Federal Court. If any part of the decision on the application for a protection visa relied upon ss 5H(2)(c) or 36(2C)(a)(ii) of the Migration Act 1958 (Cth), must review be sought in the General Division of the Tribunal? If so, was the General Division's jurisdiction 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 those provisions?
Section 5H(2)(c) of the Migration Act 1958 (Cth) provided, relevantly to the complementary protection criterion in s 36(2)(a), that a person is not a refugee if the Minister has serious reasons for considering that the person committed a serious non-political crime before entering Australia.
Section 36(2C)(a)(ii) provided that the refugee criterion under s 36(2)(aa) does not apply if the Minister has serious reasons for considering that the non-citizen committed a serious non-political crime before entering Australia.
Sections 5H(2)(c) and 36(2C)(a)(ii) are hereafter referred to as the Serious Crime Exclusion.
The relevant facts are as follows:
- The Applicant's protection visa application was refused;
- The Tribunal remitted the matter to the department, with a direction that the Applicant was a refugee within the meaning of s 5H(1) of the Migration Act
- A delegate refused to grant the protection visa under s 65 on the basis that the Serious Crime Exception applied. The Federal Court (FCA) said that "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"
- The Tribunal affirmed the second refusal decision. The FCA said as follows: "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 FCA also said:
14 It is common ground that the jurisdiction that the Tribunal was required to exercise in the present case was that conferred bys 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.
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);
Some of the questions to the FCA were as follows:
Question 1: Can it be said 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"?
Question 2: 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 3: If the answer to Question 2 is 'yes', is the the jurisdiction of the General Division "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"?
Question 4: Can it be said that "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"?
The FCA answered those questions as follows:
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