ADA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

In the case of ADA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the appellant, a Ghanaian national, appealed against the primary judge’s dismissal of her application for judicial review. The appellant’s application sought to challenge the decision of the Tribunal which had refused her application for a protection visa, finding that she did not meet the criteria for refugee status as set out in the Migration Act 1958 (Cth). The appeal centred on the primary judge's finding that the appellant had not identified her mother's experience of female genital mutilation (FGM) at the age of 16 as the basis of her claim for protection. The appellant argued that her claims of FGM should be considered in conjunction with her mother's experience and that these claims were explicitly linked.

The court was tasked with determining whether the Tribunal had properly considered the appellant’s claims regarding FGM, specifically whether the Tribunal had erred in not recognising the link between the appellant's claims and her mother’s experience. The central issue was whether the Tribunal had failed to adequately address the appellant’s claims as articulated in the material presented before it, thereby breaching its statutory duty to consider the claims made by the applicant. The court also needed to consider if the Tribunal's failure to properly consider the appellant's claims constituted a constructive failure to exercise jurisdiction, which would entitle the appellant to relief under section 75(v) of the Constitution.

The court found that the Tribunal had indeed considered the appellant's claims, including those related to FGM, as they were clearly articulated in the material presented. The court held that the Tribunal's consideration of the appellant's claims was sufficient and that there was no constructive failure to exercise jurisdiction. The court further found that the primary judge’s conclusion that the Tribunal had adequately considered the appellant’s claims was correct. Consequently, the court dismissed the appeal, upholding the Tribunal's decision.

The court made no further orders beyond dismissing the appeal.