Federal Court (Full Court). Would exclusion based on s 5H(2)(b) result in exclusion based on 36(2C)(a)(ii) of the Migration Act 1958 (Cth) and vice-versa? If any part of the decision on the application for a protection visa relied upon either of those provisions, must review be sought in the General Division in order to be valid? Is the conferral of jurisdiction to review a decision 'relying on' either of those provisions a conferral of jurisdiction to review every aspect of that decision?
A delegate of the Minister refused to grant the Appellant a protection visa, after which the Tribunal remitted the matter to the Department, with a direction that he was a refugee within the meaning of s 5H(1) of the Migration Act 1958 (Cth).
A second delegate then:
- found that s 5H(2)(b), which provided that a person is not a refugee if "the person committed a serious non-political crime before entering Australia", was satisfied, with the result that s 36(2)(a) was not satisfied;
- found that the exclusion in s 36(2C)(a)(ii) applied analogously to s 5H(2)(b) in the event that the complementary protection criterion was satisfied (both exclusions were referred to by the Courts as the 'Serious Crime Exclusion');
- according to the Full Court of the Federal Court (FCAFC), "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".
The Tribunal sitting in its General Division affirmed the decision of the second delegate. In doing so, the Tribunal:
- assessed s 36(2)(a), but not s 36(2)(aa);
- found that s 36(2)(a) was not satisfied, as it found s 5H(2)(b) to be satisfied, the latter of which provided that a person is not a refugee if "the person committed a serious non-political crime before entering Australia";
- did not assess, pursuant to s 36(2C)(a)(ii), which provided that a non-citizen did not satisfy s 36(2)(aa) if "the non-citizen committed a serious non-political crime before entering Australia";
- did not discuss whether ss 5H(2)(b) and 36(2C)(a)(ii) were substantively identical and therefore whether its finding concerning the former would necessarily apply to the latter and thus to s 36(2)(aa)
Some of the questions to FCAFC were as follows:
Question 1: Would exclusion based on s 5H(2)(b) result in exclusion based on 36(2C)(a)(ii) and vice-versa?
Question 2: Does the Migration Act 1958 (Cth) create a bifurcated system of merits review, whereby the Tribunal is vested with jurisdiction to review "Part 7 Reviewable Decisions" 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) and with jurisdiction conferred by s 500(1)(c) to review decisions made relying on s 5H(2), s 36(1C) or s 36(2C)?
Question 3: Can it be said that, "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"?
Question 4: Is the conferral of jurisdiction to review a decision 'relying on' the Serious Crime Exclusion a conferral of jurisdiction to review every aspect of that decision, not just the Serious Crime Exclusion aspects?
Question 5: If the answer to Question 4 is 'yes', can it nevertheless be said that, as "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"?
Question 6: If the answer to Question 5 is 'yes', are both this error and the claimed error in not considering the complementary criterion material by definition and therefore jurisdictional?
Question 7: If the answer to Question 6 is 'no', is the error consisting of not considering separately whether the Serious Crime Exclusion applied to complementary protection immaterial in that "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"?
Question 8: If the answer to Question 6 is 'no', is the claimed error consisting of not considering satisfaction of the complementary protection criterion at all immaterial in that the Tribunal would have refused to grant the protection visa because of the Serious Crime Exclusion in s 36(2C)(a)(ii) even if found that the complementary criterion was engaged?
The FCAFC answered those questions as follows: