FTZK And MINISTER FOR IMMIGRATION AND BORDER PROTECTION
[2015] AATA 155
•18 March 2015
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2011/2054
GENERAL ADMINISTRATIVE DIVISION )Re:FTZK
Applicant
And:MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
CORRIGENDUM TO DECISION [2015] AATA 155
The Tribunal amends its decision of 18 March 2015 as follows:
1.in [12], first sentence, by deleting “8 December 1988” and inserting “1 December 1998”.
_[sgd] S A Forgie__
Deputy President
[2015] AATA 155
Division GENERAL ADMINISTRATIVE DIVISION
File Number 2011/2054
Re FTZK
APPLICANT
And MINISTER FOR IMMIGRATION AND BORDER PROTECTION
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 18 March 2015
Place Melbourne
The Tribunal decides to:
1.set aside the decision of a delegate of the respondent dated 24 May 2011; and
2.substitutes a decision that Article 1F(b) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 does not exclude the application of the provisions of that Convention to the applicant i.e. there are no serious reasons for considering that the applicant committed a serious non-political crime outside the country of refuge (Australia) prior to his admission to that country as a refugee.
…[sgd] S A Forgie.….
Deputy President
CATCHWORDS
IMMIGRATION – remittal from High Court – Convention and Protocol relating to Status of Refugees – whether applicant excluded from its protection by Article 1F(b) – whether there are serious reasons for considering that applicant committed kidnap and murder – decision set aside
LEGISLATION
Acts Interpretation Act 1901; section 34A
Administrative Appeals Tribunal Act 1975; sections 33, 44
Customs Act 1901; sections 269FA, 269SHA
Freedom of Information Act 1982; section 61
Migration Act 1958; sections 4, 5, 22AA, 29, 36, 40, 91T, 500
Taxation Administration Act 1953; section 14ZZK
Veterans’ Entitlements Act 1986; sections 18, 120Migration Regulations 1994; Schedules 1, 2 and item 866.221
CASES
Al-Sirri v Secretary of State for the Home Department [2009] Imm AR 624
Arquita v Minister for Immigration and Multicultural Affairs [2000] FCA 1889; (2000) 106 FCR 465; 63 ALD 321; 32 AAR 252
Chan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292; (2003) 134 FCR 308
Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203; 186 ALR 328; 76 ALJR 358
Dawson v R (1961) 106 CLR 1
Dhayakpa v Minister for Immigration and Ethnic Affairs [1995] FCA 1653; (1995) 62 FCR 556
DPP v Kilbourne [1973] AC 729; [1973] 1 All ER 440
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 2 ALD 60; 24 ALR 577
Edwards v R [1993] HCA 63; (1993) 178 CLR 193; 117 ALR 600
FTZK v Minister for Immigration and Citizenship [2013] FCAFC 44; (2013) 211 FCR 158; 60 AAR 195
FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 310 ALR 1; 88 ALJR 754
Jenkins v R [2004] HCA 57; 79 ALJR 252; 211 ALR 116
Melbourne v R [1999] HCA 32; (1999) 198 CLR 1; 164 ALR 465; 73 ALJR 1097
Minister for Immigration and Multicultural Affairs v Singh [2002] HCA 7; (2002) 209 CLR 533; 186 ALR 393
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; 136 ALR 481; 41 ALD 1
Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331; 221 ALR 213; 79 ALJR 1736
Ovcharuk v Minister for Immigration and Multicultural Affairs [1998] FCA 1314; (1998) 88 FCR 173; 51 ALD 549; 158 ALR 289
Palmer v The Queen (1998) 193 CLR 1; 151 ALR 16
Pollitt v The Queen (1992) 174 CLR 558; 108 ALR 1
Povey v Qantas Airways Ltd [2005] HCA 33; (2005) 223 CLR 189; 216 ALR 427
R v Ciantar [2006] VSCA 263; (2006) 16 VR 26
R v Fraser (1995) 65 SASR 260
R v Gionfriddo & Faure [1989] VicSC 498
R v Matthews [1960] 1 SA 752
R v Murphy (1985) 4 NSWLR 42; 63 ALR 53
R v Dat Tuan Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479
R v White [1998] 2 SCR 72; 161 DLR (4th) 590; 125 CCC (3d) 385
R (JS (Sri Lanka)) v Secretary of State for the Home Department [2011] 1 AC 184
Repatriation Commission v Nation [1995] FCA 1277; (1995) 57 FCR 25; 21 AAR 351
Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17
Re YYMT and MQCR and Minister for Immigration and Citizenship [2010] AATA 447; (2010) 53 AAR 287; 115 ALD 590
SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 42; (2005) 147 FCR 1; 220 ALR 394; 86 ALD 511
SZCWP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 9
Vetrovec v The Queen [1982] 1 SCR 811; (1982) 136 DLR (3d); 67 CCC (2d) 1
WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245; (2004) 138 FCR 579; 211 ALR 398; 40 AAR 223OTHER MATERIAL
Convention and Protocol Relating to the Status of Refugees, Article 1F
Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, United Nations High Commissioner for Refugees, 1992
Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, United Nations High Commissioner for Refugees, 4 September 2003
REASONS FOR DECISION
FTZK[1] is a citizen of the People’s Republic of China (PRC). His passport was issued on 24 July 1996. Since 1 February 1997 when he arrived in Australia on a Class UC Temporary Business Subclass 465 visa, he has lived in Australia. On 26 May 1997, authorities in the PRC issued a warrant for his arrest in relation to the charges of kidnapping and murder that he was alleged to have committed on 20 December 1996. FTZK applied to the Minister now known as the Minister for Immigration and Border Protection (Minister) for a protection visa but his application was refused. The refusal was affirmed by the Refugee Review Tribunal (RRT) on 17 December 1999. FTZK was taken into immigration detention on 24 February 2004 and subsequently instituted proceedings that ultimately led to the RRT’s decision being set aside and the matter remitted to it for reconsideration. On 11 May 2010, the RRT found that he satisfied Article 1A(2) of the Refugees Convention[2] but remitted the matter to the Minister for reconsideration on matters including whether FTZK was excluded from the protection of the Refugees Convention under Article 1F. On 24 May 2011, the Minister decided that FTZK was excluded from the protection of the Refugees Convention by Article 1F. A differently constituted Tribunal affirmed the Minister’s decision on 23 May 2012 but, on 27 June 2014, the High Court ordered that a writ of certiorari issue to the Tribunal quashing its decision. It also ordered that a writ of mandamus issue requiring a differently constituted Tribunal “… to review according to law the decision of the first respondent [Minister] to refuse the appellant a Protection (Class XA) visa”.[3]
[1] I have continued to refer to the applicant by the pseudonym “FTZK” as ss 501K(1)(a) and (2) of the Migration Act 1958 (Migration Act) provides that, when a review relates to a person in that person’s capacity as an applicant for a protection visa, the Tribunal must not publish any information that may identify that person or any relative or other dependant of the person.
[2] Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967. The Convention was ratified by Australia on 22 January 1954 with effect from 22 April 1954; Australian Treaty Series, 1954, No. 5. The Protocol was Acceded to by Australia on 13 December 1973; Australian Treaty Series, 1973, No. 37. The expressions “Refugees Convention” and “Refugees Protocol” are defined in the Migration Act, s 5(1).
[3] FTZK v Minister for Immigration and Citizenship [2014] HCA 26; (2014) 310 ALR 1; 88 ALJR 754; French CJ, Hayne, Crennan, Bell and Gageler JJ
Section 500(1)(c) of the Migration Act 1958 (Migration Act) permits an application to be made to the Tribunal for review of a decision to refuse to grant a protection visa only when that decision relies on one or other of three Articles in the Refugees of which Article 1F is one. Article 1F(b) will operate to exclude FTZK from the protection of the Refugees Convention if there are serious reasons for considering that he committed a serious non-political crime outside Australia before he was admitted as a refugee. The serious non-political crime he is alleged to have committed is that of kidnapping and murder and is alleged to have occurred in China. I have decided that Article 1F(b) does not operate in this case as there are no serious reasons for considering that FTZK has committed that crime.
THE JURISDICTIONAL ERROR IDENTIFIED BY THE HIGH COURT
The jurisdictional error that the Tribunal was found to have made was that the last three of the four matters it took into account in deciding that there were serious grounds for considering that FTZK had committed murder and kidnapping were not relevant. The four factors were described by Hayne J:
“[27] … First, Chinese authorities alleged that the appellant had committed the crimes and they provided transcripts of interrogation of two men (later convicted of and executed for participation in the crimes) who alleged that the appellant was complicit in their crimes. The tribunal said that there was “nothing in the evidence [before the tribunal] to suggest that [the two men] conspired to name” the appellant (scil as a co-offender).
[28] Second, the tribunal found that the appellant had left China shortly after the crimes were committed and that he had provided false information to Australian authorities in order to obtain a visa to travel to and enter Australia. In addition, the tribunal concluded that the appellant had “deliberately provided false information when applying to the Australian authorities for a protection visa”.
[29] Third, the tribunal found that the appellant was evasive in giving evidence about his religious affiliations and about what had happened to him in China before he left that country. The evidence, the tribunal concluded, was given in this way to strengthen his claim to remain in Australia.
[30] Fourth, the tribunal took into account that the appellant had attempted to escape from immigration detention.”[4]
[4] [2014] HCA 26; (2014) 310 ALR 1; 88 ALJR 754 at [27]-[30]; 10-11; 762
His Honour stated the jurisdictional error made by the Tribunal in these terms:
“… None of the second, third or fourth factors identified by the Tribunal could support a conclusion that there were ‘serious reasons for considering’ that the appellant had committed the crimes alleged against him. They could not support that conclusion because, in the circumstances of this case, none of those three factors was logically probative of the appellant’s commission of the alleged crimes. …”[5]
[5] [2014] HCA 26; (2014) 310 ALR 1; 88 ALJR 754 at [31]; 11; 762-763
French CJ and Gageler J said that the previous Tribunal’s:
“… ultimate conclusion, that Art 1F(b) was engaged, was therefore critically dependent upon the existence of a rational connection between its findings of fact taken in combination and the commission by the appellant of the alleged crimes. A rational connection of that kind existed with respect to the material produced by the Chinese government and accepted by the AAT as ‘direct evidence’ of the allegations, albeit the AAT did not regard that material, taken by itself, as constituting serious reasons for considering that the appellant had committed the alleged crimes. … No such connection was made or was able to be implied from the balance of the AAT’s findings with respect to the conduct of the appellant in leaving China when he did, making false statements in support of his visa applications, or giving testimony to the AAT, which it did not accept, about his religious affiliations and fear of persecution if he returned to China. Those findings are consistent with the appellant having the purpose of leaving China and living in Australia. Whether or not they evidence a consciousness of guilt of the alleged offences was not the subject of any explicit finding by the AAT. Nor, contrary to the views of the majority in the Full Court of the Federal Court, is a finding on the part of the AAT that they evidence consciousness of guilt so apparent that the finding should be implied. The fact that the proceedings before the AAT were argued on the basis that the conduct of the appellant, after leaving China, could lead to conclusions adverse to him is not surprising. Adverse findings as to his conduct, representations to officials and testimony before the AAT would no doubt go to his credibility. That he contested those issues does not imply a concession that the facts found by the AAT taken collectively constituted reasons, much less ‘serious reasons’, for considering that he had committed serious non-political crimes.”[6]
[6] [2014] HCA 26; (2014) 310 ALR 1; 88 ALJR 754 at [18]; 9; 761
Crennan and Bell JJ considered Edwards v R[7] where the High Court had:
“… considered the instructions which need to be given to a jury by a trial judge if lies by an accused are relied upon as corroboration of other evidence. In a key passage in the majority opinion it was recognised that ‘[a] lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence’. It was then said that in any case where a lie is relied upon to prove guilt (here, the commission of an offence) ‘the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest’. Furthermore, Brennan J identified the inherent difficulties in treating false denials of guilt as admissions constituting independent proof of guilt.
[93] The path by which the tribunal reached its conclusion that the appellant fell within Art 1F(b) did not include any consideration of whether, and if so how, the lies and conduct relied upon were concerned with circumstances or events connected with one or more of the alleged crimes. The tribunal’s findings in respect of the appellant’s credit did not involve a rejection of his denial that he committed the alleged crimes or amount to a finding that the lies and conduct constituted an admission against interest by him in respect of those crimes.
[94] As to the relevancy ground, undoubtedly the language of Art 1F(b) and the scope and purpose of the Act obliged the tribunal not to rely on irrelevant considerations when considering whether there were ‘serious reasons for considering’ that the appellant (who qualified for protection under Art 1A(2)) had committed the alleged crimes before entering Australia. … The appellant’s submission on relevancy depended critically on the tribunal’s finding that the transcripts of the alleged co-accused were insufficient to persuade the tribunal that there were ‘serious reasons for considering’ that the appellant had committed those crimes.”[8]
[7] [1993] HCA 63; (1993) 178 CLR 193; 117 ALR 600; Brennan CJ, Dawson, Gaudron and McHugh JJ
[8][2014] HCA 26; (2014) 310 ALR 1; 88 ALJR 754 at [92]-[94]; 24-25; 772-773 per Crennan and Bell JJ
TRIBUNAL’S TASK FOLOWING REMITTAL
The precise terms of the order made by the High Court in FTZK v Minister for Immigration and Border Protection are:
“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.”[9]
[9] [2014] HCA 26; (2014) 310 ALR 1; 88 ALJR 754 at [100]; 26; 774 per Crennan and Bell JJ with whom French CJ and Gageler J and Hayne J agreed at [2014] HCA 26; (2014) 310 ALR 1; 88 ALJR 754 [21] and [23]; 10; 762 respectively
The High Court’s order replaces that made by the Full Court of the Federal Court[10] using its powers found in ss 44(4) and (5) of the Administrative Appeals Tribunal Act 1975 (AAT Act). Those sections provide:
“(4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.
(5)Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.”
[10] FTZK v Minister for Immigration and Citizenship [2013] FCAFC 44; (2013) 211 FCR 158; 60 AAR 195; Gray and Dodds-Streeton JJ; Kerr J dissenting
The terms in which a remittal order is expressed can cause some concern as to its scope. In Repatriation Commission v Nation, for example, after setting aside the Tribunal’s decision the Federal Court had chosen to remit the “matter” to the Tribunal, rather than the “case”, which is the language of s 44(5), to be heard and determined again. On further appeal, the Full Court decided that it is open to conclude that:
“ Although the Court’s order referred to the ‘matter’ rather than the ‘case’, it appears that an order of the kind provided by s 44(5) was intended. As a matter of power, s 44(4) would, in any event, have authorised an order in the terms of the order made.”[11]
[11] Repatriation Commission v Nation [1995] FCA 1277; (1995) 57 FCR 25; 21 AAR 351 at [39]; 33; 359
In this case, the High Court has not used the language of s 44(5) in substituting the Full Court’s order but would seem to have relied on the more general powers available to the Federal Court under s 44(4). In doing so, it has gone back to the Tribunal’s fundamental statutory task which is to review the decision according to law. It has not chosen to place any express limits on the scope of that review as it might have done. Has it placed any implicit limitations upon it? I think not and I will review the decision afresh without restriction.
FTZK’S PRESENCE IN AUSTRALIA: travel documents and visas
Many of the events relating to FTZK’s arrival in Australia are not in dispute and I will summarise those that are not in dispute in this section of my reasons. A PRC passport was issued to FTZK on 24 July 1996. On 14 January 1997, he applied for, and was granted, a Class UC Temporary Business Subclass 465 visa. He entered Australia on 1 February 1997.
FTZK applied for a protection visa on 8 December 1988 and was granted a bridging visa A to remain in Australia. His application for a protection visa was refused by a delegate of the Minister on 20 January 1999 and FTZK applied to the RRT for review of that decision. While waiting for the RRT’s decision, FTZK’s bridging visa expired on 21 January 2000. Although without a visa to remain in Australia, he continued to live here. As a result of being stopped by police over a matter related to his driving a motor vehicle, FTZK was discovered not to have a visa and was placed in immigration detention on 24 February 2004.
FTZK applied for a bridging visa E on 27 February 2004 but his application was refused on 2 March 2004. He remained in immigration detention until 23 May 2005 when, in view of the Federal Court’s judgment in Chan v Minister for Immigration and Multicultural and Indigenous Affairs[12] (Chan), an officer of the Department of Immigration and Multicultural and Indigenous Affairs (Department), as it was then known, determined that he had not been properly notified of the refusal of his application for a protection visa. His bridging visa A was deemed to be current and to permit him to be in Australia lawfully. Two days later, on 25 May 2005, officials of the Department served a notice on FTZK advising that cancellation of his bridging visa was under consideration. He was again placed in immigration detention at Maribyrnong Immigration Detention Centre but, on 25 May 2005, was returned to Baxter.[13]
[12] [2003] FCA 1292; (2003) 134 FCR 308; Gray J
[13] Documents lodged under s 37, AAT Act (T documents); T2 at 5
FTZK appealed to the High Court against the RRT’s decision refusing his application for a protection visa. He did so on 5 October 2007. Within a fortnight, the High Court had issued an injunction preventing his removal from Australia and remitted the matter to the Federal Court. When the Minister withdrew from the appeal on 18 March 2008, the Federal Court remitted the matter to the RRT for reconsideration. On 24 September, the RRT affirmed the decision originally made by a delegate of the Minister refusing FTZK’s application for a protection visa.
FTZK lodged an appeal to the Federal Magistrates’ Court on 21 October 2008. When the Minister again withdrew from the appeal, the matter was again remitted to the RRT for reconsideration. That order was made on 20 January 2009. On 11 May 2010, the RRT found that FTZK was owed protection obligations in Australia by reason of his political opinion but noted that further consideration would require consideration of Article 1F.
LEGISLATIVE BACKGROUND
Visas
Under Part 2 of the Migration Act, the Minister may grant a non-citizen[14] permission either to travel to and enter Australia, to remain in Australia for a specified or indefinite period or to both travel and enter and remain.[15] Visas are grouped together in classes. Some visas are provided for in specific sections of the Migration Act and others are prescribed in Schedule 1 of the Migration Regulations 1994 (Regulations). Section 36 of the Migration Act provides that there is a class of visas to be known as protection visas. Section 36(2) provides that there are two criteria for a protection visa. Only one applies to FTZK and that is that he is:
“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”.[16]
Sections 36(3), (4) and (5) qualify Australia’s protection obligations but those qualifications do not have any relevance in this case.
[14] A “non-citizen” means a person who is not an Australian citizen: Migration Act, s 5(1).
[15] Migration Act, ss 29(1), (2) and (3)
[16] Migration Act; s 36(2)(a)
Criteria for subclass Protection (Class XA) visa
Section 40(1) of the Migration Act provides that the Regulations may provide that visas or visas of a specified class may only be granted in specified circumstances. Schedule 2 of the Regulations makes provision for the grant of visas. It makes provision for the circumstances in which a visa of a particular class may be granted by specifying criteria that must be satisfied in relation to each class. The primary criteria must be satisfied at the time of the application for the visa. The secondary criteria must be satisfied at the time of decision.
A Protection (Class XA) visa comes under Subclass 866 Protection visas. Of the secondary criteria that must be satisfied at the time of the decision, the only relevant one for the purposes of this case is that found in item 866.221:
“The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.”
The Convention
A.Articles 1A and 1F
The Refugees Convention is concerned with the status and protection of refugees. In so far as it is relevant to this case, a “refugee” is defined in Article 1A(2) of Chapter I as a person who:
“… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
In the case of a person who has more than one nationality, the term ‘the country of his nationality’ shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.”
Articles 1C, D, E and F set out the circumstances in which the Convention ceases to apply to a person who has come within the definition of a refugee. Article 1F is relevant in the circumstances of this case and, in particular, Article 1F(b). In order to place Article 1F(b) in its context, I set out the whole of the Article:
“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c)he has been guilty of acts contrary to the purposes and principles of the United Nations.”
Section 91T of the Migration Act and the interpretation of Article 1F(b)
Subdivision AL of Division 3 of Part 2 of the Migration Act makes particular provision for protection visas. Among its provisions is s 91T relating to the interpretation of Article 1F of the Refugee Convention and, in particular, relating to what is meant by a “non-political crime”. I do not need to consider that further for it is agreed between the parties that the crime which FTZK is alleged to have committed in China is a non-political crime within the meaning of Article 1F(b) as qualified by s 91T.
Principles regarding the interpretation of Article 1F(b)
A.A Convention for beneficial purposes but tempered by factors concerning the protection and safety of the receiving country
Some of the authorities that have reflected upon Article 1F(b) were decided before s 91T was introduced with effect from 1 October 2001. The relevance of the general principles they establish remains and I will refer to those principles in this section of my reasons.
There need be no initial determination whether a person claiming protection under the Refugees Convention is a person coming within Article 1A[17] but I note that FTZK has been determined to be such a person. The application or otherwise of Art 1F(b) is a decision that may be made from time to time. If, for example, a visa is granted but material is subsequently obtained to show that Article 1F(b) applies, the visa may be cancelled or a different visa refused if a decision is made that the criteria in Article 1F(b) are met.[18] Equally, a decision to issue a visa might be made if that material shows that Article 1F(b) does not arise even though a different view was taken at an earlier time.
[17] Minister for Immigration and Multicultural Affairs v Singh [2002] HCA 7; (2002) 209 CLR 533; 186 ALR 393 at [5]; 538 395 per Gleeson CJ; [30]-[31]; 547-548; 402 and [61]; 557; 409 per Gaudron J; [87]; 563; 414-415 per Kirby J and [162]; 592; 438 per Callinan J
[18] WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245; (2004) 138 FCR 579; 211 ALR 398; 40 AAR 223 at [55]; 593; 411; 237 per French J
In considering Art 1F(b) in Dhayakpa v Minister for Immigration and Ethnic Affairs[19] (Dhayakpa), French J discussed the principles underlying Article 1F(b) saying:
“ The provisions of the Convention are beneficial and are not to be given a narrow construction. The exemption in Art 1F(b), however, is protective of the order and safety of the receiving State. It is not, in my opinion, to be construed so narrowly as to undercut its evident policy. … The operation of the exemption is not punitive. There can be no question of twice punishing a person for the same offence. Rather it is protective of the interests of the receiving State. …”[20]
and, a little earlier, that:
“ The general objective of the Article 1F exemption, like similar provisions … is that the rights they create should not be abused by fugitives from justice nor interfere with the law of extradition …”[21]
[19] [1995] FCA 1653; (1995) 62 FCR 556
[20] [1995] FCA 1653; (1995) 62 FCR 556 at [29]; 565. Approved by the Full Court of the Federal Court in Ovcharuk v Minister for Immigration and Multicultural Affairs [1998] FCA 1314; (1998) 88 FCR 173; 51 ALD 549; 158 ALR 289 at 180; 555; 295 per Whitlam J; and 185; 560; 300 per Branson J.
[21] [1995] FCA 1653; (1995) 62 FCR 556 at [26]; 564
The general tenor of Article 1F was also considered by Crennan and Bell JJ in FTZK v Minister for Immigration and Border Protection in the context of the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees published by the United Nations High Commissioner for Refugees (UNHCR) on the Refugee Convention (UNHCR Handbook). Article 1F is among those described in the UNHCR Handbook as an “exclusion” provision.[22] Their Honours said that:
“… Whilst not binding on the courts of contracting States, the UNHCR’s Background Note on the Application of the Exclusion Clauses (‘the UN Background Note’) states: …
‘3. The rationale behind the exclusion clauses is twofold. Firstly, certain acts are so grave that they render their perpetrators undeserving of international protection as refugees. Secondly, the refugee framework should not stand in the way of serious criminals facing justice. While these underlying purposes must be borne in mind in interpreting the exclusion clauses, they must be viewed in the context of the overriding humanitarian objective of the 1951 Convention.
4. Consequently, as with any exception to human rights guarantees, the exclusion clauses must always be interpreted restrictively and should be used with great caution.’ (emphasis added)”[23]
[22] UNHCR Handbook, (1992) at 9 [30]
[23] [2014] HCA 26; (2014) 310 ALR 1; 88 ALJR 754 at [73]; 20; 769 (footnote omitted)
B.What is a crime?
It is accepted that the crimes alleged against FTZK are serious non-political crimes, I will set out what is meant by a “crime”.
C.Are charges or convictions required on the face of Art 1F(b)?
For the reasons Senior Member Fice and I gave in Re YYMT and MQCR and Minister for Immigration and Citizenship[24] (YYMT and MQCR), I conclude that Article 1F(b) does not require me to find that the person must have been charged or convicted outside the receiving State before I can find that there are serious reasons for considering that the person has committed a serious non-political crime.
D.Is conduct assessed by reference to the law of the place where it took place or by the law of the receiving State?
[24] [2010] AATA 447; (2010) 53 AAR 287; 115 ALD 590 at [20]-[22]; 298-300; 597-598
This was a question discussed in Ovcharuk v Minister for Immigration and Multicultural Affairs[25] (Ovcharuk) in a variety of settings. In YYMT and MQCR, we analysed the three judgements delivered by the Full Court concluded that Ovcharuk established three propositions relevant to the question:
[25] [1998] FCA 1314; (1998) 88 FCR 173; 51 ALD 549; 158 ALR 289; Branson, Sackville and Whitlam JJ
(1)regard can be had to conduct constituting a crime under the law of the country in which the acts were committed whether or not those acts would have constituted a crime under the law of the receiving country;
(2)regard can be had to conduct committed in another country and constituting a crime under the law of the receiving State having extraterritorial application; and
(3)regard cannot be had to conduct committed in another country but not constituting a crime under the law of that country or under the law of the receiving State having extraterritorial application.[26]
E.Is conduct assessed by reference to the law in force at the time the conduct occurred or when refuge is claimed?
[26] [2010] AATA 447; (2010) 53 AAR 287; 115 ALD 590 at [23]-[27]; 300-302; 598-601
The words of Article 1F(b) themselves tend to suggest that conduct would be assessed by reference to the law at the time when the conduct was alleged to have occurred. Those words refer to a person’s having committed a serious non-political crime outside the country of refuge “prior to his admission to that country as a refugee” (emphasis added).
The view taken by Merkel, Finkelstein and Weinberg JJ in SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs[27] (SRYYY) is that reference must be made to the law in force at the time the acts were committed and not to the law in force at the time the application for a protection visa and so, in effect, the time an application for refuge is made. Their Honours reached that view in relation to Article 1F(a) of the Refugees Convention, which provides:
“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.”
[27] [2005] FCAFC 42; (2005) 147 FCR 1; 220 ALR 394; 86 ALD 511
Speaking generally of Article 1F, the Full Court described it as an article seeking:
“… to balance the need to provide refuge outside of the countries of those whose human rights are at risk of violation, against the need to hold individuals accountable for their own crimes or violations of the human rights of others.”[28]
[28] [2005] FCAFC 42; (2005) 147 FCR 1; 220 ALR 394; 86 ALD 511 at [26]; 10; 402; 519
In SRYYY, the Minister had:
“… contended that Art 1F(a) permits recourse to any relevant definition found in an international instrument in existence at the time of the Art 1F(a) decision, even if it was not in existence at the time of the alleged criminal conduct. It was claimed that in order to give effect to the purpose of Art 1F(a) of preventing undeserving persons from gaining protection under the Refugees Convention, the question of exclusion of such persons is to be gauged by reference to the standards that apply at the date the decision is made, rather than the date of the conduct in question. It was argued that this approach does not impinge on the well established principle of nullum crimen sine lege (no crime without law making it so) because Art 1F(a) does not create, nor is it concerned with, criminal liability as such. Thus, so it was said, it is not a requirement that the conduct in question constitute an international crime when it is engaged in.”[29]
[29] [2005] FCAFC 42; (2005) 147 FCR 1; 220 ALR 394; 86 ALD 511 at [60]; 22-23; 414; 531
The Full Court rejected that contention saying:
“ There is a textual difficulty with the Minister’s construction. It is implicit in the phrase ‘there must be serious reasons for considering’ that the person in question has ‘committed’ a relevant international crime, that the conduct in question constituted a crime at the time that conduct was engaged in. In Ovcharuk Sackville J considered an analogous question concerning Art 1F(b) of the Refugees Convention. In considering the scope of that article his Honour held at the time the conduct was engaged in it must have constituted a crime under the local law where it occurred or under an Australian law having extraterritorial application to the place where it occurred. …”[30]
[30] [2005] FCAFC 42; (2005) 147 FCR 1; 220 ALR 394; 86 ALD 511at [61]; 23; 414; 532
F.Identifying the law in force at the time the acts were committed
While I am mindful that the question that I am required to consider is whether FTZK has committed “a serious non-political crime” … “outside the country of refuge prior to his admission to that country as a refugee” while in PRC, it is relevant to consider the crime he is alleged to have committed. That raises the question whether the alleged offence is considered by reference to Australian domestic law or by the law of PRC. It also raises the question whether the identification of a particular crime and its elements together with any defences to that crime are determined on the basis of there being “serious reasons for considering” that there is such a crime or whether it is on the basis of the normal civil standard i.e. the balance of probabilities. In this matter, there was no dispute between the parties that the law of PRC prescribes a crime of murder.
G.What is meant by “serious reasons for considering” a person has committed a serious non-political crime?
Article 1F(b) is not expressed in terms of standard of proof and, to describe it in those terms, Hayne J said in FTZK v Minister for Immigration and Border Protection:
“... distracts attention from the need for the decision-maker to decide whether he or she is actually persuaded that there are serious reasons for considering that the person has committed a crime of the relevant kind. As Sedley LJ has rightly said[[31]] of Art 1F, it ‘sets a standard above mere suspicion. Beyond this, it is a mistake to try to paraphrase that straightforward language of the Convention: it has to be treated as meaning what it says’ (emphasis added).”[32]
[31] “Al-Sirri v Secretary of State for the Home Department [2009] Imm AR 624 at [33]”
[32] [2014] HCA 26; (2014) 310 ALR 1; 88 ALJR 754 at [36]; 12; 763 per Hayne J I come back to the more general ramifications of his Honour’s statement and the Tribunal’s role at [38]-[51] below.
Although mindful of the need not to paraphrase the language of Article 1F(b), guidance is to be found in both FTZK v Minister for Immigration and Border Protection and in earlier cases. The principles that can be drawn from the judgments include:
(1)The question that Article 1F(b) poses is “… 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.”[33]
[33] [2013] HCA 26; (2014) 310 ALR 1; 88 ALJR 754 at [6]; 5; 759 per French CJ and Gageler J and see also [13]; 7; 760 and [17]; 9; 761
(2)“… The expression of the question is important. Effect is to be given to all of its elements, recognising that what is required is an evaluation of matters advanced in support of a proposition: that the person has committed a crime of the identified kind. And the decision-maker must actually be persuaded that those matters are serious reasons for considering that the person concerned has committed the crime: that is, that the matters are or give serious reasons for considering that the relevant proposition is true.”[34]
[34] [2014] HCA 26; (2014) 310 ALR 1; 88 ALJR 754 at [32]; 11; 763 per Hayne J
(3)“… The use of the words ‘serious reason for considering that’ suggests that it is unnecessary for the receiving State to make a positive or concluded finding about the commission of a crime or act of the class referred to. It appears to be sufficient that there be strong evidence of the commission of one or other of the relevant crimes or acts. The precise construction of that phrase does not fall for consideration in the present case …”[35]
[35] Dhayakpa v Minister for Immigration and Ethnic Affairs [1995] FCA 1653; (1995) 62 FCR 556 at [23]; 563 per French J
(4)“Whether there are serious reasons for so considering will depend upon the whole of the evidence and other material before the decision-maker.”[36]
[36] Ovcharuk [1998] FCA 1314; (1998) 88 FCR 173; 51 ALD 549; 158 ALR 289 at 186; 561; 301 per Branson J
(5)“… [T]he absence of a requirement under Art 1F(b) for a positive finding that the applicant has committed a serious non-political crime does not mean that the criterion requires anything less than ‘meticulous investigation and solid grounds’.[[37]] In particular, and relevant to the present case, the decision-maker must pay close attention to the probative relevance of the material said to engage the application of Art 1F(b) in order to answer the question which the article poses.”[38]
[37] “WAKN v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 138 FCR 579; (2004) 211 ALR 398; [2004] FCA 1245 at [52] per French J.”
[38] [2014] HCA 26; (2014) 310 ALR 1; 88 ALJR 754 at [16]; 8; 761 per French CJ and Gageler J (footnote omitted)
(6)“56 The expression ‘serious reasons for considering’ means precisely what it says. There must be reason, or reasons, to believe that the applicant has committed an offence of the type specified. That reason or those reasons must be ‘serious’.”[39]
(7)“…The adopted standard, ‘serious reasons for considering’, does not require proof, even on a balance of probabilities. It is sufficient if there is ‘strong evidence of the commission of one or another of the relevant crimes or acts’: see Dhayakapa v Minister for Immigration and Ethnic Affairs (1995) 62 FCA 556 at 563 (French J). See also Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173 at 179 and Arquita v Minister for Immigration and Multicultural Affairs [2000] FCA 1889; (2000) 106 FCR 465 at 476.”[40]
(8)“[51] The Australian jurisprudence presently supports the proposition that the use of the words ‘serious reasons for considering that …’ does not mandate a positive finding by the receiving state that the applicant for protection has engaged in conduct of the kind contemplated in Art 1F. No question of proof on the civil or criminal standard arises in that context: Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 at 563 per French J; Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 385 at 388 per Marshall J and on appeal Minister for Immigration and Multicultural Affairs v Ovcharuk (1998) 88 FCR 173 at 179; 158 ALR 289 at 294–5; 51 ALD 549 at 554 per Whitlam J. See also Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465 at 476; 63 ALD 321 at 331–2 where Weinberg J reviewed the authorities. …
[52] It should be emphasised however that the absence of a requirement for a positive finding of the commission of conduct of the kind contemplated by Art 1F is not inconsistent with the need for ‘meticulous investigation and solid grounds’ in order to meet the standard of ‘serious reasons for considering that’ the conduct has been engaged in. It would be a matter for concern if the tribunal, in an Art 1F case, merely extrapolated from the criminality of an organisation to that of an individual within it without undertaking any clear analysis of purpose or complicity: SHCB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 229; BC200301114 at [17] per Selway J. See also the helpful discussion of this question in M Zagor, ‘Persecutor or Persecuted: Exclusion under Art 1F(A) and (B) of the Refugees Convention’ (2000) 23 University of New South Wales Law Journal 164 at 168–70. The observation of Jerome ACJ in Cardenas is apposite (at 252):
… the Board must be extremely cautious in its application of the exclusion clause particularly in situations … where it has concluded that the claimant has a well founded fear of persecution in his country of origin. In light of the potential danger faced by such a claimant, the Board must base its decision to exclude only on clear and convincing evidence, not simply on suspicion and speculation.”[41]
(9)“The bare fact that an allegation of crime is made (whether by one or more public officials of the country in which the crime is alleged to have been committed, or by one or more private individuals) represents the starting point for the inquiry about ‘serious reasons for considering’, not its end. Putting the matter shortly, the decision maker must decide what credence may be given to the allegations that are made. But always it remains important to recall that the ultimate question is whether there are serious reasons for considering that the person has committed the crime. And the decision maker must be persuaded of the existence of serious reasons for considering that the person has committed the crime, not of actual guilt.”[42]
(10)“… Charges or convictions are not required. Indeed, in some cases, even though a person claiming to be a refugee has been charged with or convicted of an offence, it may be perfectly clear that there are no serious reasons to consider that person has committed a crime. In other cases, such facts may be strongly probative of such serious reasons. It all depends on the facts of the particular case. …”[43]
[39] Arquita v Minister for Immigration and Multicultural Affairs 2000] FCA 1889; (2000) 106 FCR 465; (2000) 63 ALD 321; 32 AAR 252 at 478; 333; 265 per Weinberg J approved in FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 310 ALR 1; 88 ALJR 754 at [80]; 21-22; 770 per Crennan and Bell JJ
[40] SZCWP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 9 at [22] per Wilcox J. I note that Wilcox J was in dissent but his Honour stated that this, and three other principles, had been agreed upon by the parties. Neither of the majority, Gyles and Downes JJ, questioned them.
[41] WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245; (2004) 138 FCR 579; (2004) 211 ALR 398; (2004) 40 AAR 223 at [51]-[52]; 592-593; 410; 236 per French J
[42] [2014] HCA 26; (2014) 310 ALR 1; 88 ALJR 754 at [37]; 12; 763 per Hayne J
[43] Ovcharuk [1998] FCA 1314; (1998) 88 FCR 173; 51 ALD 549; 158 ALR 289 at 179; 554; 294
In FTZK v Minister for Immigration and Border Protection, the High Court referred to the UNHCR’s Handbook. The UNHCR has also issued Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees (UNHCR Guidelines). They were issued on 4 September 2003 in light of contemporary developments in international law. Their purpose is:
“… to provide interpretative legal guidance for governments, legal practitioners, decision-makers and the judiciary, as well as UNHCR staff carrying out refugee status determination in the field.”
Paragraph 35 deals with the standard of proof under Article 1F:
“In order to satisfy the standard of proof under Article 1F, clear and credible evidence is required. It is not necessary for an applicant to have been convicted of the criminal offence, nor does the criminal standard of proof need to be met. Confessions and testimony of witnesses, for example, may suffice if they are reliable. Lack of cooperation by the applicant does not in itself establish guilt for the excludable act in the absence of clear and convincing evidence. Consideration of exclusion may, however, be irrelevant if non-cooperation means that the basics of an asylum claim cannot be established.”
G.2“Standard of proof”: issues about the description
I note that the language of the UNHCR Guidelines is inconsistent with the views expressed by French CJ and Gageler J in their joint judgment and by Hayne J in his. In their joint judgment, French CJ and Gageler J said:
“The criterion for exclusion from the application of the convention, defined by Art 1F(b) is not to be equated to a standard of proof. Standards of proof are applied in judicial proceedings for the purpose of making findings of fact which attract legal consequences, including civil liabilities and sanctions. They are not substitutes for the application of the ordinary words of Art 1F(b). … The risk with the use of domestic standards of proof as analytical tools is that they can evolve into substitutes for the words of the article and may result in the bar being placed too high or too low, according to the circumstances.”[44]
[44] [2014] HCA 26; (2014) 310 ALR 1; 88 ALJR 754 at [15]; 8; 760-761
Hayne J expressed similar views giving three reasons for describing “serious reasons for considering” as providing a “standard of proof” as being apt to mislead:
“First, the relevant decision is to be made, in the first instance, by an administrative decision-maker, not a court. It is, therefore, a decision which is to be made outside the adversarial processes of a court, in which issue is to be joined between the parties. For a common lawyer, the notion of ‘standard of proof’ marches hand in hand with onus of proof. Neither notion finds ready accommodation in administrative decision-making, where no issue is joined between the parties.
Second, the relevant question for the decision-maker is identified in an international treaty to which effect must be given in very different domestic administrative and judicial settings. There is no warrant for reading[45] the text of the treaty as operating by reference to common law or judicial or procedural precepts.
Third, describing the expression ‘serious reasons for considering’ as a standard of proof distracts attention from the need for the decision-maker to decide whether he or she is actually persuaded that there are serious reasons for considering that the person has committed a crime of the relevant kind. As Sedley LJ has rightly said[46] of Art 1F, it ‘sets a standard beyond mere suspicion. Beyond this, it is a mistake to try to paraphrase the straightforward language of the Convention: it has to be treated as meaning what it says.’ (emphasis added).”[47]
[45] “Compare Povey v Qantas Airways Ltd [2005] HCA 33; (2005) 223 CLR 189; 216 ALR 427 at [41]. See also R (JS (Sri Lanka)) v Secretary of State for the Home Department [2011] 1 AC 184 at [41]-[42]; [2010] 3 All ER 881 (JS) per Lord Hope of Craighead DPSC.”
[46] “Al-Sirri v Secretary of State for the Home Department [2009] Imm AR 624 at [33], cited with approval in JSat [39] per Lord Brown of Eaton-imder-Heywood JSC.” The reference to “JSat” is a reference to R (JS (Sri Lanka)) v Secretary of State for the Home Department in the previous footnote.
[47] [2014] HCA 26; (2014) 310 ALR 1; 88 ALJR 754 at [34]-[36]; 11-12; 763
In their joint judgment, Crennan and Bell JJ would have been disinclined to accept that a decision-maker would be in error to describe the expression “serious reasons for considering” as a “standard of proof”. The issue had not been raised but they noted that the UN Background Note referred to the expression in those terms as had scholarly publications and authorities.[48]
[48] [2014] FCAFC 44; (2014) 310 ALR 1; 88 ALJR 754 at [79]; 21; 770 per Crennan and Bell JJ
The statements of French CJ, Gageler and Hayne JJ are broadly stated and, I respectfully suggest, there is a risk that they will be taken out of context and understood to mean that the concepts of “standard of proof” and of “burden of proof” are never applicable in the Tribunal. They clearly are relevant from time to time and the reason why the language is appropriate is because that is the language that Parliament has prescribed. As their Honours have said, the ordinary words used by, in this case, the Refugees Convention, or an enactment must be applied. I will give some examples of the words that Parliament has used to describe what, in civil proceedings is described as the “standard of proof”. It is difficult to come up with a form of words that captures all that is encompassed by the expression. For the moment, I will describe it as the “measure” by which an administrative decision-maker, whether initially or on review, is required to decide whether all the material or spoken word establishes a certain factual issue.
Examples of a “measure” adopted by Parliament are:
(1)Section 120 of the Veterans’ Entitlements Act 1986 (VE Act) is headed “Standard of proof”. Without going into the finer points of that provision, I observe that it requires certain matters to be determined “beyond reasonable doubt” and the remainder “to its reasonable satisfaction”. The latter has been held to mean that the Tribunal should ask:
“... itself whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (No 2) (1986) 9 ALD 358; Re Easton and Repatriation Commission (1987) 12 ALD 777; Re Repatriation Commission and Falkner (1987) 12 ALD 87.”[49]
[49] Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17 at 335; 547; 26 per Beaumont J with whom Northrop and Spender JJ agreed
(2) A then drafted, s 22AA of the Migration Act 1958 provided:
“If the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a refugee.”
A “refugee” was then defined in s 4(1) of that legislation to have the same meaning as it has in Article 1 of the Refugees Convention. The reference to “satisfied” in that context was not been given the same interpretation as when it was used in s 120 of the VE Act. In the judgment of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[50] the High Court referred to s 34A of the Acts Interpretation Act 1901 (AI Act) which then provided:
[50] [1996] HCA 6; (1996) 185 CLR 259; 136 ALR 481; 41 ALD 1; Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ
“Where, under any Act, the exercise of a power or function by a person is dependent upon the opinion, belief or state of mind of that person in relation to a matter and that power or function has been delegated in pursuance of that or any other Act, that power or function may be exercised by the delegate upon the opinion, belief or state of mind of the delegate in relation to that matter.”[51]
“Satisfaction” of Wu Shan Liang’s status as a refugee was a matter for the Minister or the Minister’s delegate; a question of “personal satisfaction” as it was described in the majority judgment.[52] It was not a determination of refugee status. In light of the issues of which the Minister or delegate had to be satisfied, the expression “balance of probabilities” was not apt.
That can be contrasted with the position under s 120 of the VE Act where the Repatriation Commission (Commission) has, under s 18(1) of the VE Act, a duty:
“… in considering a claim or application submitted to it, to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the determination of the claim or application.”
Section 120(4) establishes a standard of proof when the Commission makes a determination.
[51] The current wording of s 34A of the AI Act is to the same effect: “[52] [1996] HCA 6; (1996) 185 CLR 259; 136 ALR 481; 41 ALD 1 at [52]; 281; 498; 16 per Brennan CJ, Toohey, McHugh and Gummow JJ
I will give two examples of enactments in which Parliament has expressly imposed a burden of proof:
(1)Section 61 of the Freedom of Information Act 1982 is headed “Onus”. It prescribes the person or agency who “has the onus of establishing that the decision is not justified”, “that the Tribunal should give a decision adverse to the applicant”, “a decision refusing to give access to the document is justified” or that or a “decision adverse to the person who made the relevant request”, as the case may be.
(2)Section 14ZZK of the Taxation Administration Act 1953 is headed “Grounds of objection and burden of proof”. In relation to the latter, it provides that an applicant has the burden of proving “that the assessment is excessive or otherwise incorrect” or “that the taxation decision should not have been made or should have been made differently”, as the case calls for.
Sometimes, Parliament does not use expressions such as “onus” or “burden” of proof but imposes a burden nonetheless. It may be a burden to establish a certain factual issue or it may be a burden to establish something else as it is under s 269FA of the Customs Act 1901 (Customs Act). It relates to an application for a tariff concession order (TCO). Division 2 of Part XVA sets out a detailed regimen for the making and processing of TCOs. Among them, s 269FA imposes an “obligation” upon an applicant for a TCO:
“It is the responsibility of an applicant for a TCO to establish, to the satisfaction of the CEO, that, on the basis of:
(a)all information that the applicant has, or can reasonably be expected to have; and
(b)all inquiries that the applicant has made, or can reasonably be expected to make;
there are reasonable grounds for asserting that the application meets the core criteria.”
Section 269FA also provides an example of Parliament’s adopting a “measure” other than that of the balance of probabilities. An applicant does not carry an obligation to establish that the application meets the core criteria on the balance of probabilities; only that there are reasonable grounds for asserting that is so. Provisions such as s 269SHA(5) of the Customs Act and s 500(6H) of the Migration Act limit the material to which the Tribunal may have regard in some instances. Those limitations do not bear any relationship to relevance or probity, as would be the case under the rules of evidence applicable in a civil case between two litigants in the courts. They have other bases that are of no relevance in this context.
There can be no question that, as the High Court has said in FTZK v Minister for Immigration and Border Protection and on earlier occasions, regard must be had to the precise words that frame the decision an administrative decision-maker is required to make. It cannot be assumed that the ordinary rules by which civil litigation is resolved in the courts every day will apply. They may apply but, if they do, it will because the wording of the enactment under which the particular administrative decision has been made. Parliament can formulate a “measure” to assess material or spoken words in any number of ways. It can choose to impose an obligation upon a person to establish a fact or to satisfy a decision-maker if it chooses on all of the issues under consideration or on some of them. An administrative decision-maker must be constantly alert to the changing language adopted by Parliament.
The world of an administrative decision-maker is a shifting and changing world that can be, although need not be, somewhat distant from “… the adversarial processes of the court, in which issue is joined between the parties [and where] the notion of ‘standard of proof’ marches hand in hand with ‘onus of proof’.”[53] That is not to say that an administrative decision is not attended by legal consequences. Unquestionably, proceedings in the court have legal consequences including civil liabilities and criminal sanctions. In the civil context, the outcome of the particular case could be influenced by the way in which the parties choose to frame their pleadings and the evidence they lead.[54]
[53] See [40] above
[54] Gleeson CJ expressly recognised this in Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331; (2005) 221 ALR 213; (2005) 79 ALJR 1736 at [1]; 338; 214; 1738
Administrative decisions do not lead to criminal sanctions but they have legal consequences no less. An administrative decision-maker determines whether a person has a right to a social security pension or to fly an aircraft or a right or permission to build within the Great Barrier Reef Marine Park. Administrative decisions are also made cancelling what were otherwise rights. They are not rights and powers and duties and obligations and so on determined vis á vis another person but against a set of laws determined by Parliament. In that regard, there is a faint analogy to be drawn with the work of the criminal courts. They do not decide matters between litigants as such. An accused’s behaviour and guilt or innocence is assessed against a framework of the law just as a person’s entitlements, rights and duties or powers and responsibilities are assessed when an administrative decision is made.
The analogy with the criminal law is, as I said, faint for the outcome of a charge may be influenced by the manner in which the hearing proceeds. An administrative tribunal has a broader task for its task is to reach the correct or preferable decision in each matter: the correct decision on the law and on the evidence and, if the exercise of discretion is required and there is a range of correct decisions from which to choose, the preferable decision from that range.[55] In ascertaining the law and making findings of fact having regard to the evidence, the Tribunal carries out a function ultimately very similar to that of a court in its original jurisdiction. That is so even though, in the Tribunal and unlike a court:
“… A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law. …”[56]
[55] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 2 ALD 60; 24 ALR 577 at 419; 68; 589 per Bowen CJ and Deane J
[56] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; 136 ALR 481; 41 ALD 1 at [54]; 282; 499; 16 per Brennan CJ, Toohey, McHugh and Gummow JJ
The difference lies in the additional responsibility it carries in making a discretionary decision where that is called for. That is the task of an administrative, and not a judicial, body by virtue of the doctrine of separation of powers inherent in the Commonwealth Constitution.
H. Other issues
In this section of my reasons, I will set out the approach that I have taken on a number of issues. They have arisen out of the parties’ submissions and out of my consideration of the material.
H.1Relevance
At the heart of the High Court’s finding that the previous Tribunal had made a jurisdictional error in reviewing the Minister’s decision on the first occasion was its view that the Tribunal had not considered whether the factors on which it relied were relevant to the question it had to decide. Given that the question it had to decide, and that I now have to decide, relate to the offences of murder and kidnapping, I will now set out general principles as to how relevance is determined. They are drawn from the criminal law but, in doing so, I note that I am focused on relevance and not upon whether or not evidentiary material would be admissible in a criminal trial.
The general principle is that:
“[A]ny two facts to which it applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.”[57]
[57] Art 1 of Stephen’s Digest of the Law of Evidence, 12th ed (1936), at 4 cited with approval in cases such as Pollitt v The Queen (1992) 174 CLR 558; 108 ALR 1 at 571; 198 per Brennan J and Palmer v The Queen (1998) 193 CLR 1; 151 ALR 16 at 24; 33 per McHugh J
Schreiner JA of the Supreme Court of South Africa said that:
“Relevancy is based upon a blend of logic and experience lying outside the law. …”[58]
Finally, Lord Simon said in DPP v Kilbourne:[59]
“… Evidence is relevant if it is logically probative or disprobative of some matters which require proof. I do not pause to analyse what is involved in ‘logical probativeness’, except to note that the term does not of itself express the element of experience which is so significant of its operation in law, and possibly elsewhere. It is sufficient to say … that relevant … evidence is evidence which makes the matter which requires proof more or less probable….”[60]
[58] R v Matthews [1960] 1 SA 752 at 758 approved in R v Fraser (1995) 65 SASR 260 at 267 per Doyle CJ
[59] [1973] AC 729; [1973] 1 All ER 440
[60] [1973] AC 729; [1973] 1 All ER 440 at 757; 460
Each case goes on to discuss, as Schreiner JA put it in R v Matthews, the material that the law then adds to this blend of logic and experience and what it excludes. The result is what is legally relevant and therefore admissible. I am not concerned with what is legally relevant and so admissible but the question I must answer as a result of Art 1F of the Refugees Convention will require me to consider a further question beyond relevance. In the criminal law it is described as the “weight” to be given to each piece of relevant evidence. It is:
“… the degree of probability (both intrinsically and inferentially) which is attached to it by the tribunal of fact once it is established to be relevant and admissible in law …”
The Tribunal is not bound to have regard to admissibility, because it is regarded as a rule of evidence and s 33(1)(c) of the AAT Act provides to that effect. Even though not bound, rules relating to admissibility can be useful in determining whether it is “safe” to rely on material. “Weight” and the scales by which it is determined are calibrated according to the question that must be asked. In reviewing an administrative decision, the calibration is by reference to the way in which Parliament has framed the issue to be decided. In the criminal law, it is by reference to the standard of proof of beyond reasonable doubt.
H.2 Lies
To deny guilt in relation to an offence has no relevance in considering whether or not there are serious reasons for considering that a person has committed that offence. As it was put in the context of a criminal trial:
“… [A] lie consisting of a bald denial of guilt made in or out of court (as is we suppose the case in every contested trial) which is only shown to be a lie by proof by the prosecution of the crime charged axiomatically is not a lie that can assist in proof of guilt. For it to do so would be for the prosecution to lift itself by its own bootstraps.”[61]
[61] R v Gionfriddo & Faure [1989] VicSC 498; Crockett, O’Bryan and Gray JJ
On his own admission, I find that FTZK obtained a PRC passport on the basis of false information he provided to the issuing authority in the PRC. He obtained a visa to travel to and enter Australia in the same way. The passport was obtained in or about July 1996 and so four or five months before the kidnap was planned. The confessions do not place him near the planning stages in July 1996 when he obtained the passport as he was only brought in as part of the implementation team after ZHONG Weidong and WU Zhijun had formulated their plan. FTZK’s obtaining the passport has no apparent connection with offences that he did not initiate and that he was not, on any view of the material that I have, brought into until a later time. Certainly, FTZK obtained a visa to travel to Australia on 14 January 1997 and so shortly after the kidnapping and murder but, taken alone, I do not regard that as evidence of his being conscious of his having committed crimes and the need to escape. The only thing that links the visa and the crimes is the relatively short passage of time between the commission of the crimes and the issue of the visa. To make that link, though, is to ignore the fact that FTZK put his departure from PRC into train in the previous July when, on every account, there was no plan to commit any crimes.
I now turn to FTZK’s remaining in Australia illegally beyond the expiration of his Bridging Visa A in 2000. Does this point to his having a consciousness of guilt about having committed kidnapping and murder? The evidence as to whether he knew that he was illegally in Australia at the time of his detention or not is somewhat unclear. I find that he originally told the Department that he would make his own way back to China and thought that there would be no problem if he were to return. FTZK has also said in his statement dated 6 January 2008 that he did not know that his Bridging Visa A had expired after the RRT refused his application for a protection visa on 14 January 2000. Even if I accept that this was the state in which he found himself, I find on the basis of his own evidence that he had obtained his passport and his visa on false information and that he knew that his application for a protection visa had been refused. These matters were enough to place him on notice that his remaining in Australia was in jeopardy were he to be questioned about his entitlement to be in the country. They do not in themselves point to his knowing that he had committed crimes in PRC.
Even if I were to find that FTZK did know that he was illegally in Australia, and there is evidence to support such a finding, and that he has lied about his state of mind,[147] I would not consider it relevant to the question I must answer in the context of Art 1F(b). As Deane, Dawson and Gaudron JJ said in their joint judgment in Edwards, a lie can constitute an admission against interest only if it is concerned with some circumstances or event connected with a material issue of the offence charged. Undoubtedly, I am not asked to answer the question in the context of the criminal law but I must come to an answer having regard to what is relevant. If a lie cannot be relevant in deciding the ultimate issue of guilt of a particular crime, it is difficult to see how it can be relevant in considering whether there are serious reasons for considering that a person is guilty of a crime. That is the position in which I find myself. Knowing that he was illegally in Australia is of no relevance in deciding whether FTZK is guilty of kidnapping and murder. It is not an element, or essential feature that must be proved, in either offence.
[147] On the evidence that I have, I would not make that finding for, despite discrepancies in his statements, it is also clear that there have been difficulties in communication. A reading of the transcript of the previous hearing in the Tribunal when FTZK gave evidence illustrates difficulties in communication that can arise in understanding the nuances of language when language must pass through an interpreter.
FTZK’s attempt to flee immigration detention is a further matter which I have considered. That too is said to show consciousness of guilt regarding the charges in PRC but the same reasoning leads to the conclusion that it does not play a role in answering the question under Article 1F(b). At the time, FTZK had not been told of the Red Notice by the Department and so of the Arrest Warrant that had been issued in PRC. That might be thought to suggest that the only reason for his flight could be that he had committed the crimes in PRC but FTZK has given other explanations for his doing so. In summary, they are that he did not want to return to PRC. On the basis of his evidence, I find that he did know that he had obtained both his passport and his visa on the basis of false information. His false statements were bound to be discovered and his being permitted to continue to stay in Australia was unlikely. He had already been unsuccessful in his application for a protection visa lodged on 8 December 1998 and he had no active applications for a visa at the time.
The fact that he had applied for a protection visa also sheds a different light on the submission that his flight was an indication of consciousness of guilt. The application itself brought him to the attention of Australian officials who could be expected to make their own enquiries about him. By that time, an Arrest Warrant had been issued in PRC on 26 May 1998. He might well not have known of it but, if FTZK were acting with a consciousness of guilt in fleeing at a later time, it might be wondered why he brought himself to the attention of Australian officials at an earlier time.
The RRT has made findings that rejected FTZK’s claims that he was a member of an underground or unofficial Catholic Church in PRC or that he had suffered any harm as a result of his activities connected with his practising his religion. It found that he had first claimed to be a Jehovah’s Witness, rather than a practising member of the Catholic Church, in PRC and rejected his evidence that his claiming to be so had resulted from difficulties and misunderstandings in the interpretation. It accepted the evidence of Professor Rosen that FTZK is suffering significant mental health problems that have an impact upon his memory but did not explain the inconsistencies in his evidence. The RRT found that FTZK had not suffered detention or mistreatment for reasons connected with his religion before he left PRC in January 1997. It pointed to his being able to leave PRC under his own name as evidence of his not being of interest to authorities for reasons of his religion.
The RRT has made its findings of fact in light of the question that it must answer under Article 1A(2) of the Refugees Tribunal. It is a question different from that I must answer under Article 1F(b). I must focus on the relevance of those matters to the question whether there are serious reasons for considering that FTZK has committed the offences of kidnapping and murder. The test prescribed by ss 65 and 36 of the Migration Act and so Article 1A(2) of the Refugees Convention meant that the RRT was focused on whether FTZK was a person who had a well-founded fear of being persecuted for reasons of religion. The fact that the RRT found that he did not satisfy that test does not mean that he did not entertain fears of that sort that led him to remaining in Australia illegally. That he did so is supported by the statement from his parents and another from his church in PRC.
FTZK has relied on his good character. On the material that I have, I find that he is regarded as a person of good character by those who know him in Australia. There is nothing in the material to suggest that there is any reason to question the assessment that they have made of him. In a matter such as this, it is difficult to draw a connection between the regard which people have for him in Australia and whether there are reasons for thinking that he committed crimes in another country at a time before they met him. The connection is too tenuous for his good character in Australia to have any relevance to the issue.
In summary, having regard to all of the material that I have, the only material that provides a connection between FTZK and the kidnapping and murder of V committed on 20 December 1996 in PRC is to be found in the confessions of ZHONG Weidong and WU Zhijun. I have already given my reasons for approaching the confessions of alleged accomplices who seek to implicate another. I have referred to the inconsistencies between them that cause me concern and to the lack of any evidence of a forensic nature linking him to the crimes. There are no witness statements of anybody who saw the Toyota HIACE at the scene of the kidnapping or of the person or persons who saw a white vehicle at the pond in the early hours of the morning. The two confessions do not give a consistent account of how or why FTZK came to be involved in the plan to kidnap and murder V.
Having regard to all of the material, I have concluded that there are not serious reasons for considering that FTZK has committed a serious non-political crime outside Australia prior to his admission to it as a refugee within the meaning of Article 1F(b) of the Refugees Convention. Therefore, I set aside the decision of a delegate of the Minister dated 24 May 2011 to the contrary and substitute a decision remitting the matter to the Minister with a direction that FTZK is not a person excluded from the application of the Refugees Convention under Article 1F.
I certify that the one hundred and twenty six preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ……….[sgd].......................................................
Associate
Date of Hearing 3 December 2014
Date of Decision 18 March 2015
Counsel for the Applicant Ms Nola Karapanagiotidis
Solicitor for the Applicant Mr Stephen D’Arcy
Maddocks
Counsel for the Respondent Mr Chris Horan
Solicitor for the Respondent Ms Emily Nance
Australian Government Solicitor
per Beaumont J with whom Black CJ and Jenkinson J agreed
If:
(a) under an Act, a person’s exercise of a power, or a person’s performance of a function or duty, is dependent upon the person’s opinion, belief or state of mind in relation to the matter; and
(b) that power, function or duty has been delegated under that or any other Act;
the delegate may exercise that power, or may perform that function or duty, upon the delegate’s opinion, belief or state of mind in relation to that matter.”
3
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