Consideration - Ground 1(a)
39 Proposed ground 1(a) arose from the primary judge's discussion of s 36(2B)(c) of the Migration Act. In particular, her Honour stated, at [26]-[27] of her reasons, that:
[26] Section 36(2B)(c) of the [Migration] Act provides that a risk will not be regarded as a real risk of significant harm if the Minister is satisfied that:-
"(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally."
[27] In SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 ('SZSPT') the Court held that s 36(2B)(c) is engaged by a risk of harm (even amounting to torture) if the general population of which an applicant is a member was exposed to that risk. The widespread nature of the risk, whatever the specific gravity of it for an individual in the individual's circumstances was enough to engage the exclusionary provision. In the Tribunal hearing, the Tribunal applied a more favourable test to the Applicant deriving from a decision in SZSFF v Minister for Immigration and Border Protection [2013] FCCA 1884, which held that a widespread risk can amount to a real risk of significant harm in appropriate cases. Applying this more favourable test, as submitted by the First Respondent, the Tribunal still concluded that the Applicant was not entitled to complementary protection. No different result would or could have been reached by the Tribunal had it applied SZSPT as submitted by the First Respondent. No relief can be granted in respect of that error.
40 As indicated already, the parties accepted that the standard to be applied in determining if s 36(2B)(c) was engaged was the standard to which Rares J referred in SZSPT, rather than in SZSFF. In SZSPT at [11] Rares J said:
In my opinion, the natural and ordinary meaning of the exception in s 36(2B)(c) is that, if the Minister, or decision-maker, was satisfied that the risk was faced by the population of the country generally, as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk, the provisions of s 36(2)(aa) were deemed not to be engaged.
41 It was common ground that the decision of Buchanan J in BBK15 v Minister for Immigration and Border Protection [2016] FCA 680; 241 FCR 150 at [30] was consistent with this approach. In BBK15 at [30], Buchanan J stated that "s 36(2B)(c) draws attention to a circumstance where a real risk of harm faced by a visa applicant is a risk shared with the general population, rather than one to which the visa applicant particularly is exposed in some individual or personal sense", adding that "[a] risk shared with the general population is taken not to be a 'real risk of harm' for the purpose of s 36(2)(aa)." When his Honour applied this test in that case he said, at [31]:
In substance, the Tribunal found that the appellant did not face a particular, personal risk of harm in the Sadda area, if returned to Pakistan, and that any risk of harm he did face was one which arose from sectarian or generalised violence in Pakistan. In reaching those conclusions, the Tribunal explicitly rejected the appellant's claims that he would be targeted by the Taliban or was of interest to the Taliban. The Tribunal found, so far as the possibility of generalised and/or sectarian violence was concerned, that the appellant did not have a "profile, religious, political or otherwise, that would make him a target for sectarian or ethnic or political related violence". In substance, in my view, the Tribunal concluded that the appellant was not more exposed to a real risk of significant harm than other members of the general population.
42 The standard proposed in SZSFF (and applied by the Tribunal in this case) was a little different. It was said (at [33]) in that case that the risk referred to in s 36(2B)(c) "must be a risk which is faced by the individual personally in light of the individual's specific circumstances", adding (at [34]):
[W]here serious human rights violations in a particular country are so widespread or so severe that almost everyone would potentially be affected by them, an assessment of the level of risk to the individual may disclose a sufficiently real and personal risk to engage a non-refoulement obligation … What is ultimately required is an assessment of the level of risk to the individual and the prevalence of serious human rights violations is a relevant consideration in that assessment.
43 For present purposes, decisions such as SZBYR can be put to one side in assessing the strength of ground 1(a). The point about SZBYR (and cases like it) is that the Tribunal there made a separate and uncontested finding, which was independent of the alleged jurisdictional error and fatal to the applicant's case. In that circumstance, the relevant judicial review application was liable to be dismissed on discretionary grounds: see SZBYR [29], [87]-[89], [91]; compare BJN16 at [67]. That is not the situation in the present case.
44 Ground 1(a) raises a different issue about the effect of applying what was arguably the wrong test in deciding a significant matter. As acknowledged by counsel for the applicant at the hearing, the decision of Shrestha FC was against him on ground 1(a). In that case, Bromberg and Charlesworth JJ refused the relief sought, even though their Honours were satisfied that the Tribunal had asked itself the wrong legal question, because the outcome of the Tribunal's review would not have been any different had the Tribunal addressed the correct question: see Shrestha FC at [16] per Bromberg J and [126] per Charlesworth J; see also [45]-[48] per Bromwich J. Bromberg J explained, at [16], that:
The Minister contended that neither the factors considered by the Tribunal nor the case put to the Tribunal by each of the appellants in relation to the exercise of the Tribunal's discretion permitted the possibility that, had the Tribunal asked what I have identified as the right question, the Tribunal's discretion would have been exercised differently. I accept that submission. That the decision-maker has a discretion demands substantial caution before relief should be refused on the basis of futility. However, on the facts at hand and with the requisite degree of clarity, I am satisfied that no different outcome could have eventuated had the right question been posed and answered by the Tribunal in each of the cases at hand. Insofar as it may be necessary that a forward looking assessment must be taken as to the outcome of any reconsideration, I would come to the same view.
45 Further, the applicant's submission that Shrestha FC involved a misunderstanding of jurisdictional error must be rejected following the decision of the High Court on appeal in Shrestha HC, in which the High Court dismissed the appeal from the Full Court's judgment.
46 As already noted, in Shrestha HC, Kiefel CJ, Gageler and Keane JJ held that the case was to be determined by applying the holding in Hossain. This was, as their Honours stated, at [1]:
… an incorrect understanding and application of the law in making a decision in the purported exercise of decision-making authority conferred by the Migration Act 1958 (Cth) does not constitute a jurisdictional error justifying the grant of relief under or by reference to s 75(v) of the Constitution if a correct understanding and application of the law could not in the circumstances have resulted in the decision that was made being a different decision.
47 Applying Hossain, their Honours held, at [10], that "the fact that the postulated legal error could have had no impact on the Tribunal's decision[] denied that error the character of a jurisdictional error. The postulated legal error at most led the Tribunal to ask a superfluous question". Kiefel CJ, Gageler and Keane JJ explained (at [10]) that, in the three cases before them, which included Shrestha HC:
The Tribunal's reasons for decision … make perfectly clear that its treatment of the relevant circumstance (as meeting the enrolment element of the definition of an "eligible higher degree student", rather than as enrolment in the particular course in which the visa holder had been enrolled at the time of grant of the visa) did not impact on anything which the Tribunal otherwise did in finding facts and in reasoning to a conclusion as to the preferable exercise of discretion. For that reason, the postulated legal error could not have taken the decision of the Tribunal beyond the authority conferred on the Tribunal.
48 It is apparent from the above passage that the mistake considered in Shrestha HC was of a different kind to that said to arise here. Nonetheless, the effect of Shrestha HC and Hossain, as applied to the present case, is to raise the question whether the Tribunal's error was a jurisdictional or non-jurisdictional error. The error will not be a jurisdictional error if the test correctly applied under s 36(2B)(c) could not in the circumstances have resulted in a different decision from the one that was made.