FTZK v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Judge: French CJ,Gageler J.,Hayne J.,Crennan,Bell JJ.
• Judgment Date: 27 June 2014
• Neutral Citation: [2014] HCA 26
• Docket Number: M143/2013
• Court: High Court
• Date: 27 June 2014

[2014] HCA 26

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Crennan, Bell and Gageler JJ

M143/2013

FTZK

Appellant

and

Minister for Immigration and Border Protection & Anor

Respondents

Representation

P G Nash QC with N P Karapanagiotidis for the appellant (instructed by Maddocks)

S P Donaghue SC with R J Sharp for the first respondent (instructed by Australian Government Solicitor)

Submitting appearance for the second respondent

Migration Act 1958 (Cth), s 36(2)(a).

Convention relating to the Status of Refugees (1951), Art 1F(b).

FTZK v Minister for Immigration and Border Protection

Migration — Refugees — Application for protection visa — Whether Australia had protection obligations towards appellant — Exclusion from Refugees Convention — Art 1F(b) — Serious reasons for considering that appellant had committed serious non-political crimes prior to admission — Protection visa refused on basis of Art 1F(b) — Review by Administrative Appeals Tribunal — Whether open to Tribunal to apply exclusion — Whether Tribunal fell into jurisdictional error — Whether Tribunal misconstrued test — Whether evidence logically probative of serious reasons for considering appellant had committed serious non-political crimes.

Administrative law — Judicial review — Grounds of review — Jurisdictional error — Refugees Convention — Art 1F(b) — Whether Tribunal fell into jurisdictional error — Whether Tribunal misconstrued test — Whether evidence logically probative of serious reasons for considering appellant had committed serious non-political crimes.

Words and phrases — ‘jurisdictional error’, ‘serious non-political crime’, ‘serious reasons for considering’, ‘standard of proof’.

ORDER

• 1. Appeal allowed.

• 2. The order of the Full Court of the Federal Court of Australia made on 6 May 2013 be set aside and, in its place, order that:

  • (a) the proceedings be heard and determined as though instituted under s 476A of the Migration Act 1958 (Cth);

  • (b) a writ of certiorari issue directed to the second respondent quashing the decision made on 23 May 2012;

  • (c) a writ of mandamus issue directed to the second respondent requiring a differently constituted Administrative Appeals Tribunal to review according to law the decision of the first respondent to refuse the appellant a Protection (Class XA) visa; and

  • (d) the first respondent pay the appellant's costs of the proceedings in the Federal Court of Australia.

• 3. The first respondent pay the appellant's costs in this Court.

French CJ and Gageler J.

Introduction

1 This appeal concerns the construction and application of Art 1F(b) of the Refugees Convention 1, which provides:

‘The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

…

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee’.

Article 1F intersects, in Australian domestic law, with s 36(2)(a) of the Migration Act 1958 (Cth) (‘the Migration Act’), which specified at the relevant time, as a criterion for a protection visa, that the applicant was 2:

‘a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol’.

In NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs3, Art 1F was said to have been adopted by the Migration Act 4. It limits the reach of the definition of refugee in Art 1 and thereby gives content to the criterion in s 36(2)(a), which depends upon the subsistence of protection

obligations owed by Australia under the Refugees Convention with respect to the visa applicant 5.

2 The Migration Act provides for review by the Administrative Appeals Tribunal (‘the AAT’) of a decision made by the Minister to refuse to grant a protection visa relying, inter alia, on Art 1F of the Refugees Convention 6. In the exercise of that review function, the AAT applied Art 1F(b) to affirm a decision of a delegate of the Minister to refuse the appellant, a Chinese national, a protection visa 7. That refusal was based upon the appellant's alleged involvement in the kidnapping and murder of a student in China in 1996. The protection visa had been sought on the basis that the appellant had a well-founded fear of persecution in China on account of his religion.

3 This appeal is brought pursuant to a grant of special leave 8 to appeal against a decision of the Full Court of the Federal Court dismissing an appeal against the decision of the AAT 9. The factual and procedural history is set out in the joint reasons for judgment of Crennan and Bell JJ 10. The proceeding in the Federal Court invoked the original jurisdiction conferred upon that Court by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) 11 and designated in that section as an ‘appeal’. The Full Court held that the appeal was incompetent by reason of s 48of the Migration Act 12. The Federal Court, however, has original

statutory judicial review jurisdiction under the Migration Act equivalent to that conferred on the High Court by s 75(v) of the Constitution 13. The Minister conceded that the appeal could be treated as having invoked that jurisdiction or that the originating process could be amended accordingly 14.

4 The Full Court dealt with the substantive argument on the basis that the utility of any amendment to the originating process necessary to properly invoke its jurisdiction would depend upon whether the substantive argument would succeed. As the majority recognised, this was not the most satisfactory way to proceed 15. It would have been preferable for the appellant to have been required to amend his originating process and to claim appropriate relief 16. For the reasons that follow, the Full Court ought to have found that the AAT had committed a jurisdictional error, it should have allowed the appellant to amend his originating process and it should have granted writs of certiorari to quash the AAT's decision and mandamus to require the AAT to determine the appellant's application according to law.

The AAT's reasons

5 The AAT recorded that it was not in dispute that the crimes alleged against the appellant were serious non-political crimes for the purposes of Art 1F(b) 17. The AAT stated that it sufficed for the application of Art 1F(b) that there be ‘strong evidence’ that the person seeking refuge had committed the alleged offence. The evidence did not have to be of such weight as to meet either the criminal or civil standard of proof. It was not necessary that the decision-maker be satisfied that the alleged crime had been committed 18. There was no error disclosed in those propositions. The statement of reasons in support of the AAT's decision to affirm the delegate's decision recorded the following steps:

• 1. The transcripts of interviews by Chinese authorities with the appellant's alleged co-offenders constituted ‘direct evidence’ implicating the appellant in the crimes 19.

• 2. The appellant had left China shortly after the alleged crimes were committed. He had provided false information in order to obtain a visa and again when applying for a protection visa in 1998 20.

• 3. The appellant's evidence to the AAT that he was detained and tortured in China on account of his religious affiliations was fabricated in order to strengthen his claim to remain in Australia 21.

• 4. The appellant remained in Australia between January 2000 and February 2004 without lawful permission. His testimony that he believed he was entitled to remain in Australia during this period was not accepted 22.

• 5. The appellant attempted to escape from detention in 2004 after his application for a long stay business visa was refused. His claimed reasons for attempting to escape were not accepted 23.

• 6. The witnesses called by the appellant to cast doubt upon the veracity of the transcripts of interviews with his alleged co-offenders were well qualified to express the opinions they did. However, their arguments that features of the legal system in China affected the investigation into the crimes alleged against the appellant were based on speculation as to what may have happened 24.

6 In an important paragraph in the reasons, the Deputy President said 25:

‘The conclusion I have reached is based on the totality of the evidence I have referred to above. Any one of the various factors would not have been sufficient to establish serious reasons; it is the combination of factors which gives rise to reasons of sufficient seriousness to satisfy Article 1F of the Convention.’

On the findings of fact stated by the Deputy President, no logical pathway to that conclusion was disclosed. That deficiency evidenced a failure on the part of the AAT to ask itself the question which Art 1F(b) required — namely whether there was a rational connection between the material before it and an inference that the appellant had committed a serious non-political crime in China.

The Federal Court decision

7 The majority in the Full Court of the Federal Court (Gray and Dodds-Streeton JJ) decided the case on the basis that the central question concerned the relevance of the facts found by the AAT to its conclusion that there were serious reasons for considering that the appellant had committed serious non-political crimes 26. The correctness of the construction of Art 1F(b) adopted by the AAT was assumed. The majority discerned relevance on the basis that although the AAT did not say so explicitly, it clearly regarded the facts which it had found about the appellant's departure from China and subsequent falsehoods as indicating a consciousness of guilt and a desire to escape from the consequences of what he had done 27. The connection was ‘readily apparent’ and...