Active intellectual process required for protection claims, not just s 501CA representations

The contention that claims and evidence do not require active intellectual consideration (ie that Omar does not apply) to protection claims and that Omar instead is confined to s 501CA matters is made with alarming frequency.

In BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292 at [36] the Full Court said:

… Thus, in MZYPW v Minister for Immigration and Citizenship [ie not a s 501CA matter], the Full Court held that the Tribunal had fallen into jurisdictional error by failing to engage with the substance of the applicant’s submission in that it had merely recorded that a “submission” was made by the visa applicant and left unstated how the submission was resolved: [2012] FCAFC 99; (2012) 289 ALR 541 at [19]-[20] (Flick and Jagot JJ) and at [38] (Yates J).

This is precisely the requirement confirmed in Omar that consideration requires findings of fact ‘one way or the other’.

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