AAY15 v Minister for Immigration and Anor

The applicant, AAY15, sought judicial review of a decision made by the Refugee Review Tribunal. The Minister for Immigration and Anor was the respondent. The core of the dispute concerned the Tribunal's assessment of country information presented by the applicant, which the applicant argued constituted "findings" that the Tribunal was bound to consider.

The legal issues before the court were whether the Tribunal had failed to make a finding on a substantial, clearly articulated argument relying upon established facts, and whether this failure amounted to a constructive failure to exercise jurisdiction or a breach of procedural fairness. The court was also required to determine whether the material presented by the applicant to the Tribunal constituted actual "findings" by other Tribunal members or merely a presentation of available country information.

Judge Nicholls reasoned that the applicant's submissions to the Tribunal, which referred to "findings" in other cases, did not establish that the current Tribunal member was bound by those previous determinations, as there is no principle of comity that obliges such adherence. Furthermore, the judge found that the extracted text from the "other" Tribunal's decision was, in fact, a presentation of country information from a publication titled "Dawn," not binding findings. The judge noted ambiguity and potential contradiction within the quoted "Dawn" material regarding the targeting of wealthy versus poor individuals for kidnapping. The Minister argued that the applicant had not established that the purported claim was raised by the evidence in a way that could have been dispositive of the review, nor that the Tribunal had failed to give proper consideration to the claims arising from the material before it. Citing *Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs*, the court affirmed that a failure by the Tribunal to make a finding on a substantial, clearly articulated argument relying upon established facts can amount to a constructive failure to exercise jurisdiction and a breach of procedural fairness.

The court found that the applicant had not established that the Tribunal had failed to make a finding on a substantial, clearly articulated argument. The judge concluded that the material relied upon by the applicant was not a "finding" but rather country information, and that the Tribunal had considered the material before it. Consequently, the application for judicial review was dismissed.