Non-refoulement obligations & s 501CA(4): Part 6

Federal Court: In the context of s 501CA(4), Applicant made detailed claims to AAT of how he would be subject to harm if returned to Somalia. AAT acknowledged those claims but did not expressly make findings on them. Does the FCAFC's decision in Omar stand for the proposition that "the use of expressions such as ‘I note’ and ‘I have considered’ may itself give rise to jurisdictional error"? Did AAT: fail to consider risk of harm outside the scope of non-refoulement obligations; and thus make error considered by FCAFC in Omar? Can it be said that such error was immaterial as AAT accepted Applicant may face torture and even death on return anyway? In other words, is the materiality test a binary exercise?

The questions to the Federal Court (FCA) were as follows:

Question 1: Does the decision of the Full Court of the Federal Court in Omar stand for the proposition that "the use of expressions such as ‘I note’ and ‘I have considered’ may itself give rise to jurisdictional error"?

Question 2: Did the Tribunal: fail to consider risk of harm outside the scope of non-refoulement obligations; and thus make the error considered by FCAFC in Omar?

Question 3: If the answer to Question 2 is "yes", can it be said that such error was immaterial as the Tribunal accepted that the Applicant may face torture and even death on return anyway? In other words, is the materiality test a binary exercise?

Question 4: There was before the Tribunal a DFAT report which said that Somalia would not accept repatriation of certain categories of offenders. However, the Applicant not only did not rely on that aspect of the report. "To the contrary, the applicant’s representative expressly put to the Tribunal there was no evidence that there was any obstacle to the immediate removal of the applicant to Somalia if the decision under review was affirmed". Can it be said that the Tribunal made a jurisdictional error "by not considering the parts of the DFAT report to which it was not taken and which had not been relied upon"?

The FCA answered those questions as follows:

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