Consideration
81 The question that arises in respect of ground 6(a) is whether the Tribunal properly performed its statutory task in deciding whether there is "another reason" to revoke the cancellation of the applicant's visa. The state of satisfaction required by s 501CA(4)(b)(ii) cannot be lawfully formed without "meaningful consideration" of the representations that have been invited: DQM18 at [23] per Bromberg and Mortimer JJ citing Omar at [34(e)-(i)], [37]. The Full Court in Omar (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) gave helpful guidance (at [36]-[37]) on what is meant by the obligation of a decision-maker to "consider" a matter in the context of judicial review, which guidance was summarised by the Full Court in GBV18 v Minister for Home Affairs (2020) 274 FCR 202 (GBV18) at [32] (Flick, Griffiths and Moshinsky JJ) as follows (emphasis in original):
(a) Even though there is no explicit statutory duty on the Minister under s 501CA(4) to "consider" representations made in support of a revocation request, it is necessarily implicit in the statutory regime that there is such an obligation. The discharge of that obligation requires the Minister to engage in an active intellectual process with reference to those representations, consistently with the Full Court's approach in Tickner v Chapman [1995] FCA 1726; 57 FCR 451 (see also Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]-[89] per Middleton, Moshinsky and Anderson JJ).
(b) Importantly, each case necessarily turns on its own particular facts and circumstances as established by the evidence.
(c) The inference drawn in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 was one which was arrived at notwithstanding that the Minister's statements of reasons in the two cases there stated that he had "given full consideration to all of the information before me" and that the reasons contained numerous statements by the Minister that he had "considered", "noted", "accepted", "recognised" or "had regard to" various matters in coming to his decision to cancel the visas. In the particular circumstances, these statements were not viewed as conclusive.
(d) The decision-maker's obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in response to an invitation under s 501CA(3)(b) is consistent with the observations of the Chief Justice in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3] (with whom Markovic and Steward JJ agreed) (emphasis added):
By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
(e) Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of any claim concerning Australia's non-refoulement obligations, may require the decision-maker to do more than simply acknowledge or note that the representations have been made. As stated at Omar at [39], depending on the nature and content of the representations, the decision-maker "may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law".
(f) The failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised in representations made under s 501CA(3), as giving rise to "another reason" for revoking the visa cancellation, may constitute a failure to carry out the statutory task and involve jurisdictional error.
(g) A finding that a decision-maker has not engaged in a meaningful or active intellectual process will not lightly be made (see Carrascalao at [48]). It is important to reemphasise that each case necessarily turns on its own particular facts and circumstances (see Omar at [36(e)]; SYLN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986 at [107] per Griffiths J and AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205 at [60] per Perry J). As each case has to be looked at with close regard to its own particular facts, circumstances and evidence, it is inappropriate to apply the relevant principles simply by reference to what has happened in other cases.
(h) Where a decision-maker has meaningfully engaged with a relevant representation made under s 501CA(3), the Court is not entitled on judicial review to intervene merely because it disagrees with the decision-maker's ultimate assessment that the representation is outweighed by other countervailing considerations, assuming that no other jurisdictional error is established. The limits of judicial review must constantly be observed.
82 The above principles, as applied to claims concerning Australia's non-refoulement obligations, were re-affirmed by the Full Court in Minister for Immigration v FAK19 [2021] FCAFC 153 (Minister v FAK19), which was an appeal against the decisions of the Federal Court in FAK19 v Minister and CZW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1380. The Full Court's decision in Minister v FAK19 was handed down on 23 August 2021, after the hearing of this application. The Full Court upheld the correctness of the principles stated in Ali, and a number of other decisions of the Court which state similar principles including BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456, Ibrahim v Minister for Home Affairs (2019) 270 FCR 12, and GBV18. Relevantly, the Full Court stated (at [76]-[80] per Kerr and Mortimer JJ, Allsop CJ agreeing):
76 As the Full Court explained in Ali, there is ample authority for the proposition that although s 501CA(4) does not impose an express obligation on a decision maker to "consider" representations made for the purpose of identifying "another reason" why the visa cancellation should be revoked, the context and purpose of the provision, together with the text which imposes a duty to invite such representations, indicate that there is a statutory obligation on the Minister to engage, in an active intellectual sense with the representations: see Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [35]-[37], and the authorities there cited.
77 To describe the task, as Colvin J did in Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531 at [67], as being that in "order to properly discharge that obligation, the Minister must not overlook the representations" is functionally equivalent to characterising the representations as a whole as a mandatory relevant consideration, even if one characterises it (as Colvin J does at [72]) as a "breach of the statutory requirement to consider the representations". There is a point at which these questions of characterisation become somewhat academic, because they are simply different ways of articulating what the statute requires for a valid exercise of power.
78 There is no substantive (as opposed to semantic) difficulty in the conclusion that properly construed, the statutory scheme requires the representations as a whole to be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40. We respectfully agree with the observations of Robertson J in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123 at [56]. They were endorsed in Omar at [34(e)] and this proposition is now beyond doubt. To say as much is not to elevate to the character of mandatory relevant consideration every factual assertion made in the representations, which is a proposition also made clear in Omar at [34(e) and (h)]. This in turn leads to the proposition that:
The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed.
See Omar at [34(g)].
79 Whether or not this is precisely the characterisation set out in Ali at [44] is not a matter which should lead, in our respectful opinion, to any conclusion that the overall approach in Ali is wrong. It is true the passage at [44] (and that at [45]) tend to employ the language of considerations in relation to individual representations made by a person whose visa has been cancelled. However, this language should not obscure the fact that the Full Court was, in substance, seeking to adhere to what had by the time of its decision become a considerable line of authority in this Court about the jurisdictional constraints on the Minister's statutory task under s 501CA(4) in considering representations made about "another reason" to revoke a visa cancellation. So much is plain from what is incorporated into [46] of the Full Court's reasons in Ali, as well as the Full Court's reference to DGI19 v Minister for Home Affairs [2019] FCA 1867 and BCR16.
80 Ali is correctly decided, and the Minister's challenge to it should be rejected.
83 In this case, the applicant was represented by Counsel before the Tribunal, and Counsel prepared the Statement of Facts, Issues and Contentions filed on behalf of the applicant in the Tribunal. The Statement contained a detailed section in relation to Australia's non-refoulement obligations and expressly advanced the contention that the applicant is a person who engages Australia's non-refoulement obligations. The claims that were said to engage non-refoulement obligations were set out in Annexure A to the Statement.
84 Annexure A referred to Australia's non-refoulement obligations under the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as modified by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (Refugee Convention), the International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, (entered into force 26 June 1987) (CAT). The Annexure relied specifically on Art 33 of the Refugee Convention by which Australia is prohibited from expelling, or refouling, a refugee to a place in which he or she faces persecution, noting that "refugee" is defined in Article 1A7 as a person who has a "well-founded fear of persecution in their home country for reason of their race, religion, nationality, political opinion or membership of a particular social group".
85 Annexure A summarised the applicant's claims to fear harm as follows:
In summary, the Applicant fears harm on account of the ongoing violence against the Dinka people in South Sudan as well as on account of his profile as a Christian, returnee from the West and a young male who has suffered trauma in the past.
In our submission, non-refoulement obligations are owed to the Applicant under the Convention for the following essential and significant reasons, either cumulatively or separately:
• his imputed political opinion on account of his perceived opposition to armed groups due to his Dinka ethnicity; and/or
• his race on account of his Dinka ethnicity; and/or
• his membership of the particular social groups:
• young men at risk of forcible recruitment by armed groups; and/or
• persons perceived to be wealthy in South Sudan; and/or
• persons perceived to be foreign; and/or
• returnees from Australia; and/or
• persons who have experienced trauma and are suffering mental ill-health.
Moreover, Article 3 of the CAT expressly prohibits refoulement to a place where there are substantial grounds for believing a person would be subjected to torture. A non-refoulement obligation has also been read into Articles 6 and 7 of the Covenant which respectively provide protection from the arbitrary deprivation of life and from torture, and cruel, inhuman or degrading treatment or punishment. Relevantly, Australia's obligations under the CAT and the Covenant do not depend on a particular reason or basis for the mistreatment or discrimination.
It is submitted that country information indicates that there is a real chance that the Applicant, on the basis of his particular profile, would suffer harm on return to South Sudan.
86 I accept the applicant's submission that the above summary advances nine identifiable bases on which the applicant claimed to be owed international non-refoulement obligations, although there is a degree of overlap between certain of the claims. The applicant acknowledged that the enumeration of those claims was not mirrored in the subsequent organisation of the material in Annexure A. Nonetheless the claims are clearly identified in the summary, and relevant country information in support of each can be found in the pages of Annexure A that follow.
87 The subsequent material in Annexure A was organised under the following headings and, in respect of those headings, included the following claims in relation to the applicant:
i) Targeting of civilians based on ethnicity and imputed political affiliations
… the Applicant has a well-founded fear of persecution upon return to South Sudan due to the political opinion that will be imputed to him on account of his Dinka ethnicity. On this basis, we submit that the Applicant is at risk of death or directed violence if returned to South Sudan.
…
Given the above country information, we submit that the Applicant risks facing death, violence, torture and/or arbitrary detention based on his imputed political opinion on account of his Dinka ethnicity if removed to South Sudan.
ii) Targeting of returnees and persons perceived as wealthy and/or foreign
We further submit that the Applicant is at risk of serious and significant harm as a returnee from a Western country and as a person therefore perceived to be wealthy. We submit that as a direct consequence of his removal from Australia, he would be at greater risk of crime-related violence and attacks. He would be easily identifiable as a returnee from a Western country by his inability to fluently speak the local languages, and his ability to speak English. Further, relying on the country information above, the South Sudanese government would not provide him adequate protection.
…
We submit that the Applicant will be considered by many South Sudanese as a foreigner, due to leaving Sudan as a child, because he has never been to South Sudan and has lived much of his life in Australia. He can understand Dinka but mixes it with English and does not believe he speaks it fluently. The perception of the Applicant as a foreigner will place him at further risk of significant harm.
iii) Forced recruitment of men in South Sudan
Groups, including militia aligned with the Dinka-majority government forces frequently target men for the purposes of forced conscription. …
…
We submit that the Applicant, as a young and physically able Dinka male, is at significant risk of forced recruitment to militia groups.
iv) Ongoing instability and insecurity in South Sudan
The UNHCR updated their position on returnees to South Sudan in April 2019. The updated position paper concludes with a reaffirmation of the previous position: that states should suspend forcible returns of nationals or habitual residents of South Sudan to the country. It notes that safety and dignity cannot be assured, for the reasons extracted below…
…
We submit that returning the Applicant to a country where he faces the prospect of persecution and significant harm would be inconsistent with Australian's non-refoulement obligations.
v) Threats to people of Dinka Ethnicity
While the most recent DFAT report indicates that Dinkas face a low risk of being targeted on the basis of their ethnicity in Juba, where the Applicant would likely be returned to as it is the capital city, we strongly submit that the Applicant is more vulnerable to being targeted as a Dinka given that he has no contacts or links in Juba and may be unaware of the local situation and precautions that Dinka inhabitants of Juba would take. Further and in any event, a low risk of harm is still consistent with a real risk of harm for the purposes of non-refoulment. The Courts have repeatedly emphasized that a risk that is said to be "low" or "unlikely" is still consistent with a real chance/real risk. Following this, it would be applying the wrong test for a decision-maker relying on a finding that the risk would be unlikely or low to find that there would not be a real chance/risk of the requisite harm. In this regard it is further submitted that it would amount to an error of law to reply (sic, rely) on country information that states the relevant risk to a person in the Applicant's circumstances is "low[er]" and "unlikely" (which is not uncommon terminology used in reports prepared by DFAT).
vi) Inadequate mental health treatment and associated stigma in South Sudan
We submit that aside from the disruption to support networks due to conflict referred to above, the Applicant would have almost no social support available in South Sudan by virtue of his lack of close family or other social networks in South Sudan.
88 The above claims were supported by lengthy extracts from relevant and recent country information in respect of South Sudan from many sources including the Australian Government Department of Foreign Affairs and Trade (DFAT), the US Department of State, the Immigration and Refugee Board of Canada, the United Nations High Commissioner for Refugees, the United Nations Human Rights Council, Amnesty International and Médecins Sans Frontières.
89 In its Reasons, the Tribunal twice criticised the material submitted on behalf of the applicant in Annexure A as "boilerplate" and "generic". At [173], the Tribunal stated:
LGLH's legal representatives attached an annexure to their written submissions which, while addressed the circumstances of persons being returned to South Sudan, did not once mention the Applicant by name. It concerns the Tribunal that this annexure has the quality of being a 'boilerplate', rather than presenting arguments tailored specifically to the personal circumstances of LGLH himself. In any event, the Tribunal will consider the submissions contained in this document.
And at [181] stated:
While the Tribunal concludes that some of the contents of the annexure are generic, there are some characteristics of LGLH, having spent the majority of his school years in Australia and, while being able to speak, to some extent, three of the locally used languages, could mark him out as a newcomer, noting especially that the Applicant has never lived in Juba or anywhere in what is now South Sudan , the Tribunal referred to the contents of Annexure A as "generic", finding that "[w]hile the Tribunal concludes that some of the contents of the annexure are generic … some characteristics of LGLH … could mark him out as a newcomer…".
90 It is not clear what was meant by those criticisms, which appear misdirected and unfair. The circumstances which engage Australia's non-refoulement obligations will typically be conditions in the receiving country that are widespread and "generic" - a risk of harm that arises because of the applicant's race, religion, nationality, political opinion or membership of a particular social group will be shared by others who have the same characteristics. The fear will typically not arise by reason of individual circumstances of the applicant but by reason of the applicant having a particular ethnicity, religion, nationality or political opinion. The Tribunal's criticism that Annexure A "did not once mention the Applicant by name" must be regarded as perverse. As the extracts above show, the Annexure referred to the applicant on numerous occasions. It is wholly irrelevant that the Annexure chose to refer to the applicant using the impersonal title "Applicant" rather than the applicant's personal name. As to the criticism that the Annexure had the quality of being boilerplate, I infer that the Tribunal considered that the information reproduced in the Annexure had been reproduced in other applications before the Tribunal. However, that is hardly surprising (in that other persons of South Sudanese nationality are likely to have come before the Tribunal) and is not a legitimate basis for criticism. If the material is relevant and correct, the decision-maker is not entitled to afford it less weight, or treat it dismissively, on the basis that it appears to have been used before in other applications. Such an approach to the material would be irrational.
91 At [174], the Tribunal addressed the applicant's first claim - to fear persecution due to the political opinion that will be imputed to him on account of his Dinka ethnicity. In respect of that claim, the Tribunal made two observations. The first was that "the current Government of South Sudan is Dinka led, and Juba as the capital has a significant Dinka population". That observation did not engage fully with the claim that the applicant would face harm on account of imputed political opinion. The second observation was that the applicant's mother was in South Sudan at the time of the hearing, had voluntarily gone there to visit her mother and it was not contended by anyone that she was in fear of harm. It is difficult to discern what weight the Tribunal placed on that anecdotal fact (subsequently, at [186], the Tribunal appears to indicate that it did not place significant weight on the fact). Nevertheless, the fact that no-one at the hearing claimed that the applicant's mother was in fear of harm is not logically probative of a conclusion that she was not in fear of harm (the absence of a claim does not prove the negative); and even if it were true that the applicant's mother was not in fear of harm, it is not logically probative of a conclusion that the applicant had no basis to fear harm. The Tribunal otherwise made no reference to the country information contained in Annexure A in support of the claim, which indicates that populations are targeted on the basis of imputed political opinion, that is, their perceived support for one or another side in the ongoing conflict in the country.
92 At [175], the Tribunal addressed the applicant's second claim - to fear harm as a returnee from a Western country and as a person therefore perceived to be wealthy. As noted above, the applicant had submitted that he would be easily identifiable as a returnee from a Western country by his inability to fluently speak the local languages and his ability to speak English. The Tribunal made two observations in respect of that claim. The first observation was that the applicant speaks English, which is the official language of South Sudan, some Sudanese Arabic, and Dinka. In making that finding, the Tribunal cross-referenced a later finding about the applicant's familiarity with South Sudanese language and culture at [203]:
My conclusion in regard to all this evidence is that LGLH has a good working knowledge of Dinka. I accept that his proficiency in that language has receded since he has been in Australia, has been educated here and has used English more. I consider that, while his Dinka may be rusty, he would be able to make himself understood with other Dinka speakers and would be able to understand Dinka spoken to him, and to a lesser extent, Sudanese Arabic. I also note the Respondent's submission that the official language in South Sudan is English. I find that there would not be significant language barriers facing LGLH if deported to South Sudan. There may be some cultural barriers because of the large period of time LGLH has spent in Australia; I accept that he would be unfamiliar with the local cultural landscape.
93 The Tribunal acknowledged, at [181], that there are some characteristics of the applicant, having spent the majority of his school years in Australia, which could mark him out as a newcomer, noting especially that the applicant has never lived in Juba or anywhere in what is now South Sudan.
94 The second observation, made at [176], related to DFAT's travel advice in relation to South Sudan which was relied on by the applicant in his Annexure materials in support of the claim. However, the Tribunal's consideration of the DFAT travel advice was limited to that part of the advice that referred to the consequences of the COVID-19 pandemic, the Tribunal concluding that that is a special factor that may potentially increase the potential of harm to the applicant, as someone newly arrived from abroad.
95 The Tribunal did not otherwise engage with the applicant's second claim or the materials in Annexure A submitted in support.
96 At [177], the Tribunal addressed the applicant's sixth claim - the risk of harm by reason of inadequate mental health treatment in South Sudan. The Tribunal referred to evidence before the Tribunal which indicated that the applicant does not have a major mental illness and does not need psychological or psychiatric treatment (at [177]-[180]). The applicant did not challenge the basis for that finding.
97 Nowhere in its Reasons does the Tribunal address the applicant's third claim - that as a young and physically able Dinka male, the applicant would be at significant risk of forced recruitment to militia groups.
98 Nor do the Tribunal's reasons engage with the applicant's fourth claim - that he would be at risk of harm by reason of the ongoing instability and insecurity in South Sudan. At [182], the Tribunal referred to the DFAT Country Information Report which stated that the relative stability within Juba (the capital) was extremely fragile and criminality was rampant. However, the Tribunal does not refer to, or otherwise connect that report to, the applicant's fourth claim.
99 At [183], the Tribunal appears to address the applicant's fifth claim - that the applicant is vulnerable to being targeted as a Dinka given that he has no contacts or links in Juba. The Tribunal noted the DFAT Country Information Report which stated that "Dinkas living in conflict-affected areas face a high risk of societal discrimination and violence, given the significant ethnic-dimensions of the current conflict as well as their geographic proximity to the conflict", but that "[i]n Juba, Dinkas face a low risk of being targeted on the basis of their ethnicity because the Dinka-dominated Government currently has almost unencumbered control over Juba". At [184], the Tribunal recorded that the UN Special Rapporteur on South Sudan has recently reported sporadic conflicts across the country and in the more remote parts, a rise in deaths of citizens caught up in those conflicts, across the different ethnic communities, including the dominant Dinka community. However, the Tribunal does not otherwise refer to the applicant's fifth claim or make any specific findings in relation to that claim.
100 As has been emphasised in many cases, it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error": Buadromo at [49]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (Applicant WAEE) at [46]). Further, as submitted by the Minister, a decision-maker is not, in all circumstances, required to make specific findings of fact. Whether this is required depends on the nature and content of the representations (Omar at [39]).
101 Nevertheless, I am satisfied that the Tribunal did not consider the applicant's representations regarding non-refoulement obligations in the manner required to discharge its duty under s 501CA(4). The Tribunal was provided with a significant volume of evidence in support of the bases on which the applicant claimed to be owed international non-refoulement obligations. The Tribunal's reasons fail to demonstrate an active intellectual consideration of each of the claims made by the applicant and the material that supported the claims. In that respect, I note the following matters.
102 First, the nature and content of the representations made by the applicant, which referred to risks of harm that would enliven Australia's non-refoulement obligations, necessitated more than the Tribunal simply acknowledging or noting that the representations had been made, and instead required specific findings of fact, including on whether the feared harm was likely to eventuate: Omar at [39]. As my observations above show, the Tribunal made no clear finding in respect of any of the claims, save possibly its finding (relevant to the sixth claim) that the applicant was not suffering from major mental illness and does not need psychological or psychiatric treatment.
103 Second, while brevity of reasoning does not necessarily point to a lack of intellectual consideration, the absence of reference by the Tribunal (even by way of "noting"; cf DQM18 at [45]) to certain of the applicant's claims (particularly the third and fourth claims), combined with a lack of substantive engagement with the majority of the claims that were addressed, leads me to conclude that the Tribunal did not confront the significance of the information put forward by the applicant.
104 Third and relatedly, I infer from the absence of any reference in the Tribunal's reasons to certain of the applicant's claims that the Tribunal overlooked these claims or failed to consider them. The Full Court in Applicant WAEE cautioned (at [47]) that this inference is not to be too readily drawn "where the reasons are otherwise comprehensive and the issue has at least been identified at some point". That is not the case here. Further, while a particular matter may be subsumed in a finding of greater generality (Applicant WAEE at [147]; Buadromo at [46], [49], [60]), the Tribunal made few findings with respect to non-refoulement obligations owed to the applicant and I do not consider that these findings can be seen to subsume other matters that were not separately referred to by the Tribunal in its reasons. To take the Minister's example, I do not accept that the Tribunal considered the risk of forced recruitment "in substance" by making observations about the current situation in South Sudan for people of Dinka ethnicity, particularly when, as I observed above, the Tribunal did not reach a clear finding with respect to that matter.
105 Finally, the Tribunal's criticisms regarding the "boilerplate" and "generic" nature of the applicant's submissions support the conclusion that the Tribunal did not consider the full extent of claims advanced by the applicant. As I observed above, there is no proper basis for those criticisms.
106 To be described as jurisdictional, the error in the Tribunal's reasoning needs to be material, in that the appellant was deprived of the realistic possibility of a different outcome on his request for revocation of his visa cancellation: DQM18 at [118]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [31] per Kiefel CJ, Gageler and Keane JJ. I am satisfied that this threshold is met. Had the Tribunal considered the evidence put forward by the applicant in respect of non-refoulement obligations owed to him in accordance with its statutory task, it might realistically have come to the view that returning the applicant to South Sudan would place Australia in breach of its non-refoulement obligations, and that that consideration should weigh heavily in favour of the applicant.
107 The application for judicial review is therefore allowed on the basis of ground 6(a). Although not strictly necessary, I will nevertheless address grounds 6(b) and (c).