Ethnicity harm subsumed by non-refoulement harm?

Federal Court (Full Court): The Appellant claimed fear of harm on the basis of: his ethnicity & religion; and non-refoulement obligations. Was the former type of harm subsumed by the latter on the basis that the latter "could not have been any less" than the former? With respect, the FCAFC echoed once again the writer's views expressed in several articles that the materiality test is not binary: the question is whether, had the error not been made, it could have tipped the scales in favour of an applicant. Further, in the absence of minor children in Australia related to an applicant, can that factor weigh against that applicant?

A delegate refused the Appellant's protection visa.

On referral to the Immigration Assessment Authority (IAA), the IAA "found the appellant had a well-founded fear of persecution by reason of his membership of a particular social group arising from his HIV-positive status" and remitted the matter to the delegate for reconsideration.

"The delegate then refused the protection visa application under s 501(1) of the [Migration Act 1958 (Cth)] on the basis that the appellant did not pass the character test in s 501(6)(d)(i)". The Appellant subsequently applied to the Tribunal (AAT) for merits review of that decision of the delegate.

The Tribunal was bound by s 499 to comply with Direction No 65 in deciding whether to refuse the visa under s 501 on character grounds. Direction No 65 was identical to (the current) Direction No 79 for the purposes of the matters considered by the Tribunal.

There were 2 claims of fear of harm before the Tribunal, both of which were mandatory considerations under Direction No 65, namely a claim of fear of harm based on the Appellant's ethnicity or religion and a claim of fear of harm based on non-refoulement obligations.

The Tribunal affirmed the delegate's decision.

Issues related to Questions 1 and 2 below

The Tribunal only considered the claim of fear of harm based on non-refoulement obligations. In other words, it did not consider the claim of fear of harm based on ethnicity and religion.

Issues related to Questions 3 and 4 below

"Paragraph [49] of the Tribunal’s reasons, and the sub-heading immediately preceding it, is as follows":

b)    The best interests of minor children in Australia:

The applicant does not have children under the age of 18. He has one relative in Australia, who is his paternal aunt’s grandson and that relative is over the age of 18.

Paragraph [77] of the Tribunal’s reasons reads as follows:

In relation to the Primary Considerations, Protection of the Australian Community, Expectations of the Australian Community, the best interests of minor children in Australia, the Tribunal is satisfied, for the stated reasons, that those considerations weigh heavily against the applicant. Also weighing heavily against the applicant is the consideration of the impact on the victim.

Judicial review proceedings

The Appellant then applied to the Federal Court (FCA) for judicial review of the Tribunal's decision, but the FCA dismissed that application.

The Appellant eventually appealed the FCA's decision to the Full Court of the FCA (FCAFC), some of the questions to which were as follows:

Question 1: Did the Tribunal make a jurisdictional error by not considering the Appellant's claim of fear of harm based on his ethnicity or religion? In other words, did the Tribunal make a jurisdictional error on the basis that it treated that claim as subsumed by the claim of fear of harm based on non-refoulement obligations?

Question 2: If the answer to Question 1 is "yes", was that error material to the decision?

Question 3: Can it be said that where "there are no relevant [minor children in Australia] whose interests fall for consideration by the decision-maker, the best interests of the children can only be a neutral consideration"?

Question 4: Did the Tribunal treat the best interests of minor children in Australia as a neutral consideration?

The FCA answered those questions as follows:

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