FTZK v Minister for Immigration and Citizenship and Anor

[2013] HCATrans 270

[2013] HCATrans 270

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M55 of 2013

B e t w e e n -

FTZK

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 NOVEMBER 2013, AT 10.54 AM

Copyright in the High Court of Australia

MR P.G. NASH, QC:   If the Court pleases, I appear with my learned friend, MS N.P. KARAPANAGIOTIDIS, on behalf of the applicant.  (instructed by Asylum Seeker Resource Centre)

MR S.P. DONAGHUE, SC:   If it please the Court, I appear with my learned friend, MS R.J. SHARP, on behalf of the first respondent.  (instructed by Australian Government Solicitor)

CRENNAN J:   Yes, Mr Nash.

MR NASH:   If the Court pleases, if I may start with five bold propositions and then seek to justify them.  One, the Tribunal took into account irrelevant matters.  Two, it did not draw any inferences from those matters relating to the applicant’s manifesting consciousness of guilt.  Three, it is not the function of the review court to rewrite the reasons of the Tribunal; still less is it the function of the review court to infer findings of fact not inferred by the body whose decision is under review.  Five, leave should be granted because, one, the majority decision departs from orthodox practice in relation to review and is of binding effect on other courts.  The decision, moreover, involves not only a change in the role of the review court but, in our submission, a novel approach to what may evidence consciousness of guilt.  Finally, the impact of the decision below is, in terms of the applicant, extreme.  Now, the findings of fact at paragraphs 72 to 74 of the Tribunal’s reasons at application book 17 do not justify drawing any conclusion of consciousness of guilt ‑ sorry, paragraph 70.

BELL J:   Mr Nash, is a difficulty with your submission in this respect?  Consciousness of guilt is an expression that has a certain amount of freight in the criminal law, but what we are looking at here is whether it was irrelevant for the Tribunal to take into account the timing of the applicant’s departure from China, his subsequent endeavours while in Australia to remain in Australia, in considering whether there were serious reasons to conclude that he came within the terms of the exclusion in Article 1F ‑ we are not really concerned with the law respecting consciousness of guilt.

MR NASH:   I accept that, your Honour, I was just merely adopting what the Full Court served up to us, but if we can look at the departure from China.  The departure from China is not necessarily related to the commission of any crime.  I say that because of the date on which the application for the visa was taken.  There was an application for a visa before there was any – on any version – any conspiracy to kidnap and murder.  That is probably, if one likes to call it, that is the strongest of the comparative behaviour, if we can use that, your Honour.  The other matters are matters that would relate to any refugee.  When I say any refugee I am perhaps putting it too highly, but any person seeking to be a refugee who does not have good grounds.  The fact that he was found not to be tortured but he had said he was tortured ‑ that, your Honour, has nothing to do with – I am sorry, I am addressing your Honour specifically, but I am trying to answer your Honour’s question – has specifically nothing to do with whether he committed a murder.

CRENNAN J:   Do you want to point us to errors in the Full Court decision?

MR NASH:   Errors of the Full Court decision.

CRENNAN J:   Errors which you allege.

MR NASH:   Sorry, your Honour, but I would prefer your Honour to stay with your Honour’s original phrasing, but the errors really stem from two things.  One, the Full Court has added to the reasons, but it has not only added to the reasons; when it talks about consciousness of guilt it is actually making a finding as to the reasons for his actions in particular ways.  This is a finding of fact, it is a factual matter that a review court should not be considering.  The second point, your Honour, is ‑ ‑ ‑

CRENNAN J:   Was one of your original complaints an insufficiency of reasons complaint?

MR NASH:   It is an insufficiency of reasons, but it is really that ‑ ‑ ‑

CRENNAN J:   I mean, are we in the area of a constructive failure to exercise jurisdiction?  I am just trying to understand how the matter was put, why members of the Full Court responded ‑ ‑ ‑

MR NASH:   Sorry, your Honour, originally ‑ ‑ ‑

CRENNAN J:   ‑ ‑ ‑ responded the way they did.

MR NASH:   I am sorry, your Honour is talking about on appeal, inadequacy of reasons was one of the grounds, as was the fact that the Court took into account irrelevant matters.

KIEFEL J:   I wonder if so much irrelevant considerations – relevant considerations in administrative law usually refer to matters outside the purview of a statute in a legal framework, but looking at paragraph 70 to 72 of the Tribunal’s reasons this is a method of reasoning perhaps which is more commonly applied to applications for refugee status, and it is reasoning perhaps which usually is directed to whether or not a person’s version of events should be accepted, that is to say, affects their credibility generally.

The question which was before the Tribunal was whether there were serious reasons for considering the applicant had committed the crime alleged; that was the question to which the Tribunal was directed.  It may be that it could be the question which arises is whether or not this was a proper method of addressing, whether that question has actually been addressed by the reasoning process undertaken, and if that is the case it then might be a question of whether or not there were serious reasons by the actual evidence relating to the commission of the crimes which was, on your version, on your argument, quite limited ‑ whether or not that satisfies the requirement of serious reasons.

MR NASH:   Well, with respect, your Honour, we do rely on what your Honour has just put, and in relation to the actual evidence, if we can call it that, namely, the two transcripts, I am not going to start arguing about the value of the transcripts, but the Tribunal specifically said, no one of these matters of itself would have satisfied the requirement for serious grounds.

KIEFEL J:   So, essentially, it is whether or not the matters in paragraphs 70 to 72 address the question of the Tribunal.

MR NASH:   We say they do not, your Honour, and not only do they not address the question, there is no attempt to relate them to the question.  The error of the Full Court was, in fact, to interpose a line of reasoning which is not contained in the Tribunal’s reasons, and something that is not mentioned in our application, our outline of submissions or elsewhere, is that section 43 of the AAT Act, subsection (2B), specifically provides that reasons should state the facts on which the decision is based.  There is nothing in the additional three factual findings other than the transcript question which establishes, or which is capable of establishing, a serious – sorry, I will rephrase that ‑ nothing in those paragraphs which, on its face, is relevant to the question as to whether there is a serious question as to whether he is – serious grounds for considering that he has committed a serious non‑political crime, and the one thing that could possibly establish that serious ground is disavowed by the Tribunal when it says, no one of these of itself would be sufficient.

I think our attack is threefold really; one, these factors should not have been taken into account.  Two, there is no reasoning to justify their being taken into account.  Three, it was not open to the Full Court to rewrite the reasons in the way that it has done, not only because the Full Court cannot rewrite the reasons, but the Full Court cannot make additional findings of fact and, in effect ‑ ‑ ‑

KIEFEL J:   Forgive me, I may not have been attending to what you said earlier properly.  Could you point me to where the Full Court rewrite the questions of fact or add to them?

MR NASH:   Yes, your Honour.  My learned junior is helpful as always.

CRENNAN J:   That is what they are there for, Mr Nash.

MR NASH:   Sometimes we forget it, your Honour ‑ paragraphs 47 and following at page 47 of the application book.

The Tribunal’s failure expressly to state the basis of the relevance of factors it took into consideration thus did not rob them of objective relevance.

KIEFEL J:   Do you say that characterising the evidence as evidence of flight and consciousness of guilt is ‑ that the addition to the reasons ‑ ‑ ‑

MR NASH:   That is the addition to the reasons.

KIEFEL J:   ‑ ‑ ‑ because that does not appear from the Tribunal’s reasons itself?

MR NASH:   Yes, your Honour.  But it also involves – it is not just an addition to the reasons because the fact that it is evidence of consciousness of guilt is actually a finding of fact, it is a factual finding that he acted out of fear or concern because of his involvement in the crime.  Now, one can put all sorts of arguments in relation to the departure, although the timing of the visa application is against it, but the final ground that he tried to escape from immigration detention in 2004, some eight years after the crime, at a time when he did not know that a warrant had been issued for his arrest and presumably – I speculate here – had not reason to think that anyone was looking for him in respect of the crime is really, really speculative, to put it mildly.

CRENNAN J:   Mr Nash, we might be more assisted if I were to ask Mr Donaghue to address us at this point.

MR NASH:   If your Honour pleases.

MR DONAGHUE:   Thank you, your Honours.  In our submission, special leave should be refused for two reasons.  First, because there is no point of general principle raised by this application because the judgment of the Full Court turned on the findings of fact made by the AAT specific to this particular applicant and its characterisation or understanding of the reasons that the AAT had given.

KIEFEL J:   I think the starting point, on one view, might be that this involves a matter which has very serious consequences for an individual, so the general notion in civil matters of not being a question of principle might perhaps give way a little to that consideration.

MR DONAGHUE:   I understand that, your Honour, and the second reason I was going to give was because the applicant has insufficient prospects of success on the application, and if that is correct then, in my submission, that would answer your Honour’s concern.  Relevant to that matter, your Honour, we do note, of course, that while our friends focus on the findings of fact in paragraph 70 to 72 in particular, the primary evidence that was relied upon and the first reason given by the AAT for expressing its satisfaction that there were serious reasons for considering that the applicant had committed these crimes, and your Honours see this in paragraph 69, is the evidence of the two co‑conspirators which is described at the top of page 17 of the appeal book.

BELL J:   These are the two co‑conspirators who have been executed ‑ ‑ ‑

MR DONAGHUE:   Yes.

BELL J:   ‑ ‑ ‑ and in respect of whose statements there was, as I understand it, unchallenged evidence that there were inconsistencies?

MR DONAGHUE:   Inconsistencies in minor respects or in various respects, yes.

BELL J:   There was some material, was there not, suggesting the use of interrogation techniques of a character that might explain those inconsistencies?

MR DONAGHUE:   Well, in that respect, your Honour, there is some difficulty in that the Tribunal refers – your Honour may be referring to paragraph 60 of the Tribunal’s reasons where there is an excerpt from the evidence of one of the two experts who were called.  In fact, that evidence was not before the Tribunal.  There was a statement that had been tendered from that expert.  We objected to a lot of it and by negotiations between the parties most of it was excluded by agreement, so the proper version was before the Full Court, but the Tribunal appears to have referred to a version that was not in evidence before it, and so there was no evidence of that – that evidence was not before the Tribunal.

BELL J:   Was there the evidence of Doctor Nesossi, referred to at application book 14, final bullet point in paragraph 57, respecting the “Extensive use of torture and illegal means in order to obtain confession”?

MR DONAGHUE:   In a general sense, around the Chinese criminal justice system, yes, there was.

BELL J:   Yes.  So against that background we have the two deceased alleged co‑conspirators, some evidence at least of the widespread use of torture to coerce confessions, inconsistencies in the accounts of the two, respecting their identification of a person in Australia as a culprit in ‑ ‑ ‑

MR DONAGHUE:   No inconsistent evidence in that last respect.  The accounts given by the two ‑ ‑ ‑

BELL J:   The matter I am raising with you, Mr Donaghue, is that each of the alleged co‑offenders nominated the same person, that person happening to be someone not within the jurisdiction at the time they made their confessions.

MR DONAGHUE:   That is true.  They both said, I did it together with my co‑accused and with the applicant, who is now in Australia, this is what we did, and they were quite consistent about what they did, save that both of them said it was the applicant plus the other one who threw the boy into the hole in the ice and killed him.  But, other than that, their accounts were – they explained the other, in other words, the applicant and the other.

BELL J:   Is there a scintilla of evidence apart from the accounts of the two deceased alleged co‑accused to support a conclusion that this applicant was complicit?

MR DONAGHUE:   No direct evidence, and hence the circumstantial evidence that was referred to by the Tribunal in the paragraphs about which complaint is made, which includes that the – my friend said the visa application was made well before the conspiracy, that is not so, the finding of ‑ ‑ ‑

BELL J:   The application for the passport was made well before.

MR DONAGHUE:   The passport was made earlier; the visa was made a couple of weeks after the crime using false information.

BELL J:   But the application for the passport some months before this event?

MR DONAGHUE:   That is correct.

KIEFEL J:   In any event, the Tribunal’s conclusion depends upon the whole of its reasons, not just the evidence by the accomplices.

MR DONAGHUE:   It certainly said any one factor would not have been sufficient, so it did not say it needed all of them, but it did say the accomplices alone were not enough, I accept that.

KIEFEL J:   So if there is error of law in the approaches taken in paragraph 70 to 72 that would mean that the Tribunal’s conclusion could not stand.

MR DONAGHUE:   If the Tribunal was not entitled to have regard to any of those factors.

KIEFEL J:   To those factors.  What do you say those factors go to properly characterised?

MR DONAGHUE:   We say that they were circumstantial evidence that – we are wary to use criminal law terms, but we are content with the general label “consciousness of guilt”.

KIEFEL J:   What use does the Tribunal make of that in relation to the question whether the applicant has committed the crime?

MR DONAGHUE:   Well, at paragraph 68 of the Tribunal’s reasons on page 16 of the application book the Tribunal states the conclusion:

Having considered all of the evidence I have decided that there are serious reasons for considering . . . I have reached this conclusion on the basis of several findings –

So, in our submission, the Tribunal asserts in paragraph 68 that each of the numbered items that follow do relate to that conclusion and, in our submission, the Full Court, the majority ‑ ‑ ‑

CRENNAN J:   Well, there are four matters.  The way the reasons work rhetorically, there are four matters taken into consideration, paragraph 73, the Tribunal says:

The conclusion I have reached is based on the totality of the evidence I have referred to –

MR DONAGHUE:   Yes, I accept that, your Honour, but we say that plainly the Tribunal itself thought subjectively in its own mind that these matters that it was itemising did relate to its conclusion, because it said as much in paragraph 68; the Full Court has said a fair reading of this is that it accepted that they were relevant to consciousness of guilt because there is not ‑ ‑ ‑

KIEFEL J:   Well, as Justice Bell pointed out, that carries considerable freight and has particular meaning in the criminal law context, but why would one elevate what is in paragraph 70 to 72 any higher than it goes to the credibility of the applicant?  Then that raises the question, credibility in relation to what?  What the Tribunal has to find is positive reasons for the fact towards the question of whether or not a crime has been committed as distinct from the question which might be approached on an overall determination having regard to pros and cons of whether it was committed.  Serious reasons suggest some objective identification of facts, does it not?

MR DONAGHUE:   But the Tribunal started from two co‑accused and was then looking at any extra things, and the extra things are capable of making the Tribunal more comfortable, or more confident, in drawing the conclusion that what the accomplices had said in this statement was true.

KIEFEL J:   You mean they gave it a question of weight, weight of the accomplice’s evidence?

MR DONAGHUE:   Yes, they do ‑ ‑ ‑

KIEFEL J:   Can you put them and what appears in paragraph 70 to 72 any higher than they touch upon his credibility?

MR DONAGHUE:   I do, your Honour.  We submit that there is circumstantial evidence going to the existence of not proof but serious reasons for considering that the crime was committed, because we say that when somebody applies for a visa using admittedly false information and does so shortly after a serious crime has been committed, that calls for some explanation.  Here the applicant accepted in the Tribunal it called for an explanation and attempted to give one.  He said, I applied for this visa using false information because I was being persecuted as a result of my Christian beliefs.  That explanation was rejected, both by the RRT when it was first given years ago and by the AAT here.  So we have an attempt to explain the use of false information which is rejected and, thus, no explanation advanced for why it was in the context that the applicant did procure the visa to Australia using false means, and that is a piece, we say, of circumstantial evidence that provides serious reasons for considering that he did have an urgent need to leave China for reasons that he could not pursue legitimately.

KIEFEL J:   That suggests that you say the question before the Tribunal was whether or not the Tribunal comes to a level of satisfaction about whether the applicant may have committed the crime.  The question is whether there are serious reasons for considering, serious reasons for considering would tend to suggest only one level of questioning, rather like determining whether or not, on a prosecutorial question of whether or not something should be pursued that one looks simply at the evidence in favour of evidence of commission of the crime.

MR DONAGHUE:   But each individual piece of evidence does not need to meet the ultimate standard, you can collect a number of different items of evidence together, and looking at all of those items of evidence together, no one of which would be sufficient or no one of which would establish guilt collectively can get you to the threshold, and the ‑ ‑ ‑

KIEFEL J:   What standard do you say is implied by serious reasons?

MR DONAGHUE:   Your Honour, the authorities in the Federal Court say the evidence has to be strong but does not have to be sufficient to get you even to the balance of probabilities standard, and that was not in contest between us either in the Tribunal or in the Full Court, that statement in Arquita by Justice Weinberg was accepted as the legal question.  So it has to provide – his Honour Justice Weinberg equated it to the committal standard, as an analogy, not an exact rule, but we do not say ‑ ‑ ‑

KIEFEL J:   But this is applying Article 1F to conclude whether or not a person’s status is to be denied them, their status as refugee is denied by the application of this power.

MR DONAGHUE:   Yes, well, they are not a person ‑ ‑ ‑

BELL J:   With the result that the person is refouled to a place where it is accepted they have a well‑founded fear of persecution.

MR DONAGHUE:   Or where it may be; yes, in this case that is so.  But, the ‑ ‑ ‑

KIEFEL J:   Excuse me for interrupting again, but the authorities to which you refer about serious reasons, are they in the context of the application of Article 1F?

MR DONAGHUE:   They are.  They are precisely in that context, and there has been a debate, including cases in the Full Federal Court and in the House of Lords, where it has been said that because of the seriousness of the consequence that might follow that should be relevant to the height at which the bar is set, and the authorities are against that proposition on the basis that the question is one of treaty interpretation and that Article 1F was inserted by the Convention States as a measure protective of the interests of that State, and so, as a matter of interpretation the bar does not move up because of the possible gravity of the contravention.  As I say, that proposition was expressly accepted by my friends in the Tribunal below.

CRENNAN J:   Well, now, you have accepted that the matters set out in paragraphs 70 and 72 are not, of course, proof; are you suggesting they are probative in relation to the applicant having committed the crimes of which he has been accused?

MR DONAGHUE:   Can I answer that in this way, your Honour?  The case against us is that the Tribunal was not entitled to look at those facts at all.  We submit that they are facts that the Tribunal was entitled to consider in evaluating whether or not there were serious reasons for considering that the applicant had committed the crime ‑ ‑ ‑

CRENNAN J:   I think there are two strands to what is put against you, and certainly the framework is taking into account irrelevant considerations, but it seems from what Mr Nash has said this morning that there is perhaps a larger question in relation to the sufficiency of the reasons for the purposes of considering what was required to be considered in relation to Article 1F.

MR DONAGHUE:   Your Honour, our difficulty with that is that has never been the case that has been run before.  If your Honours look at the notice of appeal on pages 22 and 23 to the Full Federal Court you will find no mention of defective reasons.

KIEFEL J:   As soon as you say that, as appears to be the case, the applicant’s case is that what the Full Court made of what is in paragraph 70 and 72 and extrapolated from them that it went to the issue of consciousness of guilt and was applied in that way, that immediately directs attention to what the Tribunal itself said about how it was applying it, and it nowhere appears.

MR DONAGHUE:   It certainly does not expressly appear, but at page 47 of the application book, paragraphs 49 and 50, the Full Court says that – reads the reasons as there being an implicit finding and says the observations “can bear no other logical construction”.

BELL J:   When one is looking at a conclusion respecting the existence of serious reasons for a conclusion, productive of a decision that a person might be refouled to a place where they fear persecution, might one not expect the Tribunal to state the conclusion that it draws the inference that, for example, conduct in 2004 logically supported an inference of the commission of the 1997 offence?  I mean, on the face of it it is a difficult proposition to make good, the Tribunal did not say it drew that conclusion but the Federal Court in the majority does.

MR DONAGHUE:   Well, other than that in paragraph 68 it did say that all of the matters it was about to list bore on its conclusion that there were

“serious reasons for considering”, so it did assert, without explaining, I accept, the link, but we submit the Full Court was right to say, well, given that the Tribunal asserted the link what did it think the link was?  The only possibility is that it thought that the link showed that the applicant was endeavouring to, by any means available, including attempted escape from immigration detention to avoid being returned to China, he was not going to be persecuted there on the findings at that time because the reason for his well‑founded fear has nothing to do with the reason that he escaped, it is to do with his conduct in Australia since then; it is a surplus claim that has led to him being accepted as a refugee now.  So it does not explain why he was escaping.  What was he doing escaping from immigration detention in 2004 if he did not seek to avoid the consequences of his past criminal behaviour?

Now, your Honours, I am not trying to add to the reasons, obviously they could have been more detailed in the explanation of the reasoning that was adopted, but all that has been put against us when this is litigated below is a particular kind of complaint which failed for reasons that the Full Court correctly rejected, and for our friends now in this Court to seek to change the case into something new and to make it a case about reasons is something we submit that they should not be permitted to do.  Similarly they should not be permitted to put in issue the nature of the legal question that had to be asked in circumstances where that has been a matter of consensus between us up until now.

So for those reasons, your Honours, we submit that accepting that the reasons could have been more detailed, having regard to the way that the applicant has conducted their case, the Full Federal Court’s reasons are unimpeachable.  It cannot be so that the matters to which the Tribunal are entitled to – to which the Tribunal may have regard vary depending on the reasoning process that the Tribunal adopts, it has to be identified having regard to the statutory framework, and here the complaint in essence was ‑ even his Honour Justice Kerr dissenting would not have gone as far as our friends are inviting your Honours to go because his Honour simply said the problem was the missing finding, whereas our friends put to your Honours that on no view was the Tribunal entitled to have regard to those facts at all, and we submit that that proposition cannot be maintained, and that for that reason ultimately, certainly unless the case is radically restructured, it has insufficient prospects of success.  If the Court pleases.

CRENNAN J:   Mr Nash.  Do you wish to say anything further?

MR NASH:   Just briefly, your Honour.  In relation to the last point our learned friends made, we contended, basically, that no findings of flight, consciousness of guilt, of any connection between a state of mind involving escape of any kind was made by the Tribunal, therefore the considerations in those paragraphs were irrelevant in the absence of the connecting finding. 

That was precisely the way it was put.  That appears from the reasoning of Justice Kerr at paragraph 57 and also at paragraph 54.  I should also add that we did concede the criterion by which the words “serious reasons for considering” was to be determined in the Full Court, that was because there were Full Court decisions which effectively bound the situation.  If leave were granted, we would also want to be able to argue the question as to what “serious reasons for considering” means, particularly having regard to the consequences that flow from a case such as this.

CRENNAN J:   This highlights, I think I am bound to say, that there is not a perfect match between your articulation of the special leave questions and the draft notice of appeal which has been put forward, but that is a matter perhaps that could be considered later.

MR NASH:   Well, I hope I will be able to say I am indebted to your Honour for that statement.

CRENNAN J:   Court will adjourn briefly.

AT 11.29 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.33 AM:

CRENNAN J:   There will be a grant of special leave in this matter.  I will just remind you, Mr Nash, that the notice of appeal would merit some attention.

MR NASH:   I am indebted to your Honour.

CRENNAN J:   I also remind parties about the timetabling, which is available outside, and which takes into account the Christmas break.  Did you want to say anything further, Mr Nash?

MR NASH:   No, your Honour, I was just whether I was sitting or standing.

CRENNAN J:   Court will adjourn briefly to reconstitute.

AT 11.34 AM THE MATTER WAS CONCLUDED