Federal Court of Australia

GWRV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 602

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant do pay the costs of the first respondent to be assessed on a lump sum basis by a registrar if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    In order to be granted a protection visa, a visa applicant must satisfy at least one of the criteria specified in s 36(2) of the Migration Act 1958 (Cth). Those criteria are generally known as the refugee criterion (provided for by s 36(2)(a) and (b)) and the complementary protection criterion (provided for by s 36(2)(aa) and (c)). In each instance, 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).

2    An unsuccessful applicant for a protection visa may seek review in the Administrative Appeals Tribunal (Tribunal). There are two provisions of the Migration Act which concern applications to the Tribunal for review of decisions refusing an application for a protection visa, namely s 412 and s 500(1)(c).

3    Section 412 confers jurisdiction upon the Tribunal to review 'Part 7-reviewable decisions'. The statutory definition of that term excludes a decision to refuse a protection visa that was made relying on a Serious Crime Exclusion. A review of a Part 7-reviewable decision can only be heard by the Tribunal's Migration and Refugee Division. It has its own particular procedure that reflects the nature of the matters that must be considered in relation to claims by applicants to protection as a refugee.

4    Section 500(1)(c)(ii) vests jurisdiction in the Tribunal to review a decision to refuse an application for a protection visa that is made in reliance upon a Serious Crime Exclusion. Such an application must be brought in the Tribunal's General Division and is governed by the procedures set out in the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) as modified by s 500 of the Migration Act.

5    The bifurcated review structure has its origins in a now repealed legislative scheme by which Part 7-reviewable decisions were amenable to review in a separate tribunal known as the Refugee Review Tribunal. By the Tribunal Amalgamation Act 2015 (Cth), the Refugee Review Tribunal was abolished and its functions came to be assumed within the Tribunal.

6    The bifurcation and its continuation after the amalgamation of the two tribunals gives rise to an issue as to the scope of the review to be conducted by the Tribunal in cases where an applicant's protection visa application is refused on the basis that the Serious Crime Exclusion applies. The issue concerns whether the review to be conducted in the General Division is confined to the question of the Serious Crime Exclusion or whether it concerns all aspects of the visa application (including matters that would be considered by the Migration and Refugee Division if the Serious Crime Exclusion was not part or all of the basis for the decision under review).

7    In the present case, the applicant contends that review in the General Division concerns all aspects of the visa application and is not confined to matters concerned with the Serious Crime Exclusion. He also says that the Tribunal, sitting in its General Division, was in error when it failed to consider his claim for complementary protection.

The relevant circumstances

8    The applicant is a citizen of Mongolia. He arrived in Australia in 2017. He was arrested after his visa was cancelled. He claimed to be a refugee and applied for a protection visa. His application was refused. Following a successful application for review in the Administrative Appeals Tribunal (heard within the Migration and Refugee Division of the Tribunal), the applicant's visa application was remitted for consideration with a direction that he is a refugee within the meaning of s 5H(1) of the Migration Act.

9    Thereafter, a decision was made by a delegate of the Minister to refuse to grant the applicant a protection visa under s 65 of the Migration Act on the basis that the Serious Crime Exception applied. The decision was affirmed by the Administrative Appeals Tribunal. The reason for that conclusion was a finding by the Tribunal that the applicant did not meet the refugee criterion because it had serious reasons for considering that the applicant had committed a serious non-political crime before entering Australia. The Tribunal, unlike the delegate, did not go on to consider separately whether the applicant satisfied the complementary protection criterion and therefore did not consider whether the Serious Crime Exclusion for that criterion also applied. The applicant now seeks judicial review on the basis of alleged jurisdictional error.

The applicant's ground of review

10    The applicant's sole ground of review is to the effect that the failure to consider the complementary protection criterion was a jurisdictional error.

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.

12    Nevertheless, the applicant claims that the complementary protection criterion was a separate and sufficient basis upon which an applicant may be entitled to a protection visa. Therefore, so it is claimed, the failure by the Tribunal to assess the complementary protection criterion was a failure to conduct the required review and was a jurisdictional error 'notwithstanding that there was no possibility of a different outcome'. Particular reliance is placed upon the views expressed by Nettle J and Edelman J in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [40] and [72] respectively and views to similar effect expressed by Edelman J in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17. Relying upon those views, it is said that there are instances where the relevant jurisdictional error may be said to be 'fundamental' in the sense that the statutory task has not even been embarked upon such that there is no sense in which the error might be adjudged to lack materiality. In effect, it is said that the particular error is of a kind that cannot be measured by increments or degrees. It is claimed that in such a case materiality has no role to play. There is simply a failure to exercise the authority entrusted to the decision-maker in a manner that is not amenable to evaluation in terms of significance for the outcome. The submission made is that a failure of that kind is not amenable to a materiality analysis.

13    The relief sought is an order quashing the Tribunal's decision and for the matter to be remitted to the Tribunal, differently constituted, for determination according to law.

The jurisdiction being exercised by the Tribunal

14    It is common ground that the jurisdiction that the Tribunal was required to exercise in the present case was that conferred by s 500(1)(c)(ii). Section 500(1)(c) provides that an application may be made to the Tribunal:

for review of … a decision, other than a decision to which a certificate under section 502 applies, to refuse under section 65 to grant a protection visa relying on:

(i)    subsection 5H(2) or 36(1C); or

(ii)    paragraph 36(2C)(a) or (b) of this Act.

15    Section 502 confers a power upon the Minister acting personally to certify that a person is an excluded person because of the seriousness of the circumstances. There was no such certificate in the present case. The other provisions referred to in s 500(1)(c) are the provisions which express the Serious Crime Exclusion. Those referred to in paragraph (i) relate to the refugee criterion and those referred to in paragraph (ii) relate to the complementary protection criterion.

16    Therefore, the right of review, is for a decision 'relying on' the Serious Crime Exclusion.

17    As has been noted, s 412 provides for an application for review of a Part 7-reviewable decision. Included in the definition of that term in s 411 is the following:

A decision to refuse to grant a protection visa, other than a decision that was made relying on:

(i)    subsection 5H(2) or 36(1B) or (1C); or

(ii)    paragraph 36(2C)(a) or (b);

18    Section 409(2) provides that the Tribunal's powers in relation to Part 7-reviewable decisions may be exercised by the Tribunal only in its Migration and Refugee Division. Part 7 has detailed provisions concerning the manner in which the Tribunal is to review Part 7-reveiwable decisions (see Division 4). It also includes 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. A different approach is adopted in relation to a review under s 500(1)(c). It modifies certain provisions in the AAT Act, but otherwise the general procedures of the Tribunal apply.

19    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.

20    As has been noted, the same bifurcated system was in place when the Refugee Review Tribunal was in existence. The consequences of the bifurcation for the review of a decision to refuse an application for a protection visa were considered in Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107. In that case, the Full Court (Davies, Hill and Heerey JJ) considered the interplay between the two systems of review. Their Honours reasoned as follows:

The Act has, therefore, notionally divided decisions refusing to grant a protection visa into two distinct parts …

It follows that the only decision which the Refugee Review Tribunal had jurisdiction to review was a decision which did not rely upon [specified provisions corresponding to the Serious Crime Exclusion in the current form of the Migration Act]. 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 …

Having decided that the primary decision was in error insofar as it refused to grant a protection visa in reliance upon [provisions giving rise to its jurisdiction to review], the proper course for the Refugee Review Tribunal to have taken was to remit the decision for reconsideration in accordance with the direction that the applicant … must be taken to have satisfied the [relevant refugee] criterion … That order would have enabled the primary decision-maker then to consider the other issue, namely whether Mr Daher was disqualified from protection by reason of [serious criminal offending]. If the primary decision-maker were then to decide that Mr Daher was excluded by [reason of such offending] from the protection of the Convention, an application for review could be lodged with the Administrative Appeals Tribunal.

21    Since then, the bifurcation has been brought into the Tribunal. There have been some other changes to aspects of the review process. However, the fundamental statutory structure of providing for two distinct avenues of review with a separate pathway for cases where the decision was made 'relying on' the Serious Crime Exclusion remains. The Court was not taken to any contextual material to suggest that the changes that have been made were intended to alter the nature of the bifurcation. Nor was there any submission advanced to the effect that such a change might be inferred from the changes. I note that the parties before Murphy J in Hamidy v Minister for Immigration and Border Protection [2019] FCA 221 approached the matter on the basis that by parity of reasoning, the decision in Daher applied to the legislation at that point in time (at [31]-[32], [51]-[52]).

22    In the present case, the process contemplated by the reasoning in Daher had been followed. There had been an earlier hearing in the Migration and Refugee Division of the Tribunal in which the applicant sought review of a decision to refuse his application on the basis that he was not a refugee. This led to a decision by the Tribunal in February 2019 remitting his application for reconsideration with a direction that the applicant is a refugee within the meaning of s 5H(1) of the Migration Act. Therefore, when the matter came back before the delegate of the Minister, there was no issue as to whether he was a refugee. The delegate proceeded on that basis, but found that the Serious Crime Exclusion applied to his claim based upon the refugee criterion. The delegate went on to consider the complementary protection criterion and found that there was not a real risk of significant harm as a necessary consequence of being removed to Mongolia. Therefore, the applicant was not owed complementary protection. The delegate further observed that even if the relevant criterion was enlivened the Serious Crime Exclusion was 'mirrored' in its application to complementary protection and it would apply.

23    Therefore, the decision of the delegate as to both the refugee criterion and the complementary protection criterion was made relying upon the Serious Crime Exclusion. 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.

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.

25    Even in a different case where the decision by the delegate found that neither the refugee criterion nor the complementary protection criterion applied, the only review jurisdiction of the Tribunal would be s 500(1)(c) because such a decision would be made in reliance on the Serious Crime Exclusion (even though it would also rest on the decision that in all other respects both the relevant criteria had not been met). In such a case, if the review was successful it would result in the matter being remitted with a direction that the Serious Crime Exclusion did not apply. Of course, in the present case, if the Tribunal found that the Serious Crime Exclusion did not apply then the earlier decision of the Tribunal to the effect that the applicant was a refugee would have the consequence that the applicant has met the refugee criterion.

26    In the present case, 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.

Materiality

27    As has been noted, the applicant accepts that if the Tribunal had considered the complementary protection criterion then it would have concluded that the applicant did not satisfy that criterion by reason of the Serious Crime Exclusion. The argument advanced by the applicant is to the effect that materiality does not apply where there is a complete failure to exercise jurisdiction.

28    The premise for the applicant's submission is not established. This is not a case where the Tribunal declined to review the decision. Rather, it undertook a review. On the applicant's case, the Tribunal acted upon an incorrect view of the extent of its jurisdiction and failed to reach a view on complementary protection, being an alternative criterion by which the applicant may have succeeded. However, the consideration of the alternative would not have involved the making of a separate decision by the Tribunal. This is not a case where there has been a failure to exercise jurisdiction of the kind that the applicant articulates as the foundation for his argument. Therefore, the point that he seeks to advance does not arise.

29    It follows that the applicant's concession to the effect that had complementary protection been considered then the finding concerning the Serious Crime Exclusion would have applied to that criterion means that the failure to consider complementary protection was not material and there was no jurisdictional error.

Conclusion and costs

30    Therefore, the application for review must be dismissed. It was accepted that costs should follow the event. There should be an order for costs in favour of the first respondent.

Associate:

Dated:    24 May 2022