ATU16 v Minister for Immigration

This matter came before Judge A Kelly of the Federal Court of Australia. The applicant, ATU16, sought judicial review of a decision made by the Minister for Immigration. The core of the dispute concerned whether the Administrative Appeals Tribunal (the Tribunal) had failed to consider a substantial and clearly articulated argument put forward by the applicant.

The legal issue before the Court was to determine the ambit of the Tribunal's obligation to consider arguments presented by an applicant. Specifically, the Court had to ascertain what constitutes a "substantial and clearly articulated argument" that, if not considered by the Tribunal, would lead to a jurisdictional error. This involved examining the criteria for when an applicant has sufficiently put the Tribunal on notice of a contention or submission that could affect the formation of the satisfaction required under section 65 of the *Migration Act 1958* (Cth).

The Court's reasoning was informed by established case law, including decisions in *CPE15 v Minister for Immigration and Border Protection* [2017] FCA 591, *BDJ15 v Minister for Immigration and Border Protection* [2017] FCA 1281, and *SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship* [2013] FCA 774. These authorities establish that the Tribunal is not required to consider arguments that are not clearly articulated or that do not clearly arise from the material before it. A reviewing court will only find a failure to consider an argument if it is both substantial, meaning it could have materially affected the Tribunal's conclusion, and clearly articulated, meaning the Tribunal was put on notice. The assessment of whether an argument meets these criteria is highly fact-dependent and must be considered in the context of each individual case. The Court emphasised that a conclusion that the Tribunal failed to consider an argument not expressly advanced should not be made lightly.