WZAUC v Minister for Immigration - [2017] FCCA 461

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZAUC v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 461

Catchwords:
MIGRATION – Judicial review – decision of former Refugee Review Tribunal – whether failure to consider relevant consideration – effect of Convention on the Rights of the Child – whether error in relation to finding concerning degrading treatment and punishment by reason of applicant’s criminal record and alleged skills in manufacture of illicit drugs – effect of release of personal information – breach of privacy – whether denial of procedural fairness by reason of failure to hear evidence from applicant’s children – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), Pt.7, Div.4, ss.36(2)(a) and (aa), 36(2A), 36(2B), 65, 91X, 422B, 426, 474, 476

Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2

Cases cited:
AZAEH v Minister for Immigration & Border Protection [2015] FCA 414
BOL15 v Minister for Immigration & Border Protection & Anor [2016] FCCA 1994; (2016) 312 FLR 408
BTF15 v Minister for Immigration & Border Protection [2016] FCA 647; (2016) 69 AAR 376
Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
Htun v Minister for Immigration & Multicultural Affair [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244
Mahon v Air New Zealand Ltd & Ors [1984] AC 808; (1983) 50 ALR 193; (1983) NZLR 662; [1984] 3 WLR 884; [1984] 3 All ER 201; (1984) 128 SJ 752; (1983) 4 NZAR; (1984) 81 LSG 3336
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50
Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1; (2004) 78 ALJR 678; (2004) 205 ALR 487; (2004) 77 ALD 296
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration & Multicultural & Indigenous Affairsv Katisat [2005] FCA 1908
Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118; (2005) 88 ALD 304
Minister for Immigration & Multicultural & Indigenous Affairsv SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224
Minister of State for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273; (1995) 69 ALJR 423; (1995) 128 ALR 353; (1995) 39 ALD 206
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
Parker v Director of Public Prosecutions & Anor (1992) 28 NSWLR 282; (1992) 65 A Crim R 209
Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SZOGI v Minister for Immigration & Anor [2010] FMCA 390
SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459
SZRSN v Minister for Immigration & Citizenship [2013] FCA 751
SZTKGv Minister for Immigration & Border Protection [2015] FCA 267
SZTVA v Minister for Immigration & Anor [2016] FCCA 2005
Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297
Vaitaiki v Minister for Immigration & Ethnic Affairs (1998) 26 AAR 227; (1998) 150 ALR 608; (1998) 50 ALD 691
VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178
Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133
WZATV v Minister for Immigration & Anor [2016] FCCA 2019

Applicant:

WZAUC

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 103 OF 2014

Judgment of:

Judge Antoni Lucev

Hearing date:

21 May 2015

Date of Last Submission:

16 June 2015

Delivered at:

Perth

Delivered on:

16 March 2017

REPRESENTATION

For the Applicant:

In person

Counsel for the First Respondent:

Mr AN Gerrard

For the Second Respondent:	Submitting appearance, save as to costs
Solicitors for the Respondents:	Australian Government Solicitor

ORDERS

That name of the second respondent be changed to “Administrative Appeals Tribunal”.
That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 103 OF 2014

WZAUC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant has filed an application under s.476 of the Migration Act1958 (Cth) (“Migration Act”) seeking review (“Judicial Review Application”) of a decision of the then Refugee Review Tribunal (now the Administrative Appeals Tribunal) made on 25 March 2014 (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision made on 2 July 2013 by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to refuse the applicant a Protection (Class XA) visa (“Protection Visa”) under s.65 of the Migration Act.
The applicant filed, but did not serve, an amended Judicial Review Application (“Amended Judicial Review Application”) on 23 September 2014 setting out three grounds of review. The Minister obtained a copy of the Amended Judicial Review Application from the Court prior to hearing and did not take issue with the failure to serve the Amended Judicial Review Application. The three grounds of review are set out in full, and dealt with below: see [7]-[47] below.

Background to the Amended Judicial Review Application

The background to the Amended Judicial Review Application is as follows:
a)the applicant is a British citizen born in Scotland on 8 November 1961: Court Book (“CB”) 38. He migrated to Australia in March 1969 and has not returned to the United Kingdom since: CB 48 and 78;
b)the applicant previously held permanent residency in Australia, but his permanent visa was cancelled on character grounds. The applicant has a very lengthy criminal history in Australia, including convictions for sexual penetration without consent, multiple stealing offences, drug cultivation and possession, attempted manufacture of a prohibited drug, and possession of prohibited weapons: CB 65-71;
c)the applicant claimed to fear persecution in the United Kingdom on the basis of his membership of a number of particular social groups, namely ‘homeless person in the United Kingdom’, ‘convicted sex offender’, ‘convicted criminal’, ‘person suffering from mental illness’, ‘former drug addict/person suffering from drug addiction’ and ‘unemployed person’. He also claimed that he would face various forms of significant harm: CB 78-81;
d)in summary, the applicant claims that:
i)he will be homeless if he is returned to the United Kingdom, and will therefore be susceptible to drug-taking if he is placed in temporary accommodation;
ii)he will also find it difficult to obtain proper housing due to his criminal record;
iii)he would likely start reoffending, resume drug taking and return to prison for a number of reasons, including due to the lack of support networks in the United Kingdom;
iv)his mental health, namely depression, will deteriorate due to his absence from his children, family and friends, who all live in Australia, and due to being overwhelmed with the new environment in the United Kingdom;
v)he will face difficulties in obtaining employment as he will be considered an immigrant, and as he will be regarded as a sex offender and as someone who looks like a criminal due to his tattoos. He also suffers from a back injury and arthritis which has meant he has problems working;
vi)he will suffer persecution due to being registered as a sex offender as he will be targeted by non-state actors. He claimed his presence on the sex offenders register constitutes continuing punishment. Further, a failure to comply with reporting requirements as a sex offender in the United Kingdom will result in his detention. He also claimed that he will suffer harm as a result of being wrongly identified as a child sex offender; and
vii)he is concerned about his family and the future of his children if he is returned to the United Kingdom.
See CB 78-81.
The Tribunal Decision affirmed the Delegate’s Decision to refuse the applicant a Protection Visa: CB 336-356. Further details of the Tribunal Decision are set out at [5]-[6] below.

Tribunal Decision

In the Tribunal Decision the Tribunal found that:
a)the applicant is a member of the particular social groups: ‘homeless person in the United Kingdom’, ‘convicted sex offender’, ‘convicted criminal’, ‘person suffering from mental illness’, ‘former drug addict/person suffering from drug addiction’, ‘unemployed person’ or a combination thereof: CB 338 at [13];
b)United Kingdom laws relating to a sex offenders register are not laws of general application, but that laws relating to the sex offenders register in the United Kingdom are appropriate and adapted to achieving a legitimate objective, and are not out of proportion with the object of protecting or promoting the general welfare of the state and its citizens, and that the applicant being placed on the sex offenders register does not constitute serious or significant harm: CB 342-343 at [42]-[43];
c)the applicant’s fear of being targeted by non-state actors due to being on the sex offenders register was a fear of serious harm and significant harm, but that there is less than a real chance the applicant will be identified as a convicted sex offender: CB 343 at [44];
d)there is not a real chance that the applicant will be wrongly imputed to be a child sex offender, or that the applicant would face serious or significant harm due to that: CB 343 at [47];
e)there was a small, but real, chance that the applicant may be identified as a sex offender or a convicted criminal as a result of inappropriate disclosure of his past offences, but that there was adequate state protection and there is not a real risk he will suffer significant harm due to that: CB 344 at [48]-[49];
f)there are a number of organisations available in the United Kingdom to assist the applicant in accessing medical, drug rehabilitation, accommodation, employment and other social services: CB 344 at [51] and CB 345 at [54]-[55];
g)although the applicant may face some discrimination due to his past offending such that it may make it difficult for him to obtain housing and employment, it would not amount to persecution: CB 345 at [53];
h)the applicant will not be denied access to social, medical and welfare services in the United Kingdom, and the applicant can access medical services to assist with treatment of his depression: CB 346-347 at [59]-[61];
i)the applicant will not face the requisite harm as a result of being imputed with Australian nationality, being foreign, or being a failed asylum seeker: CB 347 at [63]-[65];
j)the applicant’s lengthy absence from the United Kingdom will not result in serious or significant harm: CB 347 at [64];
k)it did not accept the applicant’s claims in relation to his fears that he will lapse into criminal conduct himself: CB 348-349 at [67]-[72];
l)the applicant will not face harm due to the weather being too cold for him: CB 349 at [73];
m)although the applicant will be separated from his children by distance, the separation from his children is not for a Convention reason, and that the applicant will not suffer significant harm as a result of his separation from his children: CB 349 at [74]; and
n)the reasons for the challenges the applicant may face as a result of his lengthy absence from the United Kingdom are not for Convention reasons: CB 349 at [75].
The Tribunal Decision was that the Tribunal was not satisfied that the applicant was a person in respect to whom Australia had obligations under the Convention, and that the applicant did not therefore satisfy the criterion set out in s.36(2)(a) of the Migration Act: CB 350 at [78]. Further, the Tribunal considered whether the applicant met the alternative complementary protection criterion in s.36(2)(aa) of the Migration Act, and concluded that the applicant was not a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Migration Act: CB 350 at [79]. The Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 350 at [81].

Consideration

Ground 1

Ground 1 is as follows:
1. The Tribunal erred by finding pursuant to s 36(2)(aa) of the Migration Act that the Tribunal failed to consider the Rights of Child is sufficient to engage Australia’s Protection Obligations under the Complrementary Protection provision.
Particulars
• The Migration Amendment (Complementary Protection) Bill 2011 (the “Bill “) amends the Migration Act 1958 (the “Act”) to introduce greater efficiency, transparency and accountability into Australia's arrangements for adhering to its non-refoulement obligations under the International Covenant on Civil and Political Rights (the “Covenant”), the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, the Convention on the Rights of the Child (the “CROC”) and the Convention Against Torture and Other Cruel. Inhuman or Degrading Treatment or Punishment (the “CAT”). Protection from return in situations that engage these non-refoulement obligations is often referred to as “complementary protection”, that being protection under international treaties that is additional to the protection given to refugees under the Convention relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees (the “Refugees Convention “).
The purpose of the amendments in this Bill is to establish an efficient, transparent and accountable system for considering complementary protection claims, which will both enhance the integrity of Australia's arrangements for meeting its non-refoulement obligations and better reflect Australia's longstanding commitment to protecting those at risk of the most serious forms of human rights abuses.
• The Second Reading Speech to the Bill which became the Amending Act reinforces the fact that the purpose was to give effect to Australia's non-refoulement obligations under those treaties.
Indeed, the Minister expressly stated that the Bill “aligned” Australia 's protection visa process with its existing international obligations and practices. The following extracts from the Second Reading Speech are relevant in identifying the legislative purpose (see Commonwealth, Parliamentary Debates, House of Representatives, 24 February 2011,1356 (the Honourable Chris Bowen MP)):
The Migration Amendment (Complementary Protection) Bill 2011 amends the Migration Act to eliminate a significant administrative hole in our protection visa application process.
Under the Migration Act, as it currently stands, only those people fleeing persecution for one of the five reasons outlined in the Convention Relating to the Status of Refugees-race, religion, nationality, social group or political opinion-are eligible to receive a protection visa through the usual process.
Applicants who fall outside these categories are not considered refugees and, consequently, their applications must be rejected by the Department of Immigration and Citizenship and also by the Refugee Review Tribunal.
But some of these people are fleeing significant harm-be they women fleeing so called 'honour killings' or, in some certain circumstances depending on the nation, people fleeing persecution on the basis of their sexual preference.
These people can fall outside the categories recognised by our current protection visa process.
So their applications will be rejected at first instance-and again at review-even where Australia's non-refoulement obligations and other international treaties ensure that we cannot and will not send them back to their countries of origin.
These treaties are the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (CROC).
Protection from return in situations that engage our non-refoulement obligations under these treaties is known as 'complementary protection', in the sense that it is complementary to the protection given under the refugees convention.
(Transcribed without amendment from the Amended Judicial Review Application, save for the deletion of the underlining of all of the Particulars).

Applicant’s submissions

The applicant submitted that:
a)the Tribunal failed to consider the best interests of the applicant’s children in accordance with Australia’s obligation pursuant to Article 3 of the United Nations Convention on the Rights of the Child (“CROC”);
b)repeated the particulars to ground 1 as set out above;
c)by reference to Minister of State for Immigration & Ethnic Affairsv Teoh (1995) 183 CLR 273; (1995) 69 ALJR 423; (1995) 128 ALR 353; (1995) 39 ALD 206 at 291-292 per Mason CJ and Deane J (“Teoh”), Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133 at [26], [28], [31] and [32] per Branson, North and Stone JJ (“Wan”) and Vaitaiki v Minister for Immigration & Ethnic Affairs (1998) 26 AAR 227; (1998) 150 ALR 608; (1998) 50 ALD 691; ALR at 618 per Burchett J (“Vaitaiki”), that the Tribunal was required to consider the best interests of the applicant’s children as a consideration in determining whether or not to grant the applicant a Protection Visa, but that the Tribunal “never confronted the central question of what the best interests of my children required them to do with respect to the refusal of my Protection Visa application”, and therefore failed to give appropriate weight to that consideration as against other considerations: Applicant’s Outline of Submissions at [6]-[21] (the quote is from [20]).

Minister’s submissions

The Minister submits that:
a)there is no error in the Tribunal finding that separation of the applicant from his children due to his removal from Australia would not constitute significant harm: SZRSN v Minister for Immigration & Citizenship [2013] FCA 751 at [48]-[49] per Mansfield J (“SZRSN”);
b)to the extent that the applicant asserts that the Tribunal failed to consider the CROC when considering complementary protection, any legitimate expectation that a decision-maker will act in conformity with the CROC arises only in a discretionary decision-making context. The principle in Teoh has no application to a decision whether or not to grant a Protection Visa, because such a decision is not discretionary: SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459 at [29] per Griffiths J (“SZRLY”);
c)the applicant’s application to the Tribunal was not, within the meaning of the CROC, an “action concerning children”. The applicant’s children were not included in the applicant’s application for a Protection Visa and no claims for protection were made on their behalf;
d)in AZAEH v Minister for Immigration & Border Protection [2015] FCA 414 at [30] per Kenny J (“AZAEH”) the Federal Court said:
[the] proposition that a decision-maker in making a decision under s 36(2)(aa) … must give primary consideration to the best interests of children who are not the subject of (or otherwise within) an application for a protection visa is inconsistent with the statutory scheme.
e)the cases of Wan and Vaitaiki relied upon by the applicant, have no relevance to the applicant’s Protection Visa application.

Ground 1 – consideration

In AZAEH the Federal Court was dealing with an application for leave to amend grounds of appeal to include matters that were not argued before this Court on an application for judicial review from a decision of the Tribunal. In particular, the appellant there sought to assert that the best interests of the child had to be considered when determining whether it was reasonable for the appellant to relocate to Kabul if he was returned to Afghanistan, in circumstances where his wife, children and extended family lived on a farm in the country. The appellant had eight dependents: AZAEH at [8]-[10] per Kenny J. The first proposed new ground of appeal sought to argue that the Tribunal erred in its construction of s.36(2B)(a) of the Migration Act because in assessing whether it would be reasonable for the appellant to relocate to Kabul, the Tribunal did not give primary consideration to the best interests of the appellant’s dependent children: AZAEH at [22] per Kenny J. The second proposed new ground concerned an alleged denial of procedural fairness by reason of the Tribunal making a decision inconsistent with a legitimate expectation that the best interests of a child would be a primary consideration where no notice was given to the appellant that that would not be the case and the appellant was denied an opportunity to respond: AZAEH at [36] per Kenny J.
In AZAEH in dismissing the application for leave in respect of the first proposed new ground the Federal Court observed at [30] per Kenny J as follows:
30 Secondly, the focus of ss 36(2)(aa) and 36(2B)(a) is on the non-citizen in Australia who has made a protection visa application (and is thereby seeking protection). It is this person in respect of whom the Minister must have “substantial grounds for believing that, as a … consequence of the non-citizen being removed … to a receiving country, there is a real risk that the non-citizen will suffer significant harm”: s 36(2)(aa). Section 36(2B)(a) provides, however, that there can be no such risk if the Minister is satisfied that it would be reasonable for that non-citizen to relocate to an area of the receiving country where there will be no real risk of significant harm to him or her. The appellant sought only protection for himself. The family unit provisions were not engaged: see, for example, ss 36(2)(b) and (c). The proposition that a decision-maker in making a decision under s 36(2)(aa) having regard to s 36(2B)(a), in discharging the statutory duty under s 65, must give primary consideration to the best interests of children who are not the subject of (or otherwise within) an application for a protection visa is inconsistent with the statutory scheme, of which these provisions form part. In particular, the question that arises under s 36(2B)(a) is whether or not it would be reasonable for the non-citizen visa applicant (here, the appellant) to relocate to a part of the country where there would not be a significant risk of harm to him. To mandate that primary consideration be given to the best interests of children who are not applicants for protection is, so far as ss 36(2)(aa) and 36(2B)(a) are concerned, to focus on the wrong person.
The Federal Court went on in AZAEH to observe that because the decision to refuse a protection visa to the appellant was not an action concerning children within the meaning of Article 3(1) of CROC, “CROC was not engaged on any view”: AZAEH at [33] per Kenny J (and see also at [38] per Kenny J).
In SZRSN the Federal Court was dealing with a case not dissimilar to the present case, save for the fact that the New Zealand father there concerned had spent 17 years in Australia rather than the close to 50 years as is the case here: SZRSN at [10] per Mansfield J. In SZRSN the Federal Court having referred to or set out the relevant definitions of “significant harm”, “cruel or inhuman treatment” and “degrading treatment”: SZRSN at [44]-[46] per Mansfield J, went on to observe and find as follows at SZRSN at [47]-[49] per Mansfield J:
47 It should be noted here that only an “act or omission” will fall within either of the above definitions. Being separated from one’s children is, in the present context, not an act or omission but a consequence of an act. The relevant act is the act of removal from Australia. The separation from his children is said to be the cruel, inhuman or degrading treatment.
48 The Federal Magistrate concluded that forced removal from one’s children in Australia by the Australian government could not be considered cruel, inhuman or degrading treatment so as to constitute “significant harm” for the purposes of s 36(2)(aa) of the Act for four main reasons:
1. The text of s 36(2)(aa) (which refers to Australia’s “protection obligations”), and the Explanatory Memorandum associated with the Bill that introduced s 36(2)(aa) (Migration Amendment (Complementary Protection) Bill 2011: Explanatory Memorandum, House of Representatives [65]), make it clear that the purpose of s 36(2)(aa) is to ensure Australia complies with its “non-refoulement obligation” that arises from Articles 2 and 7 of the 1966 International Covenant on Civil and Political Rights and associated jurisprudence of the United Nations Human Rights Committee. That obligation is an obligation not to remove anyone from Australia to a country where there are substantial grounds for believing that there is a real risk that the person will suffer “irreparable harm”. The obligation is therefore clearly an obligation to protect non-citizens from harm faced in the receiving country. Being removed from one’s children cannot be characterised as a harm faced in the receiving country.
2. Section 36(2B) sets out the circumstances where a non-citizen should be taken not to be at a real risk of significant harm for the purposes of s 36(2)(aa); for instance, where the non-citizen is reasonably able to relocate to another part of the receiving country where there would be no real risk of significant harm: s 36(2B)(a). These “exceptions” only make sense if the legislature intended that the “significant harm” occurs only in the receiving country.
3. To satisfy s 36(2)(aa), the real risk of significant harm must arise “as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country”. The fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm.
4. With respect to “degrading treatment”, forced separation from one’s family by removal from Australia cannot constitute “degrading treatment” as defined in s 5(1). “[D]egrading treatment” is an act or omission that, inter alia, is “intended to cause” extreme humiliation and, the Federal Magistrate said, separation from one’s family is a consequence of the act of removal from Australia and “… a consequence cannot be said to have an intention to cause a result (which it itself constitutes)”, so the act of removal itself cannot be said to be “perpetrated by the State with the intention to cause extreme humiliation that is unreasonable”: at [65].
49 In my view, that reasoning is not shown to be erroneous. An interpretation of the legislation that incorporates removal from one’s family by the Australian government as “significant harm” would be an extremely strained reading, and one not in accordance with the clear intention of Parliament in enacting the complementary protection criterion. That intention was to honour Australia’s non-refoulement obligation. In short, the appellant has failed to identify or demonstrate any error in the application of the term “significant harm” by the Federal Magistrate. Specifically in relation to the findings made by the Tribunal that harm feared by the appellant from gangs and other unidentified people in New Zealand does not meet the threshold of “significant harm” in s 36(2A) of the Act, and does not represent in any event fear of harm for a Convention reason, and that the removal of the appellant from Australia to New Zealand with the consequence of the separation from his children or its effects does not constitute “significant harm” as defined, no error is shown.
What was later said by the Federal Court in AZAEH at [34] per Kenny J is consistent with SZRSN as cited above in that in AZAEH the Federal Court said that the circumstances of dependent children who are not applicants need not be left out of account, or their interests treated as secondary, but that that was “in an assessment of whether it is reasonable for a protection visa applicant to relocate to another part of the country”, that is the receiving country, in circumstances where those children were still in the receiving country, and the question was whether or not it would be reasonable for the applicant to relocate upon his return to that receiving country.
In SZRLY the Federal Court referred to Teoh as cited by the applicant in this case, and said at [29] per Griffiths J, as follows:
… [Teoh] has no application to a decision whether or not to grant a protection visa, because such a decision is not discretionary (see, for example, SZBPQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 568 at [17]-[19] per Hely J (an application for special leave to appeal was refused: SZBPQ by his next friend v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA Trans 249); Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at [36] and M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 at [53] per Goldberg, Weinberg and Kenny JJ).
The Federal Court in SZRLY further observed that in Teoh Justice Gaudron had held that administrative decision-makers were to treat the best interests of the child as a primary consideration under CROC where the decisions being made were discretionary decisions: Teoh CLR at 304 per Gaudron J.
In SZRLY each of the first three grounds of review referred to a denial of procedural fairness by failing to treat or consider the best interests of the appellant’s child as a primary consideration, a denial of procedural fairness by failing to engage Australia’s obligations under CROC, and a denial of procedural fairness by failing to warn the appellant that those obligations were not going to be considered as a primary consideration: SZRLY at [27], [33] and [34]. Each of the first three grounds failed.
The judgments in Wan and Vaitaiki do not assist the applicant in these proceedings because they involved discretionary considerations upon consideration of whether or not to cancel a visa, which do not arise in these proceedings, for reasons explained in SZRLY above: see [15]-[17] above.
Having regard to the facts of this case, and the law as it is set out above, ground 1 cannot succeed because:
a)it is not necessary to consider the best interests of the applicant’s children who are remaining in Australia, both by reason of the fact that CROC does not apply and because the decision to grant a protection visa is not an exercise in discretionary decision-making (contrast Teoh, Wan and Vaitaiki); and
b)the harm from which the applicant is to be protected by Australia’s non-refoulement obligations does not, in circumstances where those children are remaining in Australia, engage those obligations or give rise to harm of the requisite kind: SZRLY and AZAEH cited above.

Ground 2

Ground 2 is as follows:
2. The Tribunal erred by finding pursuant to s 36(2)(aa) of the Migration Act that my criminal records will put me subject to degrading treatment and punishment in my country of origin.
Particulars
·The Tribunal failed to give proper weight to the fact that. My criminal background (illicit drug manufacture) which is a highly valuable “Skills” that any organised crime groups will dosplay strong interest.
·Moreover, due to the leak of my personal information (The Privacy Breach Incident) has created a “Real Chance” that my background has been exposed. There is also no real evidence that the law enforcement in UK will protect me on a daily basis. Not to mention that a UK based Media Outlet (The Guardian) is the one which discovered the breach incident.
(Transcribed without amendment from the Amended Judicial Review Application, save for the deletion of the underlining of all of the Particulars).

Applicant’s submissions

The applicant does not appear to have addressed any written or oral submissions to ground 2.

Minister’s submissions

The Minister submits that:
a)the applicant does not identify any basis on which the Tribunal erred, other than that it failed to give “proper weight” to the fact that his skills in illicit drug manufacture would be highly valuable to organised crime groups. The weighing of evidence is a matter for the Tribunal and this ground appears to invite the Court to engage in impermissible merits review;
b)the Tribunal considered the applicant’s claims that he will suffer harm as a result of his lengthy absence from the United Kingdom, and found that this would not constitute ‘significant harm’ within the meaning of s.36(2A) of the Migration Act: CB 347 at [64]. This finding was clearly open to the Tribunal;
c)the Tribunal also specifically considered the assistance that is given to former prisoners who are returned to the United Kingdom including, in particular, Travel Care and Prisoners Abroad who assist with access to housing, social services, medical services, welfare payments and employment: CB 344 at [50];
d)the applicant’s claims that there was no real evidence that he would be provided adequate state protection are not made out. The Tribunal accepted that the applicant may hold a subjective fear of the police due to his past experiences but specifically found that this claim was not supported by the country information: CB 344 at [49]. That country information was in the form of a US Department of State Country Report on Human Rights in the UK from 2012 and supported conclusions that:
i)there is an effective police force in the UK over which the Government has in place effective mechanisms to investigate and punish abuse and corruption;
ii)the judiciary is effective and free from corruption with a guarantee of a right to a fair trial; and
iii)there are laws prohibiting arbitrary arrest and detention, torture and other cruel and inhuman or degrading treatment and prisons generally meet international standards;
e)with reference to Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1; (2004) 78 ALJR 678; (2004) 205 ALR 487; (2004) 77 ALD 296 the Tribunal found that the authorities in the United Kingdom are able to provide the level of protection which its citizens are entitled to expect: CB 344 at [49]. This is clearly a finding that was open on the country information. The applicant’s complaint is nothing more than a subjectively held belief to the contrary and is unsupported by evidence;
f)as to the applicant’s complaint that the Tribunal failed to consider that his “skills” in illicit drug manufacture would be valued by those involved in organised criminal activities, the Minister notes primarily that this does not appear to be a claim that was specifically raised by the applicant either in his submissions or during the Tribunal hearing;
g)in any event the Tribunal did consider the applicant’s claim that he was at risk of returning to criminal activity or drug use. The Tribunal found, correctly, that relapsing into drug use or criminal activity was a matter that the applicant had control over and that the Refugees Convention was not designed to protect people from the legitimate legal consequences arising from non-political criminal behaviour: CB 348 at [67]-[68];
h)in relation to the applicant’s claims based on the unauthorised release of personal information, this claim was not raised before the Tribunal and therefore the Tribunal was not required to consider it;
i)the disclosure of personal information cannot establish any jurisdictional error by the Tribunal and does not have any relevance to the matters which arise before the Court in this proceeding: SZTKGv Minister for Immigration & Border Protection [2015] FCA 267 at [16]-[23] per Barker J (“SZTKG”); and
j)under current policy, the applicant’s claims arising out of the unauthorised release of personal information will be considered by the Department of Immigration and Border Protection (“Department”) in a separate process.

Ground 2 – consideration

In this ground the applicant firstly complains of the failure to give proper weight to his criminal background and the skills that this gave the applicant which he says would be of strong interest to organised crime groups on his return to the United Kingdom.
A complaint about failing to give proper weight to a matter before the Tribunal does not of itself ordinarily involve jurisdictional error, the weight to be given to an applicant’s claims and evidence being a matter for the Tribunal to assess as part of its fact-finding function: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”); Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ.
In relation to this aspect of ground 2 the Court has read:
a)the application for a Protection Visa: CB 1-76;
b)the applicant’s IAAAS interview: CB 77-81;
c)the applicant’s submission (via his migration agent) to the Delegate for the purposes of his Protection Visa application: CB 124-172;
d)the Delegate’s Decision: CB 199-229;
e)the applicant’s submission to the Tribunal: CB 249-296;
f)the applicant’s affidavit of 22 April 2014;
g)the applicant’s written submissions filed on 11 February 2015; and
h)the applicant’s further written submissions filed on 16 June 2015.
In all of the above material, which is very lengthy, there is no indication that the applicant anywhere claimed that he would be of interest to organised criminal groups by reason of his criminal background in illicit drug manufacture. Criminal gangs were mentioned, but in different contexts, in particular in the context of the possibility that the applicant would have to turn to them for protection because he was a member of particular social groups, namely a homeless person or a person who was a sex offender, or in the context of his relapsing into drug use, but nowhere in the applicant’s interviews or written submissions are his claims put on the basis of his skills in illicit drug manufacture being of interest to organised crime groups.
No transcript of the Tribunal hearing was tendered, but rather the two CDs (“CD1” and “CD2” respectively) of the Tribunal hearing were tendered, and admitted as Exhibit 1. The Court has listened to the entirety of both of the CDs, the first being approximately one hour and 19 minutes, and the second approximately one hour, in duration. Although the applicant spoke at great length in the Tribunal hearing concerning the difficulties that he would experience if he returned to the United Kingdom, including his possible exposure to persons involved in drug and criminal culture, the issue of his being of particular interest to organised criminal groups by reason of his background in illicit drug manufacture was not raised.
In the above circumstances, the claim with respect to illicit drug manufacture and of the applicant being of interest to organised criminal groups by reason of his criminal background in illicit drug manufacture was not one that was made before the Tribunal. Likewise, it does not appear that this claim was raised before the Delegate: CB 199-229. The claim was, therefore, not one that had to be considered by the Tribunal in the sense referred to in Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 or Htun v Minister for Immigration & Multicultural Affair [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244, because it was not a claim made: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [61] per Black CJ, French and Selway JJ (“NABE (No 2)”). Given the very particular nature of the claim now said not to have been given proper weight by the Tribunal in respect of illicit drug manufacture, but which was not in fact raised, it is also not a claim which arises clearly from the materials before the Tribunal: NABE(No 2) at [61] per Black CJ, French and Selway JJ. The fact that the applicant had a criminal conviction in 2011 for attempting to manufacture a prohibited drug for which he was imprisoned for two years: CB 65, is not sufficient to make it plain that he might have been of interest to organised criminal groups by reason of his skill in illicit drug manufacture. In any event, apart from the bare evidence of a conviction for the attempt to manufacture a prohibited drug, there was no particular evidence before the Tribunal that the applicant had any skills or expertise in drug manufacture.

To the extent that the applicant alleges that he would be subject to degrading treatment and punishment if returned to the United Kingdom by reason of his criminal record, that is a matter which was considered by the Tribunal, and the material before the Tribunal in that regard is set out in the Minister’s submissions at [22(g)] above, and in the Court’s summary of the Tribunal Decision at [5]-[6] above.
In this ground the second claim was with respect to the alleged breach of privacy. This was not, on the materials available to the Court, a claim made by the applicant before the Tribunal. As such, the claim now made is not one which is judicially reviewable by this Court nor can the Court consider it independently. There can therefore be no jurisdictional error in the Tribunal Decision with respect to the alleged breach of privacy, and there is otherwise no matter presently within the Court’s judicial review migration jurisdiction: Migration Act, ss.474 and 476, SZTKG at [16]-[23] per Barker J; WZATV v Minister for Immigration & Anor [2016] FCCA 2019 at [83] per Judge Lucev. There are, as the Minister’s submissions suggest, other avenues available for any claims that the applicant may have in respect to the alleged breach of privacy. Whether the applicant pursues, or can now pursue, those avenues is another matter: SZSSJ-High Court, and more recently in this Court, SZTVA v Minister for Immigration & Anor [2016] FCCA 2005 at [22]-[27] per Judge Manousaridis.
In all of the above circumstances, ground 2 is not made out.

Ground 3

Ground 3 is as follows:
3. The Tribunal denial me “Natural Justice” during my hearing.
Particulars
· The Tribunal ought to know that the “Rights of Child” is a part of the Complementary Protection Provision. I had my children (Child 1 – name deleted] aged 16. Child 2 – name deleted] aged 14) as support and evidence to be given to the Tribunal. However, the Tribunal refused to give me and my children an opportunity to put forward any verbal any written statement on their behalf.
· The “Natural Justice” is the fundamental rule of the law, it requires all parties to be given a fair hearing during any legal proceedings. The Tribunal should not embark such a course, which is against the fundamental RULE of the LAW.
(Transcribed without amendment from the Amended Judicial Review Application, save for the deletion of the underlining of all of the Particulars, and the deletion of the children’s names so as not to identify the applicant: as to which see s.91X of the Migration Act).

Applicant’s submissions

The applicant submitted that:
a)procedural fairness required that the applicant be given the opportunity to put forward material and submissions concerning the best interests of his children and the impact that it would have on the applicant and his family, and in particular his children, and that the complete failure by the Tribunal to fail to give the applicant the opportunity to put material and submissions in relation to those issues meant that the Tribunal fell into jurisdictional error; and
b)referred to the judgment of the House of Lords in Mahon v Air New Zealand Ltd & Ors [1984] AC 808; (1983) 50 ALR 193; (1983) NZLR 662; [1984] 3 WLR 884; [1984] 3 All ER 201; (1984) 128 SJ 752; (1983) 4 NZAR; (1984) 81 LSG 3336 (“Mahon”) and Parker v Director of Public Prosecutions & Anor (1992) 28 NSWLR 282; (1992) 65 A Crim R 209 (incorrectly referred to in the Applicant’s Submissions as Park v DPP, with no citation) (“Parker”) as giving rise to a legitimate expectation that procedural fairness would not be denied by a failure to consider what was in the best interests of the children under the CROC.

Minister’s submissions

The Minister submits that:
a)the applicant’s claim that the Tribunal refused to give him and his children ‘an opportunity to put forward any verbal and written statement on their behalf’ is not made out. The applicant has not provided a transcript of the Tribunal hearing and there is no evidence to support any such claim;
b)the applicant, himself, clearly did have the opportunity and gave oral evidence at the Tribunal hearing on 26 September 2013. He was represented by a registered migration agent who also attended the hearing and filed written submissions on behalf of the applicant: CB 249-296, 331 and 337 at [3];
c)the applicant gave evidence about the impact of separation from his children which was considered by the Tribunal: CB 349 at [74]. There is nothing to suggest that the applicant’s children had any further evidence to add to the applicant’s claims which may have been relevant to the Tribunal’s assessment; and
d)there is nothing which indicates that the Tribunal failed to accord the applicant procedural fairness or failed to carry out a review in accordance with Division 4 of Part 7 of the Migration Act.

Ground 3 – consideration

The Applicant’s Written Submissions refer to the Privy Council’s judgment in Mahon and to a judgment of the New South Wales Court of Appeal in Parker. Those judgments are of no or limited assistance to the Court given that the procedural fairness requirements for judicial review of migration proceedings are set out in Division 4 of Part 7 of the Migration Act which, by reason of s.422B of the Migration Act, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule: Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412.
The Applicant’s Further Written Submissions submit:
a)at [2] that the Tribunal refused to let Child 1 and Child 2 give oral evidence;
b)at [5] that the central question was whether the Tribunal made a decision not to take any evidence from Child 1 and Child 2 without knowing the “context” for their evidence;
c)at [8] that the applicant has been denied natural justice because of his clearly demonstrated preference that the Tribunal should at least hear from Child 1 and Child 2, and the Tribunal therefore denied the applicant a fair hearing;
d)at [9] that the Tribunal made the decision not to hear from Child 1 and Child 2 because it decided that the evidence which they were to give was “useless” without even knowing what the context of their evidence would be; and
e)at [12]-[13] that the Tribunal made an obvious error in refusing to take evidence from Child 1 and Child 2 without knowing its context, or alternatively determined that the evidence was irrelevant, and thereby the Tribunal committed jurisdictional error.
The factual circumstances concerning the Tribunal hearing, and the Tribunal not hearing evidence from Child 1 and Child 2 has to be viewed in its proper context. In that regard:
a)the applicant (who was represented by his migration agent) was invited to appear before the Tribunal: CB 322-324. The applicant, together with his migration agent appeared, with the Tribunal member and the applicant’s representative attending the hearing at the Tribunal’s offices in Perth with a video-link to the applicant at the Perth Immigration Detention Centre: CB 330 and CB 337 at [3];
b)shortly after the commencement of the Tribunal hearing the applicant asked whether his “kids” were “there”, meaning at the Tribunal offices in Perth, and was told by the Tribunal member that they were in the waiting room: CD 1, approximately 4 mins 20 secs;
c)at the very end of the Tribunal hearing: CD 2 at approximately 50 mins 50 secs, the Tribunal member indicates that she would look at the issues, including “separation from your children”. The applicant then made a submission concerning issues arising in relation to his children, including that his motivation had been to get out of prison so that he could do the right thing by his children, which was subsequently thwarted by his immigration detention, and the children’s need for their father (speaking specifically of Child 1 and Child 2). At CD 2 at about 54 mins 50 secs the Tribunal member indicates that she thinks she will “finish up”, at which point the applicant’s migration agent asks whether the Tribunal member intends to “bring in the children … quickly” to which the Tribunal member responds “I don’t think so, no, I think I have enough evidence on the effects of being separated from the family will cause”. At CD 2 at approximately 55 mins 10 secs the discussion then turns to how long will be required for any further submission to be submitted by the applicant through his migration agent. At CD 2 at 55 mins 50 secs the applicant then asks the Tribunal member whether she proposes to talk to his former wife, who he named, “and that”, the latter presumably being a reference to Child 1 and Child 2. The Tribunal member indicates that she does not intend to do so on the basis that she has “sufficient evidence from you on the separation from your family”. The Tribunal hearing immediately returned to the question of the timing of any further written submissions from the applicant, and after some further discussion, that date was settled as being 31 October 2013: CD 2 at approximately 56 mins 35 secs. There was then further discussion as to when the Tribunal member would be returning from a period of leave, and when the Tribunal Decision might be written. The applicant’s migration agent then explains to the applicant that the Tribunal member would not receive any further submission from him until 11 November 2013 when the Tribunal member returned from leave: CD 2 at approximately 58 mins. The migration agent then says that the date of 31 October 2016 gives her three weeks “to address all the adverse information and we’ve got enough information on the hardship on the family and we don’t need to bring even the children in”: CD 2 finishing at approximately 58 mins 30 secs. The applicant then says (CD 2 at approximately 58 mins 40 secs) that he “would have preferred it if you talked to them … because it is them that is getting hurt as well you know, it’s not just me”. The Tribunal member responds by saying (CD 2 at approximately 58 mins 50 secs): “I realise that, but … I have to make a decision based on you, and I understand how it is going to affect them, but I don’t think it is going to add anything more to the evidence I have already taken from you today, and the evidence I already have on the file, and I am obviously going to get some more, so I will leave it with your rep to organise” (finishing at CD 2 at approximately 59 mins and 25 secs).
It does not appear from the materials before the Court that a further submission was filed with the Tribunal on behalf of the applicant.
In BOL15 v Minister for Immigration & Border Protection & Anor [2016] FCCA 1994; (2016) 312 FLR 408 at [14]-[16] per Judge Lucev this Court observed as follows:
a)where the discretion under s.426(3) of the Migration Act is enlivened following notification under s.426(2) of the Migration Act, there can be no doubt that a failure by the Tribunal to have regard to the applicant’s wishes is a jurisdictional error: SZOGI v Minister for Immigration & Anor [2010] FMCA 390 at [36] per Driver FM. If an applicant requests that a Tribunal summons a witness, or take evidence from a witness, the Tribunal is not required to do so, at least in part because the Tribunal is under no duty to inquire: Minister for Immigration & Multicultural & Indigenous Affairsv Katisat [2005] FCA 1908 at [52] per Bennett J, citing Minister for Immigration & Multicultural & Indigenous Affairsv SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [43] per Gummow and Hayne JJ; VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 at [23] per Black CJ, Sundberg and Bennett JJ. Albeit in relation to the equivalent provisions applying under the Migration Act to the then Migration Review Tribunal the position was explained by the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118; (2005) 88 ALD 304 by the majority Justices in that case (at [37] per Kenny and Lander JJ) as follows:
It is in keeping with the Tribunal’s inquisitorial nature that the Tribunal does not err if it decides that, notwithstanding that the applicant wants oral evidence to be obtained from persons named in a notice under s 361(2) [here s.426(2)], it decides not to obtain such evidence, always providing that it acts in conformity with s 361(3) [here s.426(3)] of the [Migration] Act and has regard to the notice that the applicant has given. In this circumstance, there is no obligation on the Tribunal to take oral evidence from anyone other than the applicant.
b)in BTF15 v Minister for Immigration & Border Protection [2016] FCA 647; (2016) 69 AAR 376 (“BTF15”) the Federal Court:
i)dealt with a decision of the Tribunal on a review of a delegate’s decision to refuse a protection visa, to decline to question two persons who had given written statements apparently corroborative of the claims made by the applicant for the protection visa. The Federal Court observed, by reference to recent High Court and Full Court of the Federal Court authority, namely Minister for Immigration & Citizenshipv Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181 (“Li”) and Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50, that statutory discretions must be exercised reasonably and that there must be an intelligible justification within the reasons given for the exercise of the power by the Tribunal: BTF15 at [39]-[41] per Katzmann J; and
ii)also acknowledged the correctness of a submission made by the Minister that:
… a decision as to whether to receive oral evidence will depend, to a significant extent, on the relevance and importance of the evidence. Where on the face of the material before the Tribunal there was no reason to suppose that the authors of the statements could allay its particular concerns about the appellant’s credibility, it was not unreasonable to decide not to question them. The Tribunal was not obliged to test their accounts or to give them an opportunity to elaborate upon them before it came to an adverse conclusion about their evidence. Proceedings in the Tribunal are inquisitorial, not adversarial.
BTF15 at [55] per Katzmann J.
In this case the Court notes that there is no evidence of a written notification under s.426(2) of the Migration Act having been made, but irrespective of that, Child 1 and Child 2 were available at the Tribunal hearing, and the applicant expressed a desire for them to give evidence.
The Court notes that the giving of evidence by Child 1 and Child 2 was not pressed by either the migration agent or the applicant in any serious way. The applicant’s migration agent appeared to concede that it was not necessary to bring the children into the Tribunal hearing: it was the migration agent who told the applicant that they “did not need to bring the children in”: see [38] above, and the Tribunal member said she was satisfied that there was enough evidence in relation to the issue of his separation from the children. When the applicant raised the matter again he received effectively the same response from the Tribunal member, that is, that she had enough evidence on that issue, and the matter was not pressed further, either at the Tribunal hearing, or in any further submissions (none being filed). If the evidence of Child 1 and Child 2 was sufficiently cogent or critical to the outcome sought by the applicant, the applicant had the opportunity, both at the Tribunal hearing, and through the capacity to file further submissions to put forward further material or statements from Child 1 and Child 2, but neither the applicant nor his migration agent did so.
The Tribunal member put forward a cogent and intelligible reason for not taking further evidence from Child 1 and Child 2, namely that there was sufficient evidence of the effect of the separation from the children on the applicant. The applicant’s evidence to the Tribunal was substantial: the written materials are extensive, and at the Tribunal hearing (which ran for approximately two hours and 19 mins) the applicant spoke for close to two hours with very few interruptions from the Tribunal member, and in the course of which he gave extensive evidence as to the effects of his being separated from all of his children, not just Child 1 and Child 2. In that respect it is noteworthy that Child 1 and Child 2 were minors at the time of the Tribunal hearing, and the youngest of the applicant’s four children, the elder two being in their mid-20s: CB 44-45.
It is evident from what was said toward the end of the Tribunal hearing that the purpose of calling Child 1 and Child 2 was to demonstrate the effect of the separation on them, not to show that the applicant was suffering any form of harm as a consequence.
For reasons set out in ground 1 it is not necessary to consider the best interests of the applicant’s children who are remaining in Australia, and the harm from which the applicant is to be protected by Australia’s non-refoulement obligations does not engage those obligations or give rise to harm of the requisite kind: see [19] above, and SZRLY and AZAEH as cited above.
The Tribunal found, correctly in the Court’s view, that the separation of the applicant from his children was not for a Convention reason, and further, for complementary protection purposes, that it was not satisfied that there was a real risk that the applicant would suffer significant harm because he was to be separated from his children: CB 349 at [74]. Those are factual findings in relation to the refugee and complementary protection criterion under s.36(2)(a) and (aa) of the Migration Act which were open to the Tribunal on the evidence. Furthermore, in circumstances where:
a)Child 1 and Child 2 were not the subject of the Protection Visa application;
b)there was not an acceptance that the applicant’s separation from his children was for a Convention reason;
c)the best interests of the child was not a criterion which was engaged; and
d)the Tribunal had significant written and oral evidence before it from the applicant,
it was open in the Court’s view for the Tribunal to find that it was unnecessary to hear from Child 1 and Child 2. Procedural fairness for the purposes of Division 4 of Part 7 of the Migration Act did not require the Tribunal to hear evidence from every witness that an applicant seeks to have heard by the Tribunal. That is particularly so, where, as here, the evidence of Child 1 and Child 2 could not have been of much assistance to the Tribunal in respect of the question of whether or not there was a real risk of significant harm to the applicant, their father, in the receiving country, the United Kingdom. Ultimately, the Tribunal gave a cogent and intelligible reason for not calling Child 1 and Child 2, and in those circumstances their not being called does not establish jurisdictional error in the Tribunal Decision.
For all of the above reasons, the Tribunal did not fall into jurisdictional error on the bases alleged in ground 3 of the Amended Judicial Review Application. It follows that ground 3 is not made out.

Conclusions and orders

The conclusions to be reached, and the order to be made, by this Court on the Amended Judicial Review Application must be made on legal, not humanitarian, grounds. In order to succeed on an application for judicial review an applicant must, at least, show jurisdictional error in the decision of an administrative decision-maker which affects the exercise of the administrative decision-maker’s power in a way which affects the decision by reason of it exceeding or failing to exercise the authority or powers given under the relevant statute, or by denying the applicant procedural fairness under the relevant statute: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ; Li at [17]-[22] per French CJ and [63]-[76] per Hayne, Kiefel and Bell JJ (in Li in the context of an alleged unreasonable exercise of discretion not to adjourn a hearing).

In this case, for reasons set out above, the Court has determined that the applicant has failed to establish jurisdictional error in relation to the grounds set out in the Amended Judicial Review Application. It follows from such a conclusion that the Amended Judicial Review Application must be dismissed.
The Court will also order that name of the second respondent be changed to “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
The Court will hear the parties as to costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Date: 16 March 2017