SZJHK v Minister for Immigration - [2007] FMCA 248

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJHK v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 248

MIGRATION – Refugee – Tribunal found the applicant’s refugee claims lacked credibility and had no foundation in truth – Tribunal invited applicant to comment on information – applicant responded within specified time – applicant claimed Tribunal did not properly deal with information he provided – was Tribunal functus officio – decision is made when finalised – Tribunal failed to deal with material provided by applicant – jurisdictional error – application granted.

Migration Act 1958, ss.424, 424A, 424B, 424C, 430, 430A, 430B, 430C
Migration Regulations 1994, Regulation 4.35

SZEUZ v Minister for Immigration & Anor [2005] FMCA 967
X v Minister for Immigration & Multicultural Affairs [2002] FCAFC 3
NAHP v Minister for Immigration [2004] FMCA 145
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80
Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244
VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104
MZWKU v Minister for Immigration and Multicultural Affairs [2006] FCA 996
S14/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153

Applicant:

SZJHK

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2474 of 2006

Judgment of:

Nicholls FM

Hearing date:	12 February 2007
Date of Last Submission:	25 January 2007

Delivered at:

Sydney

Delivered on:

5 March 2007

REPRESENTATION

Counsel for the Applicant:

Mr. D. Burwood (Direct Access)

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Mr. G. Johnson

Solicitors for the Respondents:

Clayton Utz

ORDERS

The reference to the name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
A writ of certiorari issue, quashing the decision of the second respondent.
A writ of mandamus issue, requiring the second respondent to redetermine the matter according to law.
The first respondent pay the applicant’s costs set in the amount of $7,705.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2474 of 2006

SZJHK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed in this Court on 4 September 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 July 2006 to affirm the decision of a delegate of the respondent Minister made on 13 June 2006 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.
The applicant, currently held in immigration detention, is a citizen of the Republic of Korea (South Korea), who arrived in Australia on 14 March 2001. The applicant’s claims to protection can be found in his application for a protection visa reproduced in the Court Book (“CB”) at CB 12 to CB 37. The application for review submitted to the Tribunal is reproduced at CB 65 to CB 68. The applicant was represented by the Legal Aid Commission of New South Wales (“Legal Aid”) before the Tribunal. The Tribunal’s account of the hearing it conducted with the applicant on 5 July 2006, is reproduced at CB 120 to CB 128.8. On 6 July 2006 the Tribunal sought comment from the applicant pursuant to s.424A of the Migration Act 1958 (“the Act”), and provided the opportunity to the applicant to give further information pursuant to s.424 of the Act. The applicant’s response provided through Legal Aid is reproduced at CB 107 to CB 109.
The applicant's claim for protection in his application for a protection visa, set out in answer to the following:
“Why did you leave that country?
was:
“At the age of 18 I was interrogated by the police on suspicion that I was North Korean spy I was interrogated for two months at the police station and was released.
I was never involved in politics. The reason that I was detained was that I did not have an ID. I escaped from the orphanage when I was 15. I was homeless for one year, But I lived where I worked (at warehouses – restaurans (sic)) afterwards.”
At the hearing with the Tribunal the applicant expanded on these claims, and in particular told the Tribunal that he had been imprisoned for 1 ½ years for theft.
In the letter of 13 July 2006 submitted by Legal Aid on behalf of the applicant, the applicant additionally put to the Tribunal (CB 109.5):
“I have been to many police stations in South Korea. They include…
They mistake me for a spy. I have been imprisoned. My head was pulled backwards and I suffered water torture. They slapped me and kicked me. After the torture they left me in the prison. I was in prison and one day they call me. The detective in plain clothes told me that I stole some sneakers and some clothes. I said that I did not steal them. The detective kicked and beat me to tell the truth.
I could not stand being beaten any more so I said I stole them even though I had not. They labelled me as a thief. I am an orphan. I was jailed for no reason.”
The Tribunal’s “Findings in Reasons” in its decision record are reproduced at CB 124.9 to CB 128.8. The Tribunal:
1)In relation to the applicant's credibility, found his evidence at the hearing “to be vague and improvised and does not accept that he is a credible witness” (CB 125.6). Further, that “the applicant has not provided an accurate account” (CB 125.7), and ultimately found that it dismissed “the applicant's claim to suffer ongoing disadvantage because of having been denied an education” (CB 125.8).
2)Although it had serious doubts about the applicant being an orphan (which the Tribunal saw as the essential basis for his claims of fearing persecution in South Korea), found that nonetheless “it would proceed to examine his refugee claims on the basis that he may be an orphan” (CB 126.4).
3)Also considered the applicant's claim that he did not have valid identification, but did not accept “that the applicant has been denied identification papers in the past or will have any associated problems in the future for any reason at all” (CB 126.6).
4)In relation to his claims of being abused by police, found that the “account of why the police accused him of being a spy was threadbare” (CB 127.3). Further, the Tribunal did not find the explanations provided in response to its “s.424A letter” convincing and concluded that “the applicant’s account of his conviction and imprisonment is fabricated, and accordingly it dismissed this claim.” (CB 127.7)
5)Found that as a result of its adverse findings in relation to his earlier evidence the applicant was “not a witness of truth”, and did not accept that he was an orphan or that he lacked family and friends in South Korea (127.8).
6)In relation to the applicant's delay in applying for a protection visa after arrival in Australia, did not accept that language problems were the reason for the delay that “he did not do so much as articulate to anyone concerns about the potential return to South Korea”. The Tribunal suspected that “these concerns were raised solely as a means of delaying his return to South Korea” (CB 128.6).
7)Summarised its analysis at CB 128.7:
“The Tribunal has considered the applicant’s claims individually and cumulatively. It finds that his refugee claims lack credibility, and have no foundation in truth. It does not accept that he is an orphan, or that he was denied documentation. It does not accept that he has suffered past harm, let alone harm amounting to persecution, for these or any other reason. The material before the Tribunal does not indicate any further factors that might establish a real chance that the applicant will face serious harm for any reason if he returns to South Korea.”
I should just note briefly by way of background, when this matter first came before the Court on 5 December 2006 the applicant appeared in person without representation. At that time the New South Wales Law Society, through its “pro bono department”, was giving consideration to arranging legal assistance for the applicant. The matter was adjourned until 15 December 2006 when Mr. Burwood of Counsel appeared for the applicant, and Ms. Zarucki appeared for the respondent. Following the hearing (part heard) the matter was adjourned to enable both parties to make further written submissions. At the time of the resumed hearing on 12 February 2007 the Court had before it:
For the applicant:
1)An amended application filed on 19 December 2006 which asserted:
“The grounds of the amended application are:
1. The second respondent breached section 424 Migration Act 1958 by disregarding information provided to it by the applicant being his facsimile letter dated 13 July 2006 and
2. The second respondent breached section 424A Migration Act 1958 by failing to give to the applicant particulars of information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review specifically information relating to the applicant’s claims of having been deprived of an education and of being an orphan.”
2)Written submissions of 11 December 2006.
3)The applicant's further written submissions filed on 25 January 2007.
For the respondent:
4)Written submissions filed 23 November 2006 and 14 December 2006.
5)Additional written submissions filed on 18 January 2007.
6)The affidavit of Shi-in Lee of 17 January 2007 with annexures (read into evidence at the hearing on 12 February 2007).
At the resumed hearing Mr. Burwood again appeared for the applicant, and Mr. Johnson of Counsel appeared for the respondent. I should just note that Mr. Burwood submitted that he did not press ground two as set out in the amended application, but would seek to put issues before the Court that flowed from ground one. Mr. Johnson did not object to the Court considering the issues as they arose out of the hearing (rather than as pleaded by the applicant).
By way of relevant background I also note:
1)19 June 2006 – Application for review to Tribunal (CB 77 to CB 80)
2)5 July 2006 – Applicant attended hearing before the Tribunal (CB 91 to CB 95).
3)6 July 2006 – Letter from the Tribunal to the applicant (sent to the applicant's authorised recipient for correspondence) seeking comment on certain information (one issue before the Court is whether this letter was “sent” pursuant to s.424A only, or whether it was in addition an opportunity provided to the applicant pursuant to s.424 – see below)
4)13 July 2006 – Letter from Legal Aid responding to the Tribunal's letter (CB 106 to CB 109).
5)13 July 2006 – Two-page communication in the Korean language from the applicant who was in the Villawood Immigration Detention Centre, sent to the Tribunal by facsimile transmission. One page in Korean characters, the second page appears to be a diagram or a map (CB 110 to CB 111).
6)14 July 2006 – The Tribunal signed its decision record (CB 117).
7)17 July 2006 – The Tribunal notified the applicant directly of its decision and the applicant through his authorised recipient. Copies of the decision record are attached (see variously CB 114 to CB 116 and CB 130).
8)20 July 2006 – The Tribunal case note concerning the documents in Korean, signed by the relevant member (reproduced at CB 112).
In essence and ultimately, the applicant's case, in asserting jurisdictional error on the part of the Tribunal's decision, is that the Tribunal did not properly, or adequately, deal with the information contained in the applicant's Korean language document and attached diagram reproduced at CB 110 to CB 111.
Mr. Burwood’s submissions were that by its letter of 6 July 2006 (CB 101 to CB 102) the Tribunal was seeking comments on certain information pursuant to its obligations set out in s.424A(1) of the Act. But that, in addition, the Tribunal also gave the applicant the opportunity to provide further information. Mr. Burwood's position was that this was pursuant to s.424.
By way of explanation Mr. Burwood submitted that the letter clearly invited the applicant to comment on three specific areas of information available to the Tribunal. Further, that the Tribunal explained the relevance of this information to its decision (CB 102.3):
“As explained at the hearing, the above information is also relevant because it may cast doubt on your credibility generally, including whether you are an orphan and whether you have faced any past disadvantage in Korea.”
However, in an additional note the Tribunal also went on to say (at CB 102.5):
“*** Please note ***
The Tribunal raised these issues with you at hearing and has noted your oral responses. This letter provides you with an opportunity to respond in writing to these concerns, if you wish. As mentioned at hearing, you may also include in any response any other information you wish to bring to the Tribunal's attention.”
It was the language of this last sentence, in particular, which he said was the opportunity given to the applicant, pursuant to s.424, to provide any further information that he wished to bring to the Tribunal's attention.
Mr. Burwood's submission was that while Legal Aid, acting on behalf of the applicant, responded to the Tribunal's invitation to comment pursuant to s.424A, by its letter of 13 July 2006 (CB 107 to CB 109), the information that the Tribunal received from the applicant (albeit written in the Korean language) on 13 July 2006, was information pursuant to s.424(1) of the Act, and the Tribunal failed to have regard to this information. Mr. Burwood's submission was that there is no mention of this communication from the applicant in the Tribunal's decision record. Further, that the Tribunal's reference to these documents in a “case note” of 20 July 2006 (CB 112) was not sufficient, or proper regard, such that it could be said that the Tribunal properly exercised its jurisdiction to review the decision of the Minister's delegate. In particular, that this document was written in the Korean language, and the Tribunal would have been unable to comprehend it, and that therefore it had no regard to this information.
Mr. Johnson's submission was that the Tribunal's letter of 6 July 2006 was an invitation pursuant to s.424A to comment on certain information. What was included in the additional note (at CB 102.5) was not an invitation pursuant to s.424. His submission was that it should not be read that way, in particular, because of the consequences for the applicant should it be so read. That is, given the provisions of s.424C, that if the applicant had not provided any such additional information by the date specified that the Tribunal may have then proceeded to make a decision on review without taking any further action to obtain this additional information.
Although not ultimately determinative of the central issue to be considered in this case, the Tribunal’s letter of 6 July 2006 certainly contains a request made pursuant to s.424A, but also, in my view, an invitation pursuant to s.424. The Tribunal’s last sentence, under the additional note in its letter, invites the applicant to provide “other information” that he wished to bring to the Tribunal's attention. That is, information other than what he wished to say in response to what is set out in the Tribunal’s letter. Further, this must be read with what the Tribunal sets out at the beginning of the additional note. That is, that certain issues were raised by the Tribunal at the hearing that it conducted with the applicant, and that it was providing him with an opportunity to make comment on the information from which these issues were derived.
From the Tribunal's own account of what occurred at the hearing (see CB 121.3 to CB 123.5), it is clear that the Tribunal had a number of concerns going generally to the applicant's credibility. In my view the opportunity that the Tribunal sought to provide to the applicant by way of its letter was for the applicant to comment in writing on specific information which underpinned some of its concerns, but also what cannot be ignored, is the plain language of what is set out at CB 102. In that context, the applicant was also given the opportunity to provide “any other information”, in relation to the issue of the credibility of his claims. When read in context I did not see this as some vague, or general reference to “any other information” without specificity. It was “other information” clearly in addition to, or relating to, the issues that were raised at the hearing.
In this regard therefore, I accept Mr. Burwood's submission that the Tribunal was also seeking to provide a further opportunity for further information from the applicant pursuant to s.424. I note Mr. Johnson’s submission that the consequences for the applicant, should the opportunity to provide “any other information” be seen as an invitation pursuant to s.424, were severe (in that the Tribunal may have proceeded without further action), and should not therefore be seen as a s.424 request. No such consequences are apparent in this case. The letter was sent after the hearing with the applicant. Plainly therefore, he was not denied the opportunity to be heard in that regard. Further, the Tribunal did take into account the letter from Legal Aid.
Section 424 provides that if the Tribunal seeks information then it must have regard to it. However, how much of this may be of assistance to the applicant in terms of what he sent to the Tribunal (CB 110 to CB 111) must be seen in light of s.424B(1). This provides that where the Tribunal gives an invitation to give additional information, the invitation is to specify the way in which the additional information may be given.
In the circumstances of the case before me what is set out at CB 102 also shows that the Tribunal plainly specified that the comments in relation to the information on which it was going to rely (that is the “s.424A” information and comments) was to be provided as follows:
“You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 13 July 2006.”
Given that the “other information” was to be included in this response, then the Tribunal’s specification also applies to this “other information”.
Plainly, the applicant's response provided by Legal Aid (CB 107 to CB 109) both in terms of responding to the matters raised pursuant to s.424A, and “other matters”, as set out at CB 109, complied with the Tribunal's specification that it be in writing, that it be in English, and that it be submitted to the Tribunal by 13 July 2006.
I cannot see however that the applicant's documents at CB 110 and CB 111 fully comply with the Tribunal's specification in response to the Tribunal's invitation, pursuant to s.424. Specifically, the document, and those parts of the plan at CB 111 which contain writing are not in English.
However, while s.424B provides that the Tribunal’s invitation under s.424 is to specify the way in which the information is to be given, in my view it is not entirely clear that s.424C provides any adverse consequence to an applicant who fails to comply with such a specification. Plainly a failure to give the information “before the time for giving it has passed” may lead to a decision on the review without further action by the Tribunal to obtain the additional information.
There is no such failure in the case before me. There is no dispute that the applicant gave his information to the Tribunal on 13 July 2006, within the period specified by the Tribunal.

Mr. Burwood's submission was that the evidence before the Court, as reproduced at CB 110, is that the applicant submitted his document to the Tribunal on the 13 July 2006 by way of facsimile transmission (see the facsimile date, and time, at CB 110.1). Mr. Burwood submitted that given s.424B(6) of the Act, the applicant's document which was in response in his submission to a “s.424A request” would be taken to be given to the Tribunal (that is the as constituted for the purposes of the review) when a registry of the Tribunal received a response which in this case was 13 July 2006).
However, what in my view counts against the applicant’s position is that s.424C must be read together with s.424B. Section 424B(1)(b) contemplates that the invitation is to specify the way in which the “additional information…may be given”. In the case before me the Tribunal specified that the additional information was to be included in the response to the letter seeking comments pursuant to s.424A, in respect of which the Tribunal had also specified that any such response be in English (see CB 102).
The applicant’s facsimile communication plainly did not comply with the specification that it be in English, nor was it apparent that it was in response to the “s.424A letter” (such that it could be said to be included in any such response) so that a failure to meet specifications imposed by the Tribunal would, in my view, serve to mean that the information provided by the applicant (as opposed to what was provided by Legal Aid) was not “given” to the Tribunal within the time provided by the Tribunal, and could only be given in a form and manner as specified by the Tribunal.
In any event, this is not determinative of the case before the Court. Notwithstanding that the applicant did not “give” his information to the Tribunal pursuant to s.424, what remains is that he did submit material to the Tribunal on 13 July 2006. This was before the Tribunal made its decision. The issue still remains whether, in all the circumstances, the Tribunal was required, in the exercise of its jurisdiction, to consider the applicant's documents, and if so, whether it did so properly (with reference to Mr. Burwood’s submission), in the sense that it gave consideration in a way consistent with the proper exercise of its “jurisdictional” task.
Mr. Burwood’s position (which I understood to be pressed irrespective of whether the applicant’s documents were submitted in response to the “s.424A” letter, an invitation pursuant to s.424, or otherwise) was that the Tribunal was obliged to consider the applicant's documents. Further, there was no evidence in the Tribunal's decision record that consideration had been given to the applicant's documents. It was that the only evidence of any such consideration, as set out in the case note at CB 112, shows that the Tribunal had no regard for that information because, given that it was written in the Korean language, the Tribunal would have been unable to comprehend it.
Further, what the Tribunal purported to do, that is, to draw on the telephone numbers appearing in the body of the Korean text document (at CB 110), and as they appeared in the letter from Legal Aid (CB 109), as the basis for saying that the Korean text document submitted by the applicant is “simply the document on which the submission drew” is not sustainable. Such an approach is inconsistent with the proper and careful consideration that must be given to circumstances that involve the very serious claim of persecution should the applicant be returned to Korea.
Mr. Johnson's response, relevantly and in short, is that the Tribunal member did consider the material sent by the applicant, and took no further action because the Tribunal was satisfied that “the Korean text contained no new information or claims”, and not because the Tribunal saw itself as unable to do any more.
This needs to be understood in the context, and the circumstances set out above, of when the decision was made, and how to characterise the Tribunal's actions in such consideration. That is, was the Tribunal “functus officio” by the time it came to consider the documents (CB 110 to CB 111), which on the evidence before the Court could have occurred at any time up to 20 July 2006. Mr. Johnson submitted that the Minister took no issue with the fact that the document was received by the Tribunal on 13 July 2006, even though not actually seen by the presiding member on that date.
Further, that the Tribunal could not be “functus” until its decision was given, that is, it was not made until it was given, and that the decision was in fact given to the applicant on 17 July 2006. He relied on SZEUZ v Minister for Immigration & Anor [2005] FMCA 967 (“SZEUZ”) at [32] where Smith FM said:
“In my opinion, it is clear that an undelivered “decision” has no legal status and can provide no proper impediment preventing the Tribunal from receiving and considering further evidence from an applicant at any time prior to the legal “giving” of the decision through a procedure such as handing down under ss.430A and 430B. Indeed… the Tribunal is obliged to conduct that further consideration if a relevant matter is brought to its attention. This has been settled by a line of cases which has arisen from the unfortunate propensity of the Refugee Review Tribunal to “hand down” a decision long after the member “signs” it (see X v Minister for Immigration and Multicultural Affairs (2001) 116 FCR 319 by Gray J at [23-4] with whom Moore J agreed at [48], and Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 18 by Merkel J at [19-51]).”
In my view, what FM Smith set out in SZEUZ is not applicable, in the circumstances, to the immediate issue before the Court now. Plainly, the situation before FM Smith involved an immigration decision that fell within the ambit of s.430A and s.430B, which relate to circumstances where a decision is signed by the relevant Tribunal member, further material is received, and the Tribunal is obliged to consider it because a decision is not made until it is handed down, in the circumstances before FM Smith, some time later. The date of the decision in these circumstances is the date on which the decision is handed down (s.430B(4)).
The circumstances before the Court now however can be plainly distinguished on the basis that ss.430A and 430B are excluded from application to a decision on an application of a person who is in “immigration detention” (see s.430A(1)(b) and s.430B(1)(b)). In my view, the legislation (at Division 5 of Part 7 of the Act – ss.430, 430A, 430B, 430C, 430D and 431) provides for the clear distinction between those decisions on applications where a person is in immigration detention, and those where the applicant is not so detained. The relevant section applicable to an application involving an applicant in immigration detention, is s.430D(2). As the provisions of ss.430A and 430B, and in particular, and relevantly, s.430B(4) does not apply, then what remains is what is set out at s.430D(2):
“SECT 430D
…
(2) If the applicant is in immigration detention, the Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection 430(1) within 14 days after the decision concerned is made.”
In my view, given the absence, in relation to decisions on applications from those in detention, of any provision for the handing down of the decision, or the giving (handing down) of the decision as being the date of the decision, and given that the plain language of s.430D(2) is that a “statement under 430(1)” must be given within 14 days after the decision concerned has been “made”, then the clear inference in all the circumstances, is that the decision is made when the decision is finalised, the evidence of which is the date of signing by the presiding member. It therefore becomes available to be “given” to the applicant (and the Secretary of the first respondent's Department) within 14 days. In the present case the date of the making of the decision therefore was 14 July 2006.
Mr. Johnson also submitted that although the applicant’s material was received by the Tribunal on 13 July, there was no evidence before the Court to establish whether the member conducted the consideration of the applicant's document, as referred to at CB 112, either before the decision was made (whenever that was), or after, up until 11:46 a.m. on 20 July 2006 (see CB 112). The submission was that the case note merely states that the member has examined the document, but is silent as to when exactly that examination took place. In these circumstances he submitted that there are two possible scenarios. Firstly, either the member considered the material before the decision was made, or secondly, the member considered the material at some time after, and up to and including, the time of the completion of the case note (CB 112), which was done at 11:46 a.m. on 20 July 2006.
If the consideration, reflected at CB 112, took place before the making of the decision then plainly the Tribunal was not “functus officio”. Mr. Johnson submitted that in the second scenario the Tribunal could still not be “functus officio” if the applicant's document was something that the Tribunal was obliged to take into account, and had not taken it into account, as any prior decision already made would have been vitiated by jurisdictional error such that there was no decision at all, and the Tribunal remained to still complete the exercise of its jurisdiction. If, however, the document was not such that the Tribunal was jurisdictionally obliged to consider it, then the Tribunal would have become “functus officio” when the decision was “given” to the applicant. Further, his submission was that the validity of the prior decision would not be affected merely by the fact that the Tribunal subsequently considered the “Korean language” document, as the exercise of its jurisdiction was already complete and was unaffected by the Tribunal member's subsequent action. The issue being that there was no legal error in the Tribunal member looking at the material to determine, and to be able to form a view as to how to treat the material, or in a “practical sense” as to what to do.
Mr. Johnson submitted that the state of the evidence before the Court is such that it cannot be said when the consideration reflected at CB 112 actually took place. He submitted that the relevant date was 17 July 2006, being the date of the giving, and therefore the making, of the decision. As I have already set out above I do not agree that in this case the decision was made on 17 July 2006. In my view the date of the decision was 14 July 2006.
Further, I note that the case note records that (CB 112.5):
“The member was made aware of it [“the two handwritten pages in Korean”] – via a hard copy – only after finalisation of the case, and it was entered into Casemate on 19/7/2006.”
[It is not clear, as Mr. Johnson submitted, as to who is the author of this case note. The use of the third person, in the absence of any other contextual indicators, leaves open the possibility that it was not drafted by the presiding member. But whatever the case, there was no dispute between the parties that the presiding member signed the case note on 20 July 2006, and thereby could be said to have endorsed its contents.]
In my view, in all the circumstances, “finalisation” is a reference to the making of the decision at the time of signing, and not at the time of sending the decision on 17 July 2006. (Given that for detention cases there is no provision that the time of “giving” the decision is the time of “making”). Plainly therefore while the relevant documents were received by the Tribunal’s Registry on 13 July 2007, the Tribunal member only came to consider them after the decision was made. In my view therefore, the second of Mr. Johnson’s “scenarios” (see [36] above) applied in this case. That is, there was material with the Tribunal (albeit not with the presiding member), which was received prior to the making of the decision, but not considered until after the making of the decision.
I should note that I have some difficulty with the proposition that once a decision is made that a decision maker can then, subsequent to that decision, look at material in a context of, in effect, determining whether the decision already made was affected by jurisdictional error or not. In my view, such a proposition may be unsafe both for an obvious reason of an administrative decision maker making a determination as to the lawful standing of their own decision, and secondly, because of the uncertainty that such a proposition could bring to the entire process of administrative decision making.
In any event, the presiding member (constituting the Tribunal) “finalised” his task without taking into account the applicant’s foreign language material that was given to the Tribunal before the making of its decision. Such a failure, on its own, does amount to jurisdictional error. As Gray J. set out at [17] of X v Minister for Immigration & Multicultural Affairs [2002] FCAFC 3 (“X”):
“There is no reason apparent from the provisions of the Migration Act why the Tribunal should be regarded as an exception to the principle that an administrative decision-maker must take account of material received right up to the time the decision is made. Indeed, there is every reason to suppose that the scheme for review of decisions arising under the Migration Act requires consideration by the Tribunal of up-to-date material.”
There is a clear distinction to be drawn between a decision maker considering material before a decision is said to have been made (even though it maybe after a decision record has been signed), and a decision maker considering material after a decision is made. The Tribunal has a statutory duty to conduct reviews of protection visa decisions pursuant to Part 7 of the Act. There is an argument, in my view, that once the relevant decision is made, that is, the statutory duty to review has been discharged, then the Tribunal should not be able, on its own initiative, to “re-open” its decision, in that sense, possibly, rescind its decision, and consider the impact of additional material, that it should have originally considered in making its decision. In this latter scenario, as in the case before the Court now, it would have the Tribunal asserting that there was no jurisdictional error in its decision that had been “finalised” and made. But at the same time purporting to consider material in a situation where it had already exercised, and on its own assertion exhausted, its jurisdictional obligation.
For similar reasons I have some difficulty with Mr. Johnson's submission that such action by the Tribunal member would not be for the purpose of making a judicial determination as to whether the decision was affected by jurisdictional error or not (plainly such a determination is not available to the decision maker), but for the purpose of completing the exercise of its jurisdiction, or determining whether what it had done did complete that process. In my view, the difficulty is that this would be done in circumstances where it had already asserted that it had completed its jurisdictional task.
However, this issue was not argued at any length in this matter (there are many other arguments that could be considered) but in any event, it is not necessary for this Court to determine this issue as the disposition of this case in my view can derive from another basis.
Mr. Johnson's submission was that given the material was received on 13 July 2006, that is, before the decision was made (even though in his submission that decision was made on 17 July, not 14 July), irrespective of whether or not the Tribunal subsequently became “functus officio”, the presiding member was obliged to look at the material for the purpose of determining whether he was jurisdictionally obliged to deal with the material. If the nature of the material was such that he was not jurisdictionally obliged to deal with it, he was entitled at least to look at it for the purpose of forming the view as to whether this was something that could, and should, be dealt with. As I have set out above I have some difficulty accepting this argument (purely on what has been put before this Court now) that the Tribunal once having made its decision could then subsequently look at material that it should have looked at prior to the making of its decision.
Relevantly, and helpfully to this specific issue (although dealing with a situation of material received after the signing of the decision, but before the decision was handed down), Barnes FM in NAHP v Minister for Immigration [2004] FMCA 145 (“NAHP”) said at [16]:
“The applicant claims that the Tribunal did not have regard to this material. This raises an issue as to whether the Tribunal failed to have regard to relevant considerations. While it has been described as `trite' (SCAT at [26]), the Tribunal's obligation to come to what it considers the correct or preferable decision on all the material before it is of significance. As the Full Court said in SCAT at [26] `It is implicit in that task that the Tribunal should carefully attend to such material'. Gray J suggested, in X v Minister for Immigration and Multicultural Affairs [2002] FCAFC 56 at [24], that the Tribunal has an obligation to look at material provided until the time it makes it decision to determine the relevance and weight of that material. In this case the only evidence that the Tribunal did so is the file note headed `Material Received After Signing of Decision'. There is no discussion in the Tribunal reasons for decision of the relevance or lack of relevance of the material submitted on 2 September 2002. The Tribunal did consider whether to recall its decision, but the material before the Court gives no indication that it made any findings as part of the decision making process on any material questions of fact raised by that material and evidence (cf Thevendram v Minister for Multicultural Affairs [1999] FCA 182 at 37). Given that the Tribunal does not become functus officio until it has handed down the decision, if it receives any material up to that time it is obliged to consider it (X v Minister for Immigration and Multicultural Affairs at [23]). If such material raises fresh claims the Tribunal has an obligation to address such claims. As Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 162 CLR 24 at 44 "There may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker".
[I note that in NAHP it was said that the Tribunal does not become “functus officio” until the decision is made. By implication it becomes “functus officio” at that time.]
Plainly, in the case before me, (and directly relevant also to the respondent’s arguments below) no consideration for the purpose of determining the nature of this material, and in particular whether it was a new claim, an additional claim, or an integer of a claim, or only “mere evidence” occurred at the time of the making of the decision. It is clear that the presiding member himself was unaware of the receipt in the Tribunal’s registry of this material. Nonetheless the material had been received prior to the making of the decision.
The Tribunal's decision was made without any regard for the applicant’s material reproduced at CB 110 to CB 111. Whether the Tribunal would have dealt with this material on 14 July 2006 at a time prior to the making of its decision in a way different to what is set out in the case note at CB 112 which reflects its consideration “only after finalisation of the case” is a moot point. Whether the Tribunal would have found this document to have been “mere evidence” and containing “no new information or claims” is also moot. The fact remains that it did not give any consideration whatsoever to material which the applicant had put before it at the time of the making of the decision.

Mr. Burwood relied on the extension to his argument that the applicant’s material was submitted in response to the Tribunal’s “s.424” request. Regulation 4.35(6) of the Migration Regulations 1994 (“the Regulations”) provides that for the purposes of s.424B(2) of the Act, where an applicant responds to an invitation to provide additional information pursuant to s.424, or provide comments on information pursuant to s.424A, then a response to such an invitation “is taken to have been given to the Tribunal when a registry of the Tribunal receives the response”
Given that I am of the view that what the applicant himself provided to the Tribunal on 13 July 2006 did not comply with the Tribunal’s specifications in its letter of invitation to comment, for the giving of any such response, then the applicant’s material cannot be said to have been provided in response to that invitation. Therefore the applicant is not able to rely on Regulation 4.35(6) to the extent that any argument can be made that receipt by the Tribunal’s Registry of the material means that it is taken to have been received by the presiding member at the time.
In my view, one of the purposes of Regulation 4.35(6) is to provide certainty as to the timing of an applicant complying with the time limits otherwise set out in Regulation 4.35 for the purposes of ss.424, 424A and 424B(3).
But the inability of the applicant in this case to rely on Regulation 4.35(6) is not determinative of this issue. In my view even thought the applicant’s foreign language material was not provided to the Tribunal in the context of a “s.424” response, it was nonetheless material that was given to the Tribunal’s Registry on 13 July 2006. Any argument that the Tribunal (as constituted by the presiding member) can escape the obligation to consider all material sent by an applicant prior to the making of the decision just because it remained in the Tribunal’s Registry is not sustainable.
There is little evidence before the Court as to what occurred immediately following receipt of the applicant’s Korean language document on 13 July 2006 at 6:15 p.m. (see CB 110.1). A handwritten notation, which Mr. Johnson at the hearing before the Court described as a “post-it note” attached to this document reveals:
“Fax Inbox Shows It As Received 14/7/06 8:50 Sent To Team – Emma Was On Leave.”
From the case note at CB 112 it is not clear when the presiding member was personally made aware of it, other than that he was not made aware of it until after “finalisation of the case”. The exact timing of the delay is not known on the evidence before the Court. Given the practice of the Tribunal in those cases involving persons not in immigration detention to hand down cases sometime after a decision is signed, and only after notice of the handing down has been given to an applicant, any delay, as appears to have been occasioned in this case, can obviously be addressed prior to the handing down (which is of course the equivalent of the making of the decision). But this is not the case with those in immigration detention. Plainly, the legislation contemplates a different regime in relation to the applications of such persons. In my view, for this reason, and also for the reason that such applicants are deprived of their liberty such that their capacity to act and deal on their own behalf in relation to the Tribunal is restricted, it is incumbent upon the Tribunal’s administration to put in place procedures that will ensure that such communications are put before the relevant presiding member in as timely a fashion as possible. In particular, to correlate with the time of the making of the decision.
No criticism can be made in this regard in relation to the presiding member in this case. Nor is the Court critical of the Tribunal’s Registry and support staff (which from the large member of applications seen in this Court emanating from the Tribunal, and which would not be the totality of all applications before the Tribunal) would be faced with a large amount of correspondence to deal with on any one day.
But an applicant for a protection visa who after all is, in effect, an applicant for recognition as a refugee in Australia (and it is trite to say that this is a significant and serious issue) and who is held in detention, is in my view entitled to expect that the Tribunal processes would ensure that any communication is received by the presiding member in as timely a fashion as possible. That a Tribunal employee appears to have been “on leave” which may have contributed to the delay, even if such a delay was only a matter of hours on 14 July, is not a sufficient explanation for the consequence which occurred in this case, in that the material that the applicant (who it must be emphasised was in immigration detention) sought to put before the presiding member, was not put before him at the relevant time.
The presiding member was required to take into account all of the material “received up to the time the decision is made” (X at [17]). The applicant should not be disadvantaged in the exercise of the Tribunal’s jurisdiction merely because of the absence of an employee involved in the process of transmitting communications from the Tribunal's “fax inbox” to the presiding member, or the lack of such procedures, to ensure that all material received is before the presiding member “up to the time the decision is made”. It cannot be the situation that the Tribunal can avoid its obligation merely on the basis of the presiding member not having referred to him (or her) material sent to and received by the Tribunal’s staff, in a timely fashion.
The applicant provided his material before the time of the Tribunal’s decision. The Tribunal (as set out in authorities referred to above) has an obligation to look at all material provided to it up to that time. By failing to deal with this material the Tribunal failed to perform an imperative duty, and fell into jurisdictional error (Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]-[84] and SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 at [29]-[30]).
It remains however to consider whether the Tribunal was able to retrieve the situation by the action that it subsequently took as evidenced by the case note at CB 112.
Putting aside the issue of whether the Tribunal was “functus officio”, and considering on the basis that, in any event, it was entitled to look at the material to ascertain whether it was still jurisdictionally obliged to consider the material, Mr. Johnson's submission was that the contents of the Korean language material were no more than “mere evidence”, and were not fresh claims, or integers of a claim, over and above what the Tribunal had already considered.
Mr. Johnson's submission was that the Tribunal did consider the translation of the document (at CB 110) in that it looked at what was put forward in the letter sent by Legal Aid (see the Tribunal’s decision record at CB 109.2 to CB 109.9). That is, that the Tribunal had considered, as was evidenced in its decision record, what Legal Aid had put in its letter to be the effect of what the applicant had wanted conveyed (see generally CB 124 and CB 128). His submission was that it was open to the Tribunal to find that the Korean text contained “no new information or claims”, and sought to draw the distinction between the obligation on the Tribunal to consider new claims, or integers of claims, as opposed to “mere evidence”.
He relied on:
·Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244 for the distinction to be made between new evidence in support of a claim already made, and a claim.
·VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104 at [25] and [31] where a failure to make a finding regarding a passport did not amount to jurisdictional error because there had been no claim before the Court that being refused a passport amounted to persecution. The refusal of the passport was “merely a piece of evidence to bolster the claim of persecution”.
·He also relied an MZWKU v Minister for Immigration and Multicultural Affairs [2006] FCA 996 (“MZWKU”) where Sundberg J. found that a failure to have translated certain letters submitted by the applicant in that case did not amount to jurisdictional error because the letters, in that case, did not contain any matters that were not otherwise before the Tribunal, which in any event had considered those matters. His Honour found at [15] that the letters were “mere items of evidence, and not either the ground upon which the appellant sought protection or an essential integer of that ground”. Mr. Johnson emphasised that His Honour found (also further at [15]) that although the Tribunal was “thus not bound to take them into account”, it “did so”. That finding was made notwithstanding the failure to have the letters translated.
·Further, on the issue of whether the Korean language documents should have been translated, and with reference to “X”, he also relied on S14/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153 (“S14/2002”) at [49]:
“I finally deal with the contention that the Tribunal failed to afford the applicant procedural fairness first by not securing translations of a newspaper article and the brother’s letter and secondly by not providing the applicant with a copy of the Reuters article and giving him an opportunity to comment on it. Circumstances can arise where the failure of a Tribunal to obtain the translation of a document, or at least where it fails to inform the applicant who has furnished the document that it does not propose to rely it because it was not translated and thus deny the applicant an opportunity to explain its contents, will result in a denial of procedural fairness: see X v Minister for Immigration & Multicultural Affairs (2002) 116 FCR 319. However generally the Tribunal is not obliged to obtain a translation of documents furnished by the applicant in a foreign language at least in circumstances where the Tribunal ascertains the gist of the material if it is significant: see Cabal v Minister for Immigration & Multicultural Affairs[2001] FCA 546. In the present case the Tribunal asked the applicant, through the interpreter, a series of questions both about the newspaper article and the brother’s letter. In so doing it ascertained the gist of each document for the purposes of understanding the way in which the applicant relied on them. Its approach was, in my opinion, unexceptionable.”
In short, the respondent’s position was that the Tribunal had taken into account all that Legal Aid had conveyed, (at CB 109), which included the applicant's translation of the effect of what was at CB 110. The argument also was that consideration of the actual content of the Korean language material reveals that it is in fact nothing more than further evidence, and does not comprise any claim, or integer, that has not been taken into account. Further, that translation of the document was therefore not required, and (given S14/2002) the Tribunal was not obliged to do so in any event.
The first respondent’s position was that the contents of what the applicant had submitted to the Tribunal in the Korean language was no more than “mere evidence”, that it was not fresh “claims or integers of claims”, over and above what the Tribunal had already considered. In particular, that it had considered this when it had taken into account what the applicant's legal adviser had put to the Tribunal in the letter of 13 July 2006 (CB 107 to CB 109). The submission was that this was clear in that in its decision record, quite apart from what is written in the case note at CB 112, the Tribunal made reference at CB 128.1 to the further statement submitted to the Tribunal on 13 July 2006 (in the circumstances the Legal Aid letter).
What was put to the Court by the first respondent therefore is that the Tribunal's consideration of what Legal Aid had put forward on his behalf provided the basis on which the Tribunal gleaned the point of the material put forward by the applicant in his Korean language document. Further, that it was open to the Tribunal therefore to see the Korean language document as not adding to the applicant's case any new claim or integer of a claim. Even further, that consideration now of the actual content of the Korean language document, provided by way of annexure to the affidavit of Shi-in Lee of 17 January 2007, reveals that it is in fact nothing more than further evidence, and does not comprise any claim or integer that had not already been taken into account.
Mr. Burwood’s submission on behalf of the applicant was that clearly the Tribunal did not consider the relevant documents at the time of the making of its decision. It should have done so. But in relation to the immediate point under consideration that, at best, the Tribunal “guessed” that the Korean language document was the basis for the instructions that the Legal Aid solicitor had used for the letter that was sent to the Tribunal.
I cannot see in the case before me that the Tribunal was able to ascertain “the gist” (with reference to S14/2002) of the documents provided by the applicant, in the way it that it purported to do, and as set out in the case note at CB 112. The case note reveals:
“The Member has examined the document. It appears to be a handwritten statement, in Korean only, with the second page that seems to be the floor plan of some building (with doors, stairs and people indicated), with annotations in Korean. The Korean language text contains numbers that are identical to those provided in the adviser’s submission, so the Member concludes that the Korean text is simply the document upon which the submission drew. There is no information as to the identity or relevance of the floor plan, or reference to it in the adviser's submission. On this basis, the Member is satisfied that the Korean text contains no new information or claims.”
In essence therefore, the Tribunal’s satisfaction that this document contained “no new information or claims” was based purely on the member's observation that “certain numbers” contained in the foreign-language document were “identical to those provided in the adviser's submission”. On this basis, alone, the Tribunal concluded that the information in the Korean text is “simply the document upon which the submission [the adviser's submission] drew”. In relation to the attached “floor plan”, the member observed that as there is no information as to the identity, or relevance, of the floor plan, or even reference to it in the adviser's submission, and that this formed the basis for it being satisfied that the Korean text contained no new information or claims.
Even therefore, if the Court were to accept Mr. Johnson's submission that the Tribunal was entitled, even obliged, to consider this material after the decision had been made (that is, on the basis that an administrative decision infected by jurisdictional error, is “no decision”, such that consideration of this material subsequent to the making of the decision was for the purpose of ensuring that there had been a proper completion of the exercise of the Tribunal's jurisdictional task), I do not accept his subsequent submission that the Tribunal gave proper consideration to the actual content of the Korean language material, or to the “floor plan” attached to it.
Plainly, the relevant circumstances before the Court now are not as those found in X, where the Tribunal's denial of the opportunity to the applicant to explain the contents of foreign language documents resulted in a denial of procedural fairness because it failed to inform the applicant that it did not propose to rely on these documents because they were not translated. In the case before the Court now the Tribunal purported to glean the point of the material, and its relevance, from what the applicant's solicitor said in submission. This was therefore not a refusal to reject, out of hand, untranslated documents, but an attempt to ascertain what the document purported to be about, and ultimately leading to the conclusion, as set out at CB 112, that the documents contained no new information, or claims.
Even putting to one side the issue of the translation of the document, and noting that generally there is no obligation to obtain a translation of foreign language documents furnished by an applicant, I cannot see that the “gist” of this material can be ascertained in the way attempted by the Tribunal. The sole basis, on which it reached its conclusion that this was a document containing no new information or claims, and the sole basis for linking this document to the adviser's submission, is the coincidence of both documents making reference to identical (telephone) numbers.
The Tribunal's approach in this regard, in my view, suffers in comparison, say for example, with the situation before the Court in S14/2002 where without translating the documents the Tribunal ascertained the gist of the material by asking the applicant, with the assistance of an interpreter, a series of questions about the documents, and in so doing ascertained the gist of each document for the purposes of understanding the reason why the applicant sought to rely on those documents.
Even in circumstances where the presiding member was made aware of this material after “finalisation of the case”, the action in simply looking at the document, and comparing the coincidence of telephone numbers in the document to those appearing in the Legal Aid submission does not in my view amount to an adequate, or proper, consideration of the document. This is so especially for the purpose, as submitted by Mr. Johnson, to ascertain its nature, and to determine whether it was a new claim, an integer of a claim, or “mere evidence”.
I cannot see, and am not persuaded, that the immediate coincidence of telephone numbers is sufficient to conclude that the Korean text is simply the document upon which the Legal Aid submission drew. I cannot see that the gist of the material can be gleaned from this alone. It was open to the Tribunal to take adequate steps to ascertain the gist of the document. A simple, and quick, communication to the applicant's legal adviser would have at least ascertained whether “the Korean text is simply the document upon which the submission drew”. In my view the Tribunal did not ascertain the gist, relevance, let alone significance, or importance, of the document, such as to be able to make a determination as to its nature, and in particular, as to whether it was a new claim, integer of a claim, or otherwise, without having done something more. I agree with Mr. Burwood that it was at best a “guess” on the part of the Tribunal as to what was contained in the applicant’s documents.
Plainly, unlike as in S14/2002, the Tribunal proceeded on the basis of not obtaining a translation of the document in circumstances where it had also not asked a series of questions of the applicant about the relevant documents. The coincidence of numbers, in my view, can in no way be determinative as to the meaning and significance of the rest of the text. Particularly, given that the telephone numbers, evident from the adviser's submission at CB 109, related to a person whom the applicant put forward to the Tribunal as a witness. For all the Tribunal knew the applicant could have been making reference to completely different matters, but nonetheless referring the Tribunal to the same witness who might have been able to assist the Tribunal with these other matters. Again a simple communication to the legal adviser may have provided a clearer basis for the resolution of this issue by the Tribunal.
In relation to the attached “floor plan” the Tribunal rejected the notion that there was anything new in it because there was no mention of it in the adviser's submission. In my view having arrived inadequately at its first conclusion, that is, that the Korean language text was the basis upon which the adviser's submission was made, the Tribunal compounded its inadequate approach, by then merely noting that there was no information as to the identity or relevance of the “floor-plan”, or any reference to it in the adviser's submission to the Tribunal. The case note does not even provide that any conclusion flowed from this observation. The conclusion of the Tribunal as set out in the last sentence of the case note makes reference only to the Korean text not containing any new information or claims. No conclusion, or finding, is made about “the floor-plan”.

Further, the lack of reference to the “floor plan” in the adviser's submission would surely give rise, at least equally, to a strong inference, at the very least, that the applicant himself was seeking to put something “new” (even if only “mere evidence”) before the Tribunal, which had not been put before it by the adviser. Given that the material was received by the Tribunal prior to the time of the making of its decision and given that it is obliged to consider that material, I cannot see in the circumstances (even leaving aside the issue of whether it had already completed the exercise of its jurisdiction) that it had given proper consideration to this material at this later time.
Even further, plainly, the Tribunal did not have what has now been provided to the Court, that is, the benefit of a translation of the Korean language document, and even if it can now be said that the document traverses (with greater detail) generally, the matters put forward by the applicant's solicitor. The issue is that what this Court is reviewing is what the Tribunal has done. Evidence now (the translation) that the Korean text document may indeed be “mere evidence”, or a restatement of claims already put does not alter the fact that the translation was not before the Tribunal such that it could be said that it did give proper consideration to the applicant’s material, and that it could proceed with some level of confidence as to its contents as to have therefore foundation for its dismissal of this material as containing nothing “new”.
Further, in my view, the Korean language documents do go to the issue of adding something additional to the applicant's claims as had been previously presented. It is quite clear from a plain reading of the Tribunal's decision record, and from the Tribunal's letter of 6 July 2006 following the hearing the previous day, that the Tribunal had formed serious doubts about the applicant's credibility. The Tribunal “found the applicant’s evidence to be vague and improvised and does not accept that he is a credible witness” (CB 125.6). Further, he did “not provide an accurate record of other aspects of his past life” (CB 125.7). That certain “vague references” “seriously undermines his credibility” (CB 126.4). Even further (at CB 127.4), the Tribunal took the view that his account of why he had been accused by police “was threadbare”. That led to the conclusion, ultimately, that the applicant's account of his conviction and imprisonment is “fabricated”, and accordingly dismissed this claim, and concluded that he was not a witness of truth (CB 127.7).
Specifically in relation to police abuse the Tribunal also found “these assertions add little to the applicant’s evidence to date and do not isolate the Tribunal's concerns about his lack of credibility” (CB 128.2). The Tribunal's ultimate conclusion which rejected the applicant's claims to refugee protection was expressed in the following terms:
“The Tribunal has considered the applicant's claims individually and cumulatively. It finds that his refugee claims lack credibility and have no foundation in truth” (CB 128.7)
Importantly, the Tribunal adds:
“The material before the Tribunal does not indicate any further factors that might establish a real chance that the applicable will face serious harm for any reason if he returns to South Korea” (CB 128.8).
Having plainly rejected the applicant's claims, based on his lack of credibility the Tribunal took no steps to adequately ascertain the meaning, or significance, of the Korean language document. It assumed simply, on the coincidence of some telephone numbers, without adequate foundation, that this was nothing more than what the adviser had substantially put to it. If credibility was the critical issue in the determination of the applicant's case, then in my view a submission in the applicant's own words, as opposed to what is reported by the adviser as having been put through the medium of an interpreter, could be relevant, at the very least, to an assessment of the applicant's credibility.
The line between an integer of a claim and “mere evidence” is not always easily discerned. What an applicant says to a Tribunal may be just evidence, even “mere evidence”. But an applicant’s account directly in his words, of harm that he claims to have suffered (harm which he alleges amounts to persecution) and the provision of further detail of his claims (even if expressed at the same time as “evidence”), can also amount to an integer of his claims (that is, a part of the complete entity of his claims). Particularly in circumstances, as in this case, where the credibility of the applicant’s account, otherwise put, was central to the Tribunal’s decision.
It may be that had the Tribunal obtained a translation of this document, or even if it had properly ascertained the gist of the document through the adviser, that it still would not have altered its view of the applicant's credibility. But, on the other hand, I agree with Mr. Burwood that the applicant was entitled to expect that the Tribunal should have at the very least, have had proper regard to what he had put to it, before concluding that it was nothing new.
As to the attached diagram the Tribunal plainly had no idea as to what this diagram referred (this is what is noted in the case note at CB 112), yet it too may have been capable of assisting the Tribunal on the issue of the applicant's credibility given that it found that his claimed account of his conviction and imprisonment was fabricated.
In all therefore the Tribunal should have taken account of the applicant's foreign language material at the time of the making of its decision. It did not do so at that time. Even on the respondent’s argument now that it was open to the Tribunal to subsequently consider the importance, and relevance, of this information, it did not deal with this material in a manner that could be said to amount to the proper consideration which it was obliged to give. I accept Mr. Burwood’s submission in this regard. The Tribunal could not have known on what was before it whether this was “merely” a body of evidence, or material that was an integer of the applicant's claims. Having found jurisdictional error I cannot see any reason, in exercising my discretion, not to the make the orders sought by the applicant, and therefore will make those orders returning this matter to the Tribunal for reconsideration.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:

Date: 05 March 2007