BUH15 v Minister for Immigration

[2016] FCCA 153

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUH15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 153

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection visa – claims advanced on behalf of minor applicant by litigation guardian – whether Tribunal properly addressed the claim that applicant would face persecution as a Christian – whether the claim arose on the face of the material before the Tribunal – jurisdictional error identified – application allowed.

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: BUH15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2439 of 2015

Judgment of: Judge Street

Hearing date: 1 February 2016

Date of Last Submission: 1 February 2016

Delivered at: Sydney

Delivered on: 1 February 2016

REPRESENTATION

Counsel for the Applicant: Mr J Williams

Counsel for the First Respondent: Ms R Francois

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. Pursuant to r.11.11(1) of the Federal Circuit Court Rules 2001, the Court appoints BUH15A as the litigation guardian in these proceedings for the Applicant, BUH15

2. The litigation guardian be known by the pseudonym BUH15A

3. The name of the litigation guardian be recorded as BUH15A and that there be no recording on the ECF system of the litigation guardian’s name.

4. The order appointing BUH15A as the litigation guardian operates nunc pro tunc from the filing of the application on 4 September 2015 and I dispense with the need for the litigation guardian to file an affidavit under r.11.11(2) of the Federal Circuit Court Rules 2001

5. There be no publication of the name of the litigation guardian pursuant to s.88F of the Federal Circuit Court Act 1999 on the grounds of s.91X(1)(a) of the Migration Act 1958 and s.88G(1)(a) of the Federal Circuit Court Act 1999 until the repeal of s.91X.

6. An order in the nature of a writ of certiorari is issued calling up the record of the Second Respondent and the decision dated 31 July 2015 is quashed.

7. An order in the nature of a writ mandamus is issued requiring the Second Respondent to determine the applicant’s application according to law.

8. The First Respondent pay the Applicant’s costs fixed in the amount of $6825.

Pursuant to r.16.05(2)(e) of the Federal Circuit Court Rules 2001 (Cth), Orders 1 and 2 of the Orders entered on 17 June 2015 are amended to correct the Orders by substituting in Order 7 “Second Respondent” in place of “Tribunal”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2439 of 2015

BUH15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 31 July 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant is a minor who was found to be a citizen of Egypt and the applicant’s claims were assessed against the applicant being returned to that country.

2. The claims for protection advanced on behalf of the minor were substantially based on fears of the guardian who is a person who holds another citizenship and was therefore not entitled to apply for protection for herself.  The guardian was a witness at the Tribunal and was found to be a credible witness, in respect of which the Tribunal decided to give the guardian the benefit of the doubt and proceed to assess the claims made by the guardian.  The applicant did give evidence to the Tribunal about contact with the guardian and upbringing in Egypt but not directly concerning any claims. 

3. In the original application which included the guardian seeking protection, reference was made in relation to the fear of persecution to the guardian being a Christian who had a child.  The Court finds this was a claim of fear of persecution raised by the guardian by reason of being a Christian.  The evidence accepted by the Tribunal was that the guardian had illegally purported to adopt the applicant and had obtained a false birth certificate which had permitted the education of the application in Egypt until he arrived on a tourist visa on 17 February 2013 in Australia.  That false birth certificate was the basis upon which the applicant had obtained the passport in which the guardian was identified falsely as the biological mother.

4. The guardian contended that the details relating to the biological father were also incorrect and it was that false information provided by the guardian that permitted the obtaining of the tourist visa for the applicant.

5. As a result of DNA testing, the Tribunal found the guardian was not the applicant’s biological mother.  This was a fact of which it was said by the guardian that the applicant was unaware.  The Tribunal accepted as plausible that the guardian and her husband had tried to conceive a baby and were unsuccessful. The Tribunal accepted that, although the guardian’s husband did not support the adoption, the guardian went to Egypt on holidays and was given the applicant at about three weeks of age in circumstances in which the adoption was illegal and that the applicant was the product of a relationship that would be considered inappropriate in Egypt.

6. The applicant’s evidence was that he saw the guardian about once a year.  Nonetheless, the Tribunal found plausible that the applicant was cared for by the guardian’s parents and sister while she lived and worked in another country.  The guardian unsuccessfully attempted to obtain a visa for the applicant in that other country.

7. The Court granted leave to the applicant to file an amended application which raised the following grounds:

   Ground 1: Denial of Natural Justice and Procedural Fairness

   1. The Second Respondent failed to make a finding on a substantial, clearly articulated argument relying upon established facts and that failure amounted to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.

   Particulars

   (a) Personal Details

   2. At [2] of the decision record, the applicant is aged 10 years old boy and a national of the Arab Republic of Egypt (Egypt). From [12](a)-(g), the applicant was born to an 'illegitimate relation of a Christian mother and a Muslim father' which is illegal and disallowed in Egypt. As a result, the biological mother gave the applicant to a Christian orphanage at St Mina Church, which primarily cares for children born between Christian women and Muslim men. In September 2005, father [X] arranged the illegal adoption of the applicant to [BUH15A], who registered the child in her name and obtained a birth certificate.

   3. At the time of the adoption, the estranged husband of Ms [BUH15A] was living in the USA. Ms [BUH15A] subsequently applied for migration to America including the applicant as a secondary applicant. Ms [BUH15A] did not inform the US immigration officials that the child is her adopted child and subsequently the authorities were not convinced that the applicant was her natural son.

   4. Ms [BUH15A] separated from her husband in 2006 and he subsequently threatened to inform the Egyptian and the US authorities about the true status of the child. The adoptive mother and the applicant arrived in Australia on 17 February 2013, and at [38], the applicant is now 10 years old and has been in Australia for over two years.

   (c) Protection Claims

   5. From [12](f)-(g), the applicant claims that there is a real risk of harm the applicant and his adoptive mother are refouled to Egypt as his adoptive mother will face criminal charges and imprisonment, that the applicant will be placed back into the care of the orphanage and subjected to cruel, inhuman or degrading treatment and as a consequence, the applicant will be permanently separated from his adoptive mother and family.

   6. Further, the applicant claims that he and his adoptive mother suffer from a real risk of harm from Islamic extremist opposed to Christian/Muslim offspring and orphans and their carers, who recently attacked the St Mina Church, which resulted in the death of 14 individuals and the injury of over 300 people. The applicant also claims he will suffer persecution for being an 'illegitimate Christian/Muslim' orphan throughout his life.

   (d) DNA Testing

   7. At [25], on 6 July 2015, the second respondent received documents relating to the results of DNA testing, which showed that Ms [BUH15A] was 'excluded from identification as the biological mother' of the applicant.

   8. At [28], the second respondent found that 'the results of the DNA testing are persuasive and independent evidence that Ms [BUH15A] is not the applicant's biological mother.'

   (e) The Adoption

   9. At [29], the second respondent accepted as 'plausible that Ms [BUH15A] and her former husband had tried to conceive but they were unsuccessful.'

   10. The second respondent accepted as 'plausible that although her former husband did not support the adoption, Ms [BUH15A] went to Egypt on holidays and she was given the applicant by the father [X] from St. Mina church when the applicant was about three weeks old, that he was from a relationship that would have been considered inappropriate in Egypt'

   11. The second respondent accepted as 'plausible that the father [X] obtained identity documents for the applicant showing Ms [BUH15A] and her former husband as the parents.'

   12. The second respondent was 'therefore satisfied that the identity documents contain false and misleading information about the applicant's biological parents.'

   (f) The Former Husband and the US Application

   13. At [30], the second respondent accepted as plausible that the applicant was cared for by Ms [BUH15A]'s parents and sister whilst she lived and worked in America.

   14. The second respondent accepted that when 'Ms [BUH15A] tried to apply for an American visa for the applicant, this was refused because she was unable to demonstrate that she was the biological parent, as she clearly was not.'

   15. The second respondent accepted as plausible that Ms [BUH15A] had sought legal advice in relation to the applicant to enable her to take him to America with her but this was unfruitful.'

   (g) The illegality of the Adoption in Egypt

   16. At [31], the second respondent accepted as 'plausible that the applicant has not been formally adopted in Egypt, and that adoption is not legal in Egypt. Country information indicated that 'under Islam, adoption is forbidden and there is no legal process that allows adoption in Egypt for Muslims or Christians.'

   17. At [42], the second respondent accepted as 'plausible that she thought this was compassionate, and it is, but the fact is taking a child in those circumstances would be considered illegal by the Egyptian authorities.'

   (h) The Attention of the Egyptian Authorities

   18. However, at [41], the second respondent erred by adopting the view that 'given the fact that neither the applicant nor Ms [BUH15A] has ever come to the attention of the Egyptian authorities during sensitive years when children are less likely to be inhibited and more willing to discuss their personal background much more openly, it is highly unlikely that as he grows older, there would be more scrutiny of his background.'

   19. The correct question before the second respondent was not whether there is a real risk that the Egyptian authorities will discover the illegal adoption, rather the correct question is whether there is a real risk of harm if the Egyptian authorities discover the illegal adoption to both the applicant and his adoptive mother.

   (i) The Law of General Application

   20. Further, at [43], the second respondent erred by finding that '[i]n consideration of the evidence as a whole and on the basis of the available information, the Tribunal finds that there is not a real risk or a real chance of the applicant coming to the attention of the Egyptian authorities, or that he would be banned in any way by the Egyptian authorities or any other organisation as a result of his background. Even if the Tribunal were wrong about these findings, the Tribunal is satisfied that if the Egyptian authorities become aware of the applicant's background, Ms [BUH15A] would be subjected to laws of general application in relation to obtaining a child unlawfully. The Tribunal accepts this on the basis of the country sources that she could be imprisoned or fine.'

   21. The second respondent failed to consider the real risk of harm that may be inflicted on the applicant or his adoptive mother extra judicially for illegally adopting a Christian/Muslim orphan by the Egyptian authorities or by Islamic extremists.

   (j) Country Information

   22. At [32], the Tribunal observed that '[c]ountry information indicates that under Islam, adoption is forbidden and there is no legal process that allows adoption in Egypt for Muslims or Christians. Although adoption is allowed in Christianity, the Islamic restrictions in Egypt prevent Christian parents from adopting Christian children.'

   23. At [33], a report published by the Middle East Review International Affairs Journal of 30 September 2007 noted that "Under Islamic law, adoption in the usual sense of the word is not permitted. At [34], '[a]ccording to UNICEF, there were an estimated 56,000 orphans in Egypt in 2007. In Islam, the concept of child adoption does not exist.' Adopted children can face social stigma which can result in a lack of acceptance and respect, and psychological isolation. At [35], in support of the application for review, the Tribunal received a number of articles about street children, orphans and their mistreatment in Egypt.

   24. Importantly, at [37], the Tribunal identified that '[i]n one of the articles provided by the applicant, there is reference to a video recording of a manager of an orphanage beating children' and at [38], identified 'newspaper reports in 2009 regarding the punishment of persons engaged in illegal adoption ... where a 'group of Christians [were] sentenced to prison for five years and a fine of 100,000 pounds each because they adopted children illegally.'

   (k) Separation from the Adoptive Mother

   25. At [47], the second respondent found that 'whilst the Tribunal accepts as plausible that if discovered and placed back in an orphanage, he would therefore no longer be in the care of a person whom he has known to be his mother which could undoubtedly upset the applicant and cause long-term separation from Ms [BUH15A].'

   26. However, in the same paragraph, the second respondent erred by finding that the 'Tribunal does not accept that being placed in an orphanage in Egypt amounts to serious or significant harm to the applicant.'

   (l) Cruel, inhuman, degrading treatment if returned to the orphanage

   27. At [47], the second respondent erred by observing that 'country information referred to above indicates that whilst there could be issues in relation to orphans such as stigma and societal discrimination and orphanages being overcrowded with substandard hygiene,' yet finding that 'overall and on balance, the information before the Tribunal also indicates that orphans are generally treated with compassion and generosity and orphanages receive significant contributions from the Egyptian society.'

   (m) Islamic Extremist Attacks on the St Mina Church

   28. At [40], the second respondent erred by accepting on the one hand that 'St Mina Church had been attacked,' based on a report of an attack on 7 May 2011, however finding the 'claim that extremist groups know of the details to be entirely speculative and far-fetched' and concluding that '[o]n the basis of the available information, the Tribunal is not satisfied that extremists groups such as the Salafists have taken any documents, or that the church had kept any documents, or that the applicant's details have been connected to Ms [BUH15A], or that the Egyptian authorities are investigating the church, or that there is a real chance or a real risk that Salafists/extremists groups would harm her or the applicant.'

   (n) Whether the Law of General Application Amounts to Persecution

   29. For the reasons just highlighted, the second respondent failed to consider the real risk of harm that may be inflicted on the applicant or his adoptive mother under the law of general application or extra judicially for illegally adopting a Christian/Muslim orphan by the Egyptian authorities or by Islamic extremists.

   30. Laws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application. A law of general application is capable of being implemented or enforced in a discriminatory manner.

   (o) The legitimacy threshold - the principle of proportionality

   31. The second respondent failed to enquire whether the harm feared by the applicant or his adoptive mother was appropriate and adapted to achieving the legitimate object of the policy of the State, that being to prohibited Christian and Muslim offspring or the adoption of orphans more generally.

   32. Clearly, a law of general application mandating the imposition of severe penalties on the adoptive mother irrespective of her personal circumstances and separating her from the applicant, may be regarded as a measure that, according to the standards of civil societies, is not appropriately adapted to achieving a legitimate object.

   (p) The Refugee Criterion

   33. As a result, at [49], the second respondent erred by being 'satisfied that even in the case it would be discovered that the applicant was not the biological child of Ms [BUH15A], there is not a real chance he would be subjected to serious harm as contemplated by the Act. Moreover, the Tribunal does not accept on the evidence before it that if the applicant were to be placed back in an orphanage, there is a real risk that he would be subjected to significant harm as defined, or that he would be ill-treated in a manner that would fall ·within Australia's protection obligations.'

   (q) Complementary Protection

   34. Similarly, at [52], the second respondent erred by finding on the one hand that 'whilst there are reports of abuse and the mistreatment of orphans, there are also reports of serious actions taken by the Egyptian authorities in relation to ill treatment of orphans' and then finding at [53], 'that there is a real risk of significant harm occurring to the applicant on any basis.'

   35. To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord natural justice to the applicant by the second respondent.

   Ground 2: Jurisdictional Error - Failure to Deal with the Applicant's Claims or Integer of those Claims

   36. The second respondent committed jurisdictional error by failing to complete the statutory task required of it to examine and deal with the applicant's claims, or an integer of his claims.

   Particulars

   (a) The Real Risk of Harm to the Applicant or his Adoptive Mother

   37. For the reasons articulated at ground one.

   38. Alternatively, the second respondent failed to examine the integer of the applicant's claims

   a) that the applicant faces a life of persecution more generally in Egypt for his membership of a social group as an 'illegitimate Christian/Muslim orphan.'

   b) that both he and his adoptive mother face the real risk of harm due to his membership of a social group as an 'illegitimate Christian/Muslim orphan' from Islamic extremists.

   c) that because his Christian/Muslim heritage is prohibited and his adoption and Egyptian identity documents are fraudulent, the applicant has acquired not Egyptian nationality, or on the true facts being revealed, would accept the applicant as an Egyptian national or accord him protection.

   39. The applicant's claim went to a basal element of a claim for protection made under Art 1(A) of the Convention. The failure to deal with the claim amounted to a constructive failure by the second respondent to carry out the review function and there was jurisdictional error on the part of the second respondent.

   40. Moreover, the failure of the second respondent to address the applicant's contention meant that the second respondent did not consider whether this was an occasion when it should exercise its powers of inquiry under s 427(1)(d) of the Act to ascertain from the Egyptian authorities whether in the applicant's circumstances, the applicant would be entitled to Egyptian nationality, identity documents and whether he would qualify for protection by the Egyptian state.

   41. 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.

   Ground 3: Jurisdictional Error of Law - Misapplication of law or failure to ask the correct question

   42. The second respondent erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question.

   Particulars

   (a) The Claims of the applicant through the claims of the adoptive mother

   43. At [9], the second respondent observed that the 'applicant has made the same claims as those made as a secondary applicant. As a primary applicant, the claims are written as if the mother is the applicant.'

   44. At [45], the second respondent considered that the 'claims made by the applicant to be fundamentally related to the claims made by Ms [BUH15A].'

   45. The second respondent erred by assessing the claims of the applicant through the claims of the adoptive mother. The examination and analysis of the adoptive mother became conflated with the claims of the applicant.

   46. The correct question before the second respondent was not whether the adoptive mother will face a real risk of harm due to illegally adopting a 'illegitimate Christian/Muslim orphan', although this may be seen as a relevant integer of the applicant's claims. Rather the correct question before the second respondent was whether there was a real risk of harm to the l 0 year old boy if he and his adoptive mother were refouled to Egypt, given the real chance that his adoptive mother would be imprisoned, the applicant would be returned to the orphanage, both would be permanently estranged from each other and both at real risk of harm from extrajudicial mistreatment by the Egyptian authorities or Islamic extremists. The second respondent operated through the prism of harm to the adoptive mother in the first instance instead of the applicant proper and therefore erred.

   (b) The Law of General Application

   47. At (43), the second respondent erred by finding that '[i]n consideration of the evidence as a whole and on the basis of the available information, the Tribunal finds that there is not a real risk or a real chance of the applicant coming to the attention of the Egyptian authorities, or that he would be banned in any way by the Egyptian authorities or any other organisation as a result of his background.' Alternatively, the Tribunal found that ‘[e]ven if the Tribunal were wrong about these findings, the Tribunal is satisfied that if the Egyptian authorities become aware of the applicant’s background, Ms [BUH15A] would be subjected to laws of general application in relation to obtaining a child unlawfully. The Tribunal accepts this on the basis of the country sources that she could be imprisoned or fine.'

   48. For the reason articulated at [29] – [32], the second respondent misapplied the law of general application or failed to ask the correct question in that regard.

   Ground 4: No Evidence

   49. There was no evidence or other material to justify the making of the decision or the second respondent relied on facts, which did not exist, when making the decision.

   Particulars

   (a) Law of General Application

   50. There was no evidence before the second respondent that the Egyptian authorities will apply the law of general application, nor was there any evidence before the Tribunal that the harm feared by the applicant or his adoptive mother was appropriate and adapted to achieving the legitimate object of the policy of the State. Moreover, there was no reference to domestic laws of Egypt nor the punishment regime potentially facing the adoptive mother of the applicant for illegally adopting the applicant and his attempted removal to the US and his removal to Australia.

   Country Information

   51. At [32], the Tribunal observed that '[c]ountry information indicates that under Islam, adoption is forbidden and there is no legal process that allows adoption in Egypt for Muslims or Christians. Although adoption is allowed in Christianity, the Islamic restrictions in Egypt prevent Christian parents from adopting Christian children.'

   52. At [33], a report published by the Middle East Review International Affairs Journal of 30 September 2007 noted that “Under Islamic law, adoption in the usual sense of the word is not permitted. At [34], '[a]ccording to UNICEF, there were an estimated 56,000 orphans in Egypt in 2007. In Islam, the concept of child adoption does not exist.' Adopted children can face social stigma which can result in a lack of acceptance and respect, and psychological isolation. At [35], in support of the application for review, the Tribunal received a number of articles about street children, orphans and their mistreatment in Egypt.

   53. Importantly, at [37], the Tribunal identified that '[i]n one of the articles provided by the applicant, there is reference to a video recording of a manager of an orphanage beating children' and at [38], identified 'newspaper reports in 2009 regarding the punishment of persons engaged in illegal adoption ... where a 'group of Christians [were] sentenced to prison for five years and a fine of 100,000 pounds each because they adopted children illegally.'

   54. Clearly a law that specifically prohibits Christian and Muslim offspring or the adoption of orphans more generally is not a law of general application. Moreover, a law which mandates the imposition of severe penalties on the adoptive mother irrespective of her personal circumstances, culminating in the separation of the applicant from his mother and the return of the applicant to an orphanage, may be regarded as a measure that, according to the standards of civil societies, is not appropriately adapted to achieving a legitimate object.

1. Of critical importance in this case is that the applicant was alleged by the guardian not to know that she was not his mother and that the Tribunal did not explore with the applicant any fears he may have.  The guardian had earlier advanced her own protection claim in relation to being a Christian and there was no formal abandonment of this claim on behalf of the applicant.  The Tribunal did not explore any fears given that the applicant was said to be unaware of being an orphan and by reason of being a minor.  These particular circumstances are material in considering whether there was a claim that the Tribunal should have identified as arising on the papers.  The first respondent tendered a transcript of evidence adduced from the guardian who the Tribunal accepted as a credible witness. In that transcript, that guardian said that the applicant had been christened and was brought up as a Christian.  That evidence, in the context of the said circumstances in this case, gives rise to a claim that the applicant may fear persecution on the grounds of being brought up as a Christian and having been christened in circumstances where the child was an orphan. This claim that arose on the material before the Tribunal was not addressed by any findings made by the Tribunal.

2. The Tribunal identified in para.45 that the claims as made by the applicant fundamentally related to claims made by the guardian.  It is clear from the Tribunal’s reasoning that the Tribunal addressed certain claims made by the guardian.  The Tribunal did not make findings in relation to the guardian’s earlier claim to fear of persecution on the grounds of being a Christian mother or the abandonment of that claim.

3. The Tribunal should have identified, in circumstances of this child and, in particular, the context of the applicant being an orphan and the false documents that had been obtained by the guardian to obtain the tourist visa and the guardian’s earlier claim to fear of persecution on the grounds of being a Christian mother, that there was on the evidence a claim of fear of persecution by the applicant on the grounds of being brought up as a Christian and being christened in circumstances where the applicant is an orphan.  The Court finds that the said claim sufficiently arose on the material before the Tribunal.

4. Counsel for the first respondent properly took the Court to country information that identified material from which an adverse finding may well have been open to the Tribunal in respect of any such claim. That does not address the failure of the Tribunal to make clear findings in respect of a claim that the Court finds clearly arose on the material before the Tribunal in this case.  In the course of submissions, albeit not making a concession, counsel for the first respondent said it was a pretty obvious claim if it was to be made. 

5. That aside in the course of submissions that the claim might be said to be pretty obvious, albeit not an admission, is something that resonates with the earlier identified claimed fear by the guardian of being a Christian mother.  It was submitted that the claim of the guardian as to fear by reason of being a Christian mother had been abandoned.  Whether that claim was abandoned by the guardian or not, there was no finding that it had been abandoned by the applicant. 

6. Whilst the Court does not regard the comment during submissions by counsel in relation to the obviousness of the claim as being an acknowledgment or admission by the first respondent, The Court finds that the claim was obvious on the material before the Tribunal in this case. 

7. Counsel for the first respondent submitted that there was no material to suggest that a minor brought up as a Christian who was christened would be the subject of differential treatment in an orphanage.  It is not necessary for there to be evidence that the Court regards as persuasive relating to that differential treatment.  Rather, the question is whether or not there is a claim that squarely arises on the material that the Tribunal should have dealt with by making clear findings.  The Court has taken into account that the applicant was represented and the Court rejects the contention that the reasoning in this case is of wider applicant than the particular circumstances referred to above. 

8. At the hearing, the Court first called upon counsel for the first respondent, drawing attention to the transcript and the evidence of the guardian whom the Tribunal found to be credible. The Court raised with the first respondent that this appeared to give rise to a claim that the Tribunal had not dealt with. The Court did not call upon counsel for the applicant. The Court notes that Mr Williams wished to be heard orally on the other lengthy grounds identified in the application, and that at the Court’s encouragement he did not develop those oral arguments.  The Court does not regard the lengthy grounds in the amended application as properly formulating any jurisdictional error. The applicant’s written submissions did not identify any ground in the amended application upon which there was any utility in hearing oral argument given the Court’s view as to a claim that should have been addressed by the Tribunal. 

9. The Court finds that the Tribunal failed to address the applicant’s claim to a fear of persecution, being a minor who has been brought up as a Christian and had been christened in the context of being an orphan and that this claim should have been the subject of clear findings by the Tribunal.  The failure to address that claim is a jurisdictional error.  For these reasons a writ of certiorari and a writ of mandamus will issue. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  4 February 2016