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The Tribunal's duty to consider an applicant's claims


The Administrative Appeals Tribunal (AAT) or Immigration Assessment Authority (IAA) may at times fail to address an applicant's claims and as such fall into jurisdictional error. The duty to consider representations made by an applicant requires a Tribunal to engage in an active intellectual process regarding those representations (please see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; 280 FCR 178 (McKerracher, Kerr and Wigney JJ) at [15]). The representations need to be “significant and clearly expressed” or “clearly articulated and substantial or significant” in order for the Tribunal to fall into jurisdictional error by failing to consider them. Bromberg and Mortimer JJ explained in DQM18 that "The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the [decision-maker] to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the [decision-maker] to consider the claim."

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