Where first decision maker found complementary protection criterion in Section 36(2)(aa) Migration Act 1958 (Cth) not satisfied, whether bifurcated system of review required Tribunal to also consider Section 36(2)(a)?
GWRV v Minister for Immigration, Citizenship and Multicultural Affairs  FCAFC 39 (15 March 2023)
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.
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).
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).
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)).
The Tribunal’s Decision
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.
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).
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
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  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  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.
Relevantly, the primary judge also found at  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.
Where first decision maker found complementary protection criterion in s 36(2)(aa) of the Migration Act not satisfied, did bifurcated system of review require Tribunal to also consider s 36(2)(aa)?
Was failure to consider s 36(2)(aa) a material error?
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.
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.
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
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.
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.
We are of the opinion that the materiality requirement that ordinarily applies (MZAPC at ) 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.
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 that:-
"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)
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. 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."
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.
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.
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. As the primary judge correctly concluded, given that concession, the failure to consider complementary protection was not material and there was no jurisdictional error.
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.
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.
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.