DDK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 462

Federal Court of Australia

DDK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 462 Appeal from: DDK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 331

File number: NSD 28 of 2022

Judgment of: YATES J

Date of judgment: 29 April 2022

Catchwords: MIGRATION – appeal from decision of Federal Circuit and Family Court of Australia – whether the first appellant advanced a claim before the Tribunal that he feared persecution on the basis that he is perceived to be a Sunni who is sympathetic to Shia Muslims – whether, if such a claim was made, that claim was disavowed by the first appellant's oral evidence – where the Tribunal's failure to make a finding on a substantial, clearly articulated argument relying upon established fact may amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction – where jurisdictional error may arise if the Tribunal makes an error of fact by misunderstanding or misconstruing a claim – where it is tolerably clear from the first appellant's written statement that he was advancing an independent claim that he was sympathetic to Shia Muslims – where delegate of the first respondent initially recognised this as an independent claim – where Tribunal failed to engage with that distinct claim and misunderstood or misconstrued the claim as incidental rather than a separate, independent and substantively different claim – where Minister's argument that the first appellant disavowed the claim in oral evidence is rejected – where primary judge erred in concluding that the Tribunal did consider the first appellant's claim – appeal allowed