SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Ground 1: Failure to perform statutory task or act on a correct understanding or application of law in relation to s 36(1C) 16 It is appropriate at the outset to recite the terms of s 36(1C), as it is the focus of this ground: 36 Protection visas - criteria provided for by this Act … (1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds: (a) is a danger to Australia's security; or (b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. Note: For paragraph (b), see section 5M. 17 It is also appropriate to recite s 36(2C): 36 Protection visas - criteria provided for by this Act … Ineligibility for grant of a protection visa (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 (b) the Minister considers, on reasonable grounds, that: (i) the non-citizen is a danger to Australia's security; or (ii) the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.

Submissions 18 The applicant contended that in considering whether he was a "danger to the Australian community" for the purposes of s 36(1C) of the Migration Act, the Tribunal asked itself whether there was a "real or significant risk or possibility of harm to one or more members of the Australian community". This was said to be in error because, as a matter of statutory construction, the reference to "the Australian community" in the context of s 36(1C) means "the Australian community as a whole" (in contrast to any lesser part of it). 19 It was submitted that there are four principles of statutory construction that support this conclusion. 20 First, it was submitted that the phrase "the Australian community" in s 36(1C) is used in contradistinction to the phrase "the Australian community or a segment of that community" elsewhere in the Migration Act. This submission was based on the principle that the Act must be read as a whole, in a way that is coherent, meaning that the same phrase must have the same meaning throughout a single Act. 21 Second, it was submitted that s 36(1C) codifies Art 33(2) of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) (Refugees Convention). It was noted that leading scholars on the Refugees Convention, Lauterpacht and Bethlehem, say the phrase "danger to the community" in Art 33(2) is "intended as a reference to the safety and well-being of the population in general, in contrast to the national security exception which is focused on the larger interests of the State": Lauterpacht and Bethlehem, 'The scope and content of the principle of non‑refoulement: Opinion', in Feller, Türk and Nicholson (eds), Refugee Protection in International Law: UNCHR's Global Consultations on International Protection (Cambridge University Press, 2003) 87, [192] and [147]. If s 36(1C) is to have the "same meaning" as Art 33(2), it was submitted the applicant must pose a danger to the population of Australia in general or as a whole. 22 Third, it was submitted that the Court ought to give effect to the plain and ordinary meaning of the words used. 23 Fourth, it was submitted that the Court ought to interpret "danger to the Australian community" restrictively, having regard to the statutory context in which it operates. Namely, that s 36 is beneficial in nature and its purpose is expressly protective. It was therefore said to be consistent with the established principle of statutory interpretation requiring strict construction of an Act which affects the personal liberty of the subject. 24 It was submitted that, accordingly, there is a quantitative element in the assessment in s 36(1C)(b) which requires the danger to extend beyond "one or more members" or a "segment" of the Australian community. In other words, the nature of the danger must be one to the safety and wellbeing of the Australian community at large, in general or as a whole, rather than to "one or more members", as found by the Tribunal. 25 The first respondent took issue with the construction contended for. It was submitted that the fact other provisions of the Migration Act use both "the Australian community" and "a segment of that community" does not mean that the term "Australian community" within the composite phrase "danger to the Australian community" invariably means "the whole of the Australian community, and not 'a segment' of it". It was also submitted that the presumption that words are used consistently throughout a statute operates weakly where the words themselves are sufficiently clear, especially in the case of frequently amended legislation such as the Migration Act. 26 The first respondent accepted that the term "danger to the Australian community" reflects Australia's understanding of its international obligations under Art 33(2) of the Refugees Convention. However, it submitted that the reference to "the Australian community" without further reference to a segment of that community in s 36(2C) of the Migration Act is consistent with the language of Art 33(2), which is a sufficient explanation for why the language of s 36(2C) differs from other provisions of the Migration Act. 27 The first respondent submitted that the passages from Lauterpacht and Bethlehem relied on by the applicant, when read in their context, do not assist the applicant's construction. The first respondent also submitted that a beneficial reading should not lead to an absurd result, or one which could not possibly have been intended. The applicant's construction was said to render s 36(1C)(b) so narrow as to be absurd by requiring dangers not to "individual" persons within the community, but to every member of the whole Australian community. It was submitted that it was extremely difficult to foresee realistic "dangers" which would not only harm members of a community, but endanger the existence of that entire community. The applicant's construction was therefore said to be both unlikely and unsupported by precedent.

Consideration 28 It is first appropriate to return to the Tribunal's reasons. 29 Throughout its reasons, the Tribunal consistently referred to the need to consider whether the applicant was a "danger to the Australian community": at [12], [45]-[46], [76], [101]-[103], [105]-[106], and see [63] and [88]. The applicant referred to [50], where the Tribunal asked itself whether there was a real or significant risk or possibility of harm to "one or more members" of the Australian community: and see [102]-[103]. It is apparent from the reasons at [50], that the formulation of "one or more members" is from Tamberlin DP's observations in WKCG at [26] and [31], as applied by Constance DP in BHYK and Minister for Immigration and Citizenship [2010] AATA 662 at [35]. Tamberlin DP observed at follows at [25]-[26]: [25] The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Art 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case. [26] Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community. (Emphasis in original) 30 I note that before the Tribunal, the applicant submitted in his statement of facts, issues and contentions at [22] that "the Tribunal should apply the principles stipulated in WKCG to determine that he is not a danger to the Australian community". He also submitted that "[i]n determining whether a person is a danger to the community, WKCG states the relevant guidelines at [26]". 31 Turning to address the four matters relied on by the applicant to support his construction. 32 First, it may be accepted that an Act must be read as a whole, and that words and phrases are used consistently throughout: Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452; Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611 at 618. However, the presumption is readily rebuttable if the context compels a different construction: Commissioner of Taxes (Vic) v Lennon [1921] HCA 44; (1921) 29 CLR 579 at 590; McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19; (1979) 144 CLR 633 at 643 (McGraw-Hinds). It is also recognised that the presumption is less strong in respect of words within large and frequently amended statutes: Robert Bosch (Australia) Pty Ltd v Secretary, Department of Innovation, Industry, Science and Research [2011] FCA 1133; (2011) 197 FCR 374 at [35]; McGraw-Hinds at 643. The Migration Act plainly falls within that description. 33 The applicant sought to gain support for this submission from observations by Rangiah J (North J agreeing) in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; (2015) 230 FCR 367 at [55] (Moana), and by Rares J in BAL19 v Minister for Home Affairs [2019] FCA 2189; (2019) 168 ALD 276 at [66]. 34 Both cases were concerned with s 501(6)(d)(v) of the Migration Act. In Moana at [55], Rangiah J observed that: Paragraph (d) of s 501(6) requires the Minister to evaluate whether there is a significant risk that the person would engage in certain harmful conduct towards a person in Australia or a segment of the Australian community or the Australian community as a whole. The conduct described in paragraph (d) is: engaging in criminal conduct; harassing, molesting, intimidating or stalking a person; vilifying a segment of the Australian community; inciting discord; or representing a danger to the Australian community. 35 Section 501(6)(d) relates to the power to refuse a visa on character grounds. Its terms are focused on conduct targeted at particular demographic group(s) (noting the description in [55] of Moana does not reflect the entirety of the language in s 501(6)(d), with the preceding subparagraphs variously referring inter alia, to a "segment of the community"). The reference in s 501(6)(d) to segment of the community is to be seen in that context. Rangiah J's description in [55] of the Australian community "as a whole" is in the context of, and in contradistinction to, the reference to a segment of the community within the same provision. The observations of Rares J must also be considered in that context. 36 Further, there is nothing in Moana, or in the context of the comments of Rares J, which suggests that the meaning of "Australian community" was in issue. The choice of the word "whole" does not appear to have been a result of any live issue or debate. In that context, there is nothing in either judgment to suggest there was any consideration of the use of the phrase in other provisions. It is also unclear what is meant by the phrase "whole" of the Australian community. As explained above at [35], the most obvious explanation is that the term was chosen in contradistinction to the "segment" of that community referred to in s 501(6)(d)(v), rather than indicating a construction of broader application. 37 That said, even if it be accepted for the purpose of argument that "the Australian community" in s 501(6)(d)(v) (and the other provisions where there is the reference to both phrases) refers to the Australian community as a whole, it does not necessarily follow that is the construction to be given to the phrase in s 36(1C). 38 There is a ready explanation for the language used in s 36(1C). As accepted by the applicant, the phrase "danger to the Australian community" reflects Australia's understanding of its international obligations under Art 33(2) of the Refugees Convention. 39 This is consistent with the Explanatory Memorandum, which stated: New subsection 36(1C) is intended to codify Article 33(2) of the Refugees Convention which provides for an exception to the principle of non-refoulement in Article 33(1) of the Refugees Convention. See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) [1236]. 40 As the first respondent contended, the language in s 36(2C) is also consistent with the language of Art 33(2) of the Refugees Convention. Article 33(2) is as follows: Article 33 PROHIBITION OR EXPULSION OR RETURN ("REFOULEMENT") … 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. 41 Considering that s 36(1C) mirrors the language of the Refugees Convention explains the difference in language between ss 36(1C)(b) and 36(2C)(b)(ii), as compared to other provisions of the Migration Act. As such, it cannot be taken that Parliament necessarily "intended that 'the Australian community' [in s 36(1C)(b)] means the whole of the Australian community, and not 'a segment' of it". 42 Second, as the first respondent correctly contended, the passages from Lauterpacht and Bethlehem referred to above at [20], when read in context, do not assist the applicant. The reference at [192] of the publication, to "the community" (in "danger to the community") being "intended as a reference to the safety and well-being of the population in general" was to draw a distinction with "the national security exception which is focused on the larger interests of the State". It cannot be taken in that context, to be a reference to the community as a whole, in the manner contended for by the applicant. There is nothing in that passage or the context in which it appears, to indicate that the authors addressed the issue of whether a risk to the community can involve a risk to individuals (or a segment of the community), as distinct from the community as a whole. 43 Third, it may be accepted that the Court ought to give effect to the plain and ordinary meaning of the words used. However, that meaning must be considered in the context in which the words are used. The applicant contends that the plain and ordinary meaning of "community" is "a body of people or things viewed collectively; the people as a group", or "all the people of a specific locality or country". By contrast, the first respondent submitted that on the ordinary meaning of the term, a person may pose a danger to the community by harming individuals within it. Read in context, the meaning contended by first respondent is to be preferred. There is an obvious connection between the conviction for a particularly serious crime referred to in s 36(1C)(b) and the danger to the Australian community. As the first respondent submitted, it is unlikely that the danger referred to in s 36(2C)(b)(ii) was intended to be limited to criminal offences affecting Australian community as a whole, in the manner contended by the applicant. 44 Fourth, as to the applicant's submission that its construction is to be preferred because s 36 is beneficial in nature and affects the personal liberty of the subject: Although the provision may be regarded as beneficial, that characterisation must be tempered. The exclusions that apply to the grant of a protection visa, in ss 36(1C) and 36(2C), are intended not only to reflect international law but to operate for the benefit of both the receiving State and the population of the receiving State. Further, that "beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively": New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232 at [92] per Gageler J, and see s 15AA of the Acts Interpretation Act 1901 (Cth). The task therefore remains one of statutory construction. 45 The first respondent also submitted that a beneficial reading should not lead to an absurd result, or one which could not possibly have been intended, namely "requiring dangers not to 'individual' persons within the community, but to every member of the whole Australian community". 46 This draws attention to the application and consequences of the applicant's construction. 47 As explained above, the applicant's submission reflects its approach (arising from the construction contended for at [24] above) which sets up a dichotomy between a segment of the community and the Australian community, such that references to "the Australian community" in the Migration Act are to the community as a whole. Applying that to the provision in question, if a person is a danger to a segment of the community and not to the community as a whole, s 36(1C)(b) would not be satisfied. 48 The applicant submitted that "the quantitative element of danger to the Australian community requires that the danger extend beyond one or more members of the community, beyond a segment of the community" and "that it is concerned with the safety and wellbeing of the Australian community at large or in general or as a whole". This, it was submitted, is in addition to the qualitative aspect of the analysis requiring a risk of affecting the Australian community as a whole in the future. It follows, on the applicant's submission, that if the conclusion of the fact finder is that an applicant has been convicted by a final judgment of a particularly serious crime, and there is a high likelihood of recidivism for those types of crimes, unless the crime(s) relate to or impact on the community as a whole, both the quantitative and the qualitative aspects of the assessment required by s 36(1C)(b) would not be satisfied. 49 The effect of the applicant's construction was illustrated during his oral submissions. Although the applicant submitted that the assessment would depend on the facts of a case, he described the types of offences capable of satisfying this provision as those which have a "ripple effect" in the community. The applicant submitted that conduct will be on a spectrum. He provided as an example, at one end of the spectrum, offences of domestic violence. It was submitted that such offences, by their nature, have one intended victim or target (even to the extent of murder), and therefore if there is a risk of recidivism for the same type of offending, only one person can potentially be affected, with the result that the criteria of being a danger to the community would not be satisfied. Offences of this nature were described by the first respondent as "personal". At the other end of the spectrum, an example given by the applicant was of the commercial importation of drugs, which was said to affect the whole community, and therefore be capable of satisfying the criteria contended for. 50 The submission characterising offences such as domestic violence as potentially affecting only one intended victim where there is a risk of recidivism, fails to recognise the wider present and future risk that may, depending on the facts, be drawn from such offences. It fails to appreciate the potential impact of such offending on the community and that it is an offence of violence. Indeed, other crimes of violence are often directed to one intended victim known to the offender. Moreover, offences of domestic violence plainly have potential to cause a ripple effect in the community. One example of that ripple effect is, as submitted by the first respondent, the propensity of domestic violence to impede victims' participation in the community. This reflects the artificiality of the applicant's submission, which involves an assessment based on a perceived characterisation of offences. It also reflects the problem with attempting to articulate the implementation of the construction contended for. 51 Indeed, the facts of this case highlight the difficulties which arise on the applicant's construction. The applicant's offences are listed above at [5]. The Tribunal explained the offences in more detail: at [53]-[67]. The offences of recklessly cause injury and the unlawful assault offences both involved violence against former girlfriends, the details of which are provided: at [55]-[56]. If these are considered domestic violence, then the applicant's submission that this type of offence affects one person is dispelled simply by considering that the applicant committed offences against two former girlfriends (noting also that passers-by and friends of the applicant and victim were also drawn into the incidents). In addition, the offence of affray involved the applicant concealing a knife while other offences were random: at [57]-[59]. The Tribunal concluded at [63]: The Applicant's violent offences, particularly those that involve violence against women, are serious and risk the safety of the community. Victims can potentially suffer serious harms including injury, disablement or death as the result of violent offending. 52 Even using the applicant's terminology, this offending plainly had a ripple effect in the community. Further, the nature of particularly serious crimes within s 36(1C)(b) (as defined in s 5M) are such that a segment of the community or less (as opposed to the community as a whole) are likely to be affected. For example, serious offences involving violence may target women or children, certain types of venues or locations, or some other particular demographic. However, on the applicant's construction, a danger to a segment of the Australian community is not capable of satisfying s 36(1C)(b). 53 During oral submissions the applicant attempted to support his construction by reference to CKL21 v Minister for Home Affairs [2022] FCAFC 70, where the Court found that the Minister had made irrational findings as to whether that appellant would present an "unacceptable risk" to the Australian community if he were to be released. The offence committed was murder. The appeal was allowed on the basis that the Minister's reasons did not disclose a probative basis for the finding that there was a risk that the appellant would reoffend in a similar manner: at [86]. This case does not address the issue before this Court as to what constitutes "the Australian community". The issue was whether in fact there was an "unacceptable risk". I note as an aside, that the Minister in making the decision applied WKCG in respect to the concept of the Australian community, which was not the subject of any complaint or argument before the primary judge on review or on appeal. This decision turned on its facts, as the Court was at pains to make clear: see, for example, [75] and [87]. 54 I therefore accept the first respondent's submission that the applicant's construction would render s 36(1C)(b) very narrow, such as to lead to an absurd result. The construction contended by the applicant is therefore unlikely to be the intended construction, and is unsupported by precedent. 55 The applicant also submitted that if the first respondent's construction is accepted, there is no work for the second part of s 36(1C)(b) to do. That is, it was submitted that the danger to the Australian community would simply be satisfied by establishing the person has been convicted by a final judgment of a particularly serious crime. I do not accept that submission. 56 It is plain that if the fact finder is satisfied that the applicant has been convicted by a final judgment of a particularly serious crime (as defined), whether the applicant is a danger to the Australian community will depend on an assessment of the particular facts and circumstances. Those relevant facts and circumstances extend beyond the nature of the offence(s) committed to include, for example, prospects of rehabilitation: see WKCG at [26]. 57 In this context I note that WKCG was cited recently in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 514. At [37]-[38] Collier J observed that there is considerable force to the concept that "danger to the Australian community" for the purposes of s 36(1C)(b) is the use "of ordinary English, has no technical meaning, and ought to be construed in its context". At [42], her Honour observed that "the question whether a person constitutes a danger to the Australian community is one of fact and degree". Collier J referred to what was said to be a conflict between WKCG and the observations of Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636 regarding assessment of the degree of risk. Her Honour observed at [46] that she considered there was no material conflict between the legal principles as explained in each. I note that the Tribunal in that case appeared to adopt the same approach, of which no complaint was taken. As illustrated by these cases (and others), although there has been debate as to the construction of s 36(1C)(b) and the passages in WKCG discussing it, that debate has been confined to assessing the degree of risk to the community. 58 DMQ20 reflects the two aspects of s 36(1C)(b), evident from the provision. As the applicant submitted, in order for s 36(1C)(b) to operate at all, the person must have been convicted by a final judgment of a particularly serious crime. It is only on the establishment of that premise that the second stage is engaged. That second stage is a limiting stage to determine whether the person is a danger to the Australian community. 59 I therefore do not accept that the phrase "the Australian community" in s 36(1C)(b), means that there must be a danger to "the whole of the Australian community" (and not less than, including a segment of the community), in the manner contended by the applicant. What constitutes a danger to the Australian community stands to be determined upon the facts and circumstances of individual cases. A person may pose a danger to the community by harming individuals within that community. The applicant has not established the premise underpinning this ground. It follows that the applicant has not established error by the Tribunal in its reference to the guidance in WKCG. 60 The applicant has not established this ground.

Ground 2: Failure to perform statutory requirements of s 36A(1) 61 This ground centres on the statutory requirements in s 36A(1) of the Migration Act, which is as follows: 36A Consideration of protection obligations (1) In considering a valid application for a protection visa made by a non-citizen, the Minister must consider and make a record of whether the Minister is satisfied of any of the following: (a) the non-citizen satisfies the criterion in paragraph 36(2)(a) with respect to a country and also satisfies the criterion in subsection 36(1C); (b) the non-citizen satisfies the criterion in paragraph 36(2)(aa) with respect to a country; (c) the non-citizen: (i) satisfies the criterion in paragraph 36(2)(a) with respect to a country but does not satisfy the criterion in subsection 36(1C); and (ii) would satisfy the criterion in paragraph 36(2)(aa) with respect to a country except that the non-citizen is a non-citizen mentioned in paragraph 36(2)(a).

Submissions 62 Section 36A(1) applies to applications for visas "made but not decided" before 25 May 2021. The applicant submitted that the explanatory memorandum stated that "the amendments made in new section 36A, other than paragraphs 36A(2)(a), (b) and (c), will apply to any relevant visa applications made and on foot when the amendment commences": Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth) [35]. On the applicant's submission, when the Tribunal made its decision on 27 May 2021, s 36A(1) had commenced and applied to both the Tribunal's decision and the applicant's visa application. 63 The applicant submitted that the Tribunal, in its exercise of all the powers conferred on the original decision-maker in the process of de novo review, was obliged under s 36A(1) to "consider and make a record of" its state of satisfaction in respect of the matters set out in s 36A(1). It was submitted that the Tribunal failed to do as required. Rather, the Tribunal was said to have drawn its conclusion solely based on its consideration of the criterion in s 36(1C)(b) of the Migration Act. It was submitted the clear language of and intent behind s 36A(1) required the Tribunal to apply s 36A(1), for if it were otherwise, a deterioration in the situation of the country of return between the delegate's decision and the Tribunal's decision would not be reflected in Australia's performance of its non-refoulement obligations. In that event, the purpose of ss 36A and 197C was said to be undermined. 64 The applicant also noted, in his oral submissions, that s 197C(3)(c)(i) states that there is no barrier to removal where "the decision in which the protection finding was made has been quashed or set aside". This was said to be relevant because s 36A was introduced with amendments to s 197C. It was therefore submitted that because the decision is capable of being set aside by the Tribunal or quashed by the court, the decision being referred to by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) (Amending Act) is a protection finding either by the Minister, a delegate or the Tribunal. 65 The first respondent submitted that: s 36A did not apply to the applicant's application for review; the Tribunal is not, in any event, required to make findings in accordance with s 36A; and even if (in the alternative) the Tribunal did fail to perform its statutory requirements under s 36A, any such failure was not material to its ultimate exercise of power and did not give rise to jurisdictional error. Referring to item 4(1) of Schedule 1 of the Amending Act, it was submitted the amendments only applied to "applications for visas made but not decided", and the applicant's protection visa application had already been "decided". The first respondent referred to and relied on Minister for Immigration and Multicultural Affairs v Lim [2001] FCA 512; (2001) 112 FCR 589 (Lim) in support of its construction, in particular [3]. This construction, it was submitted, is also consistent with Peniche v Minister for Immigration and Multicultural Affairs [1999] FCA 709; (1999) 59 ALD 485 at [38] and Cabal v Minister for Immigration and Multicultural Affairs (No 4) [2000] FCA 1806 at [41]. Applying that, it was said that the applicant's application had been decided before the matter reached the Tribunal, and therefore before s 36A applied. 66 It was submitted that further or in the alternative, the Tribunal is not required to comply with s 36A in the exercise of its review functions as it does not consider an application for a protection visa, but instead considers applications for review of decisions to refuse visa applications. The Tribunal "does not exercise afresh the power conferred by the enactment under which the decision was made": Powell v Administrative Appeals Tribunal (1998) 89 FCR 1 at 12. Instead, "when [the Tribunal] affirms a decision or sets it aside and remits it for reconsideration, it does not exercise a power conferred by the enactment under which the primary decision-maker has made his or her decision": Madafferi v Minister for Immigration [2002] FCAFC 220; (2002) 118 FCR 326 at [68]. The Minister's task in "considering a valid application for a protection visa made by a non-citizen" was therefore submitted to be meaningfully distinct from that of the Tribunal. 67 In any event, it was submitted that even if the Tribunal was required to comply with s 36A, any failure by the Tribunal to consider and make a record of whether the applicant satisfied s 36(2)(a) or s 36(2)(aa) was not material to its ultimate exercise of power (that is, to affirm the delegate's decision) and did not give rise to jurisdictional error. 68 With respect to the applicant's reliance on s 197C(3)(c)(i), the respondent referred to situations outside the scope of the applicant's submission where primary decisions of delegates are quashed by the High Court and where decisions in relation to cancellations of visas and decisions not to reinstate mandatory cancellations of visas under s 501CA are quashed by courts.

Consideration 69 This ground directs attention to whether s 36A applied to this decision of the Tribunal. I accept the first respondent's submission that it did not. 70 Section 2(1) of the Amending Act provides that the whole of the Amending Act commenced, or is taken to have commenced, the day after the Amending Act received royal assent (namely, 25 May 2021). However, that is subject to item 4 of Schedule 1 to the Amending Act, which is as follows: 4 Application of amendments (1) Section 36A of the Migration Act 1958, other than paragraphs 36A(2)(a), (b) and (c), applies in relation to applications for visas made but not decided before this Schedule commences. (2) Section 36A of the Migration Act 1958 applies in relation to applications for visas made after this Schedule commences. (3) A reference in section 197C of the Migration Act 1958 to a protection finding within the meaning of subsection 197C(5) or (6) is a reference to a protection finding made before or after this Schedule commences. 71 Relevantly, s 36A applies in relation to "applications for visas made but not decided" before the Schedule commenced. The applicant made an application for a protection visa on 19 November 2019. The issue for determination is therefore whether that application was "not decided" at the commencement of the Amending Act. 72 In Lim the Court was concerned with the meaning of the word "decided" in reg 2.08E(2) of the Migration Regulations 1994 (Cth), which was introduced by the Migration Amendment Regulations 1999 (Cth) (Amendment Regulations). Regulation 5(4)(a) of the Amendment Regulations provided that reg 2.08E applied to an application for a visa "made, but not decided, before 1 November 1999". It can be seen that is in relevantly similar language to the provision under consideration. Sundberg J concluded at [3] that: … in my view, "decided" in reg 2.08E(2)(b) and in reg 5(4)(a) means "decided by the Minister". That is the natural meaning of the word in the context in which it is found - a decision on the application for the visa in question. 73 I agree with the first respondent, that this construction is consistent with earlier cases: Peniche v Minister for Immigration and Multicultural Affairs [1999] FCA 709 at [38]; Cabal v Minister for Immigration and Multicultural Affairs (No 4) [2000] FCA 1806 at [41]. 74 The applicant sought to draw comfort from Lim, based on Sundberg J's reference to the distinction between "decided" and "finally determined". In that context at [5] Sundberg J observed that: However, to my mind, this fails to distinguish between an application for a visa and an application for review by the Tribunal of a delegate's decision on the visa application. It cannot be said that the visa applicant has made a new application or revived the decided application. All that has happened is that an application has been made to review the delegate's decision. 75 Relying on that distinction, the applicant referred to various sections of the Migration Act, culminating in s 5(9)(a), which defines "finally determined" as a decision that "is not, or is no longer, subject to any form of review under Part 5 or 7". On that basis, the applicant submitted that under the Migration Act, the delegate's decision is when an application is finally determined, meaning that "if Parliament had wanted the relevant decision" in s 36A to be that "of the delegate they would have used the phrase 'finally determined'". 76 Although it may be accepted that s 5(9)(a) defines "finally determined" in the manner contended by the applicant, the relevant transitional provision does not use that language. Rather, item 4 refers to "applications for visas made but not decided before the schedule commences": see [70] above. It is that language, which, in the context, must be construed. 77 The applicant's construction of the transitional provision, taken to its logical conclusion, is that the Tribunal's task is to decide an application for a visa. However, the Minister's task is different to that of the Tribunal on review. 78 Although the Tribunal may exercise all the powers and discretions conferred upon the original decision-maker, its task in considering a review application is not, in itself, an exercise of a power to grant or refuse to grant a visa: see for example, Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585 at 587. 79 In Madafferi v Minister for Immigration [2002] FCAFC 220; (2002) 118 FCR 326, the Full Court observed at [68]: By virtue of s 43 of the Administrative Appeals Tribunal Act empowering it to "exercise all the powers and discretions that are conferred by the relevant enactment on the person who made the decision", the AAT stands in place of the primary decision-maker - Otter Gold Mines Ltd v Australian Securities Commission (1997) 26 AAR 99; Liedig v Commissioner of Taxation (Cth) (1994) 50 FCR 461; Commissioner of Taxation (Cth) v Swift (1989) 20 ATR 1434; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. However as was pointed out in Powell v The Administrative Appeals Tribunal and Anor (1998) 89 FCR 1 at 12 (French J) the source of the AAT's power is s 43 of the AAT Act. It does not exercise afresh the power conferred by the enactment under which the decision was made. A fortiori, when it affirms a decision or sets it aside and remits it for reconsideration, it does not exercise a power conferred by the enactment under which the primary decision-maker has made his or her decision. See also Szajntop v Gerber (1992) 23 ATR 403 (Hill J). Analogous reasoning in Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585 at 507 led North J to conclude that a decision of the Refugee Review Tribunal affirming a decision of the Minister to refuse a visa was not itself a decision to refuse the grant of the visa. The reasoning in Powell led to the conclusion that a decision of the AAT affirming a delegate's decision was not a judicially reviewable decision under the Migration Act and therefore was unaffected by the limitations on the jurisdiction of the Court imposed by Pt 8 as it stood prior to the amendments which came into effect in October 2001. 80 That is, the Tribunal does not itself exercise the power of the original decision-maker. It does not under s 65, decide a visa application. Rather, the Tribunal, pursuant to s 500(1)(c) of the Migration Act, conducts a review of the decision to refuse the grant of a protection visa under s 65 and arrives at a decision under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (Administrative Appeals Tribunal Act), to either affirm, vary or set aside the decision under s 65. 81 Moreover, as the first respondent submitted, where a delegate makes a decision by reference to s 36(2C)(b) of the Migration Act, the Act contemplates that the General Division of the Tribunal will only review that aspect of the decision: s 500(1)(c), and see also ss 408, 409(2) and 411(1)(c). The Migration Act creates a bifurcated system of review in which the Migration and Refugee Division of the Tribunal will consider satisfaction of the criteria in ss 36(2)(a) and 36(2)(aa), but the General Division will conduct reviews in relation to satisfaction of ss 5H(2) and 36(2C): Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107 at 110-111; Hamidy v Minister for Immigration and Border Protection [2019] FCA 221; (2019) 164 ALD 149 at [31]-[32]. 82 Recently, in GWRV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 602, Colvin J, after considering Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107 concluded at [23]-[24]: 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. 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. 83 I note that the applicant does not address these authorities in respect to the role of the Tribunal, except to submit in reply that the first respondent had made a generalised submission about the role or function of the Tribunal by referring to authorities irrelevant to ss 36A and 197C. That submission does not grapple with those authorities or address the function of the Tribunal in respect of the review conducted, in so far as it relates to the interpretation of the transitional provision. Nor did the applicant address that the source of the power being exercised by the Tribunal is that in s 43 of the Administrative Appeals Tribunal Act, and not under s 65 of the Migration Act. Noting also the applicant did not submit that the authorities relied on by the first respondent are incorrect, or no longer apply. 84 For the reasons above, as a result of item 4 of Schedule 1 to the Amending Act, s 36A did not apply to this decision of the Tribunal. That is, the applicant's visa application was not an application which had been made but not decided before the Amending Act commenced. 85 In any event, if I had found otherwise on this ground, the issue would be whether that failure amounted to jurisdictional error. In order for an error to be jurisdictional, it must be material, in the sense that compliance could realistically have resulted in the making of a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45] (SZMTA); MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 414 at [2]-[4] (MZAPC); Nathanson v Minister for Home Affairs [2022] HCA 26 at [32] (Nathanson). Existence or non-existence of a realistic possibility that the decision could have been different is a question of fact, of which, in an application for judicial review on the ground of jurisdictional error, the applicant bears the onus of proof: MZAPC at [2]-[4]; SZMTA at [46]; Nathanson at [32]. 86 I accept the first respondent's submission that a decision-maker's task to consider and make a record of the matters specified in s 36A(1) is not the exercise of a separate or ancillary "power". Rather, at its highest, if it applied, it would have been a procedural step accompanying the Tribunal's exercise of power under s 43 of the Administrative Appeals Tribunal Act to affirm, vary, set aside and/or remit the matter under review. Even if the Tribunal had followed the stipulation in s 36A, this could not have affected its ultimate decision to affirm the delegate's decision. Any findings in respect of s 36A could not have affected its reasoning in respect of s 36(1C)(b) of the Migration Act, meaning that the failure contended by the applicant could not amount to jurisdictional error. 87 In any event, as the respondent submitted, a protection finding for the purposes of s 197C(5)(e) of the Migration Act had already been made. The delegate was satisfied that the applicant satisfied s 36(2)(aa) because there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to South Sudan, he would suffer significant harm. The delegate's protection finding that the applicant satisfied s 36(2)(aa) of the Migration Act is sufficient to attract the operation of s 197C(3). This means that if I had found in favour of the applicant, the Tribunal could only have made an additional protection finding. 88 On the basis of my findings above at [69] to [84], it is not necessary to consider the applicant's submission that certain forms of relief sought did not depend on jurisdictional error. 89 The applicant has not established this ground.

Conclusion 90 As the applicant has not established either of the grounds, the application is to be dismissed, with costs. I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.