FEDERAL COURT OF AUSTRALIA

AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424

THE COURT ORDERS THAT:

1.    The appeal be dismissed

2.    The Appellant to pay the First Respondent’s costs.

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

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 17 July 2015 dismissing an application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) of a decision of the second respondent (at the time the Refugee Review Tribunal) (the Tribunal): see AMA15 v Minister for Immigration & Anor [2015] FCCA 1954. The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) to refuse to grant the appellant a Protection (Class XA) visa.

Background

2    The appellant is a citizen of China. He arrived in Australia on 12 December 2004. On 20 January 2005, the appellant lodged an application for a Protection (Class XA) visa (the First PV Application). On 17 March 2005, the First PV Application was refused by a delegate of the Minster. The appellant then applied to the Tribunal for review of the delegate’s decision. The Tribunal affirmed the decision of the delegate on 16 August 2005 (the First Tribunal Decision).

3    The appellant sought judicial review of the First Tribunal Decision by the Federal Magistrates Court (as it then was). On 28 April 2006, by consent, the Federal Magistrates Court remitted the matter to the Tribunal to be determined according to law. On 9 October 2006, the Tribunal, differently constituted, affirmed the decision of the delegate (the Second Tribunal Decision). The appellant applied unsuccessfully for judicial review of the Second Tribunal Decision to the Federal Magistrates Court and was unsuccessful in his subsequent appeals to this Court and the High Court of Australia.

4    On 11 September 2009 the appellant sought Ministerial intervention pursuant to s 417 of the Act which was declined by the Minister on 8 December 2009.

5    Following the decision of a Full Court of this Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 (SZGIZ), on 11 February 2014 the appellant lodged a further application for a Protection visa (the Second PV Application). In that application and in a statement provided by the appellant on 25 February 2014 the appellant makes the following claims:

(1)    he notes that he was persecuted in China for being a Falun Gong practitioner;

(2)    in order to provide for a better life for his two children, in 1995 the appellant went to Beijing to work. He established his own business selling clothes and shoes;

(3)    the appellant’s business grew and, in June 2001, a Russian company placed an order for shoes to the value of RMB 3 million. A deposit of RMB 500,000 was paid to the appellant and the appellant placed the order for the shoes with three factories at a cost of RMB 2,400,000. In order for the factories to make the shoes they required a 50% deposit. To make up the deposit, the appellant borrowed RMB 700,000 at a high interest rate;

(4)    when the shoes were ready they were delivered to the Russian company on the basis that it would pay the following day. That did not occur and, after a week had passed, the appellant went to the Russian company’s office only to find that it was closed. The appellant reported the matter to the police who told him that it was a business matter and that they would not get involved. The appellant was indebted to the three factories which had produced the goods for the balance, RMB 1,200,000, and owed a further RMB 700,000, being that part of the deposit which he had borrowed;

(5)    the factory owners came to his office every day for payment of their money. The appellant says that he did not dare go home as he feared that the loan sharks, from whom he borrowed the RMB 700,000, would kill him as he could not repay them. The factory owners held him in his office and only released him after his friend paid them RMB 10,000;

(6)    in 2003 the appellant obtained a passport in readiness to leave China. He closed down most of his business, keeping two shops open to earn some money. He managed to save up some money and pay RMB 2,000 in debts. However, the factory owners were very upset and threatened to sue the appellant. In March 2004 they told the police that the appellant was a Falun Gong practitioner. As a result the appellant was taken to the local police station and later to a detention centre where he was detained for 10 days. The appellant says he was tortured by the police and sent to hospital. He escaped from hospital and hid in another province;

(7)    one of the appellant’s friends came to see him, lent him money and obtained a visa for him following which he came to Australia;

(8)    after he left China, the appellant’s friend managed his two shops. His friend has told him that, following his departure, the factory owners and the police often came to his shops to cause trouble. Later the two shops were closed by the police, his friend was taken to the police station, detained for 15 days and fined RMB 20,000. The police charged his friend for helping the appellant leave;

(9)    he cannot go back to China. If he returns to China he will be sent to gaol. The appellant also fears harm from the loan sharks as he cannot repay his debt to them.

6    On 20 May 2014, the appellant attended an interview with a delegate of the Minister. On 22 May 2014, the delegate refused the Second PV Application. In considering the appellant’s claims the delegate noted at page 1 of her decision that the decision in SZGIZ found that s 48A of the Act does not prevent a person from making another protection visa application where the first application was made and refused prior to the commencement of the complementary protection provisions on 24 March 2012. The delegate found that the Second PV Application complied with the provisions of the Act and the regulations to the Act and was therefore valid. The delegate then went on to consider the appellant’s claims and made findings under s 36(2)(a) (Refugees Convention) and s 36(2)(aa) (complementary protection).

7    On 19 June 2014, the appellant applied to the Tribunal for review of the delegate’s decision. By letter dated 11 February 2015, the Tribunal invited the appellant to attend a hearing to give evidence and to present arguments relating to the issues arising in the appellant’s case. On 19 March 2015, the appellant appeared before the Tribunal with the assistance of an interpreter. The Tribunal affirmed the decision of the Minister’s delegate on 24 March 2015.

The Tribunal Decision

8    The Tribunal noted that its role was to consider the appellant’s claims under the complementary protection criteria in s 36(2)(aa) of the Act. At [8] and [9] of its decision it observed:

8.    The primary decision record (a copy of which the applicant provided to the Tribunal) indicates that that applicant was previously refused a protection visa in Australia. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. Applying the reasoning in SZGJZ v MIAC (2013) 212 FCR 235, the Tribunal finds that it does not have power to consider the Refugee Convention criterion in s.36(2)(a), and has proceeded on the basis that it can only consider the applicant’s claims under the Complementary Protection provisions in s.36(2)(aa) of the Act.

9.    The Tribunal has proceeded (as indicated at the hearing) to consider the applicant’s claims in relation to the complementary protection requirements of s. 36(2)(aa).

9    At the hearing the appellant only pursued his claims in relation to the debts he said he owed in China. The Tribunal discussed with the appellant the significant concerns it had in relation to the alleged debts and events in China. The Tribunal set out a number of matters arising from the appellant’s evidence based on which the Tribunal was not satisfied that the appellant had been truthful in his evidence or claims. The Tribunal was not satisfied that the appellant owned a shoe business in China in relation to which he incurred substantial debts from a failed commercial transaction or that the appellant is being sought by factory owners or loan sharks because of any debt he owes them. The Tribunal was also not satisfied that the appellant was accused of being a Falun Gong practitioner because of the debts, that he was detained in China because of the debts, that his business was forced to close or that his friend was detained after the appellant departed China. As a result, the Tribunal was not satisfied that it had substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to China, there is a real risk that he will suffer harm because of any debts incurred in China.

10    The Tribunal also referred to the claim made by the appellant in his written claims that he was persecuted as a Falun Gong practitioner. In relation to that the Tribunal’s decision records at [28]:

When the Tribunal asked if he had any fears about returning to China because of his Falun Gong practice he stated that it has been such a long time and if he avoids it then it would not be a problem. When the Tribunal asked when he started practising Falun Gong he stated that he did not want to talk about this issue. When the Tribunal asked if he was saying that he did not want to make any claims in relation to Falun Gong he replied “let it go”. The Tribunal clarified with him that although his written claims referred to Falun Gong he now only wants to make claims in relation to his debts. He confirmed that this was correct. The Tribunal is satisfied that the applicant has withdrawn his claims in Falun Gong and therefore the Tribunal does not find it necessary to make any findings in relation to this.

11    The Tribunal also clarified with the appellant whether he pursued his previous claims, made in connection with his First PV Application, arising from his family’s treatment during the Cultural Revolution or his political opinion and his past involvement in the democracy movement. In relation to those matters the Tribunal made the following observations and findings at [29] to [30]:

29.    At the 2015 hearing the applicant stated that he only wished to pursue his claim in relation to the debts. In relation to previous claims made in his first protection visa application arising from his family’s treatment during the Cultural revolution he stated at the 2015 hearing that this happened a long time ago and he can avoid the issue now. The applicant did not raise this in his current protection visa application. In light of his evidence, the time that has passed since the relevant events and the lack of harm to the applicant as a result of the Cultural Revolution since then, the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm because of his family’s treatment during the Cultural Revolution.

30.    In relation to previous claims made in his first protection visa application arising from his past involvement in the democracy movement he stated at the 2015 hearing that this happened a long time ago and he is no longer worried about that. He stated that he had not had any difficulties because of his political opinion since 1989 and he is no longer involved in any political activities. The applicant did not raise any claims in relation to his political activities in his current protection visa application. In light of his evidence, the time that has passed since the relevant events, his evidence that he is no longer involved in any political activities and the lack of harm to the applicant as a result of his past political activities since 1989, the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm because of his political opinion.

12    The Tribunal concluded that it was not satisfied that the appellant was a person in respect of whom Australia has protection obligations under ss 36(2)(aa) or (c).

Proceedings before the Federal Circuit Court

13    On 15 April 2015, the appellant sought judicial review of the Tribunal decision. In his application filed in the Federal Circuit Court the appellant pleaded the following grounds (as written):

1    Regarding to the money I owes in China, at the beginning, I borrowed RMB 700,000 from loan sharks and owes a further RMB 1,200,000 to factory owners. RRT made use of their advantages beating about the bush continually and making meaningless logical trap in the hearing. I pointed out that I could recall the specific events in order to provide evidences by questioning and answering specific. RRT never questioned me specific or just questioned general questions, but RRT required me to provide details answers. This ignored my own situation and was against the law. Accordingly to the law, RRT should make full sense of my own situation and not require excessive evidences.

2    The Tribunal failed to make a fair ‘complementary protection’ grounds test. I own a huge amount of money and I am a Falun Gong practitioner. I would face persecution upon return to China. There are substantial grounds for believing that, there is a real risk that I will suffer significant harm if I removed from Australia to China.

14    The matter was heard by the primary judge on 17 July 2015 who delivered judgment on the same day, dismissing the application with costs.

15    The primary judge recorded at [1] and [7] of his decision that the appellant had the opportunity to file written submissions and to make oral submissions at the hearing but had declined to take up those opportunities.

16    In relation to the two grounds raised in the appellant’s application, the primary judge found in relation to ground 1 at [11] that the Tribunal properly conducted the review and addressed the appellant’s claims in relation to the debts owing including making credit findings, which it was permitted to do. The primary judge found that there was no error in the Tribunal decision as alleged by ground 1.

17    In relation to ground 2, the primary judge found at [10] that, insofar as the appellant may be contending that the Tribunal failed to address a claim raised by the appellant, namely, his claim arising from his practice of Falun Gong, the appellant had clearly withdrawn that claim and that:

The review required by the statutory regime is only of the claims made by the applicant of claims that should be approved on the material before the Tribunal and not claims that are clearly withdrawn.

18    The primary judge went on to find that the Tribunal set out the criteria for complementary protection in the attachment to its decision and that there was no error in the application of the statutory criteria by the Tribunal.

The Appeal

19    On 4 August 2015, the appellant commenced these proceedings. In his Notice of Appeal he raises the following four grounds:

1.    The Tribunal failed to consider the complementary protection in my case.

2.    RRT has denied me procedural fairness by failing to provide adequate reasons for the finding of a fact.

3.    Tribunal unfairly refused to offer me protection saying my case was not covered by the Convention.

4.    The Tribunal under evaluated the risk of serious harm that I will face if going back to China.

20    By orders made on 4 August 2015 the appellant was entitled to file written submission in support of his appeal. He has not done so. At the hearing when invited to make oral submissions, he declined to do so.

Ground 1

21    By this ground the appellant contends that the Tribunal failed to consider his claim for complementary protection pursuant to s 36(2)(aa) of the Act. This ground resembles ground 2 in the appellant’s application before the primary judge insofar as that ground alleged failure to consider the appellant’s claims for complementary protection.

22    The task of this Court on appeal is to determine whether the decision of the primary judge is affected by appellable error: see SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11].

23    The Minister submits that the Tribunal applied the complementary protection criteria correctly, as found by the primary judge, and that the appellant seeks to cavil with the Tribunal’s findings which were reasonably open to it on the evidence before it.

24    The primary judge addressed ground 2 of the appellant’s application before him at [12] of his decision. He found that the appellant had a genuine hearing carried out in accordance with the statutory obligations imposed on the Tribunal, the adverse findings made by the Tribunal were open to it on the material before it and that the Tribunal had properly identified and applied the criteria for complementary protection. I accept the Minister’s submissions in relation to this ground. There is no error in the approach of the primary judge to ground 2 of the application that was before him. Further, in my view, on a fair reading of the Tribunal decision, there is no error in the approach of the Tribunal in its application of the complementary protection criteria to its findings on the evidence and the material before it.

Grounds 2, 3 and 4

25    These grounds were not raised before the primary judge. By ground 2 the appellant alleges that the Tribunal failed to afford him procedural fairness in that it did not provide adequate reasons for its findings of fact and by grounds 3 and 4 the appellant alleges a failure on the part of the Tribunal to assess his claims by reference to the Refugees Convention and s 36(2)(a) of the Act.

26    The Minister submits that, as these grounds were not raised before the primary judge, the appellant needs leave to rely on them in this Court. As was stated by a Full Court of this Court in VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 (VAAC) at [26] in order to obtain the grant of leave the appellant must satisfy the Court that it is “expedient in the interests of justice to allow the new ground[s] to be argued and determined”. The Minister submits that the new grounds have no merit and that therefore leave to appeal should not be granted.

27    As grounds 2, 3 and 4 were not raised before the primary judge I must first determine whether leave should be granted to raise those grounds on appeal. It is useful to set out the passage at [26] in VAAC which is relied on by the Minister in full:

It is therefore necessary to consider whether it is expedient in the interests of justice to allow the new ground to be argued and determined. In the present case, the interests of justice require reference to a number of considerations, namely, the appellant's prospects of success on the appeal on the new argument, the explanation given by the appellant for failing to raise the argument before the primary judge, the prejudice to the respondent in allowing the appellant to raise the new argument, the potentially serious consequences to the appellant if leave to amend is refused, and the integrity of the appellate process.

28    Further consideration was given to the question of raising new grounds on appeal by a Full Court of this Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48] where that Court said:

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

29    There is no explanation proffered by the appellant as to why grounds 2, 3 and 4 were not raised before the primary judge. When asked at the hearing if he could provide any explanation the appellant said that he could not recall what he had done and that he had no explanation.

30    I turn now to consider the merits of the grounds. The Minister submits that ground 2 seeks impermissible merits review of the Tribunal’s findings. A consideration of what is sought by that ground leads me to the same conclusion. The ground is without merit and leave to raise it on this appeal is denied.

31    Grounds 3 and 4 concern the Tribunal’s alleged failure to consider the appellant’s claims pursuant to s 36(2)(a) of the Act.

32    The appellant’s First PV Application was made prior to the introduction of the complementary protection provisions. It was the subject of a decision by a delegate of the Minister dated 17 March 2005, the First Tribunal Decision and the Second Tribunal Decision. Each of those decisions considered the appellant’s claims pursuant to s 36(2)(a) of the Act. That is, they considered whether the appellant was a non-citizen to whom the Minister was satisfied Australia had protection obligations pursuant to the Refugees Convention as amended by the Refugees Protocol.

33    Following the decision in SZGIZ, the appellant was entitled to lodge the Second PV Application which relied on a different criterion for protection to that relied on in the First PV Application. That different criterion was, in the case of the appellant, the complementary protection provisions.

34    The Minster submits that the Tribunal was correct to proceed only to consider the appellant’s claims pursuant to the complementary protection provisions given this was the appellant’s second visa application.

35    In oral submissions, the solicitor for the Minister brought the recent decision of Driver J in the Federal Circuit Court of Australia in SZVCH v Minster for Immigration and Border Protection [2015] FCCA 2950 (SZVCH) to the attention of the Court. In that case the applicant raised a ground that the tribunal erred by failing to consider whether Australia had protection obligations to the applicant under the Refugees Convention and Protocol. As in the matter before me, in that case, while the Protection visa application had been made pursuant to the complementary protection criteria, the Minister’s delegate had considered both the refugee and complementary protection grounds while the Tribunal had limited itself to a consideration of the complementary protection criterion. After considering the reasoning in SZGIZ, Driver J found at [26]:

The decisions of this Court relied upon by the Minister correctly establish that if a visa application can only be validly made on the basis of the complementary protection criterion, there is in general no obligation in either the Minister or the Tribunal to consider the refugee criterion. It is, however, a significant further step to assert that there is a jurisdictional limitation on both the Minister and the Tribunal which prevents them from considering the refugee criterion where a valid visa application has been made on the basis of the complementary protection criterion. In my opinion, no support for that proposition can be found in either the Migration Act or the decision of the Full Federal Court in SZGIZ. There is no doubt in this case that the applicant made a valid visa application based upon the complementary protection criterion, which was accepted as valid by both the Minister’s delegate and the Tribunal. The delegate was under no duty to consider the refugee criterion but elected to do so. In my opinion, the delegate committed no jurisdictional error in so doing. The delegate having made a valid decision, the Tribunal came under a duty to review that decision in its entirety. It did not do so. The Tribunal considered wrongly that it was under a jurisdictional limitation which prevented it from doing so. That conclusion by the Tribunal was wrong and the Tribunal thus fell into jurisdictional error.

36    The solicitor for the Minister also referred the Court to an earlier decision of Lucev J in the Federal Circuit Court of Australia in WZAVA v Minster for Immigration and Border Protection [2015] FCCA 1454 (WZAVA) in which that court considered the effect of a tribunal confining itself to a consideration of complementary protection claims in circumstances where a delegate of the Minister considered the applicant’s claims under s 36(2)(a) and s 36(2)(aa) of the Act. At [12] of his decision Lucev J noted:

In restricting itself to a consideration of the applicant’s complimentary protection claims the Tribunal did not err when regard is had to the provisions of s.48A of the Migration Act and the judgment of the Full Court of The Federal Court in SZGIZ. The applicant’s grounds of review do not complain, in any event, about the Tribunal confining its review of the Second Delegate’s Decision to the complimentary [sic] protection requirements in s.36(2)(aa), (b) and (c) of the Migration Act.

37    Finally, the solicitor for the Minster took the Court to the decision of Barker J in this Court in SZVGG v Minster for Immigration and Border Protection [2015] FCA 859 (SZVGG). In that case, the appellant had already had his claims for protection assessed under s 36(2)(a) of the Act prior to the commencement of the complementary protection provisions and had not left Australia since. Accordingly, the relevant Tribunal confined itself to consideration of the appellant’s claims pursuant to the complementary protection provisions. Barker J makes no findings in relation to the Tribunal’s approach.

38    The judgment that was the subject of appeal before Barker J in SZVGG was that of Emmett J in SZVGG v Minister for Immigration and Border Protection [2015] FCCA 405. While that decision was not relied on by the Minister I note that Emmett J includes the following at [9], [17] and [18] of her reasons:

[9]    On 17 June 2014, the applicant’s application for protection based on the complementary criterion was refused by a delegate of the first respondent (“the Delegate“).

…

[17]    It is clear that the RRT confined its reasoning and conclusion to a consideration of whether or not the applicant met the complementary criterion. However, in circumstances where the RRT has comprehensively rejected the applicant’s claims, even if the RRT was required to consider the applicant’s claims again in the context of s.36(2)(a) of the Act, there could be no possibility that the applicant would satisfy the relevant criterion.

[18]    In SZGIZ, the Full Court of the Federal Court held that s.48A(2) of the Act (as it was at the date of the decision in SZGIZ) did not prevent a person from making an application based on a criterion which did not form the basis of a previous unsuccessful application for a protection visa by that person. In the circumstances, there was no obligation for the RRT to consider again whether the applicant met the refugee criterion in circumstances where it had already decided that he did not and that that decision remains unchallenged.

39    The solicitor for the Minister submitted that in SZVGG the delegate did not consider either s 36(2)(a) or s 36(2)(aa) because the delegate was unable to make a definitive finding about the applicant’s identity or nationality. She also submitted that it appeared from the structure of the delegate’s decision that he would have gone on to consider the applicant’s claims both pursuant to s 36(2)(a) and s 36(2)(aa) had he been able to make a definitive finding in relation to the applicant’s identity.

40    The solicitor for the Minister submitted that Driver J erred in his finding in SZVCH that the Tribunal wrongly placed a jurisdictional limit on itself which prevented it from considering the applicant’s claims in that case pursuant to s 36(2)(a) of the Act. The Minister relies on the decision in WZAVA as the correct approach. The solicitor for the Minister submitted that, in the matter before me, the delegate had no jurisdiction to make any Refugee Convention findings. Accordingly, the Tribunal was not required to consider those findings on review.

41    The starting point to consider the Minister’s submissions in relation to grounds 3 and 4 is the decision of SZGIZ in which a Full Court of this Court, in considering s 48A of the Act (as it then was), found at [32] that when the statutory direction in s 48A(2) is taken into account, the proper effect to be given to the term “further” in s 48A(1) is that it refers to an application relying on the same criterion as an earlier application. Thus what was permitted after the decision in SZGIZ was that an applicant was able to make a valid application in relation to a criterion in s 36 of the Act which was not the subject of a previous claim.

42    The Second PV Application was made as a result of the decision in SZGIZ and relied on s 36(2)(aa), the complementary protection criterion. The appellant’s First PV Application, which had been rejected, relied on s 36(2)(a) of the Act. He could not make a further application relying on s 36(2)(a) while he remained in the migration zone. The delegate ought to have only considered the claims made by the applicant in that matter pursuant to s 36(2)(aa) of the Act. She did not.

43    Section 47 of the Act requires the Minister to consider a valid application for a visa. There is no issue about the validity of the Second PV Application, just as there was no issue about the validity of the protection visa application in SZVCH. Section 65(1) of the Act sets out the matters of which the Minister has to be satisfied in order to grant a visa the subject of a valid application. It was at the time of the Tribunal’s decision in the following terms:

(1)    Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a)     if satisfied that:

(i)     the health criteria for it (if any) have been satisfied; and

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)    any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

At the time of the delegate’s decision s 65(1) was in slightly different terms in that it was not expressed to be subject to ss 84 and 86 of the Act.

44    The Second PV Application was valid because it was based on the complementary protection criteria. Accordingly it could only be granted if the Minister was satisfied that the “other criteria prescribed” by the Act or the regulations were satisfied. Those other criteria would, it follows, be those relevant to s 36(2)(aa). In other words consideration of s 36(2)(a) had no part to play.

45    The question that then arises is, whether in circumstances where the delegate having turned her mind to s 36(2)(a) and made findings in relation to that criteria, the Tribunal was then obliged to do so as found by Driver J in SZVCH. With respect, I do not think it was so obliged.

46    Sections 414 and 415 of the Act provided as follows at the time of the Tribunal’s decision:

414    Refugee Review Tribunal must review decisions

(1)    Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.

…

415    Powers of Refugee Review Tribunal

(1)    The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

(2)    The Tribunal may:

(a)     affirm the decision; or

(b)    vary the decision; or

(c)     if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

(d)    set the decision aside and substitute a new decision.

…

(4)    To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

47    The Tribunal’s obligation is to review a valid application of an “RRT-reviewable” decision. In doing so it may exercise all of the “powers and discretions that are conferred” by the Act on the person who made the decision. In Minister for Immigration v Li (2013) 249 CLR 332 French CJ said the following at [10] in relation to the functions and powers of the Migration Review Tribunal and the Refugee Review Tribunal (as those tribunals were at the time):

Section 348 provides that if an application for review of an MRT-reviewable decision is properly made “the Tribunal must review the decision”. It may, for the purposes of the review, “exercise all the powers and discretions that are conferred by this Act on the person who made the decision”. It is well established that the reviews that both the MRT and the Refugee Review Tribunal (the RRT) undertake (both tribunals operating under similar legislative schemes) are non-adversarial and that they involve no contradictor nor the joinder of any issue. The review function of the tribunals created by the Act is sometimes called “inquisitorial”. That designation is a characterisation of their function which distinguishes it from adversarial proceedings. The word “review” “has no settled pre-determined meaning; it takes its meaning from the context in which it appears”. As appears from the nature of the powers conferred on these tribunals, the review each must undertake involves a fresh consideration of the application which led to the decision under review. The review must be based on the evidence and arguments placed before the tribunal and any other relevant information which the tribunal itself obtains. Each tribunal must identify for itself the issues that arise in the application before it. It is not confined to the issues considered by the delegate.

48    Contrary to the findings in SZVCH, in my view, the delegate considered criteria that she was not required to consider and which were not relevant to the Second PV Application. Insofar as the delegate did that she acted beyond her jurisdiction. The Tribunal’s role on a review is to undertake a fresh review of the application which has led to the decision under review. The Tribunal correctly identified that it could only proceed to consider the Second PV Application based on the complementary protection criterion. That approach was consistent with its obligations having regard to ss 414, 415 and 65(1) of the Act. It cannot be said, in those circumstances, that the Tribunal was required to undertake a review of the delegate’s decision to the extent it included findings on matters that were not relevant to the criteria upon which the visa the subject of the valid application could be granted. The Tribunal exercised the powers and discretions conferred on it by the Act, as it was entitled to do. It considered the delegate’s decision in that context.

49    For completeness I note that the Tribunal recorded in its decision at [8] and [9] that it told the appellant that it was proceeding on the basis that it would only consider his claims pursuant to s 36(2)(aa). To the extent it differed from the approach of the delegate, the appellant was on notice of that. In those circumstances it cannot be said that there was in that regard any breach of s 425 of the Act.

50    In the circumstances I accept the submission of the Minister that Driver J erred in his finding in SZVCH in relation to this issue.

51    In my view, the appellant should be granted leave to raise grounds 3 and 4. The issues that arise for consideration in relation to these grounds in light of the recent decision of Driver J including whether, as the Minister submits, Driver J erred in his findings in SZVCH makes those grounds arguable. They do not lack merit. There is no prejudice to the Minister in permitting the grounds to be agitated. However, having granted that leave, in light of my consideration above, grounds 3 and 4 should be dismissed.

Conclusion

52    I will make orders dismissing the appeal and requiring the appellant to pay the Minister’s costs.

Associate:    

Dated:    15 December 2015