Federal Court (Full Court). 1st and 2nd Appellants made protection claims, adding their appellant children as dependents and making protection claims on their behalf. IAA's finding about children was simply: "Country information does not indicate that children are prosecuted". That finding was based on the following passage of a DFAT report: "Children are never subject to bail or fines". Was the IAA's finding a finding "about what will not happen to returned asylum seekers who are children, rather than a finding about what will happen" and thus not supported by evidence? In order to prove an error was material and thus jurisdictional, must judicial review applicant adduce evidence in court of what would have occurred had error not been made, as held in Ibrahim? Or should FCAFC follow Nguyen instead?
The questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Was the IAA's finding a finding "about what will not happen to returned asylum seekers who are children, rather than a finding about what will happen" and thus not supported by evidence?
Question 2: In proving that an error was material and thus jurisdictional, must a judicial review applicant adduce evidence in court of what would have occurred had error not been made, as held in Ibrahim?
The FCAFC answered those questions as follows: