The High Court quashed an International Protection Appeals Tribunal decision rejecting a Zimbabwean woman’s protection appeals after finding that the record did not show whether documents submitted with the tribunal’s permission had been considered. It remitted the matter for reconsideration by a different tribunal member.
The judicial review challenged a decision notified on 28 September 2018. The judgment’s paragraph 4 refers instead to a decision notified on 28 December 2018. The applicant’s primary relief was certiorari, and the court ordered it. The judgment does not decide the substance of her protection claims.
At an appeal hearing on 4 April 2018, the tribunal allowed the applicant to submit further material about her claim of persecution and serious harm in Zimbabwe, particularly concerning the fate of a colleague in the Movement for Democratic Change. The material was sent to the tribunal member the following day.
The tribunal decision listed documents submitted but omitted the 4 April material. Although it said submitted documents had been considered, the High Court read that statement in context as referring to the documents listed. Neither the list nor the decision’s substantive discussion showed that the later material had been considered.
The respondents argued that the applicant was not entitled to a further hearing over documents submitted late, and maintained that documents and submissions had been considered. The court noted that the tribunal had permitted the material to be submitted, and found the general assertion inadequate to answer the specific concern. The Department official who swore the respondents’ affidavit did not say that he had read the tribunal member’s file or explain a basis for knowing whether the member considered the documents. The Department did not ask the member about it.
The court said the usual presumption that documents were properly considered had been rebutted on the particular circumstances, including the omission from the document list and the lack of evidence establishing consideration. It did not need to address the applicant’s remaining grounds. It also declined to refuse relief on discretionary grounds.
The proceedings had been filed slightly out of time. The court upheld an earlier extension of time, noting the circumstances of the delay and that the respondents had not pressed the issue strongly. It then quashed the tribunal decision and remitted the matter to a different member for reconsideration.