Protection Visa - Jurisdictional Error

The decision in AHB16 and Minister for Home Affairs shows that sometimes, the Tribunal’s reasons will demonstrate that not all the claims relied by the applicant in supporting his or her review proceeding have been considered and thus constitute “jurisdictional error”.

Background facts

The appellant is a citizen of Iran who arrived on Christmas Island in 2012. He made an application to the Minister for a protection visa on 17 September 2012 relying on a claim that he was at risk of persecution in Iran because he intended to become a Christian, that he had rejected Islam, and that he had expressed views against Islam. He had a large tattoo of a cross which appeared to cover his entire upper arms. The application was refused on 22 October 2012. The former Refugee Review Tribunal and the Federal Circuit Court affirmed the decision not to grant the appellant a protection visa. The appellant appealed against the decision of the Federal Circuit Court to the Federal Court of Australia. The appeal was allowed.

Ground of review

In this case, the appellant relied on the following ground in his appeal at the Federal Court of Australia:

“the primary Judge erred by failing to consider that the Tribunal failed to consider a claim that arose on the materials, being that the Applicant faced a real chance of persecution by reason of the fact that his tattoo would create the impression that he is a Muslim Iranian who converted to Christianity.”

Was there any jurisdictional error? 

In this case, the appellant relied on a distinct allegation that he would be perceived to be an imputed Christian convert as a result of having the symbol of the cross tattooed on his arm. The Tribunal’s reasons concerned with tattoos generally, and not to the appellant’s allegation that he would be perceived to be an imputed Christian convert as a result of having the symbol of the cross tattooed on his arm. The court finds that the Tribunal’s reasons do not demonstrate that the Tribunal addressed the distinct claim made by the appellant. The Tribunal did not consider that by reason of his tattoo he would be perceived to be a Christian convert, thereby giving rise to a fear of persecution. Therefore, the Tribunal fell into jurisdictional error.

Key takeaways

A jurisdictional error may arise in situations where the tribunal’s reasons do not disclose that it considered the appellant’s distinct claim. Therefore, if you make several claims in your review proceeding, but the Tribunal did not consider all of it, there may be a jurisdictional error.

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