Federal Court of Australia

GWRV v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 39

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the costs of the first respondent on a lump sum basis to be agreed or assessed.

3.    On or before 4.00 pm AWST on 29 March 2023, the parties must file any agreed minute of proposed orders fixing a lump sum in relation to the first respondent's costs.

4.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent's costs is referred to a Registrar for determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    To be granted a protection visa, an applicant must satisfy at least one of the criteria specified in s 36(2) of the Migration Act 1958 (Cth) (Migration Act); the refugee criterion: s 36(2)(a) and (b), and the complementary protection criterion: s 36(2)(aa) and (c). In respect to each, the criterion cannot be met if the decision-maker determining the visa application forms the view that there are serious reasons for considering that the person seeking the visa has committed a serious non-political crime before entering Australia (Serious Crime Exclusion). Although located in different sections of the Migration Act, a substantively identically worded Serious Crime Exclusion disentitling an applicant to refugee and complementary protection applies in respect to each: see s 5H(2)(b) and s 36(2C)(a)(ii).

2    This is an appeal against a decision of the primary judge to refuse to grant constitutional writ relief against a decision of the Administrative Appeals Tribunal (the Tribunal) to uphold a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), to refuse to grant a protection visa to the appellant. The Tribunal’s refusal was on the ground that the Serious Crime Exclusion applied and that accordingly, the appellant was not considered a refugee by operation of s 5H(2)(b) of the Migration Act.

3    The appellant’s sole ground of appeal is, in summary, that the Tribunal’s failure to consider the complementary protection criterion separately is a jurisdictional error. The appellant argued that in failing to consider this criterion, the Tribunal entirely failed to exercise this aspect of its jurisdiction. The appellant further contended that this error was material and that the Tribunal’s decision should be quashed.

4    For the reasons that follow the appeal must be dismissed.

Background

Relevant procedural history

5    The appellant is a citizen of Mongolia who arrived in Australia in 2017 on a tourist visa and then moved onto a series of bridging visas. In 2018, his bridging visa was cancelled and he was detained in immigration detention. He applied for the relevant protection visa in 2018. His application was refused by a delegate who found that the appellant was not a refugee within the meaning of s 5H(1) of the Migration Act. Following a successful application for review in the Tribunal (heard within the Migration and Refugee Division of the Tribunal), the appellant's visa application was remitted for consideration with a direction that he is a refugee within the meaning of s 5H(1).

6    Subsequently, a decision was made by a delegate of the Minister to refuse to grant the appellant a protection visa under s 65 of the Migration Act. The delegate expressly found the Serious Crime Exclusion applied in the context of both the refugee criterion (s 5H(2)(b)) and in the event that the complementary protection criterion was satisfied (s 36(2C)(a)(ii)). The delegate also found that the appellant did not meet the complementary protection criterion because the delegate formed the view that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Mongolia, there was a real risk that the appellant would suffer significant harm (s 36(2)(aa)).

7    The delegate’s decision was subsequently affirmed by the Tribunal. It is the Tribunal’s decision that was challenged in the proceeding before the primary judge.

The Tribunal’s Decision

8    The Tribunal found that the appellant did not meet the refugee criterion because the Serious Crime Exclusion in s 5H(2)(b) of the Migration Act applied.

9    Relevantly, the Tribunal was satisfied that there were serious reasons for considering that the appellant had committed the crimes of murder and the procurement of murder, and that each of these were serious non-political crimes. On this basis, the Tribunal found that the appellant did not meet the meaning of refugee by operation of s 5H(2)(b). Accordingly, the appellant was not entitled to a protection visa under s 36(2)(a).

10    It was accepted by both parties that the Tribunal, unlike the delegate, did not go on to consider separately whether the appellant satisfied the complementary protection criterion in s 36(2)(aa). Further, the Tribunal did not separately consider whether the Serious Crime Exclusion also applied in the context of complementary protection. Nor did the Tribunal discuss whether the Serious Crime Exclusion was substantively identical in the context of protection for refugees and complementary protection and therefore, whether it was of the view that the Serious Crime Exclusion would necessarily apply for complementary protection.

The proceeding before the primary judge

11    The appellant then applied for constitutional writ relief before the primary judge, who dismissed the application: GWRV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 602 (Primary Judgment). The appellant argued in substance the same sole ground of appeal before the primary judge as he argues before this Court, namely that the failure to consider the complementary protection criterion was a jurisdictional error. The primary judge ultimately found at [26] that:

there could be no error in the Tribunal when sitting in its General Division failing to consider the aspects of the complementary protection criterion that did not concern the Serious Crime Exception. Review of that aspect was outside its jurisdiction. However, it was obliged to consider whether the Serious Crime Exception applied to complementary protection.

12    Relevantly, the primary judge also found at [29] that the failure to consider complementary protection was not material, because the appellant had conceded that had the Tribunal considered complementary protection, the appellant could not have succeeded on that ground given the finding that the Serious Crime Exclusion applied.

Issue in this appeal

13    The appellant does not challenge the Tribunal’s finding that the Serious Crime Exclusion applied. His appeal is limited to contending that, in failing to separately consider whether the appellant was entitled to a protection visa under the complementary protection criterion in s 36(2)(aa), the Tribunal failed to exercise its jurisdiction and accordingly fell into error.

14    It is not contentious that having found that the appellant was not a refugee by virtue of the Serious Crime Exclusion (s 5H(2)(b)), the Tribunal did not go on to consider the complementary protection criterion or the Serious Crime Exclusion separately in the context of complementary protection. The only question that was before the primary judge and is now before this Court is whether the Tribunal correctly exercised its decision-making authority by taking that approach.

The appellant’s submissions

15    The appellant contended that on the proper construction of the Tribunal’s jurisdiction, it was required to separately consider whether the appellant was entitled to complementary protection pursuant to s 36(2)(aa) of the Migration Act. By failing to consider this, the appellant contended that the Tribunal failed to exercise its jurisdiction and fell into error. The appellant accepted during oral argument that it was open to the Tribunal to find the Serious Crime Exclusion in s 36(2C)(a)(ii) applied before it considered the complementary protection criterion, provided that it addressed the Serious Crime Exclusion in this context.

16    The appellant accepted during oral argument that the Migration Act bifurcates the system of review for decisions to refuse to grant protection visas in the Tribunal. Decisions where, inter alia, the Serious Crime Exclusion was not relied on are considered “Part 7 reviewable decisions” under s 411 of the Migration Act and are reviewed in the Tribunal’s Migration and Refugee Division, which has a limited jurisdiction. Decisions where the Serious Crime Exclusion was relied on are reviewed in the Tribunal’s General Division. The appellant accepted that the decision under review in this case fell within the Tribunal’s General Division pursuant to s 500(1)(c)(i) of the Migration Act.

17    The appellant relied on the High Court’s decision in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 (Shi) to articulate the nature of the Tribunal sitting in its general jurisdiction. In Shi, Kiefel J held at [142]:

[i]n considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address.

18    The appellant also relied on the High Court’s more recent decision in Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 (Nathanson), where Kiefel CJ, Keane and Gleeson JJ held at [7]:

the Tribunal was required to stand in the shoes of the original decision maker but having regard to the state of affairs as it stood at the time of the Tribunal’s decision.

19    In addition, the appellant relied on the High Court’s decision in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 (Frugtniet), where Bell, Gageler, Gordon and Edelman JJ said at [51]:

The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT’s review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision. A consideration which the primary decision-maker must take into account in the exercise of statutory power to make the decision under review must be taken into account by the AAT.

20    In this case, the appellant submitted that the decision under review was a decision to refuse to grant a protection visa under s 65 of the Migration Act. Further, the nature of the underlying decision, being a decision to refuse to grant a protection visa, was not altered by the operation of the Serious Crime Exclusion. The appellant contended that the Tribunal was empowered to exercise all the powers of the original decision-maker, being the delegate, and that its role was to stand in the shoes of the delegate and decide afresh whether a protection visa should be granted, rather than just considering whether the Serious Crime Exclusion applied.

21    The appellant contended that due to the structure of the Migration Act, the Tribunal was required to separately assess the two criteria relevant to the appellant being granted a protection visa, namely the refugee criterion and the complementary protection criterion. The appellant highlighted, correctly, that the two relevant criteria are separately listed under s 36(2), subsections (a) and (aa), and operate independently, so that an applicant may be granted a protection visa if one of the criterion is satisfied.

22    The appellant submitted that the Tribunal is required to consider all valid visa applications under s 47 of the Migration Act. The appellant noted that s 54(1) obliged the Tribunal “in deciding whether to grant or refuse to grant a visa, [to] have regard to all of the information in the application”. Additionally, the appellant noted that his visa application made specific reference to the complementary protection criterion. The appellant contended, and it is uncontentious, that the Tribunal’s reasons only addressed the Serious Crime Exclusion in s 5H(2)(b). Accordingly, the appellant contended the Tribunal failed to exercise its statutory function and fell into error when it did not consider the complementary protection criterion in s 36(2)(aa) of the Migration Act.

23    The appellant submitted that this error was jurisdictional, enlivening this Court’s jurisdiction to grant constitutional writ relief. In making this submission, the appellant acknowledged that Parliament does not intend that decisions that are affected by errors that are immaterial be invalid. The appellant did not argue that if the Tribunal had separately considered the complementary protection criterion that a different outcome could have been reached, that is, that it could have granted a protection visa. As noted, the appellant made no challenge to the Tribunal’s finding that the Serious Crime Exclusion applied.

24    Rather, the appellant contended that the Tribunal’s failure to separately consider the complementary protection criterion was an error of a nature so fundamental to the exercise of the power that the power had not in fact been exercised. Where the task entrusted to the Tribunal had not in fact been undertaken, the appellant submitted that there was no additional requirement that the error be material.

25    The appellant relies on the High Court’s decision in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 (MZAPC), where the majority said at [29]-[30]:

29    The constitutionally entrenched jurisdiction of a court to engage in judicial review of the decision, where that jurisdiction is regularly invoked, is no more and no less than to ensure that the decision-maker stays within the limits of the decision-making authority conferred by the statute through declaration and enforcement of the law that sets those limits. To say that the decision is affected by jurisdictional error is to say no more and no less than that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision. The decision for that reason lacks statutory force. Because the decision lacks statutory force, the decision is invalid without need for any court to have determined that the decision is invalid.

30    The statutory limits of the decision-making authority conferred by a statute are determined as an exercise in statutory interpretation informed by evolving common law principles of statutory interpretation…Whether, and if so in what circumstances, non-compliance results in a decision that exceeds the limits of the decision-making authority conferred by the statute is itself a question of statutory interpretation.

26    In oral argument, the appellant submitted that the High Court in MZAPC held that “materiality” is a way to help the Court determine whether Parliament intended a decision made in non-compliance with a particular statutory provision would be rendered invalid. The appellant took the Court in his written submissions to what the Court said in MZAPC at [33], being:

[t]he threshold of materiality was not expressed to be additionally required to be met for every breach of every condition of a conferral of statutory decision-making authority to result in a decision-maker having exceeded the limits of the authority conferred by statute in the absence of an affirmative indication of a legislative intention to the contrary.

27    The effect of the appellant’s argument was that Parliament intended that any failure to consider the complementary protection criterion would render the decision in the appellant’s matter invalid. Therefore, the error was jurisdictional and the decision needed to be remitted.

The Minister’s submissions

28    The Minister filed two sets of submissions in this appeal. The first set of submissions was filed on 21 October 2022 before the appellant obtained representation and his argument on appeal was more clearly elucidated. The second set was filed on 16 November 2022 and responded to submissions prepared by the appellant’s counsel, although the Minister also continued to rely on the first set.

29    The Minister submitted that the Tribunal’s decision was not affected by error by reason of its failure to consider the complementary protection criterion separately. In any event, the Minister submitted that if the Court found that there was error, that such error was not material, such that there was no jurisdictional error enlivening this Court’s jurisdiction to grant constitutional writ relief.

30    The Minister submitted that consistently with Daher v Minister for Immigration and Ethnic Affairs [1996] FCA 1011; (1997) 77 FCR 107 at 110-111 (Daher), the Tribunal’s decision was heard in the jurisdiction of its General Division. It was not a Part 7 reviewable decision. This is because the delegate’s decision was made at least partially in reliance on the Serious Crime Exclusion in s 5H(2) and s 36(2C)(a)(ii).

31    The Minister argued that the Tribunal was not required to consider the complementary protection criterion owing to the bifurcation of review that was recognised in Daher and which continues under the Migration Act in its present amended form. The Minister argued in oral submissions that the relevant provisions of the Migration Act were to be properly construed in this manner in order that the whole of the provisions operate cohesively. This construction would avoid the outcome that an appellant seeking to challenge a finding that the Serious Crime Exclusion applied must risk reconsideration of positive findings as to protection owed under sections 36(2)(a) or (aa).

32    Accordingly, the Minister submitted the Tribunal sitting in its General Division had no jurisdiction to review the delegate’s decision to the extent it was based on s 36(2)(aa) of the Migration Act.

33    In respect to materiality, the Minister opposed the appellant’s submission that in this case the failure to consider the complementary protection criterion was so fundamental that there was no additional requirement that the failure be “material”. First, the Minister reiterated that the Tribunal was not bound to consider the complementary protection criterion. Second, the Minister submitted that even if the Tribunal fell into error by not considering the criterion in s 36(2)(aa), it was not material because the appellant would not be owed complementary protection because the Serious Crime Exclusion, relevantly operating via s 36(2C)(a)(ii), would apply.

34    The Minister made no submissions in respect to whether, if this Court found that there was jurisdictional error, the possible futility of remitting the matter to the Tribunal could influence the exercise of the residual discretion not to grant constitutional writ relief.

Consideration

35    For the reasons that follow, we are of the view that the Tribunal correctly exercised its decision-making authority when it did not separately consider the complementary protection criterion in s 36(2)(aa) of the Migration Act. It erred, however, in failing to consider the Serious Crime Exclusion in the context of that criterion, because in this case the refusal of complementary protection was, at least in part, based on the Serious Crime Exclusion. But it was necessary for the error to be material in order to be a jurisdictional error, and it was not material.

36    In that context, before addressing the issues it is appropriate to recall that the Serious Crime Exclusion that disentitles an applicant to refugee and complementary protection is relevantly in substantively identical terms. Section 5H(2) operates to negate a finding that a particular person is a refugee under s 5H(1):

5H Meaning of refugee

…

(2)    Subsection (1) does not apply if the Minister has serious reasons for considering that:

(a)    the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(b)    the person committed a serious non‑political crime before entering Australia; or

(c)    the person has been guilty of acts contrary to the purposes and principles of the United Nations.

(emphasis added)

37    Section 36(2C)(a) operates to negate a finding that a person satisfies the complementary protection criterion under s 36(2)(aa):

36 Protection visas—criteria provided for by this Act

…

(2C)    A non‑citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

(a)    the Minister has serious reasons for considering that:

(i)    the non‑citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(ii)    the non‑citizen committed a serious non‑political crime before entering Australia; or

(iii)    the non‑citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or

(emphasis added)

38    As readily apparent from the text of those provisions, the exclusion is based on the assessment of the offending conduct, and therefore, satisfaction of one provision necessarily would also result in satisfaction of the other. It would disentitle the applicant to a protection visa on either criterion.

39    In that context, the appellant made a concession below, referred to by the primary judge, at [11]:

The applicant accepts that if the Tribunal had considered the complementary protection criterion then it would have concluded that the Serious Crime Exclusion for that criterion applied. In effect this is a concession that despite some differences in the language used to express the relevant exclusion in the case of the complementary protection criterion compared to the refugee criterion there is no substantive difference. The concession is properly made given the Tribunal's reasoning: see ZYVZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 28 at [3] and the Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 (Cth) at para 87.

40    The accuracy of that passage is not challenged. Nor was any challenge made to the Tribunal’s conclusion that there were serious reasons to consider the appellant had committed a serious non-political crime before arriving in Australia.

The jurisdiction of the Tribunal

41    To address whether the Tribunal was not required to separately consider the complementary protection criterion in s 36(2)(aa), it is necessary to first say a few things about the nature of the Tribunal’s jurisdiction in this case, by reference to the Migration Act.

42    The Migration Act creates a bifurcated system of merits review. A decision by the Minister to refuse to grant a protection visa is reviewable by the Tribunal under two separate sources of power. The first is conferred under Part 7 of the Migration Act and the second is conferred under s 500.

43    Section 414 of the Migration Act confers upon the Tribunal jurisdiction to review “Part 7 Reviewable Decisions”. The term “Part 7 Reviewable Decision” is defined in s 411(1)(c) as a decision to refuse to grant a protection visa other than a decision that was made relying on s 5H(2), s 36(1B), s 36(1C) or s 36(2C). Reviews of “Part 7 Reviewable Decisions” are heard, and can only be heard, by the Tribunal’s Migration and Refugee Division: s 409(2) of the Migration Act. Part 7 has detailed provisions concerning the manner in which the Tribunal is to review “Part 7 Reviewable Decisions”, which include a power for the Minister to substitute a decision that is more favourable to the applicant if the Minister thinks it is in the public interest to do so: s 417.

44    Conversely, subject to an exception not presently relevant, s 500(1)(c) vests in the Tribunal jurisdiction to review a decision under s 65 of the Migration Act to refuse to grant a protection visa relying upon s 5H(2), s 36(1C) or s 36(2C). Such reviews are conducted by the General Division of the Tribunal according to the procedures applicable under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) as modified by s 500 of the Migration Act: see simplified outline in s 408 of the Migration Act.

45    It is to be noted that under the terms of the AAT Act, a member of the Tribunal “may exercise, or participate in the exercise of, powers of the Tribunal only in a Division to which the member is assigned”: s 17C(4). Before assigning a member to the Migration and Refugee Division, the responsible Minister must consult the Minister administering the Migration Act in relation to the proposed assignment: s 17D.

46    In Daher, at 110-111 the Full Court explained the bifurcation of the review functions of what were then the Refugee Review Tribunal and the Administrative Appeals Tribunal:

In the present case, it is an object of the [Migration] Act that reviews of decisions taken under art. 1F of the Convention shall be conducted by the Administrative Appeals Tribunal. That object is not merely to be inferred from the Act. The Act makes it explicit by conferring jurisdiction upon the Administrative Appeals Tribunal and by excluding review under Part 7 of the Act.

…

The Act has, therefore, notionally divided decisions refusing to grant a protection visa into two distinct parts, namely, those parts constituting refusal in reliance on Arts 1F, 32 or 33(2) of the Convention and those relying on other aspects of the Convention, particularly Art 1A(2). Accordingly, in s 411(1)(c), the term "a decision to refuse to grant a protection visa" must be read as excluding such a decision insofar as it relies upon Arts 1F, 32 or 33(2) of the Convention. The Act makes this explicit by providing in s 500(4) that the excluded decisions are not reviewable under Part 7 of the Act, in which s 411 appears.

It follows that the only decision which the Refugee Review Tribunal had jurisdiction to review was a decision which did not rely upon Arts 1F, 32 or 33(2). It was only for the purpose of reviewing that limited decision, the elements of which were within its jurisdiction, that the Refugee Review Tribunal was authorised to exercise all the powers and discretions that were conferred by the Act on the person who made the decision. As the question whether Mr Daher fell within the terms of Art 1F was not an issue within the ambit of the decision which the Refugee Review Tribunal had jurisdiction to review, the Refugee Review Tribunal had no cause to enter into that question for the purposes of the review of the decision.

47    Although there have been amendments to the Migration Act since Daher, given the relevant provisions in the Migration Act described above, the bifurcation of merits review described in Daher continues under the Migration Act in its current form: see also Hamidy v Minister for Immigration and Border Protection [2019] FCA 221 at [31]-[33].

48    Accordingly, as the delegate’s decision was made in reliance on the Serious Crime Exclusion in both s 5H(2) and s 36(2C)(a)(ii) of the Migration Act, the Tribunal’s decision was made in its General Division. We agree with the primary judge’s finding that although the delegate found that the complementary protection criterion in s 36(2)(aa) was not satisfied, the decision was also made in reliance on s 36(2C) because the delegate found that the Serious Crime Exclusion would apply. We endorse what his Honour said at [23] of the Primary Judgment, namely:

As to complementary protection the outcome also relied upon the finding that there was not a real risk of significant harm. Any claim that the consequence was that the Serious Crime Exclusion was not 'relied upon' as to complementary protection for the purposes of determining the pathway for review should not be accepted because it would be inconsistent with the bifurcated structure. It would produce the prospect of concurrent reviews, one in the General Division and one in the Migration and Refugee Division. For that reason, following the approach in Daher, if any part of the decision on the application for a protection visa relied upon the Serious Crime Exclusion provisions then review must be sought in the General Division.

(emphasis added)

49    The appellant does not challenge the correctness of Daher, but places a different interpretation on it, submitting that it does not address the issue at hand in this case. That is, although there is a bifurcation structure, once the matter is to be heard in the General Division, it is to be dealt with according to the AAT Act, in particular s 43. That is, relevantly to this case, the review is not limited to the Serious Crime Exclusion: see [20] above. However, s 43 provides relevantly, that “[f]or the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any enactment on the person who made the decision”. Section 43 does not enlarge or confer the Tribunal’s jurisdiction. As the respondent submitted, where, as here, the jurisdiction to review was bifurcated in the way that it was, s 43 could not overcome that statutory regime, here, the regime specific to the Migration Act. If s 500(1)(c) of the Act is considered in isolation, it may be possible to read the conferral of jurisdiction to review a decision 'relying on' the Serious Crime Exclusion as a conferral of jurisdiction to review every aspect of that decision, not just the Serious Crime Exclusion aspects. But the legislative context and history we have outlined show that this reading would be incorrect.

50    It is also appropriate to address the appellant’s reliance on Shi, Nathanson and Frugtniet. In short, properly read, these cases do not support a contrary view. They do not support the proposition that the Tribunal must ask itself the same questions that the primary-decision maker did ask itself in circumstances where the Tribunal’s jurisdiction has been limited, if not expressly, then by necessary implication as we have described.

51    Shi was concerned with the nature of administrative review and whether the Tribunal was limited to considering the state of affairs existing at the time of the decision under review. In that context, the respondent contended that the Tribunal’s role was to determine whether the original decision was erroneous. Kiefel J (as her Honour then was), held that reviewing the reasons for a decision (including for the purposes of identifying error) would not fulfil the Tribunal’s function. The Tribunal would instead need to stand in the shoes of the original decision-maker: see especially at [134]-[135]. Such powers are not consistent with a role limited to ascertainment of error.

52    As the respondent submitted, Shi does not stand for the proposition that any review by the Tribunal must be on the same terms or directed to the same issues as were before the original decision-maker in circumstances where the Tribunal’s jurisdiction has been limited by the Migration Act. It says nothing about the authority of the legislature to confer a right of review, whether at large or on terms, to the Tribunal.

53    Nathanson at [7] similarly stands for the proposition that the Tribunal was required to stand in the shoes of the original decision maker having regard to the state of affairs as it stood at the time of the Tribunal’s decision. Like Shi, Nathanson says nothing about the Tribunal being required to approach the reasoning process in the same way as the original decision-maker.

54    In the same vein, the passage in Frugtniet at [51] on which the appellant relies, says nothing about the Tribunal being obligated to approach the reasoning process in the same way as the original decision-maker. The appellant’s reliance on [51] must be considered in context, as he omits the first sentence of the paragraph:

…except where altered by some other statute, which has not occurred here, the jurisdiction conferred on the AAT by ss 25 and 43 of the AAT Act, where application is made to it under an enactment, is to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review.

(emphasis added)

55    The primary judge concluded at [24]:

It follows that I accept the submission for the Minister that, by reason of the bifurcation, the required course is for the applicant to seek review under s 500(1)(c) in the General Division of the Tribunal. Further, in such a case, the jurisdiction of the General Division is confined to reviewing the decision to refuse the application for a protection visa to the extent that reliance was placed by the decision maker upon the Serious Crime Exclusion. The procedures of the General Division (as modified by s 500 of the Migration Act) apply to the exercise of the jurisdiction. Otherwise, the structure by which members of the Tribunal are appointed to the Migration and Refugee Division and the different statutory regime to deal with other aspects of applications to review protection visa applications would be compromised.

56    As referred to above at [11], the primary judge accordingly concluded at [26]:

…there could be no error in the Tribunal when sitting in its General Division failing to consider the aspects of the complementary protection criterion that did not concern the Serious Crime Exception. Review of that aspect was outside its jurisdiction. However, it was obliged to consider whether the Serious Crime Exception applied to complementary protection.

57    The Minister accepts the correctness of the primary judge’s reasons. The appellant has not established any error in that conclusion.

58    Nevertheless, given that the Tribunal did not turn its mind to and consider separately whether the Serious Crime Exclusion applied to complementary protection, it must follow that it erred to that extent. However, that does not mean that the Tribunal did not consider, as a matter of fact and substance, whether the Serious Crime Exclusion applied to the circumstances of the applicant’s case on review. Thus, the matter comes down to materiality, to which we now turn.

Materiality

59    We are of the opinion that the materiality requirement that ordinarily applies (MZAPC at [33]) means that the error made was not jurisdictional. Further, as the primary judge concluded, if it had been an error for the Tribunal not to have considered satisfaction of the complementary protection criterion at all, that would not have been material either.

60    Properly understood, the High Court in MZAPC, enunciated a test for the consideration of jurisdictional error (assuming materiality has been raised as an issue) that has two aspects. First, the reviewing court must consider whether the decision-maker fell into any error. We note that in this case we have found that there was such an error on the part of the Tribunal. Second, if error is identified the reviewing court must consider whether it was material. The majority in MZAPC held at [39]:

the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.

(italics in original)

61    It is true that the High Court in MZAPC contemplated that there might be some categories of error to which the ordinary threshold of materiality does not apply. At [33], the majority said:

There are conditions routinely implied into conferrals of statutory decision-making authority by common law principles of interpretation which, of their nature, incorporate an element of materiality, non-compliance with which will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be met. The standard condition that a decision-maker be free from actual or apprehended bias is one example. The standard condition that the ultimate decision that is made lie within the bounds of reasonableness is another.

(citations omitted)

62    However, we are of the view that neither the type of error we have found occurred, nor the type of error alleged by the appellant, is of such a nature. In relation to the first, the Tribunal did perform the essence of the task conferred on it by s 500(1)(c) and, in fact and substance, considered the Serious Crime Exclusion, albeit not in the context of complementary protection. And as the primary judge similarly reasoned in relation to the second, alleged error: the Tribunal did conduct a review but, on the appellant's case, misunderstood the extent of its jurisdiction. The ordinary requirement of materiality applies to an alleged error of that kind.

63    As to whether the error we have found was material, there is an artificiality in the position that the Tribunal was required to separately consider the Serious Crime Exclusion in respect to complementary protection. It is difficult to discern, as a matter of practicality, what separate consideration of the Serious Crime Exclusion would entail. An additional sentence in the Tribunal's decision to the effect that the Serious Crime Exclusion would equivalently apply in the context of the complementary protection criterion, had that criterion been established, would have sufficed. This is the case, noting also that there is no challenge to the finding that the Serious Crime Exclusion applied in respect to the refugee criterion. So if the Tribunal had turned its mind to the question in the context of complementary protection, it would inevitably have found that the exclusion also negated satisfaction of that criterion.

64    It is also perfectly clear what would have happened if the Tribunal's reasoning had been unaffected by the other, alleged error. Having determined that the appellant was not a refugee because of the operation of the Serious Crime Exclusion in s 5H(2), the Tribunal, if it separately considered the complementary protection criterion, would have refused to grant the protection visa because of the Serious Crime Exclusion in s 36(2C)(a)(ii). This would have been so regardless of whether the Tribunal formed the view that the complementary protection criterion was satisfied: s 36(2)(aa). No such finding could survive the operation of the Serious Crime Exclusion in s 36(2C)(a)(ii) and cause the Tribunal to grant the appellant a protection visa. So much was conceded by the appellant below: see the concession at [39] above. As the primary judge correctly concluded at [29], given that concession, the failure to consider complementary protection was not material and there was no jurisdictional error.

65    The concession was properly made. While it is true that each of s 36(2)(a) and (aa) provide independent criteria, the satisfaction of which can result in the grant of a protection visa, they are both subject to the same Serious Crime Exclusion. As explained above, the Serious Crime Exclusion is worded in substantively identical terms with respect to both criteria. There is no possibility that had the Tribunal proceeded to consider whether the appellant was entitled to complementary protection that it would have granted him a protection visa, because he would have been disentitled under the Serious Crime Exclusion in s 36(2C)(a)(ii). So much was accepted by the appellant.

66    Accordingly, even if the Tribunal did err in failing to separately consider the complementary protection criterion, we would find that the appellant has not discharged his burden to show that error to be material. Further, we do not consider that any error has been identified in the primary judge’s reasons on materiality.

Conclusion

67    For the reasons above, the appellant has failed to identify any error in the Primary Judgment and the appeal must be dismissed. There is no reason why costs should not follow the event and, accordingly, we order that the appellant pay the first respondent’s costs.

Associate:

Dated:    15 March 2023