Judiciary Act 1903 (Cth), s.39B

Applicant VBAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 804; (2000) 121 FCR 100

Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121

NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781; (2003) 130 FCR 456

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

Samad v District Court of NSW [2002] HCA 24; (2002) 209 CLR 140

Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 73; (2001) 109 FCR 18

SZDOG v Minister for Immigration [2004] FMCA 972; (2004) 213 ALR 439

SZEMB v Minister for Immigration [2005] FMCA 448

VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

VNAA v Minister for Immigration [2004] FCAFC 134; (2004) 136 FCR 407 at [16] applied in Minister for Immigration v VSAF of 2003 [2005] FCAFC 73

X v Minister for Immigration and Multicultural Affairs (2001) 116 FCR 319

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

(1)

Order that a writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on

10 June 2004 in matter N04/48484.

(2)

Order that a writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 3 February 2004.

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

This is an application under s.483A of the Migration Act 1958 (Cth) ("the Migration Act") which challenges a decision of the Refugee Review Tribunal ("the Tribunal") dated 20 May 2004 and handed down on 10 June 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.

Section 483A gives the Court "the same jurisdiction as the Federal Court in relation to a matter arising under this Act". The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 at [15] and [76-7], and in subsequent cases, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error.

The present case shows how procedures directed at speedy decision-making in refugee appeals can give rise to injustice where an applicant is denied an opportunity to attend a hearing to provide details of his claims to be a refugee. The present applicant, in understandable and blameless circumstances which I shall describe below, missed the only appointment offered to him by the Tribunal. Before the Tribunal handed down its decision he requested a rescheduled hearing, but this was refused. No satisfactory reasons were ever given for this refusal. One reason appears to be that the Tribunal member had arrived at a decision which she had not yet published, and which therefore had no legal effect. When later publishing this decision, she gave reasons for affirming the refusal of a protection visa which drew an adverse inference from the applicant's failure to attend the appointed hearing without taking into account the excuse which had been presented to the Tribunal.

The Tribunal lacks an expressed power to re-open its decision-making in the present circumstances, and the applicant is obliged to come to court to establish jurisdictional error before he can obtain the hearing he desires. Absent the Migration Act's confinement of normal rights of procedural fairness, I would have found that the circumstances shown to the Court gave rise to a failure of procedural fairness which invalidated the Tribunal's decision. Section 422B(1) may now prevent that conclusion. Furthermore, in the absence of reasons given by the Tribunal for refusing to reschedule the hearing, I am unable to be satisfied that the Tribunal improperly exercised its procedural discretion. However, I have decided that invalidity arises due to the Tribunal's failure to address in its substantive decision the applicant's explanation for his non-attendance before drawing an adverse conclusion from his failure to attend.

The applicant is a 38 year old national of Pakistan, who arrived in Australia in October 2003 on a visitor's visa. He found accommodation with a fellow Punjabi at Hinchinbrook, and lodged a protection visa application on 11 November 2003. He has almost no comprehension of written and spoken English. He told me in evidence, and I accept, that when making his original application and his later review applications, he received only informal help from a variety of sources. None of the documents he has presented suggest any involvement by a qualified migration agent, and most show an inadequate grasp of English by his helpers.

His visa application lodged on 11 November 2003 refers to "attached brief story of me which lead me to come to Australia", and attaches a two page typed document signed by the applicant. He told me that a friend (whom he named) completed the form for him, and arranged for someone else to translate and type his story which he had written out.

In his story he said he was born in a populous city in Punjab. "My religious affiliation was with SUNI which is the main Sect of Islam.

I am sportsman and black belt in Karate, I am running and training centre in my town. Due to this game I was very religious and did practice regularly." He said that he had been attracted by the scholars of the Shia sect of Islam, but had difficulty declaring this openly, since his family and the majority in the area were Sunni. One day he was assaulted when going to offer prayer in the Shia's mosque. He decided to move to Karachi in March 2002, and became involved in preaching in different cities of Pakistan. He said:

When this thing came in to knowledge of my city people who were the members of Sippah-E-Sahabah (an extremist Suni association) and they informed the Karachi branch and gave my details to them.

One day I found that I had been chased and in quite street this opened fire on me but luckily I succeeded to escape from there but this incident affected my nerves and I started hide myself from one place to another.

To get rid of this situation I decided to start karate practice so that I can keep my self active and fresh to face the situation and join the club for karate when my senior was chief instructor with whom I used to do practice in the city. He was my good friend as well and I told him every thing which was being happened to me.

In the meantime he told me that he was the members of the selection committee for team which was going to Australia for karate competition. As I was very good in karate, I was selected for the team. So I arrived in Australia on dated 24th October 2003.

As I already explained my circumstances above which show that my life in danger in Pakistan if return home I would be killed by fanatics, so I thing I fall in the criteria which was described in the refugee convention as I have fear to die in Pakistan and Australia Government has obligation to give protection.

A delegate refused the application on 3 February 2004. The delegate referred to the apparent lack of details, but also reached surprising conclusions that what the applicant feared was not "persecution for his religious belief" and would not "satisfy the persecution definition of 'serious harm'". The delegate also said: "In view of his very low profile, the ease with which he was able to leave Pakistan, and the fact that he has been unable to provide any evidence at all to support his claims, I am unable to accept he has ever suffered Convention-based persecution in Pakistan."

An application for review signed by the applicant was filed with the Tribunal on 1 March 2004. It gave no new supporting material, but said "please see attached paper", which was another copy of the applicant's "story" which had accompanied his visa application.

The Tribunal posted a letter dated 23 April 2004 to the applicant at his only mailing address, which was his Hinchinbrook home. The letter was in English, and informed the applicant that the Tribunal was unable to make a decision in his favour on the material before it, and invited him to attend a hearing on 19 May 2004 at 12.30pm. The letter warned that "if you think you might be unable to attend the hearing, you must contact the Tribunal immediately. If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice." The letter said that other documents were enclosed: a "response to hearing invitation form", a "what is a hearing" brochure, and "multilingual advice". There is no further evidence before me as to the contents of any of these enclosures, and, in particular, what was in the multilingual advice. It was not suggested to the applicant in cross-examination that this would have brought to his attention anything relevant to the issues arising in the present case.

It is undisputed that the applicant did not return the "response to hearing" form, and did not attend the appointed hearing on 19 May. Nor is it disputed by the applicant that in fact the letter reached his home letter box probably by early May. I must also find that it was sent with enough time so as to allow the Migration Act to have deemed him to have received it, and to have authorised a decision to finalise the review without appointing a further hearing (see ss.425A, 426A, 441A(4), 441C(4), and reg.4.35D).

However, the applicant claims, and I accept, that he did not comprehend the contents of the letter until it was too late.

His explanation for this was explored in oral evidence given by the applicant at my invitation. I invited him to give evidence in view of a claim made in his original application filed in this court on 5 July 2004. This said: "I could not attend the hearing on 10-6-04 because I was ill and had temperature that day - I cannot speak English, so I could not telephone RRT that day - My friend who acts on my behalf was not there that day. Please give me a second chance for hearing." Although the applicant had been directed to file evidence on affidavit, he appeared to have misunderstood the reason for this, and filed only a sworn statement which repeated his refugee claims. I therefore received evidence from him and from the person whose accommodation he shares. This person accompanied the applicant to the hearing, but neither of them expected to give oral evidence.

The applicant gave all his evidence through an interpreter, and at times appeared to have difficulty understanding and responding to the questions which were put to him by myself and counsel for the Minister. This is only partially apparent in the transcript. It caused me initial concern in relation to his credibility, but at other times the applicant gave evidence frankly and without hesitation. On an overall assessment of his evidence and after reflection, I have concluded that the applicant should be believed, and that the concerns I had arising from his demeanour and responsiveness were probably due to cultural and anxiety problems. The applicant's witness, who is a taxi-driver, spoke reasonable English although it was not his first language.

The applicant and his witness explained that the witness had been away from Sydney from the end of April and did not return until after

20 May. During most of this time the applicant was ill with chronic back pain and fever and "mental tension". He stayed at home taking Panadol, and could not read his mail in the absence of his friend. He could not afford to see a doctor. He could not telephone anyone for help, since the credit on his phone had expired. It was unclear when he looked in the letter box, or opened the letter from the Tribunal, but this was probably before his friend returned to their home. However, although he thought the letter might be telling him about a hearing date, it was only after his friend returned and (imperfectly) read the letter to him that he realised that he had missed the hearing.

I gained the impression from his demeanour and from all his evidence that he was living an isolated life in an outer Sydney suburb with no family or other support structure in Australia. I accept that during the critical period he was unable to obtain sufficient assistance to allow him to comprehend and respond appropriately to the invitation to the hearing. This was due to his isolation and to his perception of ill-health, in particular, of physical symptoms confining him to his home. His perception of and reaction to these symptoms may have been influenced by mental illness, but unfortunately there is no medical evidence of this before me and I can make no finding in respect of such an illness. The applicant said that, if he had known of the appointed hearing before it had passed, he would have wanted to attend because: "there is nothing more important for me than my case here because

I want to save my life". I accept this evidence.

Some corroboration of the applicant's evidence was given by his witness, and I accept the witness's account as clarified by him at the end of his evidence. Although this was hearsay in many respects, the circumstances and manner in which his evidence was given gave it credibility and helped me understand the applicant's own evidence.

However, my main reason for accepting the applicant's explanation for his absence from the hearing is due to a contemporaneous letter which was both dated and received by the Tribunal on 1 June 2004. It is signed by the applicant and, according to him, was prepared with the help of someone whose help he sought but whose name he cannot now recall. The letter is typed, and states:

I received your letter informing the decision of my application which would be handing down on 10 June '04. I would like to entreat you to reschedule an interview for me.

Pursuant to your letter issued earlier on, I although received it but lack of my comprehension of the context I could not attend the interview on time. Being a newcomer to Australia - I even did not have any one to associate with me with this interpretation.

I further would like you to accept my inability of perpetual contact, as I was sick by having a special medication from which I would not comply with your invitation. Likewise I am an illiterate person.

I would request your authority to reschedule for a further interview whence I could have a prospect to disclose my assertion in support of the application.

I would appreciate you co-operation. Thanks.

The reference to a further letter received by the applicant from the Tribunal, appears to be to a letter sent on 24 May 2004, i.e five days after the appointed hearing. It told the applicant that "The Tribunal has considered all the material relating to your case and has made its decision. The decision will be handed down on: Date: 10 June 2004 ...".

The Tribunal's response to the applicant's request for a rescheduled hearing was contained in a letter dated 1 June 2004 signed on behalf of the District Registrar. It stated:

I refer to the letter of 1 June 2004. You were invited to attend a hearing at the Tribunal on the 19 May 2004. You did not attend the hearing or contact the Tribunal to advise that you were unable to attend on that date.

Pursuant to s 426A of the Migration Act 1958, where an applicant is invited to a hearing and does not appear on the day on which the applicant is scheduled to appear the Tribunal may make a decision on the application for review without any further action to allow or enable an applicant to appear before it.

You have requested that the Tribunal withdraw its decision and to allow you to appear before the Tribunal. The Member conducting your review has considered your request but has decided to proceed to hand down the decision on 10 June 2004.

If you have any questions, you can contact Kusum Sing on (02) 9951 8566. If you are calling from outside Sydney phone 1800 814 593. If you don't speak English, please contact the Translating and Interpreting Service (TIS) on 131 450.

The Tribunal then, on 10 June 2004, proceeded to hand down its decision affirming the delegate's decision not to grant the applicant a protection visa.

The decision is signed by the member constituting the Tribunal, and has the date "20 May 2004" next to the member's signature. In the decision, the Tribunal referred to the applicant's claims which accompanied his visa application. It then referred to the invitation sent to the applicant to attend a hearing on 19 May 2004. Its reasons continued:

The applicant did not appear before the Tribunal on the day and at the time and place which he was scheduled to appear. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

FINDINGS AND REASONS

The Tribunal is satisfied that the applicant is a citizen of Pakistan.

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegation made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA [1992] FCA 470; (1992) 38 FCR 191, Prasad v MIEA [1985] FCA 47; (1985) 6 FCR 155 at 169-70.)

The applicant did not attend a hearing and this leaves the Tribunal with claims which are at best, stated in the most general of terms. The level of detail is insufficient for the Tribunal to make findings in his favour.

The information that the applicant has provided does not:

... [listing various aspects of the applicant's story on which he had not provided details]...

In view of the applicant's failure to provide relevant and detailed information in his claimed conversion from Sunni to Shia Islam and the incidents of alleged mistreatment for reasons of his Shia beliefs, the Tribunal does not accept the applicant's claims that he faces a real chance of persecution by members of the extremist group Sipah e Sahaba because of his adoption of Shi Islamic beliefs.

Accordingly the Tribunal is unable to be satisfied on the evidence before it that the applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Pakistan now or in the reasonably foreseeable future.

CONCLUSION

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

The applicant's applications in the present proceedings complain, in effect, that the Tribunal's decision was affected by jurisdictional error by reason of the Tribunal's refusal to reschedule the applicant's hearing when requested, or by reason of its failure properly to consider his request. I also consider that the application raised whether the Tribunal's substantive decision was vitiated by the Tribunal's failure to appreciate that its receipt of the applicant's explanation for his absence from the hearing required it to reconsider the reasoning of its uncompleted decision signed on 20 May 2004. This issue may not clearly have been identified in the applications, but I canvassed it with counsel for the Minister.

Section 425(1) required the Tribunal in the present case "to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review". The Tribunal did issue such an invitation to the applicant, but the duty encompassed by s.425(1) has been held to include an obligation to afford a "real opportunity" to attend and give evidence and is not satisfied by providing an "empty" opportunity (see NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781; (2003) 130 FCR 456 at [83-87], also Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 at [33-37], and Applicant VBAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 804; (2000) 121 FCR 100 at [54], and [62]).

At least one Full Court authority appears to accept, in a matter prior to the enactment of s.422B, that a "real opportunity" might be denied if, even unknown to the Tribunal, an applicant was incapable of attending or participating in an appointed hearing (see NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [30-37] and cases cited). This interpretation of s.425 locates within it a principle of procedural fairness which has been found in court and administrative proceedings, whereby the reasonable inability of an applicant to attend an appointed hearing may vitiate a "default" decision even though the circumstances which rendering unfair the making of the default decision were not known to the Tribunal (c.f. Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28 at [33-35] and cases cited). A court on judicial review may consider all the circumstances shown in evidence before it, so as to decide whether the refusal of a Tribunal to appoint a further hearing was unreasonable (see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] and cases cited).

If I were free to apply common-law or analogous principles of procedural fairness to the present case, I would hold that the present Tribunal's failure to afford the applicant a further opportunity to attend a hearing resulted in jurisdictional error. This would be based on my assessment that the applicant at all times wished to attend a hearing, that he blamelessly missed his opportunity to respond to the invitation due to his ill-health and isolation, and that the Tribunal was unable to point to good reason for refusing to afford him the opportunity which he speedily requested upon becoming aware of the missed hearing and before the Tribunal had announced a decision. In this respect, I do not accept that the Tribunal's desire to adhere to an unannounced decision provided sufficient justification for denying the applicant a hearing in the circumstances of the present case. No other reason for refusing the request has ever been suggested by the Tribunal.

However, normal principles of procedural fairness in relation to the unfair denial of a hearing or an adjournment cannot be applied in an unqualified manner to proceedings before the Tribunal which are governed by s.422B(1). This section refers to the statutory procedures set out in Division 4 of Part 7, and provides that "this subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with." Within Division 4, s.426A makes express provision for the Tribunal to reschedule a hearing or to proceed to a decision if an applicant does not appear at a hearing after the due dispatch of an invitation:

SECT 426A

Failure of applicant to appear before Tribunal

(1) If the applicant:

(a) is invited under section 425 to appear before the Tribunal; and

(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.

In my opinion, as a result of s.422B, section 426A must be regarded as dealing exhaustively with the Tribunal's obligations if an applicant fails to appear after an invitation is sent under s.425A. As has been pointed out, the scheme of the deemed service provisions of the Act implicitly accepts that a decision to proceed under s.426A(1) may result in what would otherwise be regarded as a failure of procedural fairness due to an applicant blamelessly failing to receive actual notice of the hearing (c.f. VNAA v Minister for Immigration [2004] FCAFC 134; (2004) 136 FCR 407 at [16] applied in Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 at [12]). In view of this scheme, it is difficult to find any room for a court to find a failure of jurisdiction by reason of circumstances showing that an applicant was unfairly denied an opportunity to attend a hearing appointed by a s.425A invitation, at least where all or some of the relevant circumstances were not known to the Tribunal at the time when it made its decision. I therefore do not consider that I can give effect to my opinion that a "common law" denial of procedural fairness occurred in the present case.

I have in other cases found that a Tribunal's decision to proceed under s.426A was defective, and consequentially vitiated its substantive decision, due to its failure to appreciate that it had a discretion under that provision, or due to its failure to take into account relevant considerations when exercising the discretion (see SZEMB v Minister for Immigration [2005] FMCA 448 at [41-46], applying a previous decision in relation to a similar discretion: SZDOG v Minister for Immigration [2004] FMCA 972; (2004) 213 ALR 439). My opinions in this respect were not challenged by way of appeal, and I maintain them. I consider that in the present case, they are equally applicable to the exercise of the Tribunal's discretion to respond to the applicant's request for a rescheduled hearing which is referred to in s.426A(2).

30.

I have therefore considered whether the present material shows that the Tribunal failed to exercise according to law its discretion to appoint a further hearing. In my opinion, such a procedural failure would give rise to jurisdictional error vitiating the Tribunal's substantive decision (c.f. SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [72-75], [173], [208], and cases cited in SZDOG (supra) at [35]).

My difficulty in finding such an error in the present case is due to the absence anywhere of a record of what considerations were addressed by the Tribunal member when, in the words of the Tribunal's Registrar, "the Member conducting your review has considered your request but has decided to proceed to hand down the decision on 10 June 2004." In the absence of reasons for the exercise of the procedural discretion, I am unable with any confidence to identify error in that decision.

I found a suggestion of error, in the sentence in the Registrar's letter which preceded his or her notification of the member's refusal to appoint a further hearing. This characterised the applicant's request for a hearing as a request "that the Tribunal withdraw its decision and to allow you to appear before the Tribunal". If this statement were read as indicating that the Tribunal member was of the opinion that the fact that she had written and signed a "decision" rendered her powerless to appoint a further hearing then this would have been a serious misconception of her powers under the Act. 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, as I shall discuss below, 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] FCA 73; (2001) 109 FCR 18 by Merkel J at [19-51]).

However, there is difficulty ascribing to the present Tribunal member a misconception that she was functus officio or otherwise legally obliged to refuse the applicant's request for a hearing. The Registrar's letter is not easily read as providing evidence of the member's reasoning. It also refers to her having "decided to proceed to hand down the decision", which suggests that she was aware of a discretion and had refused to exercise it on discretionary grounds rather than on an opinion as to the legal ambit of her power. I have therefore decided that I cannot arrive at a conclusion that the discretion to refuse the applicant's request miscarried. This is not to say that I am persuaded that it was exercised with a proper appreciation of the relevant considerations.

The Tribunal did, however, publish reasons for affirming the delegate's decision to refuse the visa, and it is possible to consider whether her published reasons reveal jurisdictional error vitiating her substantive decision. In my opinion her statement of reasons must be read as providing her reasons for decision as at the date of her handing down of her decision, on 10 June 2004. It is clear that it is at that date that the decision was in fact and in law "given" by the member constituting the Tribunal or by a person authorised by her (see s.430(2), (3) and (4)). Evidence of what matters were or were not taken into consideration when giving the decision on that date can be discovered by reading the reasons, and inferences of what was not taken into account before giving the decision can be drawn from the contents of the statement of reasons (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69], [75]).

In the present case, I infer that the present Tribunal did fail to consider a matter relevant to the reasoning by which it affirmed the delegate's decision, and which it was legally bound to consider. That matter was the applicant's explanation for his failure to provide more details by attending at the appointed hearing. His explanation was contained in his letter received by the Tribunal on 1 June. I accept that the Tribunal member was aware that the applicant had made his request and of the reasons he put forward for it, and I accept that she has appreciated that she should determine the request before handing down her decision. However, it seems clear to me that the Tribunal member has failed to appreciate that the request also raised considerations which had to be addressed before she could continue to rely on the reasoning contained in the "decision" which she had previously written and signed.

Her omission is clear, because patently the decision handed down was the previously written and signed "decision" without any amendment. This appears from the dating of the signature, from the complete absence of any reference to the applicant's request, from the maintaining of the suggestion that section 426A(1) had been applied because the Tribunal had received no communication from the applicant prior to the handing down of the decision, and, most significantly, from the substantial reasoning of the Tribunal. That reasoning drew a positive and adverse conclusion that "the Tribunal does not accept the applicant's claims...", and did so "in view of the applicant's failure to provide relevant and detailed information ...". In the absence of reference to the applicant's prima facie good explanation for his failure, I consider that I should infer that the Tribunal has failed to take it into account when making this significant adverse finding.

It may be that the Tribunal would have arrived at the same outcome, had the Tribunal member appreciated that the applicant's letter required her not only to decide whether to schedule a further hearing but also to reconsider the reasoning by which her opinion had been arrived at when she signed her "decision" on 20 May 2004. However, in all the circumstances of this case I am not prepared to draw this conclusion.

My opinion in this respect is significantly influenced by the absence of evidence persuading me positively that the Tribunal did properly assess the applicant's letter when making the procedural decision. I consider it quite possible that, had the Tribunal appreciated that the letter required it to reconsider the substantive reasoning in the signed "decision", then it may have reached a different procedural decision. On my above finding that the applicant at all times wanted and would have attended a hearing if he was aware of an appointment, this would have lead to the Tribunal having much more material upon which to decide the applicant's refugee status. The possibility of a different outcome cannot therefore be ruled out by the Court (c.f. Samad v District Court of NSW [2002] HCA 24; (2002) 209 CLR 140 at [46]).

I consider that the Tribunal's omission to take the applicant's letter into consideration when giving its substantive decision gave rise to jurisdictional error. There was a failure to have regard to a relevant matter which the Tribunal was bound to consider under its duty to make its decision "on the basis of material available to (her) at the time the decision is made" (per Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 22, and see my discussion of this principle and other citations in SZDOG (supra) at [29-32]). Such a failure gives rise to error which is jurisdictional (see authorities discussed in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [69-72], [77]). The situation has some parallel with Minister for Immigration v Bhardwaj (2002) 209 CLR 597, where at [14] Gleeson CJ based his opinion that the Tribunal's decision was void in part upon the fact that it had "dealt with the matter in the belief that the respondent had nothing to say by way of explanation ...", and at [163] Callinan J said: "To fail, or refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction."

For the above reasons, I consider that the Tribunal's substantive decision to affirm the delegate's decision was affected by jurisdictional error, and that the applicant should be afforded relief by way of writs of certiorari and mandamus. Since he has not employed a lawyer, he is not entitled to a costs order.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Smith FM