the Tribunal to invite the applicant to give evidence and present arguments relevant to his case, and specifically section 427(7) requires the Tribunal to give a direction that communication be through an interpreter if the applicant is not proficient in English. The statutory requirement may be satisfied if the applicant can comprehend and articulate English sufficiently well to enable in a real sense the giving of evidence and presentation of argument in English. The Tribunal will have breached its statutory obligation pursuant to section 425 if it provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument. In Mazhar v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 183 ALR 188 at [31] Justice Goldberg, after looking at relevant authorities said:
“These passages suggest that where the applicant appears, but is not able through the conduct of the tribunal to give evidence or present arguments, albeit that the applicant has been invited by the tribunal to appear, then there will be a contravention of s 425(1). I agree with the observations of Wilcox J in Xiao above, at [30] that events subsequent to the invitation, which must remain open, are not necessarily immaterial. The invitation must not be a hollow shell or an empty gesture. If an invitation to appear is extended to an applicant, where the tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the tribunal. If that situation arises the tribunal will not have fulfilled its obligation under s 425(1).”
Similarly under the common law, if an interpreter is provided by the Tribunal and has interpreted in an inadequate way there will be a breach of the common law hearing rule because the opportunity to put a case is illusory. For example, as Justice Hill said in SZAAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 312 at [40]:
“I am unaware of any decision which has considered the question of translation in the context of whether a wrong translation of material before the Tribunal could constitute jurisdictional error. It can be accepted that it is a fundamental rule of a fair hearing that an applicant before the Tribunal be afforded the opportunity of putting his or her case. I do need to consider whether there would be any obligation on the part of the Tribunal to provide to an applicant, unable to speak English, an interpreter. If an interpreter provided by the Tribunal translated in a totally inadequate way the apparent opportunity to put a case is illusionary. In the present case an interpreter was in any event provided (see Migration Act s.366C). The complaint is that the interpretation was so inadequate as to amount to a denial of procedural fairness.”
But not every error or problem with interpretation will amount to a denial of procedural fairness. For example the Full Federal Court in WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171, [in referring to Justice Kenny in Perera v Minister for Immigration and Multicultural and Indigenous Affairs [1999] FCA 507 at [25]-[26] “interpretation is no mere mechanical exercise”] said at [66]:
“However, the requirement is not that there be a perfect translation, it suffices that the translation is sufficiently accurate as to permit the idea or concept being translated to be communicated.”
In Perera v Minister for Immigration and Multicultural and Indigenous Affairs (1999) 92 FCR 6 (1999) 92 FCR 6 at [45]-[46] the Court said at [45]:
“It is not every departure from the standard of interpretation that prevents an applicant for refugee status from giving evidence before the Tribunal. The departure must relate to a matter of significance for the applicant’s claim or the Tribunal’s decision.”
The lapse in interpretation needs to involve the vital interests of the applicant and not merely some collateral or extrinsic matters. The case of Perera to which I have referred held that the appropriate standard of interpretation before the Tribunal should include precision or accuracy, impartially on the part of the interpreter and competency. Elements that go to incompetence, such that the applicant is prevented from effectively giving evidence, include the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made out, and any evident confusion in exchanges between the Tribunal and the interpreter. Although, other than the latter, these elements could also go to the paucity of the applicant’s claims.
The applicant in this case complains that the Tribunal did not arrange a fair hearing:
-interpretation difficulties due to the large and complex amount of information and the applicant’s strong accent not readily understood by the interpreter.
-the constant interruption by the Tribunal
In relation to translation difficulties the applicant has provided no evidence to support his claims. Clearly the Tribunal’s decision was in part based on its findings that the applicant was not a convincing or credible witness and there were a number of inconsistencies in his claims. In particular the Tribunal made findings in relation to the applicant’s lack of familiarity with the Bible and his lack of understanding or knowledge of matters contained in the Bible. The applicant claimed before me that the interpreter was not able to “completely, accurately, clearly” translate and interpret much of the independent country information particularly as it related to “specialised” information, and that his Fujian accent made communication difficult with the interpreter. He claims on this latter point that the Tribunal was aware of this.
The applicant did have the opportunity to access the Court’s Legal Advice Scheme and confirmed at the hearing before me that he did obtain legal advice and would therefore have had the opportunity to obtain advice as to how to prosecute this claim. Secondly, he made no claim or request before me that there was a tape of the hearing before the Tribunal, or any transcription of the tape that would support his claims. Thirdly, the applicant was represented by an agent, who had been nominated as the authorised recipient for correspondence (see CB 61) through the period of the application for review before the Tribunal. There is nothing before me to show that the applicant or his agent complained about the interpretation difficulties at the hearing or subsequently. Nor is there anything before me to support the claim that the Tribunal knew of any such difficulties. In the absence of anything before me to show that the standard of interpretation in the circumstances was inadequate, or any errors made in translation were material to the conclusions of the Tribunal, this ground must fail.
Similarly, there is nothing before me to show that the Tribunal interrupted or stopped the applicant from presenting his claims. Again the considerations above are relevant to this claim and in the absence of anything beyond mere assertions now, this ground also must fail. Nor is there anything before me to show bias or bad faith on the part of the Tribunal in this regard, to the extent that any such ground may be implied from what the applicant is now saying.
The applicant also complains that the Tribunal neglected an important part of the applicant’s evidence submitted to the Tribunal. The applicant says that he provided a number of photographs to the Tribunal which showed a scar that he says is strong evidence that he was tortured in China by police. He claimed at the hearing before me that he submitted these photographs to the Tribunal at the end of the hearing when the Tribunal asked him if he had anything further. The applicant claims that in addition to ignoring the photographic evidence, the Tribunal never returned the photographs to him.
Copies of the photographs are reproduced at CB 76-77. It is difficult looking at these photocopies to discern clearly what they purport to represent. Nonetheless, it did not appear to be disputed by the respondent that the photographs showed some injury to the applicant’s hand. The Tribunal makes reference to the applicant’s claim regarding this injury at CB 89.6:
“He claims in May 2001 his hand was injured and he was sent to hospital.”
There is no specific reference in the Tribunal’s record of decision to any photographs submitted in support of this claim. Nonetheless copies of photographs are contained in the Court Book and at CB 74 a letter from the Tribunal to the applicant, sent to his authorised recipient, with a copy to the applicant, states that the Tribunal is returning four photographs submitted by the applicant. The applicant claims that he never received the photographs. But there is nothing before me to show that the letter, and to the extent that this can be inferred, the photographs, were not sent, as required, to the applicant’s authorised recipient – namely his migration adviser. This is as noted on the face of the letter. While it is of concern to the applicant that he has not obtained the return of his photographs a clear inference can be drawn, and there is nothing before me to contradict this inference, that the letter and photographs were with the Tribunal and were sent to his authorised recipient.
In any event the important issue for this Court is whether the Tribunal failed to take into account relevant material supplied by the applicant and if it did whether this would amount to an error or jurisdictional error on the part of the Tribunal. In submissions, the respondent acknowledges that the Tribunal does not specifically refer to the photographs in its record of decision but submits with authority that the Tribunal is under no obligation to refer specifically to every piece of evidence in its reasons. The respondent relies on Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630 at [46], where the Full Federal Court said:
“It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.”
The Tribunal, as I have already noted, did refer to the applicant’s hand injury in its outline of the applicant’s claims. There is no mention of any scar. The respondent’s submission is that there is insufficient evidence for the Court to conclude that the Tribunal failed to have regard to this piece of evidence, assuming it to have been put forward by the applicant. Firstly, in relation to this latter point the existence of the copies of the photographs in the Court Book and the letter at CB 74 would give rise to a reasonable inference that the photographs were before the Tribunal. In relation to whether the Tribunal had regard to this evidence, the respondent says that the timing of the return of the photographs, two days after the decision was made, was significant in showing the Tribunal had this matter before it at about the time of the making of the decision. Further, the Tribunal did address the issue which the photographs purported to support - namely the injury to the applicant’s hand - which he tendered as evidence of his claims of being tortured. As against this the Tribunal makes no mention of the photos, and made a finding that it did not accept, amongst others, the claim that he had been detained or tortured. [see CB 103.2]
In the case of WAEE (supra), the Full Federal Court was presented with a situation where the Tribunal in that case failed to address a matter that the Court found was a significant element in the applicant’s application. The applicant in that case was a Sabian Mandaean who claimed that his son’s marriage to a Muslim woman would have repercussions for him and his wife if they were to return to Iran. The Court found that the material put before the Tribunal on the son’s inter-marriage went directly to the criterion for the grant of a protection visa. While the Tribunal recounted these claims early in its reasons, its failure to consider the evidence and the contention, led to the conclusion that it failed to address this issue. The Court had earlier said at [47]:
“The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
It is clear that the Full Court found that the material was a significant element of the application and the failure to address it was a failure by the Tribunal to consider an issue going directly to the question whether the criterion under section 36 of the Act was satisfied. As such the Court held that the Tribunal failed to discharge its duty of review and made jurisdictional error.
In the case before me:
-The Tribunal did not mention the photos at all;
-It did refer (in its outline of claims) to the matter which the photos purported to support – namely that he had been injured in circumstances where he had been subjected to torture and mistreatment at a labour farm.
The applicant’s claim was that he is a Christian, that he was involved in an underground church, that he was arrested, detained and tortured. These are recounted by the Tribunal itself at CB 99.8. The Tribunal found against the applicant because of:
-A number of inconsistencies in his claims
-His “story” was inconsistent with the independent information before it relating to the religious situation and to the difficulty of obtaining passports for those who were of interest to the authorities
-the length of time after his arrival in Australia before he lodged his protection visa claim went to the genuineness of his claims and further indicated that these had been fabricated.
Based on this the Tribunal did not accept applicant’s previous claims, including that he had been detained and tortured.
To paraphrase, with respect, the Full Court in WAEE, in the present case the applicant’s claim of detention and torture was a significant element of his application. This claim and the reference to his hand being seriously injured was raised in his application for a protection visa lodged with the respondent’s Department [see CB 38.9-39.3 – paragraphs 16 and 17]. It was also clear that the applicant was contending that this torture and detention (supported, he said, by the evidence of the injury to his hand) went directly to the issue that he had faced persecution in the past and would face similar treatment on return because he had come to the attention of the authorities because of his religious dissent.
The Tribunal based its decision on a number of factors in essentially rejecting the credibility of the applicant’s claims. However, the Tribunal, at CB 103, clearly rejects a central contention of the applicant that he had been detained and tortured. As against the country information which the Tribunal said showed that there was a high degree of religious tolerance in the applicant’s area of China, the Tribunal found he had not been detained and tortured, but in doing so failed to refer in its reasons to the one piece of significant evidence advanced by the applicant to support his claim of torture. The respondent’s Counsel argued that while the photographs were potentially corroborative of torture, the Tribunal did not reject the applicant’s claim because it found the applicant had not been injured in the hand (as opposed to recording this as a claim by the applicant (see “Claims” CB 88 – especially CB 89.6)). That is true. But nor did the Tribunal in its findings and reasons refer to the injury to the hand. In rejecting the applicant’s claims because his claims were recurrently inconsistent with country information, without referring to and addressing corroborative evidence advanced by the applicant, and without addressing the subject of the corroborative evidence (the injured hand in its findings and reasons, particularly where it had identified this as one of the applicant’s claims) is a failure to consider the evidence and to properly consider the claim made by the applicant. This is an error on the part of the Tribunal and as conceded by Counsel for the respondent at the hearing before me, the Tribunal’s ignoring of an important corroborative piece of evidence would lead to the conclusion that this was jurisdictional error. On this basis the Tribunal’s decision should be quashed and remitted to the Tribunal, differently constituted, to be redetermined according to law.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Wagma Aziza
Date: 23 February 2005
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