Affairs

The case involves an Ethiopian national who applied for a protection visa on the basis that he faced persecution if returned to Ethiopia due to his political affiliations and disability. The Refugee Review Tribunal (RRT) affirmed the delegate's decision to refuse the application. The applicant then sought judicial review of the RRT's decision, arguing that the RRT failed to consider his claim that he had a well-founded fear of persecution due to his HIV positive status, a claim that he had not explicitly raised before the RRT. The central legal issue was whether the RRT was required to consider the applicant's HIV status as a basis for his fear of persecution, despite the fact that the applicant did not raise this claim before the RRT. The court had to determine if the RRT's failure to consider this aspect amounted to a jurisdictional error.

The court found that there was no basis to conclude that the RRT committed a jurisdictional error. The applicant had not raised the claim of persecution based on his HIV status before the RRT, either in written submissions or during oral arguments. The court held that the RRT was not obligated to consider a claim that was never presented to it. The case law cited by the applicant did not impose a duty on the RRT to consider claims not raised by the applicant. The applicant's argument that the RRT should have been aware of his HIV status due to medical reports available to the department was rejected, as the RRT's role was to consider claims as presented by the applicant, not to speculate on potential claims that were not made.

Consequently, the application for judicial review was dismissed. The court ordered the applicant to pay the respondent's costs of the application. This decision underscores the principle that tribunals are bound by the claims and evidence presented to them and cannot consider matters that are not properly before them, regardless of their availability through other means.