Grounds of review and relief sought
32 In his application the applicant relies on six numbered grounds of review, however each of those grounds includes various sub-grounds.
33 In substance, in his first ground of review the applicant contended that his Honour misunderstood the principles of law referable to whether it was in the interests of justice to grant the applicant an extension of time. The second to sixth grounds of review substantially repeated the grounds of review before the primary Judge.
34 As was the case below, the lengthy application for review in this Court contained a mix of grounds of review and submissions. It is useful to set out the application in full:
Ground 1: The primary judge denied the applicant procedural fairness or committed jurisdictional error by denying the applicant an extension of time
1. The primary judge denied the applicant procedural fairness and/or committed jurisdictional error, and/or committed an error on the face of the record, at [83] of the judgment by exercising the discretion unreasonably or by misapplying, misunderstanding or misconstruing the applicable law by finding that it was not in the interests of justice to grant the applicant an extension of time pursuant to section 477(2)(b) of the Migration Act 1958 (Cth).
Particulars
The protection claims
a) At [12] of the decision record, the applicant was born on the first of January 1983 in Pabbo, Amuru, and is a thirty five (35) year old male citizen of Uganda of the Christian faith from the Luo ethnic group from Acholi. The applicant claims a protection in the Commonwealth of Australia (Australia) on the grounds that he faces a real risk of harm due to his religion, ethnicity, political opinion, membership of a social group under the refugee criterion and under the complementary criterion, including death, torture, cruel, inhuman and degrading treatment because:
i) The applicant fears the family of "Asha", who are Muslim, will subject him to an "honour killing" for impregnating their daughter, who passed away from an abortion and for violating Sharia law;
ii) The applicant was abducted and recruited into the Lord's Resistance Army (LRA) from October 2011 until January 2002 and he fears he will be forcibly kidnapped and recruited by the LRA or killed if he resists, if he is returned to Amaroo, Uganda.
iii) The applicant has no parents or family remaining in Uganda and he will not be able to subsist psychologically, socially or economically.
iv) The applicant cannot relocate within Uganda because Asha's family and/or the LRA will find him and kill or torture him, and he does not have the familial, social or economic connections or support to relocate in any other part of Uganda.
v) The applicant is separated from his wife but has a daughter aged two in Australia and he will not be able to see her if he is refouled to Uganda. See generally [7]-[9] for a detailed exegesis of the claims by the applicant.
The application for an extension of time
b) The applicant had thirty five days to file a judicial review application from the date of the decision record of 9 August 20 17, on or before 13 September 2017. The application was filed on 12 December 2017 and is therefore out of time by 90 days.
c) According to the unchallenged affidavit of the applicant, affirmed on 12 December 2017, the reason why the application was late is that the applicant was unaware that he had thirty five days to file the application for judicial review. The applicant made an application for ministerial intervention with the assistance of the Red Cross. The applicant was not advised by the Red Cross that the time for filing an application for judicial review does not stop whilst applying for Ministerial intervention.
The finding by the primary judge
d) The finding by the primary judge erred at [83] of the judgment by finding that the "application for an extension of time... should be refused", given the "substantial application fails" and that "a sufficient reason has not been advance for the delay in filing".
83. Given that I have found that the substantial application fails and that I am not convinced that a sufficient reason has been given for the delay in filing, I have come to the conclusion that the application for extension of time in which to file the application should be refused.
e) In the circumstances, the applicant provided a reasonable explanation as to why the application was late and contends the following grounds enjoyed "sufficient merit" to warrant an extension of time.
Ground 2: The non-disclosure of information under section 438 of the Migration Act 1958 (Cth)
2. With regard to ground one of the proposed further amended application, filed in Court on 16 August 2018, the applicant relied upon the authority of SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055 with regard to the section 438 certificate and contended that the "current state of the law" was binding on the Federal Circuit Court of Australia. The primary judge erred at [52] by finding that "there was no such [section 438] certificate" and that "paragraph 56" of the decision record by the Tribunal was "inserted by error" and as such "there was no need for the [primary judge' to consider those principles." To the contrary, the certificate issued under section 438(2)(a) of the Migration Act 1958 (Cth with regard to folios 46 to 50 and 78, was invalid and was therefore not a process according to law. As a consequence, the non-disclosure of certain information under section 438(l)(a) of the Migration Act 1958 (Cth) constituted a denial of procedural fairness pursuant to section 424A, 424AA or 425 of the Migration Act 1958 (Cth).
Particulars
The affidavit by the delegate, affirmed 26 June 2018
a) With regard to the affidavit by Nader Yeganeh, affirmed 26 June 2018, the deponent is a Protection Assessment Officer employed by the Department of Home Affairs who holds a delegation from the Minister for Home Affairs, to make decisions under s 65 of the Migration Act 1958 (Cth) in relation to protection visas. On 19 January 2015, the deponent conducted a protection visa interview with the applicant in these proceedings. On 24 July 2015, the deponent refused the applicant a protection visa. Following this, the deponent completed a "Disclosure Decision Checklist." This is an administrative checklist which is placed in the front of the Departmental file. It was routine procedure at that time to complete the checklist after making a decision on a Protection visa application. Attached and marked "NY-1" is a copy of the "Disclosure Decision Checklist" placed on the Departmental file in relation to this applicant. The deponent reviewed the "Disclosure Decision Checklist" marked as "NY-1". In response to the question "Are there any s 438(l)(a) related documents/information on the file/papers?", the deponent circled "No". In response to the question "Are there any s 438(1)(b) related documents/information on the file/paper?", the deponent circled "No". 6. However, in response to the question "Is a relevant certificate of nondisclosure attached?", the deponent circled "Yes". The deponent claims this "particular" response was in error. The deponent claims that the deponent did not, at any time, issue a nondisclosure certificate pursuant to ss 438(l)(a) or 438(l)(b) of the Act. In these circumstances, the Administrative Appeals Tribunal will usually contact the Department to check whether a non-disclosure certificate has been issued. The deponent was "unable to ascertain whether the Tribunal contacted the Department to confirm whether a non-disclosure certificate was issued in this matter." The deponent then states that the deponent read the decision of the Administrative Appeals Tribunal (Tribunal) dated 9 August 2017. At [56] of the Tribunal's decision, the Tribunal Member refers to the Department having issued a certificate under s 438 of the Act, certifying that the disclosure of information in folios 46 to 50 and folio 78 of the Department file would be contrary to the public interest, because those folios contained information relating to "an internal working document and business affairs". The deponent states that the deponent did not issue, nor cause to be issued, a certificate under section 438 of the Act in this matter. Further, the deponent claims that the deponent reviewed the Department file and no such certificate exists.
The Tribunal's handling of the section 438 certificate
b) At [56] of the decision record, the Tribunal observed the following.
56. The Department issued a certificate under s.438 of the Act, certifying that the disclosure of information in folios 46 to 50 and folio 78 of the Department file would be contrary to the public interest, because these folios contain information relating to "an internal working document and business affairs". The Federal Court decision of MZAFZ v MIBP [2016] FCA 1081, Beach J, VID 461 of 2016, considered a s.438 certificate with similar wording. In light of this decision, the Tribunal finds that the certificate is not valid, as it does not specify a reason that could form the basis for a claim to public interest immunity. The Tribunal disclosed the information, and further notes that, in any event, the information in these folios is not relevant to this decision, as it is information relevant to his detention (such as names and addresses, and details of finances and property) and is not of probative value to this review. The Tribunal has not taken account of information in these folios.
52. The principles espoused in SZMTA (Supra) are appropriate when one is dealing with a matter involving a s.438 certificate. I have found that there was no such certificate in this case, and that paragraph 56 has been inserted in the reasons by error, there is no need for me to consider those principles.
Jurisdictional Error 1:- denial of procedural fairness
c) First, if the Tribunal proceeded on the basis that the certificate under section 438 of the Migration Act 1958 (Cth) was valid, it is entirely unclear how the Tribunal considered the potential operation of s 438(3) or whether it considered s 438(3) at all. As such, there was been a denial of procedural fairness and accordingly a jurisdictional error is established.
Jurisdictional Error 2: Invalidity - the form of the section 438 of the Migration Act 1958 (Cth) was invalid
d) Second, the section 438 certificate did not relate to a matter permitted under section 438(1) of the Migration Act 1958 (Cth), with the result that it was invalid. For the Tribunal to have proceeded or acted on an invalid certificate was not a process according to law and of itself constituted jurisdictional error.
Jurisdictional Error 3: Practical injustice- the section 438 documents
e) Third, the non-disclosure of the relevant documents at [56], give rise to a practical injustice. Despite the affidavit by the delegate, the applicant contends that according to the Tribunal member at [56], there was a certificate, there were documents relating to the applicant's detention, he was not privy to those documents and was unable to present evidence and arguments in relation to those documents, giving rise to a practical injustice.
The findings by the Federal Circuit Court of Australia
f) From [43] to [44] of the judgment, the primary judge observed the applicant's contention based on SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055". At [43], the primary judge observed that the 'argument of the applicant is that there must have been a certificate or the Tribunal would not have mentioned that such a certificate had been issued." At [44], the primary judge observed that the "argument goes further because the "Tribunal said in the last sentence of paragraph 56 that it had not taken account the information in folios 46 to 50 and 78 and as a consequence, this meant that the Tribunal has not taken into account the application, the statutory declaration and the protection visa decision record.
43. The argument of the Applicant is that there must have been a certificate or the Tribunal would not have mentioned that such a certificate had been issued. Such a certificate has not been disclosed in the court book and, therefore, the Applicant claims that there has been non-disclosure which is a denial of procedural fairness and constitutes a jurisdictional error.
44. The argument goes further because folios 46 to 50 and 78 have been identified. The Tribunal said in the last sentence of paragraph 56 that it had not taken account of information in these folios. This would mean that the Tribunal has not taken into account the application, the statutory declaration and the protection Visa decision record. It is mandatory for the Tribunal to take those matters into account and, if it did not take those matters into account, there would be a jurisdictional error.
g) The primary judge erred at [49] by finding that "paragraph 56 has been included in the reasons of the Tribunal by error" and "it should properly be ignored."
49. It seems to me that the only rational conclusion that I could come to, given the state of all of the evidence before me, is that paragraph 56 has been included in the reasons of the Tribunal by error. It should properly be ignored.
h) The primary judge observed from [50]-[51] that the applicant "relied upon an authority of SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055" and contended that the "current state of the law" was binding on the Federal Circuit Court of Australia.
50. The applicant relied upon an authority of SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055. Originally, the Applicant asked for an adjournment because this decision was to be the subject of an appeal to the High Court and special leave had already been given.
51. Given all of the circumstances of this matter, it was better to proceed with the argument and for me to accept that what is stated in SZMTA (Supra) is the current state of the law and binding upon me. Because the hearing proceeded upon that premise, the application for adjournment was not pressed.
i) The primary judge erred at [52] by finding that "there was no such certificate" and that "paragraph 56" was "inserted by error" and as such "there was no need for the [primary judge' to consider those principles."
52. The principles espoused in SZMTA (Supra) are appropriate when one is dealing with a matter involving a s.438 certificate. I have found that there was no such certificate in this case, and that paragraph 56 has been inserted in the reasons by error, there is no need for me to consider those principles.
Ground 3: The Tribunal misapplied the relevant law with regard to the real risk of harm from the family of "Asha"
3. With regard to ground two of the proposed further amended application, filed in Court on 16 August 2018, the primary judge erred at [60] of the judgment by finding that "[a]s this was a finding that was open on the evidence it cannot be said that there was "an insufficient logical basis" for the finding" and "[ a]s it is a finding of "non-satisfaction", there does not need to be an evidentiary basis for that finding." To the contrary, there was in an insufficient logical or evidentiary basis for the Tribunal to find from [26] to [27] of the decision record that the applicant does not face a real risk of serious harm under the refugee convention or a real risk of significant harm under the complementary criterion from [46]-[49], from the family of "Asha". The Tribunal therefore misapplied, misunderstood or misconceived the relevant law at [26] to [27] of the decision record by finding that the essential and significant motivation for the persecution feared is revenge for Asha's death, and not his religion.
Particulars
The applicant's claims visa re the family of Asha
a) It was an expressed and essential claim of the applicant at [7], bullet point ten (10) and at [9] from bullet point thirteen (13) to twenty one (21), that the family of Asha wished to inflict an "honour killing" on the applicant because he was Christian, he had impregnated their daughter and she had died during an abortion.
b) In particular, the applicant claimed at [9] bullet point eighteen (18) that he could not stay with Asha because her family would not approve of their relationship because they had conceived out of matrimony and the applicant was Christian and not a Muslim.
• She became pregnant. She came and told him, and was upset. She wanted to abort the baby. She told him this before telling him she was a Muslim. A week later she told him that she was a Muslim. He had been saying to her they would care for the baby and stay together. She then said that she could not do that, as she had conceived out of matrimony and because he was not Muslim, and because of her age, her father could kill her. She then told him that she was Muslim. He asked her if they could stay together and get her parents to accept him. He said that he would respect her beliefs. She said they could not do this. She told him to be careful.
c) Further, it was an expressed and essential part of the applicant's claimed at [26] that the reason why the family of "Asha", who are Mulism, wished to harm him was partly for his religion, and partly because of Asha's death.
The Tribunal's findings
d) At [20], the Tribunal found that "after the applicant's release, he lived in an IDP camp, where his girlfriend, Asha, whom he did not know was a Muslim, became pregnant, and later died."
e) At [21], the Tribunal found that "Asha' s family blamed the applicant for her death, and abducted him for a short time, with the possible intention of killing him, but that he escaped and lived in a mission in a different town three hours away."
Jurisdiction error
f) The Tribunal therefore erred at [26] of the decision record by finding the essential and significant motivation for the persecution feared is revenge for Asha's death, and not his religion. To the contrary, they were both interconnected factors giving rise to the need for protection.
26. The persecution which the applicant fears from his girlfriend's family is persecution based on revenge, and not for one of the reasons enumerated in the Convention, race, religion, nationality, membership of a particular social group or political opinion. The applicant has submitted that the reason they wished to harm him was partly for his religion, and partly because of Asha's death. The Tribunal is satisfied that the fact that the applicant was Christian may have exacerbated the hostility that Asha's family felt and still feel, towards the applicant. However, the phrase 'for reasons of' serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(l)(a) of the Act. This is not the case here, the essential and significant motivation for the persecution feared is revenge for Asha's death, and not his religion.
g) The Tribunal therefore erred by finding at [27] of the decision record by finding that the applicant did not have a well-founded fear of persecution from Asha's family for a Convention reason were he to return to Uganda in the reasonably foreseeable future.
27. The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution from Asha's family for a Convention reason were he to return to Uganda in the reasonably foreseeable future.
The findings by the Federal Circuit Court of Australia
h) The primary judge erred at [60] of the judgment by finding that "[a]s this was a finding that was open on the evidence it cannot be said that there was "an insufficient logical basis" for the finding" and "[a]s it is a finding of "non-satisfaction", there does not need to be an evidentiary basis for that finding."
Ground 4: The real chance of persecution from the LRA
4. With regard to ground three of the proposed further amended application, filed in Court on 16 August 2018, the primary judge observed at (64] that the "[a]pplicant was arguing a totally new ground .... that the applicant would be recognised as a former LRA soldier and would be harmed by persons in the general population seeking revenge for the atrocities committed by the LRA. The primary judge erred at [65] by finding "[t]his was not a claim that was actually ever made by the applicant and certainly it was one that was not considered by the Tribunal" and as consequence at [66], that "[t]his new claimed does not fit into any of those categories" and [b]ecause of that, this Court cannot consider such a ground." To the contrary, there was in an insufficient logical or evidentiary basis for the Tribunal to find at [33] of the decision record that the applicant does not face a real risk of serious harm under the refugee convention or a real risk of significant harm under the complementary criterion from [43]-[45] from the LRA if the applicant was to return to his home area in the reasonably foreseeable future. The Tribunal therefore misapplied, misunderstood or misconceived the real chance test under the refugee and complementary criterion at [33] and [45] of the decision record.
Particulars
The Tribunal's findings
a) At [16], the "Tribunal found the applicant to be a credible witness. His account of being forced to be an LRA child soldier, and the incidents which took place in the IDP camp, were told in a straightforward and spontaneous manner, and with the kind of detail and layers of information often commensurate with telling the truth."
b) At [17], the Tribunal found that the "information the applicant has provided about his personal experiences collates with information from independent country sources about LRA activity and recruitment in his region at the time."
Jurisdictional error
c) The Tribunal therefore erred a [33] by finding there is not a real chance of persecution from the LRA were the applicant to return to his home area in the reasonably foreseeable future.
33. The applicant agreed that independent country sources indicate that there is no current threat from the LRA, but he said there are still some underground killings, and the LRA are in neighbouring countries. It is true that the LRA are in neighbouring countries, and there may be some underground killings, but the evidence suggests that the LRA are significantly weakened with little activity in Uganda. Given this information, which indicates little LRA presence in the region, the Tribunal is not satisfied that there is a real chance of persecution from the LRA were the applicant to return to his home area in the reasonably foreseeable future.
The findings by the Federal Circuit Court of Australia
d) The primary judge observed at [64] that the "[a]pplicant was arguing a totally new ground.... that the applicant would be recognised as a former LRA soldier and would be harmed by persons in the general population seeking revenge for the atrocities committed by the LRA.
64. As the argument proceeded before me, it seems to me that Counsel for the Applicant was arguing a totally new ground. This ground was that the Applicant would be recognised as a former LRA soldier and would be harmed by persons in the general population seeking revenge for the atrocities committed by the LRA.
e) The primary judge erred at [65] by finding "[t]his was not a claim that was actually ever made by the Applicant and certainly it was one that was not considered by the Tribunal" and as consequence at [66], that "[t]his new claimed does not fit into any of those categories" and [b]ecause of that, this Court cannot consider such a ground."
65. This was not a claim that was actually ever made by the Applicant and certainly it was one that was not considered by the Tribunal. It is trite to say that the Tribunal need only deal with claims that are actually made or that arise naturally from the factual circumstances of the application.
66. This new claimed does not fit into any of those categories. Because of that, this Court cannot consider such a ground.
Ground 5: The real chance of persecution for psychological, social, economic or political factors
5. With regard to ground four of the proposed further amended application, filed in Court on 16 August 2018, the primary judge erred at [70] by finding "[f]rom a convention standpoint, there was simply no evidence that the Applicant would be persecuted for any of those reasons. Paragraphs 34 to 38 of the reasons of the Tribunal illustrate a logical conclusion that was open to the Tribunal. Similarly the primary judge erred at [71] by finding " [a]t paragraphs 50 to 54, a similar exercise was undertaken with respect to the complementary protection standpoint. There is nothing that has been shown to the court that would indicate that the conclusions reached were not open to the Tribunal." To the contrary, there was an insufficient logical or evidentiary basis for the Tribunal to find at [38] of the decision record that the applicant does not face a real risk of serious harm under the refugee convention or significant harm under the complementary criterion from [54] on the grounds that the applicant faces a real risk of harm due to psychological, social, economic or political factors, or that the applicant would be able to subsist or that he would not be subjected to persecution, involving systematic and discriminatory conduct by state or non-state agents, after accepting he was a former child soldier for the LRA and he has no family in Uganda. The Tribunal therefore misapplied, misunderstood or misconceived the real chance test under the refugee criterion from [38] and under the complementary criterion at [54] of the decision record by finding that the serious harm test does exclude serious mental harm.
Particulars
The Tribunal's findings
a) At [34], the Tribunal observed that the "applicant has claimed that he fears, because he has no parents, that it would be difficult for him to live in Uganda, emotionally and financially. Northern Uganda is not stable and there could be war."
b) At [35], the Tribunal acknowledged that "having been forcibly recruited as a child into the LRA, the applicant may find it difficult emotionally living in Uganda. However the refugee criteria require that there be a well-founded fear of persecution for a Convention reason. His own emotional concerns do not amount to persecution by another party."
c) At [36], the Tribunal also accepts that without family support the applicant may have financial difficulties. However there is no evidence to indicate that he would not be able to subsist, or that services would be denied to him. There is no evidence to indicate that a state agent or non-state party would persecute him, involving systematic and discriminatory conduct.
Jurisdictional error
d) The Tribunal therefore erred at [38] by finding the "Tribunal is not satisfied that the applicant has a well-founded fear of persecution were he to return to Uganda in the reasonably foreseeable future based on emotional or financial factors or the general security situation.
e) The Tribunal therefore erred at [54] by finding there is not a "real risk of significant harm on the basis of emotional or financial factors or the general security situation were the applicant to be removed from Australia to Uganda."
The findings by the Federal Circuit Court of Australia
f) The primary judge erred at [70] by finding "[f]rom a convention standpoint, there was simply no evidence that the Applicant would be persecuted for any of those reasons. Paragraphs 34 to 38 of the reasons of the Tribunal illustrate a logical conclusion that was open to the Tribunal. Similarly the primary judge erred at [71] by finding "[a]t paragraphs 50 to 54, a similar exercise was undertaken with respect to the complementary protection standpoint. There is nothing that has been shown to the court that would indicate that the conclusions reached were not open to the Tribunal."
70. From a convention standpoint, there was simply no evidence that the Applicant would be persecuted for any of those reasons. Paragraphs 34 to 38 of the reasons of the Tribunal illustrate a logical conclusion that was open to the Tribunal.
71. At paragraphs 50 to 54, a similar exercise was undertaken with respect to the complementary protection standpoint. There is nothing that has been shown to the court that would indicate that the conclusions reached were not open to the Tribunal. This ground also fails.
Ground 6: The referral for Ministerial intervention
6. With regard to ground five of the proposed further amended application, filed in Court on 16 August 2018, the primary judge erred at [78] by finding the statement by the Tribunal at [58] that there may be a significant threat to the human rights or human dignity of the applicant if he returns to Uganda but that such mistreatment would not meet the criteria for the grant of any type of protection visa" was "totally superfluous to the reasoning of applicant if he returns to Uganda but that such mistreatment would not meet the criteria for the grant of any type of protection visa" was "totally superfluous to the reasoning of the Tribunal in coming to the conclusion that the decision of the delegate be affirmed" and "[i]t is not in any way material to the decision made by the Tribunal and, therefore, could not form any basis to find jurisdictional error." To the contrary, there was in an insufficient logical or evidentiary basis for the Tribunal to find at [58] of the decision record that the "applicant's particular circumstances which provide a sound basis for believing that there is a significant threat to his human rights or human dignity if he returns to Uganda" but the "mistreatment does not meet the criteria for the grant of any type of protection visa."
Particulars
The Tribunal's findings
a) At [58], the Tribunal found that the "applicant's particular circumstances which provide a sound basis for believing that there is a significant threat to his human rights or human dignity if he returns to Uganda" there was an insufficient logical or evidentiary basis for the Tribunal to find the "mistreatment does not meet the criteria for the grant of any type of protection visa."
58. The Minister has issued guidelines explaining the circumstances in which he may Exercise his public interest powers. The Tribunal notes from the Ministerial guidelines that the Minister will generally only consider the exercise of the public interest powers in cases which exhibit one or more unique or exceptional circumstances. Having considered the ministerial guidelines relating to the Minister's discretionary power under s.417(1 ), set out in the Department's Procedures Advice Manual (PAM3), the Tribunal considers this case should be referred to the Department to be brought to the Minister's attention as there are unique or exceptional circumstances. This is because of the applicant's particular circumstances which provide a sound basis for believing that there is a significant threat to his human rights or human dignity if he returns to Uganda, but the mistreatment does not meet the criteria for the grant of any type of protection visa.
b) At [59] of the decision record, the Tribunal made a series of findings giving rise to serious or significant harm.
60. The applicant has experienced extreme trauma in Uganda. At the age of 12 he was abducted by the Lord's Resistance Army and forced to work for them for 3 months, with very little food or water. During this time he was harshly treated, and had to carry heavy loads and do other tasks. He witnessed beatings and killings. His experience of being forcibly recruited as a child is supported by independent country sources which indicate that children of his age were targeted by the LRA at the time. After three months he was left in the jungle with other children, and was lost for a week. When they found the nearest town, he discovered that the Lord's Resistance Army had invaded his village, and both his parents and four siblings were missing. He never saw them again. He lived in an Internally Displaced Persons Camp for four years. He was then abducted by the family of a girl who were angry that he had made her pregnant. She died after trying to abort the baby and the family blamed the applicant. His sister and brother died in mysterious circumstances and he suspects this girl's family was involved. He fled to a mission where he lived until he made arrangements to come to Australia on a spouse visa. Given these traumatic circumstances, particularly his forcible abduction by the Lord's Resistance Army, and the tragedies of losing family members, he is likely to experience further trauma if returned Uganda. There have been many commentaries on the extensive trauma suffered by LRA child abductees
c) At [60], the Tribunal considered this may be an appropriate matter for the Minister to consider pursuant to s417(1) of the Act.
60. On the basis of this information, this may be an appropriate matter for the Minister to consider pursuant to s417(1) of the Act. The applicant may wish to request Ministerial Intervention himself, and in doing so to provide any additional material that may be considered relevant to his circumstances to the Minister.
The findings by the Federal Circuit Court of Australia
d) The primary judge erred at [78] by finding the statement by the Tribunal at [58] that there may be a significant threat to the human rights or human dignity of the applicant if he returns to Uganda but that such mistreatment would not meet the criteria for the grant of any type of protection visa" was "totally superfluous to the reasoning of the Tribunal in coming to the conclusion that the decision of the delegate be affirmed."
75. The Applicant contends that it is illogical for the Tribunal to be satisfied that there may be a significant threat to the human rights or human dignity of the Applicant if he returns to Uganda but that such mistreatment would not meet the criteria for the grant of any type of protection Visa.
78. However, this statement is totally superfluous to the reasoning of the Tribunal in coming to the conclusion that the decision of the delegate be affirmed. It is not in any way material to the decision made by the Tribunal and, therefore, could not form any basis to find jurisdictional error.
(Errors in original.)
35 The applicant applies for the following relief:
1. Relief in the form of a Writ of Certiorari, bringing the orders by the Federal Circuit Court of Australia, made on 13 August 2018, into this Court to be quashed.
2. Relief in the form of a Writ of Certiorari, bringing the decision by the Tribunal made on 9 August 2017, into this Court to be quashed.
3. Relief in the form of a Writ of Mandamus, directing the Tribunal, differently constituted, to re-determine the decision made on 9 August 2017, according to law.
4. Relief in the form of a Writ of Prohibition, restraining the Minister, or the Minister's employees, officers, delegates or agents of the first respondent, from acting upon or giving effect to the decision by the Tribunal, made 9 August 2017.
5. Relief in the form of an Order for Costs, directing the Minister to pay the appellant's costs:
(a) fixed in the amount of $7,328 as per schedule 1 of the Federal Circuit Court Rules 2001 (Cth) for the proceeding before the Federal Circuit of Australia;
(b) as agreed or assessed for the proceeding before the Federal Court of Australia.
(Emphasis removed.)