FTZK v Minister for Immigration

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Hayne,Crennan Bell,Gageler JJ
• Judgment Date: 27 June 2014
• Date: 27 June 2014

Australia, High Court.

(French CJ; Hayne, Crennan Bell and Gageler JJ)

FTZK

and

Minister for Immigration and Border Protection1

Aliens Refugees United Nations Convention relating to the Status of Refugees, 1951 Exclusion from definition of refugee Article 1F(b) Interpretation Whether there were serious reasons for considering that the appellant committed a serious non-political crime Whether there was a rational foundation for the inference that the appellant committed a serious nonpolitical crime Whether evidence was logically probative of serious reasons for considering that the appellant committed a serious non-political crime The law of Australia

Summary:2The facts:The appellant appealed in respect of a decision of a delegate of the Minister for Immigration and Border Protection (the respondent) that he was excluded from protection as a refugee under the United Nations Convention relating to the Status of Refugees, 1951, as amended by the United Nations Protocol relating to the Status of Refugees, 1967 (the Refugee Convention). In that decision, the appellant was found to be a person to whom Australia had protection obligations pursuant to Article 1A(2) of the Refugee Convention.3 However, as it was held that there were serious reasons for considering that the appellant had committed serious non-political crimes in the People's Republic of China (PRC) prior to his admission as a refugee in Australia, the appellant was excluded from the protection of the Refugee Convention by operation of Article 1F(b).4 In May

1997, the appellant had been implicated by his two alleged co-accused in the crimes of kidnap and murder in the PRC, which occurred in December 1996, and the appellant was the subject of criminal charges laid by the PRC authorities in respect of these crimes

The appellant entered Australia on 1 February 1997 on a temporary visa and was granted a bridging visa in December 1998, which expired on 21 January 2000. The appellant admitted that he had provided false details on his visa application in order to receive that visa and to leave the PRC. On 8 December 1998, the appellant applied for a Protection (Class XA) visa, claiming that he had left the PRC because he had been persecuted on the ground of his religious beliefs. A delegate of the respondent rejected this claim and the Refugee Review Tribunal affirmed that decision in December 1999. Following the expiration of the appellant's bridging visa in January 2000, he lived in Australia as an unlawful non-citizen until February 2004, at which time he was taken into immigration detention. In March 2004, the appellant attempted to escape from immigration detention.

In October 2007, the appellant filed applications in the High Court of Australia seeking review of the decision of the Tribunal and sought an injunction to prevent his removal to the PRC. The injunction preventing the appellant's removal to the PRC was issued and the matter was ultimately remitted to the Tribunal to be determined according to law. On 11 May 2010, the appellant was found by the Tribunal to be a refugee under Article 1A(2) of the Refugee Convention and the matter was remitted to the respondent to determine any issues with respect to Article 1F(b) of the Refugee Convention. On 24 May 2011, a delegate of the respondent concluded that the appellant was excluded from protection under the Convention by reason of Article 1F(b).

The appellant appealed to the Administrative Appeals Tribunal (AAT), where the appellant gave evidence denying that he had committed the alleged crimes. It was common ground between the parties that the alleged crimes were serious non-political crimes for the purposes of Article 1F(b). In its decision of 23 May 2012, the AAT affirmed the decision of the delegate of the respondent to refuse to grant the appellant a protection visa. The AAT relied on Article 1F(b) of the Refugee Convention and found that there were serious reasons for considering that the appellant had committed the alleged crimes on four grounds. First, the AAT accepted documentary evidence provided by the PRC Government which implicated the appellant in the alleged crimes. The appellant accepted that this evidence was relevant in determining whether he fell within the ambit of Article 1F(b) of the Refugee Convention. Secondly, the AAT relied on the conduct of the appellant in leaving the PRC shortly after the crimes were committed and providing false information to Australian immigration authorities to obtain a visa. Thirdly, the AAT considered evidence that the appellant was evasive when providing evidence on his religious affiliations and the AAT was not satisfied that the appellant was detained and tortured in the PRC. Fourthly, the AAT considered that the appellant had attempted to escape from immigration detention and had remained in Australia unlawfully between January 2000 and February 2004.

The decision of the AAT was affirmed by a majority of the Full Court of the Federal Court of Australia. However, Kerr J, in dissent, held that the AAT had relied on irrelevant considerations. Kerr J held that each of the findings of the AAT had no probative value in determining whether the appellant was excluded from protection under Article 1F(b) of the Refugee Convention unless each finding was linked to a further fact of motive or consciousness of guilt.

The applicant appealed to the High Court of Australia.

Held:The applicant's claim was allowed.

(1) Per Crennan and Bell JJ: (a) The AAT had misconstrued Article 1F(b) of the Refugee Convention. Article 1F(b) was to be interpreted autonomously, by reference to international law. The purpose of Article 1F(b) was to ensure that criminals could not avoid punishment for serious non-political crimes committed outside the receiving country by claiming refugee status in the receiving country (paras. 6871).

(b) Article 1F(b) should be interpreted restrictively but it should not be construed so narrowly as to undermine the policy rationale behind it. This restrictive approach to interpreting Article 1F was justified because of the serious consequences of excluding from the protection provided by the Refugee Convention a person who had a well-founded fear of persecution (paras. 725).

(c) The expression serious non-political crime was not confined to crimes of an extraditable nature and included common crimes. The expression serious reasons for considering was not to be determined by reference to domestic standards of proof but required strong evidence that the accused had committed the crime and more than reasonable grounds or a suspicion of guilt. This did not require a positive or conclusive finding of guilt (paras. 7683).

Per French CJ and Gageler J (concurring): The requirement of finding that there were serious reasons for considering that a serious non-political crime had been committed did not require a finding that the accused had actually committed a serious non-political crime. The expression serious reasons required that there was material before the decision-maker that provided a rational foundation for the inference that the accused had committed a serious non-political crime. Such evidence had to be capable of being regarded as strong and should not be evaluated by using domestic standards of proof (paras. 1116).

Per Hayne J (concurring): Article 1F(b) required that the decision-maker actually be persuaded that that there were serious reasons for considering the appellant had committed a serious non-political crime outside the receiving country. The decision-maker did not need to be persuaded that the person is actually guilty of the alleged crimes (paras. 367).

(2) Per Crennan and Bell JJ: The AAT had taken into account irrelevant considerations in determining whether the applicant fell within the scope of Article 1F(b). The AAT should have asked whether the evidence before it disclosed serious reasons for considering that the appellant had committed one or more of the alleged crimes. The appellant's conduct in providing false information to Australian immigration authorities to obtain a visa, his evasive evidence before the AAT regarding his religious affiliations, his attempts to escape immigration detention and his remaining in Australia without lawful permission were not probative of any motive or guilt in respect of the alleged crimes (paras. 917).

Per French CJ and Gageler J (concurring): The evidence of the appellant's conduct in leaving the PRC, making false statements in support of his visa applications and the appellant's evidence about his religious affiliations and fear of persecution did not provide a rational basis for an inference that the appellant had committed the alleged crimes. As the AAT had not responded to the preliminary question of whether this evidence provided the rational basis for an inference that the appellant committed the alleged crimes, the AAT had committed a jurisdictional error (paras. 1720).

Per Hayne J (concurring): The evidence that the appellant had left the PRC, made false statements and given false testimony before the AAT regarding his affiliations and fear of persecution and had attempted to escape immigration detention did not support a conclusion that the appellant had committed the alleged crimes (paras. 412).

The following is the text of the judgments delivered in the Court: FRENCH CJ AND GAGELER J

Introduction

1. This appeal concerns the construction and application of Article 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 section 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...