Federal Court: Appellant and his brother made separate protection visa applications with very similar claims, making reference to each other. Both applications were refused on the same day and each brother made a separate AAT application. The same Member heard both matters, the brother's hearing occurring a few weeks before the Appellant's. Was the AAT entitled to ignore material of which it had knowledge, namely the evidence given to it by the brother? Was the fact that the Appellant was "represented by a legally qualified" RMA relevant to that question?
The Appellant and his brother fled together to Australia by boat without a visa. Upon arrival, they were interviewed together by a delegate of the Minister.
Both the Appellant and his brother made separate protection visa applications, but they contained very similar protection claims and the brothers extensively referred to each other in their respective claims.
Although the Department made separate decisions (as required by the Act), it adopted a "continuum of a public administration approach" by dealing with the matters together. That approach was commended by the Federal Court (FCA).
Both the Appellant and his brother then made separate merits review applications to the Tribunal, but through the same RMA.
The Appellant's brother's matter was allocated to a Tribunal Member and was heard by that Member in February 2015. At the time of that hearing, the Appellant's matter had not been allocated to that same Member, although the Member was aware of the fact that they were brothers and that they both had pending applications before the Tribunal.
After that hearing, the Appellant's matter was allocated to the same Member, who carried out the Appellant's hearing in April 2015.
The FCA inferred that the Member "must have initiated some administrative inquiry in the Tribunal" with the aim of being allocated the Appellant's matter. The FCA commended that approach too.
The Member made it explicit to the Appellant that she was aware that she had heard the Appellant's brother matter in February 2015.
Although the Appellant did not provide the Member with the evidence given to that same Member by his brother, he submitted to the Member that the consistency between his evidence and that of his brother strengthened his claims of what happened, in support of his protection claims.
The Tribunal affirmed the delegate's decision without considering the Appellant's brother's evidence and the consistency between that evidence and the Appellant's claims.
The Appellant then applied to the Federal Circuit Court (FCCA) for judicial review of the Tribunal's decision, but the FCCA dismissed that application.
The Appellant eventually appealed the FCCA's decision to the FCA, some of the questions to which was as follows:
Question 1: Although there is no general duty on administrative decision-makers to make inquiries, was it legally unreasonable for the Tribunal to fail to make the obvious inquiry of looking to its file in respect of the Appellant's brother and "get" the brother's evidence under s 424 of the Act?
Question 2: May there "be an alternative pathway to a conclusion that the Tribunal did not lawfully exercise its review function in this case"?
Question 3: Was the fact that the Appellant was "represented by a legally qualified" RMA before the Tribunal determinative of whether a duty to inquire arose in the circumstances of this matter?
The FCA answered those questions as follows:
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