SZVWF v Minister for Immigration and Border Protection and Anor [2016] – Obligation of Tribunal to Consider “all” Material


The recent case of SZWVF v Minister for Immigration and Border Protection and Anor [2016] FCCA 2532 before the Federal Circuit Court involved an application for a Protection (Class XA) visa and considered whether the Administrative Appeals Tribunal (“the Tribunal”) has an obligation to consider claims which are not expressly raised by the applicant before the Tribunal.

The applicant in this case was a national of Yemen, however, was born in Saudi Arabia and lived there for most of his life. The conditions in Saudi Arabia deteriorated due to the Gulf War, which led the applicant to come to Australia and apply for a Protection visa. The applicant claimed to fear persecution upon returning to Yemen due to him never having lived in Yemen and being perceived as a “stranger” by Yemenis. This claim was rejected by the Department of Immigration and Border Protection (“the Department”) and was not considered before the Tribunal upon review.

The judge held that the Tribunal has an obligation to consider claims even if they are not expressly raised before the Tribunal. The judge referred to the judgement of Bennett J in SZEIV v Minister for Immigration & Multicultural & Indigenous Affairs, which held that the Tribunal will only not be required to consider a claim where a claim is not being advanced at all and if the claim does not arise from the material before the Tribunal. The judge confirmed that “material” information is not only limited to information provided by the applicant, but also includes any documents in the Departmental file provided by the Secretary of the Department and any other information relevant to the review pursuant to ss 418 and 424 of the Migration Act. The court also confirmed that “mere silence and inactivity of the applicant” does not constitute abandonment of a claim by the applicant.

The effect of this finding in this case was that the Tribunal fell into jurisdictional error. Even if the applicant had not raised the claim before the Tribunal, the Tribunal was obliged to consider the claim as it was raised within letters and other previous information provided to the Department.

The link to the case on Austlii can be found at:

  1. http://www.austlii.edu.au/au/cases/cth/FCCA/2016/2532.html
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