Amo21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 326

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AMO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 326

File number:

PEG 36 of 2021

Judgment of:

JUDGE KENDALL

Date of judgment:

6 December 2021

Catchwords:

MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider a protection claim – jurisdictional error established – writs issued.

Legislation:

Anti-Terrorism Act of 2020

Migration Act 1958 (Cth), ss 36, 476

Cases cited:

AUV15 v Minister for Immigration & Anor [2017] FCA 1951

Avon Downs Pty Ltd v Commissioner of Taxation (Cth) (1949) 78 CLR 353

DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802

NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263

Division:

Division 2 General Federal Law

Number of paragraphs:

90

Date of hearing:

16 September 2021

Place:

Perth

Counsel for the Applicants:

Mr M Howard SC and Mr T Pontré

Counsel for the First Respondent:

Mr T Reilly

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Sparke Helmore Lawyers

ORDERS

PEG 36 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AMO21

First Applicant

AMP21

Second Applicant

AMQ21

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	6 DECEMBER 2021

THE COURT ORDERS THAT:

1.A writ of certiorari issue quashing the decision of the second respondent dated 5 February 2021.

2.A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicants’ application for review according to law.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE KENDALL:

INTRODUCTION

1. The first applicant and the second applicant are husband and wife respectively (Court Book (“CB”) 2).  Both applicants are citizens of the Philippines (CB 13 & 39).

2. The first and second applicants arrived in Australia in July 2013 as the holders of student visas (CB 20 & 46).

3. The third applicant is the daughter of the first and second applicants (CB 2).  She was born in Western Australia (CB 64).

4. The first and second applicants also have a son.  He is not a party to this proceeding (CB 246 & 436).

5. On 26 April 2016, the first applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-87). The second and third applicants were included in that application as members of the first applicant’s family unit.

6. The first applicant claims to fear harm on the basis of political affiliations with the Kilusang Magbubukid ng Pipilinas (the “KMP”) and the Arakan Progressive Peasant Organisation (the “APPO”).  He also fears harm because his brother (also a member of the APPO) was killed by police at an APPO rally and the applicant fears he will be subjected to the same treatment if he returns to the Philippines (CB 32-34). The first applicant also claims to have been harassed and tortured (CB 107) and to suffer from psychological stress (CB 110). The second and third applicants have made no protection claims in their own right.

7. The applicants provided material to the Department of Home Affairs (the “Department”) in support of the first applicant’s protection claims. That material included identity documents, a hand-written statement from the first applicant (CB 107-110), country information

   
   

   (CB 111-142) and a photograph (CB 143).

8. The first applicant attended an interview before a delegate of the first respondent (the “Minister”) on 8 December 2016 (CB 101 & 160). The second and third applicants did not attend at that interview (CB 160).

9. On 19 December 2016, the first applicant gave the Department copies of a Certificate of membership with the KMP and Australian Red Cross blood donor documents.  He did so via email (CB 144-146).  On 28 December 2016, he further provided a letter from Dr [omitted] of [omitted] with a patient review and a bundle of photographs (CB 147-151).

10. On 2 January 2017 and 8 April 2017, the first applicant gave the Department further blood donor documents from the Australian Red Cross (CB 152-153).

11. On 12 April 2017, a delegate of the Minister refused to grant the applicants the protection visas they were seeking (CB 158-168). The delegate was not satisfied that the first applicant or his family faced a real chance or a real risk of serious or significant harm in the Philippines.

12. On 13 April 2017, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 169-171).

13. The applicants gave further material to the Tribunal in support of the application for review. That material included identity documents, photographs, country information and Australian documentation relating to the applicants (CB 180-240).

14. On 20 January 2021, the applicants provided further material to the Tribunal which, relevantly, included a hand-written statement from the first applicant (CB 251-256), photographs (CB 257-265), a hand-written statement from the second applicant (CB 266-272), a prescription (CB 273) and country information (CB 274-419).

15. The applicants attended a hearing before the Tribunal on 25 January 2021 (CB 420-422). At that hearing, the applicant provided further identity documents and country information (CB 423-429).

16. On 5 February 2021, the Tribunal affirmed the delegate’s decision not to grant the applicants the visa (CB 432-450).

17. On 24 February 2021, the applicants filed an application for judicial review and supporting affidavit in this Court. An amended application was filed on 2 September 2021.

18. The applicants seek review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth). To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.

    TRIBUNAL’S DECISION

19. This Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring, instead, to summarise the Tribunal’s “core” findings).  At times, however, it is useful to provide substantial portions of the Tribunal’s reasons in order to draw attention, in some detail, to the Tribunal’s reasoning process: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29] to [32]. This is particularly useful when, as here, an applicant claims that the Tribunal has overlooked or failed to adequately assesses and comment on relevant evidence or a relevant protection claim.

20. In this matter, the Tribunal’s decision is 19 pages long and spans 85 paragraphs. It also includes three pages containing extracts of relevant legislative provisions.

21. The Tribunal began by identifying the type of visa under review and detailed the applicants’ migration history (at [1]-[2]).

22. The Tribunal then noted as follows:

    3.The delegate of the Minister summarised the applicant’s protection claims in the following terms (not corrected for spelling or grammar):

    The applicant claims that he left the Philippines in July 2013 to travel to Australia to study and that his wife and 6-month-old baby girl are here in Australia with him.

    The applicant claims that he is seeking protection in Australia because he does not want to return to the Philippines.

    The applicant claims that he finished his studies back in the Philippines. He claims that he was a school leader at University. He claims whilst being a school leader at University some political parties encouraged him to join them as a political activist. He claims that he was drawn to those political parties to support the poor people. He claims that this is why in 1997 he joined the KMP party (APPO) north of Cotabato. He claims that he joined KMP because he believed that he could help them and to extend his knowledge.

    The applicant claims that KMP helped indigenous people, farmers, the young and women. He claims that his aim was to build a good society for his people. He claims that as a political member of this group he provided them with opinions and assisted in rallies as well as helping the indigenous people in his home. He claims that a result of his involvement in this political party he was harassed, jailed and tortured by the police and the military.

    The applicant claims that his leader in (APPO) north of Cotabato was killed in August 2015. The applicant further claims that political leader Joel Gimatico who was the chairman was also killed riding his motorcycle. The applicant claims that the political situation in his home country is getting worse and that the government will not be able to help. The applicant claims that the government supports the police and the military.

    The applicant claims that the small political parties are the ones who need help but the government never helps them because the government. He claims that corruption, drugs and poverty are the major problems in the Philippines.

    The applicant claims that when the government changed in June 30, 2016, President Rodrigo Duarte hard stance on eliminating drugs saw innocent people being killed by police who were given orders to shoot-to-kill.

    The applicant claims that the Commission of Human Rights advocates are fighting against the order to shoot-to-kill. The applicant claims that judicial killing is happening in his home country and he is afraid of what will happen to innocent who are killed without any course of investigation. He claims that the police can easily point out innocent people and kill them.

    The applicant claims that in September 2 in the Southern part of the Philippines there was a bomb blast, where innocent people including children were killed. The applicant claims the group responsible for this as well as other bombs are a group named Abu Sayyaf group who are associated with ISIS in the Middle East.

    The applicant claims that within 24 hours after the bombing the President declared a state of lawless violence. The applicant claims that violence, wars and crimes is the major problems the government currently face. Therefore, the applicant claims that he cannot take the risk of his family returning to the Philippines. He claims that life here in Australia is safe and believes the Australian government protects them.

    The applicant claims that his country is very dangerous and fears he will be killed or possibly murdered. The applicant also claims that he currently has been treated for psychological stress due to the torture and harassment he endured in the Philippines.

23. The Tribunal confirmed that the first applicant had attended an interview with a delegate on 8 December 2016 and that relevant evidence would be referenced (at [4]).

24. The Tribunal then outlined that the delegate had refused to grant the applicants the visas, summarised the delegate’s findings (at [5]) and confirmed that the applicants had applied for review of the delegate’s decision (at [6]). The Tribunal noted that the applicants were not represented in relation to the review (at [7]) and appeared before the Tribunal on 25 January 2021 without assistance (at [8]).

25. The Tribunal detailed the relevant legislation, principles and guidelines pertaining to the protection visa criteria (including any mandatory considerations) (at [10]-[15]).

26. The Tribunal then gave an overview of the evidence before it, noting as follows:

    Pre-hearing submissions

    16.The applicant provided a number of pieces of documentary evidence to the Tribunal prior to his hearing. In particular, the Tribunal has read and had regard to the following material:

    a.Davao’s First Online News, Lumads in Arakan fear military-backed ‘pangayaw’, 19 August 2012.

    b.Inquirer Mindanao, Magbanua, WA, Peasant leader shot dead in North Cotabato, 18 August 2015.

    c.International Organisation for Self-Determination and Equality, Bowers, I R, Urgent Appeal for Lumad Communities, 17 September 2015.

    d.CNN Philippines, Santos, E P, [PH] gov’t under fire over violent Kidapawan dispersal, 2 April 2016

    e.CNN Philippines, Ho, A, Santiago, Duerte call Kidapawan violence ‘inhuman,’ ‘barbaric’, 7 April 2016.

    f.International Organisation for Self-Determination and Equality, Urgent Appeal for Lumad Communities, 23 April 2016.

    g.The Guardian, Ellis-Petersen, H, Rodrigo Duterte to pull Philippines out of international criminal court, 15 March 2018.

    h.ICC Press Release, President of the Assembly of States Parties responds to announcement of withdrawal from the Rome Statute by the Philippines, 16 March 2018.

    i.Freedom House, Freedom in the World 2018 – Philippines, 5 April 2018.

    j.Amnesty International, Report 2017/18 – The State of the World’s Human Rights – Philippines, 5 June 2018.

    k.Political posters or flyers bearing the slogan titles: End Lumad Exploitation and Killings! and Stop the Killings!, undated.

27. The Tribunal explained that the applicants had provided a number of other documents to which the Tribunal had had regard, including tax returns, letters of support and blood donor and community service recognition documents (at [17]). The Tribunal also confirmed that it had viewed and had regard to photographs before it which showed “the aftermath of street protests in the Philippines” (at [18]).

28. The Tribunal the detailed the first applicant’s oral evidence, as follows:

    (a)the first applicant was a 40-year-old national of the Philippines. His father passed away in 2014 and his mother and four of his siblings still reside in the Philippines and “one of his siblings passed away some years ago” (at [19]);

    (b)the first and second applicants were married in 2004 in the Philippines, the third applicant is their daughter and the first and second applicants also have a son who is not a party to the application (at [20]);

    (c)the first applicant last visited the Philippines in October 2014 upon his father’s death and stayed for approximately five days (at [21]);

    (d)he finished primary and secondary schooling in Cotabato and completed a Bachelor of Science (Accounting) in 2002 in Manila (at [22]);

    (e)the first applicant first became interested in politics whilst in secondary school and his political views centred around promoting the rights of the indigenous (or “Lumad”) people in the Mindanao region, being of Lumad ethnicity himself. He was unable to attend political rallies in high school, being underage, but expressed his views through student publications (at [23]);

    (f)the first applicant considered the majority of Lumad people were illiterate, exploited by “powerful politicians” who threatened violence and were affected by “land grabbing”. The first applicant’s family were victims of such “land grabbing” (at [24]) and this was an issue he advocated for as a high school student. Because of that advocacy, he was threatened by “police” and “military personnel” and on occasion was subjected to physical assaults and punches. Those incidents occurred whilst the applicant was in high school and motivated him to further his education (at [25]);

    (g)he was granted entry to university in Manila in 1997 and moved there to commence his study. When asked if ongoing threats were made against him in Manila, the first applicant responded “[Of] course there is” (at [26]). The first applicant referred to many political groups in Manila and stated he was subjected to harassment by the authorities and “the bodyguards of the politicians” (being the same politicians who were involved in “land grabbing in Cotabato”) (at [27]);

    (h)when the first applicant arrived in Manila, he became a member of the KMP movement (after beginning his university studies) by completing an application form but had been regarded as a “student leader” prior to joining the movement. He did not have a membership card, only a certificate of membership (at [28]);

    (i)the first applicant attended meetings of the KMP and the frequency of group meetings was dependent on current events in Manila and the Philippines. Meetings were to organise responses to those events and the responses took the form of rallies or protests. The first applicant was a “team co-ordinator” who gathered “his members, motivate[d] them through ‘making speeches’, … decide[d] upon slogans and ma[d]e placards” (at [29]);

    (j)the first applicant could not remember precisely when he attended his first rally as “team co-ordinator” but estimated he had attended “more than 10” over the five years he was at college and agreed with the Tribunal’s suggestion of “two or three per year” (at [30]); and

    (k)the first applicant told the Tribunal that the KMP group wanted to see “stability”, for the government to “hear [them]” and to help all in need. When pressed, he provided an example of a rally organised in Hacienda Luisita in the province of Tarlac opposing “land grabbing”. The first applicant also stated that activists had been killed protesting “land deals arranged by the Aquino family, including the former President of the Philippines, for their own benefit” (at [31]).

29. The Tribunal then outlined the first applicant’s evidence regarding his involvement in rallies and his claim that he had been detained by police, as follows:

    32.When pressed as to his involvement in the rallies, the applicant stated that he was a ‘team co-ordinator’ and because of that role he was a known and visible member of the opposition to the ‘land grabbing’ and he would be ‘easily targeted’. When pressed as to why he was ‘visible’ the applicant stated that he was one of the ‘front-liners’ and was known to the authorities by name and by sight as well as from intelligence gathering. The applicant stated that he had been arrested on a number of occasions at rallies by ‘national police’; he stated that he had not been detained at every rally he attended as it would depend upon whether he was caught. When pressed he stated that he was detained on around five occasions.

    33.The Tribunal then pressed the applicant as to the nature of his detention and his treatment in custody. He stated that the national police would break the rally up and, as a participant, if caught, he would be detained. When asked to describe this process he stated that upon being caught he would be surrounded by ‘four or five’ police and placed in a headlock. He would then be handcuffed with his hands behind his back and placed in a truck or ute-like vehicle with an open cage on the back into which up to 10 protesters would be placed ‘depending upon how many they captured’.

    34.The applicant stated that he would then be taken to gaol and detained for up to 24 hours. He stated that in the gaol he was verbally threatened, ‘blackmailed’, and then beaten about the body, punched and kicked. He stated that on one such occasion the police intentionally burnt him in several places about his body with cigarettes.

    35.When pressed, the applicant stated all of his arrests by the police followed a similar pattern; when further pressed he stated that the intensity or duration of his arrests, and his mistreatment, did not increase or change despite his having accumulated a number of such arrests.

1. The Tribunal then continued to detail the first applicant’s oral evidence, as follows:

   (a)the first applicant was unable to recall the exact date of the last rally he attended and had “tried to forget” but recalled “being arrested after a rally at the President’s ‘State of the Nation’ address” (at [36]);

   (b)he continued as an active member of KMP after university but only attended one or two further rallies before finding employment in Singapore in 2004. He then worked in Singapore, Malaysia and Indonesia and most recently worked in Saudi Arabia before coming to Australia (at [37]);

   (c)after he began working in Singapore, he retained his KMP membership and actively supported the group but was “invisible” (which the Tribunal took to mean from a distance) and had contributed financially to KMP “if [he] had money” as the group was reliant on donations (at [38]);

   (d)the first applicant was “aware” of KMP rallies continuing after he left the Philippines but was unable to attend as he was “offshore” but continued to support KMP as an offshore “co-ordinator” and would do so via phone calls with other KMP members (at [39]);

   (e)the first applicant did not travel to the Philippines between 2004 and 2012.  He returned in 2012 to undergo the application process for an Australian student visa, staying for some months during which he was not able to find work (at [40]);

   (f)the first applicant claimed to have been told by KMP associates, prior to returning to the Philippines in 2012, that he was being “targeted” on account of his previous KMP activity and “should be careful”. He kept a low profile upon his return in 2012 as he was concerned for his safety and, whilst nothing happened during his stay, “the threat is there” and his “fear is still there” (at [41]);

   (g)the first applicant retained his KMP membership since being in Australia, continues to be in contact with group members in the Philippines and keeps himself informed of what is happening through conversations with group members and news media (at [42]);

   (h)the first applicant fears that he “will die” if he returns to the Philippines and, when asked why he feared for his life, the first applicant stated that it was “[b]ecause of [his] political views; and …if they know [he is] back” (at [43]);

   (i)when asked why he would still be of interest to the authorities, the first applicant stated that he is still a member of the KMP and “some communities know him”. Further, these communities had informed him that the police had asked about his whereabouts (at [44]);

   (j)when asked about his return to the Philippines in October 2014, the first applicant clarified that he did not attend his father’s funeral “out of fear for his safety” but felt obliged to return to pay respect to his father before his burial. The first applicant stated that he did not have trouble entering or departing the Philippines and “was not arrested or detained during his visit” (at [45]);

   (k)whilst the first applicant said he was not on “the most wanted list”, he was a known member of KMP (at [46]) and all groups opposing the current government in the Philippines (including the KMP) were targeted as “domestic terrorists” and he feared being arrested as a domestic terrorist and being killed (at [47]); and

   (l)the first applicant confirmed the photographs provided to the Tribunal were taken at a KMP rally in 2016 and, while the applicant did not take part in that rally, the images were provided in support of his experiences at similar rallies (at [48]).

2. The Tribunal then outlined further evidence provided at the hearing, as follows:

   49.The applicant provided a number of pieces of documentary evidence to the Tribunal at the hearing. In particular, the Tribunal has read and had regard to the following material:

   a.Document entitled, Philippine travel ban covers 34 countries until January 31, 2021, 15 January 2021.

   b.ABS-CBN News, CHR seeks protection of students vs abuse in Int’l Day of Education, 24 January 2021.

   c.ABS-CBN News, PH virus tally breaches 513,000 with over 1,900 new cases, 24 January 2021.

   d.Cabrera, F, 13 people die in Maguindanao clash during law-enforcement op, 23 January 2021.

3. The Tribunal then detailed the relevant legal principles and authorities relating to an applicant’s duty to make his or her case (at [50]), the need for the Tribunal to adopt a reasonable approach with respect to credibility (at [51]) and noted that, at times, an applicant should “be given the benefit of the doubt” (at [52]).

4. The Tribunal noted that, overall, it found the first applicant’s claims regarding his background, education, KMP membership and political activity to be “coherent, plausible and to be consistent with generally known facts”. The Tribunal also noted that the first applicant’s evidence before the Tribunal was consistent with evidence provided in his protection visa interview (at [54]).

5. The Tribunal was not, however, persuaded that the first applicant had “a well-founded fear of persecution” or that he would face “a real risk of significant harm” should he return to the Philippines (at [55]).

6. The Tribunal accepted that:

   (a)the first applicant identified as a member of the Lumad community and was a “student leader” in high school, when he became politically aware, acting as an advocate for his community with respect to “contentious issues” (at [56]);

   (b)credible country information supported the first applicant’s evidence regarding “land grabbing” practices in the Philippines (at [57]); and

   (c)the first applicant was admitted to university in Manila, where he studied from 1997 to 2002 (noting he claimed to have become a member of the KMP after commencing his studies) (at [58]).

7. The Tribunal then outlined the KMP’s aims and methods (as published on the KMP website) (at [59]). 

8. Relevantly, when assessing the first applicant’s activity with the KMP, the Tribunal determined as follows:

   60.In support of his claim to membership of the KMP the applicant provided the department with an unverified copy of a membership certificate, emailed to him in 2016. The delegate gave the applicant the benefit of the doubt in respect of his evidence as a whole as to his relationship with the KMP, including the certificate of membership, and accepted that he was a member of the KMP. The Tribunal respectfully agrees with the delegate’s assessment; the stated aims of the KMP align with those to be expected of a university student in Manila with the applicant’s ethnic background and political awareness. On balance, therefore, the Tribunal accepts that the applicant was a member of the KMP at the time he claims and, if not now an active member, he at least continues to be sympathetic to the movement’s goals.

   61.The applicant claimed in evidence to the Tribunal and in his protection visa interview that as a member of the KMP he attended numerous protest rallies, some 10 to 15, in the five years he was at university between 1997 and 2002. Sufficient, if primary, country information exists for the Tribunal to accept that the KMP engages in protest rallies as part of its advocacy campaigns. Participation in such protest rallies is a reasonable extension of the applicant’s membership of the KMP between 1997 and 2002 and the Tribunal accepts the applicant’s claims that he did so.

   62.The applicant claims to have been detained on around five separate occasions after protest rallies, and to have spent approximately 24 hours in gaol on each occasion. The applicant further claims to have been verbally threatened and beaten about the body on each occasion of his detention and on one occasion he claims that he was intentionally burned with cigarettes on several places about his body.

9. The Tribunal noted that credible country information supported the first applicant’s claims regarding the treatment of detainees in the Philippines (at [63]).

10. The Tribunal also detailed a medical opinion prepared by Dr [omitted] from [omitted], which was provided to the Tribunal in support of the first applicant’s claims (at [64]) and noted Dr [omitted]’s opinion regarding “five old scars” identified on the first applicant’s body (at [65]).

11. The Tribunal then determined as follows:

    66.Accordingly, having regard to the evidence before it, the Tribunal accepts that the applicant:

    a.participated in a number of KMP protest rallies as a university student between 1997 and 2002;

    b.        was detained after participating in five such rallies;

    c.was held in detention for approximately 24 hours on each occasion of his detention; and

    d.was subject to verbal and physical abuse, including being beaten about the body, on each occasion and on one occasion was burned with cigarettes.

12. The Tribunal also noted that, whilst vague, the first applicant’s evidence regarding his last rally attendance with the KMP (arguably in 2003) was broadly consistent with his evidence at the protection visa interview (at [67]). Further, it was noted that the first applicant had stated that he feared he “would die” because of his “political views” if he returned to the Philippines and that his concerns stemmed from being a KMP member (stressing that the Government of the Philippines had “categorised the KMP as a terrorist organisation”) (at [68]).

13. The Tribunal discussed country information relevant to the Anti-Terrorism Act of 2020 (the “AT Act”) (at [69]-[70]), including information from the Department of Foreign Affairs and Trade (at [71]) and information from the Commission on Human Rights (at [72]).

14. The Tribunal acknowledged the concerns of various international bodies but noted there was no evidence that KMP or its members were being or were intended to be targeted by the AT Act or any anti-terrorism legislation and, on that basis, considered the first applicant’s fears regarding potential abuse of the AT Act to be speculative and not of a sort that amounts to “a well-founded fear” (at [73]).

15. The Tribunal outlined the first applicant’s history as an active member of the KMP between 1997 and 2002/3, noting that he was a resident of the Philippines from the time of his graduation (in 2002) until he travelled to Singapore for his first job (in early 2004). The Tribunal identified that the applicant had made no claims of being targeted during that time for reasons of his KMP membership or political affiliations (at [74]).

16. Further, the Tribunal noted that the first applicant was able to pass through immigration and live in the Philippines without incident for a number of months when he returned in 2012. The Tribunal found his claims to have been “warned about his safety” prior to returning to the Philippines in 2012 to be “vague and unpersuasive” (at [75]).

17. The Tribunal stressed:

    76.Although the applicant claims to have been a ‘front-liner’ and a ‘team co-ordinator’ during his period as an active member of the KMP between 1997 and 2002, he provided no persuasive evidence to the Tribunal to suggest that he has a significant profile within the organisation or that he would be targeted on this account if he were to return to the Philippines now or in the reasonably foreseeable future. Further, on the applicant’s own account his incidents of detention occurred as a direct result of his participation at protest rallies. His evidence is that he has not engaged in such rallies since at least 2003 and he gave no indication to the Tribunal that he planned to do so in the future.

18. The Tribunal acknowledged and had regard to the material provided by the first applicant in relation to the COVID-19 pandemic and, to the extent that he raised a generalised concern for his safety because of COVID-19 in the Philippines, the Tribunal was not satisfied the first applicant was “a person in respect of him Australia had protection obligations” in that regard (at [77]).

19. The Tribunal concluded as follows (in relation to the first applicant):

    78.The Tribunal finds that the applicant does not face a real chance of serious harm for the reason of his membership of the KMP, his participation in protest rallies or for any other reason. The Tribunal finds that the applicant does not face a real risk of significant harm arising from his political beliefs in the Philippines.

    79.After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal does not accept that if he were to return to the Philippines now or in the reasonably foreseeable future, there is a real chance that he will be harmed for the reason of his race, religion, nationality, political opinion or membership of any particular social group apparent on the face of the evidence. The Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.

    80.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Philippines, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the infliction of severe pain or suffering, either physical or mental, that is intentionally inflicted on a person or harm that would involve pain or suffering, intentionally inflicted, by an act or omission that could reasonably be regarded as cruel or inhuman in nature, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

20. The Tribunal noted that there was no evidence to suggest that the first applicant satisfied s 36(2) of the Act because he was a member of the same family unit as the holder of a protection visa (at [81]).

21. The Tribunal then confirmed that the second and third applicants are members of the first applicant’s family unit and that, although invited to give evidence at the hearing, the second applicant raised no further issues (at [82]). On that basis, the Tribunal found that the second and third applicants did not satisfy s 36(2) of the Act on the basis that they were of the same family unit as a person who satisfied ss 36(2)(a) or (aa) of the Act and, accordingly, did not satisfy the relevant legislative criteria (at [83]).

22. On the basis of the above, the Tribunal was not satisfied that any of the applicants were persons in respect of whom Australia had protection obligations (at [84]) and affirmed the decision not to grant the applicants the visas (at [85]).

    PROCEEDINGS IN THIS COURT

23. The applicants filed an amended application on 2 September 2021 which contained “substituted grounds” of review, as follows:

    1.The Second Respondent erred in law, and committed a jurisdictional error, in failing to take into account cogent evidence which provided substantial support to the First Applicant’s claims.

    Particulars

    (a)The First Applicant’s claims that he had a well-founded fear of persecution were supported by the facts that: his brother had been shot and killed by police in the Philippines whilst attending a rally organised by a progressive peasant organisation; and that the political opinions and affiliations of the First Applicant were similar to that of the First Applicant’s brother.

    (b)The evidence that the First Applicant’s brother was killed by police whilst attending a rally supporting similar political opinions and causes to that of the First Applicant was relevant to, and capable of substantially affecting, the Second Respondent’s determination of the First Applicant’s claims of a well-founded fear of persecution by reason of his political opinion.

    (c)The evidence was relevant to the First Applicant’s subjective belief as to persecution and the objective likelihood of that persecution by reason of his political opinion.

    (d)The Second Respondent failed to properly take account of that evidence.

    2.The Second Respondent erred in law, and committed a jurisdictional error, in failing to take into account a substantial and clearly articulated claim to a well-founded fear of persecution.

    Particulars

    (a)The First Applicant repeats the Particulars of Substituted Ground 1 above.

24. The materials before the Court thus include the amended application for judicial review filed on 2 September 2021, a Court Book numbering 452 pages (marked as Exhibit 1), written submissions filed on behalf of the applicants on 2 September 2021 and written submissions filed on behalf of the Minister on 13 September 2021.

25. The applicants were represented by Mr Howard SC and Mr Pontré of counsel. The Minister was represented by Mr Reilly of counsel. The Court thanks Mr Howard SC, Mr Pontré and Mr Reilly for their considerable assistance with this matter.

    CONSIDERATION

26. The amended application contains two substituted grounds for review. At the hearing of the matter on 16 September 2021, counsel for the applicants explained that they had sought to characterise their submissions in two different ways in the substituted grounds but that the parties agreed that “the sole question before this Court is whether the Tribunal failed to take into account “cogent evidence” and a “substantial, clearly articulated claim” raised by the applicant” – that being that the first applicant’s brother had been killed by police at a protest in the Philippines.

27. The applicants argue that the Tribunal erred by not considering the first applicant’s claims in relation to “his brother’s death” and stress that the timing of the first applicant’s brother’s death is significant in relation to this this matter and the Tribunal’s ultimate findings. In the applicants’ submission, the Tribunal accepted that the first applicant had participated in political protests between 1997 and 2002, had been detained after participating in five of those protests and was beaten as a result, being held for roughly 24 hours each time. However, the Tribunal found that, as the applicant had attended his last rally no later than 2003, the applicant would not face a real risk of harm if he returned to the Philippines some 18 years later. Essentially, in the applicants’ submission, the Tribunal adopted a “that was then, this is now” approach.

28. In that context, the applicants contend that, the death of the first applicant’s brother, which took place in the month in which the first applicant applied for the visa, ought to have been considered by the Tribunal because, had it been considered, it is quite possible that the Tribunal “might have come to a different conclusion” in relation to whether the first applicant held a well-founded fear of persecution “now”. The applicants conceded that, while the weight to be given to the evidence in relation to the death of the first applicant’s brother was a question for the Tribunal, that evidence should nonetheless have “been given proper consideration and was not”.  Indeed, the Tribunal was entirely silent on what was, arguably, relevant evidence.

1. The Minister, in turn, considers that the grounds do not accurately represent the way in which the first applicant presented his case to the Tribunal. The Minister submits that the first applicant did not “clearly articulate” any claim in relation to his brother’s death and that, whilst there is a brief mention of his brother’s death in the first applicant’s protection visa application and his written submissions to the delegate, no further information was provided by the first applicant to the Department or to the Tribunal. The Minister further submits that there is no basis upon which to infer that anything put to the Tribunal by the applicant was overlooked.

   Applicants’ written submissions

2. The applicants’ written submissions provide, relevantly, as follows (at [33]-[40]):

   •Like the Delegate, the Tribunal did not deal expressly or otherwise with the proposition put by the First Applicant that his brother had been killed at the hands of the police, whilst engaged in similar activism to that in which he had been engaged, and failed to recognise that those matters were an important aspect the First Applicant’s asserted fear of persecution and bore upon the objective likelihood of persecution.

   •The only portion of the Tribunal’s reasons which expressly refer in any way to the First Applicant’s brother are as follows:

   His father passed away in 2014; his mother and four of his siblings are still resident in the Philippines; one of his siblings passed away some years ago.

   •The only other potential inferential indication of the Tribunal considering this issue is to be found in references to the media reports provided, relevantly:

   The applicant provided a number of pieces of documentary evidence to the Tribunal prior to his hearing. In particular, the Tribunal has read and had regard to the following material:

   …

   d.CNN Philippines, Santos EP, [PH] gov’t under fire over violent Kidapawan dispersal, 2 April 2016

   e.CNN Philippines, Ho, A, Santiago, Duterte call Kidapawan violence ‘inhuman’, ‘barbaric’, 7 April 2016.

   •However, nothing is said by the Tribunal which links these reports with the First Applicant’s brother’s death, or otherwise indicates that they were intended to relate, and did relate, to the death of the First Applicant’s brother. The proposition that protests occurred, and violence resulted, is plainly different in importance and effect to the proposition that the First Applicant’s brother was killed by police at such a protest.

   •As such, it is submitted that the significance and importance of these matters was overlooked.

   •In that context, although the Tribunal found the First Applicant’s claims as to membership of the KMP and political activism between 1997 and 2003 to be coherent and plausible, and found his evidence as to abuse at the hands of police as a result of his political activism to have been established, it found that the First Applicant did not face a well-founded fear of persecution by reason of his membership of the KMP or participation in rallies.

   •That finding proceeded on the basis of:

   (a)       an absence of any claim of persecution between 2002 and 2004;

   (b)an apparently uneventful trip for a matter of months to the Philippines in 2012; and (c) a link between the incidents of detention and abuse suffered and his participation in rallies and an absence of evidence as to an indication that he planned to so participate again.

   •Those findings were realistically capable of alteration, had the evidence and argument as to the killing of the First Applicant’s brother at the hands of police at a protest furthering the aims of the KMP and the APPO been properly considered.

   Minister’s submissions

3. The Minister’s written submissions relevantly provide as follows (at [9]-[12]):

   •The “First applicant’s substituted grounds of review” contain two grounds, claiming that the Tribunal failed to take into account “cogent evidence” and a “substantial, clearly articulated claim”, being that the first applicant’s brother had been shot and killed by police in the Philippines when attending a rally organized by a progressive peasant organization, and that the applicant’s political opinions and affiliations were “similar” to his brother.

   •These grounds do not fairly reflect the way the applicant presented his case to the Tribunal. There is a brief mention of his brother’s death on 1 April 2016 in the applicant’s protection visa application at CB 32 followed by “I will provide further details later”, and in the applicant’s written submissions to the delegate at CB 107. It appears that neither before the delegate or the Tribunal did the applicant provide any further details as foreshadowed, or even mention his brother again.

   •It was the responsibility of the applicant to specify all particulars of his claims and provide sufficient evidence to establish them: s 5AAA of the Act. Thus if the applicant wished to claim that he faced harm because of his brother’s death it was incumbent on him to clearly articulate this before the Tribunal. However, it appears from the Tribunal’s detailed account of the hearing at [19]-[47] that he did not mention his brother at all, and the applicant has not filed a transcript of that hearing.

   •In the circumstances there was no “substantial, clearly articulated argument relying on established facts” (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24]) by the applicant before the Tribunal relying on his brother’s death. Nor is there any inference that the Tribunal has overlooked the brief mentions of the applicant’s brother’s death at CB 32 and 107. The Tribunal did not have to set out every item of the applicant’s evidence or give a “line by line refutation” of his claims: Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [48-49]. Further, it noted that one of the applicant’s siblings had passed away some years ago: [19].

4. At the hearing of this matter, Mr Reilly noted that, upon final review of the matter in preparation for the hearing, counsel for the applicants and the Minister may have “proceeded on a false basis”. Mr Reilly submitted that the person the first applicant calls “his brother” may not in fact be a “literal brother” (biologically).  Rather, he may be no more than a “brother in arms” or a “comrade”.

5. In this regard, Mr Reilly notes that, in his application for the visa, the first applicant listed a brother by the name of Mr K J [omitted] as being deceased (CB 17). However, the name of the person the first applicant references in his submission to the delegate as being killed at a “mass rally” is a person with a completely separate name (Mr D [omitted]) (CB 107). In this context, Mr Reilly submits, unless the first applicant has another brother who was killed and who was not mentioned in the visa application under “[o]ther family members NOT included in Part B” (CB 17), the inference can be drawn that the first applicant is referencing a comrade and not a biological brother.

6. Mr Howard SC sought instructions in this regard and advised the Court that the person who had been killed was a “half-brother” of the first applicant (that is, they shared the same father but had different mothers). Mr Howard SC also advised that, when answering the question in the visa application relating to family members (CB 17), the first applicant had only answered with “full siblings”. Mr Howard SC acknowledged that the instructions in the visa application stated that, with respect to siblings, applicants should “include full, half, adopted and step brothers and sisters” (CB 17). However, Mr Howard SC stressed that English is the first applicant’s third language. 

7. In response, Mr Reilly submitted that it is not apparent from the material that was before the Tribunal (or, indeed, the Court) that the relevant person was a “half-brother”.  In Mr Reilly’s submission the most likely inference is that the first applicant is not referring to a family member.  He is instead referring to someone “he knew” who was killed on 1 April 2016. Mr Reilly’s presumption is that the deceased was one of the two farmers referred to in a news article as having been killed at the 2016 rally (CB 111).

8. In that context, Mr Reilly submitted that there was no basis to infer that anything put to the Tribunal by the first applicant was overlooked because he wasn’t referring to a familial brother and, reference to someone being killed at an event is “not as objectively significant”. Further, Mr Reilly noted that the Tribunal had expressly stated that country information regarding the death of two people at the rally was taken into account in its reasons and the Tribunal is not obliged to “give a line-by-line refutation” of the applicants’ case.

   The Tribunal’s requirement to consider claims

9. A Tribunal will err if it excludes from its consideration some factor which should affect its determination: Avon Downs Pty Ltd v Commissioner of Taxation (Cth) (1949) 78 CLR 353 at 360.

10. Establishing exactly what should have been considered by the Tribunal in any given matter is often a difficult task. As Judge Wilson explained in AUV15 v Minister for Immigration & Anor [2017] FCA 1951:

    19.A substantial issue emerged in this case about the lengths and breadths of the applicant’s claim or claims. The task of ascertaining precisely what fell for determination by the Tribunal is frequently problematic in cases under the Act. It is equally problematic ascertaining whether, by the failure to consider a particular issue the Tribunal has in fact fallen into jurisdictional error. Unlike in the arena of civil litigation where pleadings define the controversy between the parties, as was pointed out by Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs, proceedings before the Tribunal are not adversarial so issues are not defined by the pleadings or by any analogous process. There, the Chief Justice held that –

    Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process (footnote omitted).

11. An applicant’s protection claims and their component integers are, however, considerations that are mandatorily relevant under the Act. Justice Allsop (as he then was) considered the nature of the Tribunal’s review function in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 (“Htun”), stating (at [42]):

    ... The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration ... It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act ... make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.

12. The Tribunal is not, however, required to give consideration to a claim that is not expressly made or that does not arise clearly on the materials before it.  As explained in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 (“NABE”) at [61]-[62]:

    …the tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.

    Whatever the scope of the tribunal’s obligations it is not required to consider criteria for an application never made. The application for protection visas by a mother and her children on the basis that they were refugees was not required to be considered as though it were an application in their capacity as the family of a man who had been granted a temporary protection visa: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 (2003) 211 CLR 441; 195 ALR 1; [2003] HCA 1 at [31]–[32]. Gleeson CJ generalised from this, albeit in dissent, in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; 203 ALR 112; [2003] HCA 71 at [1]:

    ... Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.

13. It follows that, if a Tribunal fails to consider a claim, or misunderstands or misconstrues a claim which is raised on the evidence before it, the failure to do so may constitute jurisdictional error. In this regard, it is noted that the Full Court of the Federal Court in NABE stressed that (at [63]):

    It is plain enough, in the light of Dranichnikov, that a failure by the tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be “subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected”: Applicant WAEE at [47]. But as the Full Court said in WAEE (at [45]):

    ...If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.

    Whether the Tribunal’s decision was affected by jurisdictional error

14. As outlined above, the parties disagreed about the nature of the relationship between the person who had been killed and the first applicant and whether the deceased was a biological brother, a comrade, a “brother in arms” or a half-brother to the applicant.

15. While arguably “problematic” on the evidence (evidence which the Court cannot assess on review), this is irrelevant for the purpose of this decision. The relevant question for this Court is not in relation to the type or nature of the relationship between the deceased person and the first applicant. Instead, the Court must consider whether or not the first applicant “squarely” raised a claim regarding the death of a person the first applicant refers to as a “brother”. If the Court finds that the first applicant did make that claim, the Court must then consider whether the Tribunal fell into error by failing to consider the first applicant’s claim and evidence regarding the death and, if so, if that failure amounts to jurisdictional error.

16. Part C of the application for a protection visa titled “Personal details for each person included in this application” includes a section headed “Your reasons for claiming protection” (CB 32). That section contains the following instructions for applicants:

    This section (Questions 89 to 96) must be completed for applicants making their own claims for protection.

    You must answer all the following questions in your own words.

    You must provide all the details about why you are seeking protection and, wherever possible, you must provide documentation to support your claims.

    A decision may be made on the information provided in your written application and you may not be given another opportunity to present these claims.

    Therefore, it is important that you include all details relevant to your case and provide any supporting documentation at the time you lodge your protection application.

    Your claims for protection will be assessed against relevant Australian law. For further information on Australia’s protection obligations under Australian law including the definition of a refugee you should refer to the guidance material available on the website Please be aware that not everybody is entitled to Australia’s protection. You may not engage Australia’s protection obligations even if you have faced harm in the past or you come from a country where there is violence or a lack of security.

17. Here, the first applicant makes a “claim” referencing the death of a “brother”.  He does so in his response to questions within the relevant section of his protection visa application.

18. In response to a question at question 90 in the protection visa application (ie, “what do you think will happen to you if you return to that country(s)?”), the first applicant states (CB 32):

    -I believe they killed me or persecuted, because on date 1st of April 2016, my brother [omitted] of [omitted] municipality, a member of Arakan Peasant and Progressive Organisation (APPO), attend the protest, north Cotabato and was shot and killed by police in Philippines.

    -         I will provide further details later.

19. In response to the question at 91 in the protection visa application (“Did you experience harm in that country(s)?”), the first applicant marked the box which said “yes” and states (CB 33):

    -It was targeted and persecuted for involvement/activities with (APPO), and was killed on 1st April 2016 at protest.

    -         I will provide further details later.

20. The first applicant later provided hand written submissions to the delegate. In those submissions, the first applicant states (CB 107):

    …Im feel not safe to go home. April 1st 2016. My brother co-member (APPO) [omitted] killed in mass rally on April 1, 2016 @ Kidapawan, North Cotabato. I feel so helpless what happen to them. But Im lucky i here and safe of my family.

21. The first applicant continues (CB 108):

    But then, Im so scare to go home…

22. While the first applicant did not provide any evidence in support of the claim relating to the death of his “brother”, it cannot be said that a claim is not “squarely raised” by the first applicant in his application and again in his written submissions. Whilst little detail is provided, it is clear from the responses above that the first applicant claimed he would be killed or persecuted in the same manner that he claims his “brother” was killed.

23. As discussed above, a claim raised for protection must be considered by the Tribunal and any failure to do so may amount to jurisdictional error: Htun at [42].

24. The Tribunal, in its reasons, makes no specific reference to the first applicant’s “brother”. It does, however, state that “one of his siblings passed away some years ago” (at [19]). There is no discussion in the Tribunal decision about how a person the first applicant refers to as his “brother” died or his political affiliations or involvement.

1. The Tribunal also references two CNN news articles as being evidence provided by the applicant to the Tribunal prior to the hearing and notes that the material had been read and given regard. Those articles describe violent protests in Cotabato on 1 April 2016 and are described by the Tribunal as follows (at [16]):

   …

   d.CNN Philippines, Santos, E P, [PH] gov’t under fire over violent Kidapawan dispersal, 2 April 2016

   e.CNN Philippines, Ho, A, Santiago, Duerte call Kidapawan violence ‘inhuman,’ ‘barbaric’, 7 April 2016.

   …

2. There is no evidence before the Court to suggest that the Tribunal has considered the articles above in the context of the first applicant’s claim regarding his “brother’s death”. Further, there is no evidence to suggest that the Tribunal gave any consideration or made any findings in relation to the first applicant’s claim regarding his “brother” being killed or the relationship between the first applicant and the deceased.

3. As outlined at [71] to [74] above, the first applicant included relevant information in this regard in his protection visa application.  Unfortunately, and somewhat unusually, given the forensic analysis provided by the Tribunal in an otherwise well written and well-reasoned decision, it does not appear, on the face of the Tribunal’s decision, that any consideration was given to this claim.

4. The Tribunal may well have considered (as counsel for the Minister submitted) that the deceased was not the applicant’s biological brother and was instead a comrade – thus negating the need to assess the evidence.  However, that requires the Court to speculate and, regrettably, leaves the applicants “wondering”. While possible, this approach is insufficient. If the Tribunal believed “the brother” was not, in fact “a brother”, it should have explained why and explained its determination in that regard. If, ultimately, the Tribunal rejected the evidence, that was a finding that was arguably open to it.  However, any concerns in that regard should have been clearly articulated.

5. Here, no analysis of the sort required is provided that might indicate that any consideration was given to the “brother’s” death. This lack of analysis leaves this Court (and the applicants) to speculate about what was and what was not considered and analysed by the Tribunal.

6. In circumstances where a claim was raised by the first applicant in his protection visa application, this needed to be addressed by the Tribunal. At a minimum, the Tribunal needed to address the fact that the first applicant had made a claim for protection on the basis of fear due to the death of a “brother” (whether the Tribunal considered him to be a biological brother, a half-brother or a comrade). The Tribunal did not do so here. The Tribunal’s approach in this regard is thus lacking.

7. The Tribunal failed to consider the first applicant’s claim regarding the death of a brother and has, accordingly, fallen into jurisdictional error.

   CONCLUSION

8. The applicants’ amended application for judicial review filed on 2 September 2021 has identified jurisdictional error.

9. The Tribunal’s decision will be set aside and the matter will be remitted for reconsideration.

I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.

Associate:

Dated:       6 December 2021