QKWV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 3504

QKWV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3504 (27 October 2023)
Division:GENERAL DIVISION
File Number: 2022/9487
Re:QKWV
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:27 October 2023
Place:Perth

The Reviewable Decision, being the delegate’s decision of 28 October 2022, is affirmed.
...........[Sgd].............................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – refusal to grant a protection visa – whether Tribunal satisfied there are serious reasons to consider that the Applicant committed a serious non-political crime before entering Australia – non-political crime – serious non-political crime – serious Australian offence – serious foreign offence – serious reasons for considering – Applicant member of a criminal gang before arriving in Australia – Applicant admitted committing violent offences as a gang member – Reviewable Decision affirmed
LEGISLATION
Crimes Act 1900 (ACT) s 19, 20, 23, 24, 25, 26
Criminal Code 2002 (ACT) ss 18, 18(2), 20, 45(1), 45A(1), 45A(3), 45A(5)
Extradition Act 1988 (Cth) s 5
Migration Act 1958 (Cth) ss 5(1), 5H(1), 36(1A), 36(2), 36(2)(a), 36(2)(aa), 36(2C), 36(2C)(a)(ii), 56
CASES
Arquita v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 321; [2000] FCA 1889
Dhayakpa v the Minister of Immigration and Ethnic Affairs (1995) 62 FCR 556
FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1; [2014] HCA 26
GZCK v Minister for Home Affairs [2021] FCA 1618
JSDW and Minister for Immigration and Border Protection [2017] AATA 2420
NADB v Minister for Immigration & Multicultural Affairs [2002] FCA 200
NADB of 2001 v Minister for Immigration and Multicultural Affairs (2002) 126 FCR 453; [2002] FCAFC 326
Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 549
Re Ramirez v Canada (Minister of Employment and Immigration) (1992) 89 DLR (4th) 173; [1992] 2 FC 306
Swan v R [2016] NSWCCA 79
ZYVZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 28
SECONDARY MATERIALS
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) art 1F(b)
Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth)
United Nations High Commissioner for Refugees, Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees (4 September 2003)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
27 October 2023
OVERVIEW

The Applicant was a member of a criminal gang in [redacted]. He fears retribution from the gang if he is returned to [redacted] because he left the gang without approval and fled to Australia.
For that reason, he applied for a Protection (subclass 866) visa (protection visa). However, on 28 October 2022, his application was refused by a delegate at the Department of Home Affairs (Department) (T19). This is the Reviewable Decision that is the subject of this application.
As part of his protection visa application, the Applicant gave evidence about his role and activities in the gang. He also provided graphic photographs of injured and deceased gang members. His evidence included that he was involved in an assault, with other gang members, of a person in one of the photographs. The photograph shows a man lying on the ground covered in blood with blood on the ground around his head. According to the Applicant, this man had tried to rob an underground casino that the Applicant was the supervisor of. The Applicant also provided evidence about other criminal activities that he engaged in as a gang member.
In the record of reasons for the Reviewable Decision, the delegate explained that she was not satisfied that the Applicant met the relevant criteria for the grant of a protection visa because, based on the Applicant’s evidence about his gang-related activities, the delegate had serious reasons for considering that the Applicant committed a serious non-political crime before entering Australia.
The Applicant has appealed the Reviewable Decision in this Tribunal. The issue I am required to determine in this application is whether I am satisfied that there are serious reasons for considering that the Applicant committed a serious non-political crime before entering Australia. For the reasons given below, I am so satisfied. Consequently, the Applicant is ineligible for the grant of a protection visa in accordance with s 36(2C)(a)(ii) of the Migration Act 1958 (Cth) (Migration Act).
CRITERION FOR A PROTECTION VISA
Article 1F(b) of the Convention relating to the Status of Refugees (Refugees Convention) sets out the following exclusion:
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
…
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; …
In Applicant NADB of 2001 v Minister for Immigration and Multicultural Affairs (2002) 126 FCR 453; [2002] FCAFC 326 (NADB), the Full Court of the Federal Court explained how the exclusion operates, at 465 [41]:
The courts in the common law jurisdictions have rejected the views expressed in the UNHCR Handbook and by eminent writers that Art 1F(b) requires a balancing test. Those views appear to be based upon a policy allegedly underlying Art 1F(b) that a person should not be denied the protection of the Refugees Convention unless the seriousness of the crime outweighs the risk of the persecution the person is likely to suffer if he or she is refouled to his or her country of nationality. The difficulty with that view is that the policy underlying Art 1F(b) is to be found in the Article’s specification of the criterion for exclusion to be the commission of a ‘serious non-political crime’ prior to the person’s admission into the intended country of refuge. Thus, the Article provides that the commission of such a crime, of itself, is sufficient to exclude the person in question from the protection of the Refugees Convention. In the context of the limited manner in which the Refugees Convention has been incorporated into municipal law in Australia (see Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at 15-16; 187 ALR 574 at 584) the purpose of Art 1F(b) is clear; if a person has committed a serious non-political crime prior to the person’s admission into the intended country of refuge he or she is not a person to whom Australia has protection obligations under the Refugees Convention. In determining whether the disqualifying crime is ‘serious’ it is appropriate to have regard to the fact that it must be of such a nature as to result in Australia not having protection obligations to persons who commit such crimes. However, there is no textual or contextual basis for reading into Art 1F(b) an additional requirement of a balancing test nor would such a requirement be justified on the basis that it is giving effect to a purpose or object of Art 1F(b) of the Refugees Convention.
In summary, the Full Court in NADB confirmed that the decision-maker does not have to balance the risk of persecution against the nature of the serious non-political crime. If the decision-maker has serious reasons for considering that a person has committed a serious non-political crime, that alone is enough to exclude the person from the protection of the Refugees Convention.
Subsection 36(1A) of the Migration Act provides:
(1A)    An applicant for a protection visa must satisfy:
(a)      both of the criteria in subsections (1B) and (1C); and
(b)      at least one of the criteria in subsection (2).
Subsection 36(2) provides in part:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or …
The exclusion in art 1F(b) of the Refugees Convention has been codified in s 36(2C)(a)(ii) of the Migration Act which provides:
(2C)   A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
(a)      the Minister has serious reasons for considering that:
…
(ii)     the non-citizen committed a serious non-political crime before entering Australia; or …
BACKGROUND TO THE APPLICATION
The Applicant is a 32-year-old citizen of [redacted]. He arrived in Australia on 16 April 2015 on an Electronic Travel Authority UD 601 Temporary visa (T6/64).
In July 2015 he applied for, and was granted, a Student (Temporary) visa (T4; T19/137).
He made an application for a protection visa on 26 April 2016 (T19/137).
On 30 April 2016 the Applicant departed Australia to travel to [redacted] to visit his parents (T5/46; T19/137).
On 2 May 2016 his protection visa application was found to be invalid (T19/137).
He returned to Australia on 30 May 2016 (T19/137).
The Applicant lodged another protection visa application on 7 June 2016 (T6/61; T5). In that application, he stated that he was tricked by a friend into becoming involved with a criminal gang in [redacted] and that he had fled to Australia after he was tortured for trying to leave the gang. He stated that when gang members tried to leave the gang, they would be killed (T5/54-55).
In a decision dated 9 March 2017, a delegate of the Minister was not satisfied that the Applicant was a refugee as defined by s 5H(1) of the Migration Act or consequently a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Migration Act (T6/72) (First Delegate’s Decision).
On 11 March 2017, the Applicant sought review of the First Delegate’s Decision in the Migration and Refugee Division of this Tribunal (MRD Tribunal) (T7/78-79).
The MRD Tribunal found that the Applicant satisfied the complimentary protection criteria in s 36(2)(aa) of the Migration Act. That is, the MRD Tribunal was satisfied that if the Applicant was returned to [redacted], there was a real risk that he may suffer significant harm (T9).
The MRD Tribunal noted that the material before it may give rise to issues relating to s 36(2C) of the Migration Act (in that the Applicant may have committed a serious non-political crime in [redacted]) but noted that the MRD has no jurisdiction to consider those issues.
The MRD Tribunal remitted the matter for reconsideration with the direction “that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to [redacted], that there is a real risk the applicant will suffer significant harm” (T9/87) and indicated that the Department should consider the s 36(2C) issues as part of the reconsideration.
In a letter dated 14 December 2021 the delegate requested further evidence from the Applicant (T11) in accordance with s 56 of the Migration Act (First s 56 Notice). The delegate provided a list of questions for the Applicant to answer about the gang and concerning his role and activities in the gang (T11/106-108).
The Applicant provided answers to the First s 56 Notice on 9 January 2022 (T12). I outline the relevant parts of these answers below.
The delegate sent another letter to the Applicant dated 19 January 2022, again pursuant to s 56 of the Migration Act, asking him to provide information about any offences he was charged with, or convicted of, in [redacted] (T15) (Second s 56 Notice).
The Applicant responded to the Second s 56 Notice on 11 February 2022 (T16). I also discuss the relevant part of his answer below.
The delegate sent another s 56 letter to the Applicant dated 25 February 2022 (T17). This letter stated that the Applicant’s evidence to the MRD Tribunal and the Department may give the delegate “serious reasons for considering” that he had committed a “serious non-political crime” before coming to Australia. The letter asked whether there was anything further that the Applicant wanted to say about his possible ineligibility for a protection visa (T17/129).
The Applicant responded on 22 March 2022. He explained that he knew too much about the criminal gang and that if he were to return to [redacted] he would be “in fear of my life and in a state of paranoia wondering if the next step I take is the last” (T18/131).
On 28 October 2022 the delegate made the Reviewable Decision (T19). The delegate found that, although the Applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Migration Act, s 36(2C)(a)(ii) applied because the delegate had serious reasons for considering that the Applicant committed a serious non-political crime before entering Australia. Therefore, in accordance with s 36(2C) of the Migration Act, he did not satisfy the criterion in s 36(2)(aa) of the Migration Act (T19).
On 17 November 2022, the Applicant applied to the Tribunal seeking a review of the Reviewable Decision. He used the incorrect form, being an MRD application form, and did not provide a statement of reasons for making the application, which raised issues about whether his application was valid (T2).
On 23 December 2022, the Respondent wrote to the Tribunal in relation to the validity of the Applicant’s application. The Tribunal wrote to the Applicant on 10 January 2023 and invited him to make another application and an extension of time application.
The Applicant lodged another application with the Tribunal on 5 February 2023, seeking review of the Reviewable Decision and an extension of time application. The Respondent did not oppose an extension of time. The Tribunal made an order on 14 February 2023 which extended the time for making an application for review of the Reviewable Decision to 5 February 2023. The Tribunal made programming directions on 3 March 2023.
On 20 March 2023, the Respondent lodged with the Tribunal and served on the Applicant a list of questions for the Applicant to answer regarding his gang activities and involvement (R2) (Further Questions).
On 12 April 2023, the Applicant provided responses to the Further Questions (A1).
THE APPLICANT’S EVIDENCE
Overall, the Applicant has given consistent evidence to the MRD Tribunal, the Department, and this Tribunal about the criminal activities he engaged in as a gang member. I found him to be a truthful witness. I will now outline his evidence.
Evidence given to the MRD Tribunal
As part of the review before the MRD Tribunal, the Applicant provided several photographs and [redacted] newspaper stories (T8). The MRD Tribunal held two hearings, on 14 September 2020 and 7 October 2020, during which the presiding Member asked the Applicant about those photographs and newspaper stories. I have reviewed the transcripts of those hearings (R3).
The MRD Tribunal recorded the evidence that the Applicant gave at the first hearing about the photographs and newspaper stories in a transcript of oral reasons. I agree with the MRD Tribunal’s summary of that evidence.
The following two excerpts from the reasons record the Applicant’s evidence of an “attack” on a man who had tried to rob an underground casino where the Applicant was the senior security guard. As can be seen in the reasons, the Applicant described beating the man into unconsciousness with his fists while several of his more junior associates used weapons, and the victim being in a coma and having to be hospitalised. I will refer to this as the Casino Incident (T9/91-92):
37. I asked you to explain the relevance of five abhorrent images that you had emailed to the Tribunal before the hearing, showing victims of gang related violence.
38. One of these victims had been badly beaten and was clearly unconscious.
39. Three of the images showed the victims of fatal shootings or stabbings.
40. There was also one funeral image of a deceased person in and a number of newspaper stories in [redacted], regarding violent criminal thugs.
41. You stated that you had participated in one of the illustrated violent attacks, in company with your former criminal gang associates. You said that, during this attack, you had beaten the victim with your fists while your associates had used weapons.
42. Your evidence to me was that the victim of this attack spent a considerable period of time in a coma before being released from hospital. This evidence, at the time, was given by you a little reluctantly but I have no reason to disbelieve such an admission against self-interest.
43. At the first hearing you also stated that the other acts of violence illustrated in the five abhorrent images had been perpetrated by your former criminal gang associates since your departure from [redacted].
44. A number of the deceased victims shown in the images were, themselves, your former criminal gang associates who, like you, had tried to leave the gang. The circumstances of their deaths formed a type of deterrent retribution.
The MRD Tribunal further recorded that the Applicant gave the following evidence at the second MRD Tribunal hearing concerning the Casino Incident and other incidents (T9/93):
53. I asked you to explain your participation in the savage beating of one of the people pictured in the abhorrent images submitted to the Tribunal before the first hearing (pictured in the top left-hand side of the first page).
54. You stated that at the time you were acting as the senior ‘security guard’ at an illegal casino. While you and your junior colleagues (also criminal gang associates) where taking a meal break at the next-door café, the individual pictured tried to rob the illegal casino. You and four or five* of your criminal gang associates interrupted the attempted robbery of the illegal casino and, together, you administered a savage beating to the person pictured. In your words, you ‘use your hands’ and the others used weapons.
55. I asked you if you had engaged in other violent criminal activities on behalf of the criminal gang and your response was, ‘Many times’. As far as you are aware, no one died as a result of the beatings you participated in but some individuals were permanently disabled as a result of the injuries inflicted to their arms or legs*.
56. In addition to what you described as ‘security services’, you described yourself as having been engaged in other criminal gang activities relating to debt collection including harassment, physical intimidation, threats and the infliction of violence.
57. Later in the hearing you stated that you had used your hands and weapons on some occasions when participating in these beatings.
* The Applicant’s evidence from the transcript dated 7 October 2020 was that he and “Five or six” others participated in the beating (R3/17).
** The Applicant’s evidence was “hand or foot” (R3/17).
I have reviewed the transcript of proceedings from the MRD Tribunal. To clarify, the Applicant’s evidence recorded by the MRD Tribunal at paragraph [57] in the excerpt above, was in the context of inter-gang violence, that is, violence involving members of other gangs. His evidence was that he had engaged in other violent gang activities where he had used his hands and weapons (“Knife. Baton”) resulting in the victims being permanently disabled from injuries to their arms and legs (R3/23) (Inter-gang Violence Incidents).

The Applicant’s evidence, as recorded in the MRD transcript, also refers to debt collection using harassment, intimidation, threats, and inflicting violence (Debt Collection Incidents) (R3/17-18).
Evidence in the First s 56 Notice
The answers that the Applicant provided in the First s 56 Notice on 9 January 2022 included details about the assault against the man (in the first photograph at the top left of the montage of photographs provided by the Applicant) who tried to rob the casino (T12). He confirmed that the man was “A Thief attempting to rob an underground gambling den operation that [he] managed” and that the assault happened “around 2014”. He described his role as, “I punched him [the man] repeatedly” and that the other gang members “used weapons on him to beat him bloody”. He was told by other gang members that the man was alive but “Spent 2 weeks in a coma” (T12/112).
Evidence in the Second s 56 Notice
I mention this evidence briefly because it confirms the Applicant was not formally charged or convicted of any offence in [redacted].
In his 11 February 2022 response to the Second s 56 Notice the Applicant confirmed that the most time he was detained in a police holding cell was for four days, but that he was let go due to a lack of evidence. He stated, “I’ve never been properly charged due to the corruption and bribery that occurred in the police division at that time” (T16/121).
Evidence given by the Applicant in response to Further Questions
In the Applicant’s response to the Further Questions of 12 April 2023 (A1), he provided further information about the Casino Incident. He confirmed that he was the casino manager and that he oversaw the other gang members. He said that “My job was to tell other gang members to punish the robber” and that “we caught the man and punished him”. When asked about the level of force used, the Applicant stated that:
… the actions of some gang members went above the appropriate amount. Their actions were not something I could control.
However, he estimated that if he did tell the other gang members to use force he would have said “4 or 5 out of 10”. He said that he did not give orders and that “It was instinct and part of the job to go and punish the thief”.
Regarding his own involvement, the Applicant stated that he punched the man “Around 10 times” to his “Head and upper body” using “Around 50% of [his] strength”. He estimated that the beating “lasted around 10 minutes”. He said that “The other gang members used metal poles” to beat the victim.
He was asked if the man received any other injuries other than going into a coma. The Applicant stated, “I remember a broken leg”, that the man’s “face and body had bruises” and “His face was bleeding”.
The Applicant was also asked about whether he had to protect the casino at other times. He agreed that he had to use force to protect the casino at other times. He referred to there being a “thief” who was “robbing the casino”. He said he was with other gang members, that weapons were used, that the victim had an “arm injury” and that he thought he had that injury due to “blood around his arm”. He stated the victim got the injury “By metal pole” (Second Casino Incident).
The Applicant also provided additional answers concerning his debt collection activities for the gang. He stated that he was a debt collector in 2009 and that he would collect debts from the debtor’s home or workplace. He said he would collect debts from non-gang members with two or three other gang members. He agreed that he would threaten people that he would hurt them if they did not pay, and gave the example of stating, “If you do not pay, you need to be very careful”. He said he would threaten someone approximately “2-3 times every 3 months”. He agreed that he used actual violence to collect debts, but that did not involve the use of weapons. He thought that the injuries the victims sustained were “bruises” and referred to “bleeding on his face” which appears to be a reference to a specific victim.
Evidence at the Tribunal hearing for this application
The Applicant’s evidence at the Tribunal hearing on 25 July 2023 was concise (transcript/17-27).
The Applicant confirmed that the responses he gave to the Further Questions (A1) were true and correct. He confirmed that the evidence he gave to the MRD Tribunal was true and correct. He also confirmed that the responses he gave to the First s 56 Notice (T12) were true and correct.
He stated that the [redacted].
He confirmed that he was a debt collector from approximately 2009 to 2012, which involved going to people’s homes or workplaces with three to five other gang members to collect debts. This could involve threatening the person with words such as those he stated in his response to the Further Questions being, “if you don’t pay, you need to be very careful”, which he agreed was a warning that if the person did not pay, they would be punished. He described the sorts of things he may have had to do to people if they did not pay as “just slap them on the face, assault them, beat them up” but that “there may be only one person doing the act”. I infer this means that only one of the gang members would do so. When asked about the assault example, the Applicant stated this involved, “slap them on their face, and the – punch them on their body, their – or stomach”. When asked about his response to the Further Questions that he had caused a person “to bleed from their face”, he stated, “Sometimes, yes”, from which I infer this happened on more than one occasion.
The Applicant was also asked about the fights he had with other gang members. He was asked about evidence that he gave to the MRD Tribunal that he disabled someone with a knife or baton. He agreed that this was when two gangs were having a fight. When asked what he meant by “disabled”, the Applicant explained, “Because I use a knife to attack him and he raise his arm, so my knife cut off his nerve on the arm”.
He further agreed that “If I punch someone, yes, they would get hurt” and agreed that his 50 percent punch would still be pretty strong (“it should be”).
Findings based on the Applicant’s evidence
I found the Applicant to be a truthful witness at the hearing. His evidence throughout the Departmental, MRD Tribunal and in these proceedings was generally consistent. The Applicant made admissions against his own interests, and I have no cause to doubt the evidence.
Based on the evidence that I have outlined above, I find that:
·The Applicant was a member of a gang in [redacted] called the [redacted].
·As a gang member, the Applicant engaged in illegal activities such as acting as a debt collector where he, in the company of other gang members, enforced debts through intimidation and violence. This would occur approximately two to three times every three months. The Applicant and two or three other gang members would attend a debtor’s home or workplace and threaten or use violence to collect debts. This could involve slapping a victim’s face or punching them in the stomach. The injuries included bruising and bleeding on a victim’s face. I referred to these above as Debt Collection Incidents. The Applicant’s evidence about these incidents is quite general in that I do not have evidence of any specific incident or incidents.
·The Applicant later held a supervisory position in the gang where he was a manager or the head of security of an underground casino run by the gang.
·In 2014, the Applicant participated in the Casino Incident where the victim was bashed by the Applicant and his gang associates as a punishment after being caught trying to steal from the casino. The Applicant punched the victim approximately 10 times to his head and upper body with his fists using approximately 50 percent of his strength. At the same time, five or six other gang members that the Applicant supervised used metal poles to bash the victim until he was bloody. The Respondent submitted that I should find that the Applicant also used a metal pole, rather than his fists. I am not reasonably satisfied that I should make a finding he also used a metal pole to bash the victim. Overall, his evidence about that aspect was consistent over time, and I am not satisfied that he was untruthful about that aspect of the incident. The victim suffered significant injuries. There was a photograph of the victim lying on the ground covered in blood and with blood on the ground around his head. The man spent approximately two weeks in a coma because of the bashing. The Applicant observed the man’s face was bleeding, and his face and body had bruises. The Applicant thought that the victim also suffered a broken leg. Even if the Applicant’s estimation of the amount of time the Applicant was in a coma for, or whether the man suffered a broken leg or not, were accurate, I infer that the victim suffered serious, life-threatening injuries.
·There was a Second Casino Incident when the Applicant, with other gang members, used force against a thief who was robbing the casino. He described the victim’s arm being bloody and injured from a metal pole being used as a weapon, but the extent of the Applicant’s involvement is unclear. For example, it is unclear who wielded the pole and what the Applicant’s actions were.
·The Applicant participated in, what I referred to above as Inter-gang Violence Incidents where he used his hands, knives, and batons in fights with rival gang members. These incidents resulted in injuries to their arms or legs, which resulted in permanent disablement. Like the Debt Collection Incidents, the Applicant’s evidence about these incidents is general and I do not have evidence of any specific incident or incidents. Additionally, as the Respondent conceded at the hearing, it is unclear whether the Applicant was acting in self-defence during the Inter-gang Violence Incidents. I have therefore not discussed or considered this evidence further in these reasons.
·The Applicant has not been formally charged or convicted of these, or any other offences, in [redacted].
In these reasons, I focus on the Casino Incident because that is the incident that I have the most detailed evidence about, including an approximate time, and details of the injuries suffered by the victim. Also, if I find that the Applicant has committed a serious non-political crime before entering Australia based on the Casino Incident, it will not be necessary to consider the other incidents.
DID THE APPLICANT COMMIT A SERIOUS NON-POLITICAL CRIME BEFORE ENTERING AUSTRALIA?
Non-political crime
“Non-political crime” is defined in s 5(1) of the Migration Act, which states that:
non‑political crime:
(a)subject to paragraph (b), means a crime where a person’s motives for committing the crime were wholly or mainly non‑political in nature; and
(b)includes an offence that, under paragraph (a), (b) or (c) of the definition of political offence in section 5 of the Extradition Act 1988, is not a political offence in relation to a country for the purposes of that Act.
(Original emphasis.)
Section 5 of the Extradition Act 1988 (Cth) (Extradition Act) defines “political offence”. Notably, it does not include an act of violence against a person’s life or liberty:
political offence, in relation to a country, means an offence against the law of the country that is of a political character (whether because of the circumstances in which it is committed or otherwise and whether or not there are competing political parties in the country), but does not include:
(a)an offence that involves an act of violence against a person’s life or liberty; or
(b)an offence prescribed by regulations for the purposes of this paragraph to be an extraditable offence in relation to the country or all countries; or
(c)an offence prescribed by regulations for the purposes of this paragraph not to be a political offence in relation to the country or all countries.
(Original emphasis.)
None of the incident’s outlined above (Debt Collection Incidents, Inter-gang Violence Incidents, Casino Incident or Second Casino Incident) could be characterised as being politically motivated or of a political nature.
Additionally, the Casino Incident can be characterised as an act of violence against a person’s life and is therefore not a political offence according to s 5 of the Extradition Act. That offence does not have a political aspect. It involved an act of violence against a person as a punishment for attempting to steal from an illegal underground casino.
I therefore find that each of the incidents, including the Casino Incident, were non-political.
Serious non-political crime
A “serious non‑political crime” is not defined in s 36(2C)(a)(ii) of the Migration Act. However, s 5(1) of the Migration Act defines the terms “serious foreign offence” and “serious Australian offence”.
In JSDW and Minister for Immigration and Border Protection [2017] AATA 2420 Deputy President Kendall (now his Honour Judge Kendall) and Deputy President Boyle, at [38], accepted the following:
JSDW concedes that the definitions of “serious Australian offence” and “serious foreign offence” are not exhaustive, but submits that they should “serve as a benchmark for indicating what sort of offences may be considered serious enough to warrant exclusion under Article 1F(b) and s 36(2C)” … The Tribunal does not disagree with this proposition.
That is, the Tribunal is not limited to these definitions in considering whether an applicant has committed a serious crime, but the definitions provide a benchmark against which the seriousness of other crimes may be considered.
The definitions set out in s 5(1) of the Migration Act are as follows:
serious Australian offence means an offence against a law in force in Australia, where:
(a)the offence:
(i)     involves violence against a person; or
(ii)    is a serious drug offence; or
(iii)   involves serious damage to property; or
(iv)   is an offence against section 197A or 197B (offences relating to immigration detention); and
(b)the offence is punishable by:
(i)     imprisonment for life; or
(ii)    imprisonment for a fixed term of not less than 3 years; or
(iii)   imprisonment for a maximum term of not less than 3 years.
serious foreign offence means an offence against a law in force in a foreign country, where:
(a)the offence:
(i)     involves violence against a person; or
(ii)    is a serious drug offence; or
(iii)   involves serious damage to property; and
(b)if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory, the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory, and the Territory offence would have been punishable by:
(i)     imprisonment for life; or
(ii)    imprisonment for a fixed term of not less than 3 years; or
(iii)   imprisonment for a maximum term of not less than 3 years.
(Original emphasis.)
Both definitions include offences involving violence against a person and which are punishable by a fixed or maximum term of not less than three years’ imprisonment. Further, the definition of a “serious foreign offence” uses the law in force in the Australian Capital Territory as a comparative benchmark to determine whether an offence committed overseas is a “serious foreign offence”. For that reason, I discuss comparative provisions of the Crimes Act 1900 (ACT) (Crimes Act) and the Criminal Code 2002 (ACT) (Criminal Code) below.
Further examples of “serious crime” in the context of art 1F(b) of the Refugees Convention are given in paragraph [40] of the Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees which relevantly states:
Examples of ‘serious’ crimes include murder, rape, arson and armed robbery. Certain other offences could also be deemed serious if they are accompanied by the use of deadly weapons, involve serious injury to persons, or there is evidence of serious habitual criminal conduct or other similar factors. On the other hand, crimes such as petty theft or the possession for personal use of illicit narcotic substances would not meet the seriousness threshold of Article 1F(b).
With respect to the Casino Incident, there are a range of applicable offences in the Crimes Act.
Section 19 of the Crimes Act concerns the offence of “intentionally inflicting grievous bodily harm”:
(1) A person who intentionally inflicts grievous bodily harm on another person is guilty of an offence punishable, on conviction, by imprisonment for 20 years.
Section 18 of the Criminal Code concerns “intention”:
(1)   A person has intention in relation to conduct if the person means to engage in the conduct.
(2)   A person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events.
…
(Original emphasis.)
There is a further offence of “recklessly inflicting grievous bodily harm” in s 20 of the Crimes Act:
(1) A person who recklessly inflicts grievous bodily harm on another person is guilty of an offence punishable, on conviction, by imprisonment for 13 years.
…
Section 20 of the Criminal Code concerns “recklessness”:
(1) A person is reckless in relation to a result if—
(a) the person is aware of a substantial risk that the result will happen; and
(b)having regard to the circumstances known to the person, it is unjustifiable to take the risk.
…
There is also an offence of “causing grievous bodily harm” in s 25 of the Crimes Act:
A person who, by any unlawful or negligent act or omission, causes grievous bodily harm to another person is guilty of an offence punishable, on conviction, by imprisonment for 5 years.
The Dictionary to the Crimes Act defines grievous bodily harm to include:
grievous bodily harm to a person includes—
(a) any permanent or serious disfiguring of the person; …
Further, there is an offence of “inflicting actual bodily harm” in s 23 of the Crimes Act:
(1)A person who intentionally or recklessly inflicts actual bodily harm on another person is guilty of an offence punishable, on conviction, by imprisonment for 5 years.
…
Section 24 of the Crimes Act provides for the offence of “assault occasioning actual bodily harm”:
(1)A person who assaults another person and by the assault occasions actual bodily harm is guilty of an offence punishable, on conviction, by imprisonment for 5 years.
…
In Swan v R [2016] NSWCCA 79 (Swan), the New South Wales Court of Appeal, at [55]-[58], considered the definitions of grievous bodily harm and actual bodily harm in the context of the Crimes Act:
The offences charged in the alternative on the Indictment involve the concepts of “grievous bodily harm” and “actual bodily harm”. These are offences of different levels of seriousness, reflected in their significantly different maximum terms of imprisonment.
“Actual bodily harm” means any hurt or injury that interferes with the health or comfort of a person. Such an injury does not need to be permanent, but it must have more than a fleeting or trivial effect upon the victim. As the trial Judge directed the jury in this case, bruising may constitute actual bodily harm. …
“Grievous bodily harm” refers to a more serious form of injury than actual bodily harm. Grievous bodily harm means really serious bodily injury. In R v Perks (1986) 41 SASR 335, King CJ noted that, in attempting to explain the phrase “grievous bodily harm” to a jury, a trial Judge should not use merely the word “serious”, but the words “really serious”.
The phrase “really serious bodily injury” has its genesis in the English courts. In Director of Public Prosecutions v Smith [1961] AC 290, the Lord Chancellor, Viscount Kilmuir said at 334:
“I can find no warrant for giving the words ‘grievous bodily harm’ a meaning other than that which the words convey in their ordinary and natural meaning. ‘Bodily harm’ needs no explanation, and ‘grievous’ means no more and no less than ‘really serious’.”

At [61]-[62], the Court of Appeal referred to grievous bodily harm as being a “really serious bodily injury”.
The Court of Appeal continued, at [71]:
To summarise, it seems to me that, based upon the authorities and the preceding discussion, the following principles can be stated with respect to the phrase “grievous bodily harm”:
(a) It is to be interpreted according to its natural and ordinary meaning;
(b) On its natural and ordinary meaning, the phrase means not just serious bodily injury, but really serious bodily injury;
(c)there is no bright-line by which an injury can be classified as really serious bodily injury; it is always a question of fact and degree;
(d) not every injury is capable of amounting to grievous bodily harm;
(e) only the injury itself and its direct physical effects, not its personal, social and economic consequences, can be taken into account in deciding whether an injury amounts to really serious bodily injury.
Section 26 of the Crimes Act provides for the lesser offence of “common assault”:
(1) A person who assaults another person is guilty of an offence punishable, on conviction, by imprisonment for 2 years.
…
In R v Tate [2010] ACTSC 144 (Tate), Penfold J, at [11]-[12] set out the elements of “assault occasioning actual bodily harm” under s 24 of the Crimes Act, and clarified that if all the elements of the offence are proved, except for actual bodily harm, that the offence of “common assault” under s 26 of the Crimes Act is made out:
The elements of assault occasioning actual bodily harm in this case are as follows:
(a) A striking, touching or application of force by the accused to the complainant.
(b) That such conduct of the accused was without the consent of the complainant.
(c) That such conduct was intentional or reckless.
(d) That the assault occasioned actual bodily harm to the complainant; “bodily harm” means any hurt or injury likely to interfere with the health and comfort of the victim; the hurt or injury need not be permanent but it must be more than trifling and transient.
(e) That the accused’s conduct was without lawful excuse.
If all the elements except actual bodily harm are proved beyond reasonable doubt, the offence of assault is made out. In that situation, under s 49 of the Crimes Act, I may find Mr Tate not guilty of the offence charged but guilty of assault under s 26 of that Act.
Before I assess which Crimes Act offence the Casino Incident could be characterised as, it is relevant to address that the Casino Incident did not involve the Applicant acting alone. He participated in bashing the victim with his fists whilst other gang members beat him with metal poles.
A person will be taken to have committed an offence if they are part of a “joint commission”. Section 45A(1) of the Criminal Code defines a “joint commission”:
(1)     A person is taken to have committed an offence if—
(a)     the person and at least 1 other person enter into an agreement to commit an offence; and
(b)          either—
(i)    an offence is committed in accordance with the agreement; or
(ii)   an offence is committed in the course of carrying out the agreement.
Subsections 45A(3) and (5) of the Criminal Code are also relevant. They provide:
(3)   For subsection (1) (b) (ii), an offence is committed in the course of carrying out an agreement if a person is reckless about the commission of an offence (the joint offence) that another person in fact commits in the course of carrying out the agreement.
…
(5)        An agreement—
(a)        may consist of a non-verbal understanding; and
(b)   may be entered into before, or at the same time as, the conduct making up any of the physical elements of the joint offence was engaged in.
(Original emphasis.)
Subsection 45(1) of the Criminal Code provides that, in circumstances of aiding and abetting, the person will be taken to have committed an offence. Specifically:
(1) A person is taken to have committed an offence if the person aids, abets, counsels, procures, or is knowingly concerned in or a party to, the commission of the offence by someone else.
The Casino Incident resulted in serious injury to the victim. There is photographic evidence of the victim lying unconscious on the ground, with his head and upper torso covered in blood, and a substantial amount of blood on the pavement around his head. On the Applicant’s evidence, the victim’s face was bleeding, and he was in a coma for approximately two weeks. The Applicant thought he had a broken leg, but I do not rely on the Applicant’s assessment of that. Overall, I find that the victim’s injuries associated with the Casino Incident are consistent with a grievous bodily harm offence.
I next turn to which provision of the Crimes Act concerning grievous bodily harm applies, s 19, 20 or 25. In my view, s 19, which concerns “intentionally inflicting grievous bodily harm” applies. In his evidence at the hearing the Applicant accepted that he needed to be physically strong as part of his role in the gang. He gave evidence that on one occasion he had fought three against one. He accepted that a punch at 50 percent of his strength was still likely to cause physical harm or hurt someone (transcript/26-27). It can be inferred that the Applicant knew that in the ordinary course of events of punching the victim in the head and upper torso multiple times that the result would be that he would suffer very serious injury or injuries (s 18(2) of the Criminal Code). Section 19 of the Crimes Act attracts a maximum penalty of 20 years imprisonment and meets the definition of a serious foreign offence.
If the Casino Incident was to be regarded as falling short of the element of intentionality, it would fall within s 20 of the Crimes Act, “recklessly inflicting grievous bodily harm”. It can be inferred the Applicant was aware there was a substantial risk the victim would be very seriously injured from repeated punches to the head and that such a risk was unjustifiable. Section 20 attracts a maximum penalty of 13 years imprisonment and meets the definition of a serious foreign offence.
If the Casino Incident was to fall short of the element of recklessness, it would nevertheless fall within s 25 of the Crimes Act, “causing grievous bodily harm” because the Applicant’s acts of punching the victim repeatedly in the head whilst his colleagues bashed the victim with metal poles caused “really serious bodily injury” to the victim. Section 25 attracts a maximum penalty of five years imprisonment and meets the definition of a serious foreign offence.
If the victim’s injuries fell short of being an injury that includes any permanent or serious disfiguring of a person or as otherwise resulting in “really serious bodily injury”, the Casino Incident could nevertheless be categorised as “actual bodily harm”. The proved injuries of bleeding from the head and being knocked unconscious would certainly meet the criterion described in Tate of “hurt or injury likely to interfere with the health and comfort of the victim; the hurt or injury need not be permanent but it must be more than trifling and transient” (see also Swan above).
In turn, this raises the question of whether the Casino Incident falls within s 23 of the Crimes Act, “inflicting actual bodily harm” or s 24 of the Crimes Act, “assault occasioning actual bodily harm”. As I outlined above, the Applicant’s conduct meets the criterion of being intentional, or at the very least reckless. Therefore s 23 which carries a maximum five-year sentence of imprisonment would apply. However, he would also satisfy the elements in s 24 of the Crimes Act because he assaulted the victim by punching him in the head which resulted in injuries that would meet the definition of bodily harm (and indeed, as I concluded above, grievous bodily harm). Section 24 also carries a five-year maximum sentence of imprisonment. Consequently, if the Casino Incident is equivalent to either provision it would fall within the definition of a serious foreign offence.
It was also significant that the Casino Incident was a bashing of the victim committed with other gang members who bashed the victim with metal poles. Even if his conduct in using fists was less than his colleagues, the Applicant can be said, at the least, to have aided and abetted his colleagues pursuant to s 45(1) of the Criminal Code, if he had joined in their conduct when they attacked the man. I think it is more accurate to characterise the Applicant as having carried out a joint commission to intentionally commit grievous bodily harm, as contemplated by s 45A(1) of the Criminal Code. The Applicant was in a position of authority at the casino where he was responsible for security and where he oversaw the other gang members. The Applicant’s evidence was that “It was instinct and part of the job to go and punish the thief” (A1) which suggests an agreement by conduct, namely an agreement to conduct a violent assault. The actions of the Applicant’s colleagues who repeatedly hit the victim with metal poles for approximately 10 minutes would certainly meet the elements of “intentionally inflicting grievous bodily harm” pursuant to s 19 of the Crimes Act. It can be inferred they intended to bring about grievous bodily harm by bashing the victim repeatedly with a metal pole and would be aware that very serious injury would result in the ordinary course of events.
I therefore find that the Casino Incident, is a “serious non-political crime”.
Serious reasons for considering
Having found that the Casino Incident was a serious non-political crime committed outside of Australia, I now turn to whether I have “serious reasons for considering” that the Applicant committed a serious non-political crime before entering Australia.
The Migration Act does not define what constitutes “serious reasons for considering”. However, the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth) (Explanatory Memorandum) provides some guidance with respect to s 5H(2) of the Migration Act which concerns whether a person is a refugee. That subsection has the same wording as s 36(2C)(a) of the Migration Act which relates to whether a person meets the complementary protection criteria in s 36(2)(aa) of the Migration Act. The Explanatory Memorandum, at paragraph [1173], states that:
… Consistent with the Refugees Convention, the threshold for a person to satisfy the paragraphs in new subsection 5H(2) is that the Minister has serious reasons for considering the person is captured by the subsection. ‘Serious reasons for considering’ is not intended to be equated with a level of satisfaction ‘beyond reasonable doubt’ or ‘on the balance of probabilities’ but requires strong evidence.
The Explanatory Memorandum continued to explain that:
New subsection 5H(2) is intended to be interpreted consistently with the existing Australian case law in regards to Article 1F of the Refugees Convention.
Similarly, s 36(2C) of the Migration Act should also be interpreted consistently with the existing Australian caselaw regarding Article 1F of the Refugees Convention. Numerous judicial authorities have considered the phrase, “serious reasons for considering”, in the context of art 1F of the Refugees Convention.
In Dhayakpa v the Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 at 563 (Dhayakpa), French J made the following observations about art 1F of the Refugees Convention:
Article 1F excludes from the application of the Convention persons with respect to whom there are serious reasons for considering that they have committed the classes of crime or been guilty of the classes of act there specified. The use of the words ‘serious reasons 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 as it is not in dispute that the crime relied upon by the Tribunal to ground the rejection of the claim for refugee status was committed.
In Arquita v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 321; [2000] FCA 1889 (Arquita), Weinberg J at 330–331, cited the above passage from Dhayakpa (noting that the Tribunal had followed a line of authority of the Canadian Federal Court of Appeal in Re Ramirez v Canada (Minister of Employment and Immigration) (1992) 89 DLR (4th) 173; [1992] 2 FC 306). His Honour then provided the following summary of other relevant cases (at 331, [40]–[42]) where the phrase “serious reasons for considering” has been judicially considered:
This dictum by French J was accepted as correctly stating the relevant legal principles in Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 385; 27 AAR 203 by Marshall J at first instance. His Honour said at ALR 388:
Notwithstanding that French J's views about the words “serious reasons for considering” were not central to his reasons for judgment and notwithstanding that Mr Dhayakpa had been found guilty of conspiracy, whereas Mr Ovcharuk has not, I consider his Honour’s approach to the meaning of those words to be highly persuasive.
On appeal, the Full Court in Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173; 51 ALD 549; 158 ALR 289 also considered the construction of Art 1F. In that context, Whitlam J at 294 observed:
What is most striking to me about Art 1F is the plain, matter-of-fact requirement that there should be “serious reasons for considering that” a person “has committed” a specified type of crime (paras (a) and (b)), or “has been guilty” of the proscribed acts: para (c). 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.
In W97/164 v Minister for Immigration and Multicultural Affairs [1998] AATA 618 (unreported, AAT, President Mathews, No 12974, 10 June 1998) Mathews J, sitting as President of the AAT, reviewed the authorities governing the meaning to be ascribed to the expression “serious reasons for considering” in Art 1F(b). Her Honour said:
... I do not agree with the standard which was set in Ramirez. I find it difficult to accept that the requirement that there be “serious reasons for considering” that a crime against humanity has been committed should be pitched so low as to fall, in all cases, beneath the civil standard of proof. The seriousness of the allegation itself and the extreme consequences which can flow from an affirmative finding upon it would, in my view, require a decision-maker to give substantial content to the requirement that there be “serious reasons for considering” that such a crime has been committed. The process whereby the seriousness of the allegation influences the level of proof required to substantiate it is well known to Australian courts (Briginshaw v Briginshaw (1938) 60 CLR 336; 44 ALR 334; 12 ALJR 100, Helton v Allen (1940) 63 CLR 691; 46 ALR 298; 14 ALJR 196. [Emphasis added]
See also N96/1441 v Minister for Immigration and Multicultural Affairs [1998] AATA 619 (unreported, AAT, President Mathews, No 12977, 11 June 1998); and W98/45 v Minister for Immigration and Multicultural Affairs [1998] AATA 948 (unreported, AAT, President Mathews, No 13450, 17 August 1998).
After reviewing these authorities in Arquita, Weinberg J relevantly concluded, at 333 [51]–[55], that:
It was for the AAT to determine, upon all the evidence, whether Art 1F operated so as to preclude the applicant from being considered for the grant of a protection visa. As Branson J said in Ovcharuk at FCR 186; ALD 561; ALR 301:
Whether there are serious reasons for so considering will depend upon the whole of the evidence and other material before the decision-maker.
I regard the observations of French J in Dhayakpa as being particularly helpful in elucidating the meaning of the expression ‘serious reasons for considering’. It was unnecessary, in accordance with those observations, for the AAT to ‘make a positive or concluded finding about the commission of a crime’. It was sufficient if there was ‘strong evidence of the commission of’ the crime specified.
In my view the applicant’s contention that Art 1F(b) requires the relevant decision-maker to be satisfied beyond reasonable doubt that the applicant has committed a serious non-political crime cannot be sustained. Nor can his alternative contention that Art 1F(b) requires proof on the balance of probabilities. There is nothing in the language of Art 1F(b) that suggests it should be read as imposing upon a decision-maker an obligation to apply either of these curial standards of proof.
It is sufficient, in my view, if the material before the decision-maker demonstrates that there is evidence available upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged. To meet that requirement the evidence must be capable of being regarded as ‘strong’. It need not, however, be of such weight as to persuade the decision-maker beyond reasonable doubt of the guilt of the applicant. Nor need it be of such weight as to do so on the balance of probabilities. Evidence may properly be characterised as ‘strong’ without meeting either of these requirements.
To the extent that the reasons of Mathews J in W97/164 v Minister for Immigration and Multicultural Affairs; N96/1441 v Minister for Immigration and Multicultural Affairs; and W98/45 v Minister for Immigration and Multicultural Affairs suggest to the contrary, I respectfully disagree.
(My emphasis.)
In FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1; [2014] HCA 26 (FTZK), French CJ and Gageler J at 8–9 [14] said the following with respect to the construction of art 1F(b):
The qualifying term ‘serious’ indicates that the reasons must be sufficient to support a strong inference. There are a variety of mechanisms, administrative and judicial, by which a receiving state may determine whether that threshold is reached. Weinberg J, in a careful consideration of the construction of Art 1F(b) in Arquita v Minister for Immigration and Multicultural Affairs, stated the position accurately when he said (at [54]):
[54]It is sufficient ... if the material before the decision-maker demonstrates that there is evidence available upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged. To meet that requirement the evidence must be capable of being regarded as “strong”. It need not, however, be of such weight as to persuade the decision-maker beyond reasonable doubt of the guilt of the applicant. Nor need it be of such weight as to do so on the balance of probabilities. Evidence may properly be characterised as “strong” without meeting either of these requirements.
Baroness Hale of Richmond JSC and Lord Dyson MR observed in Al-Sirri v Home Secretary (at [75]):
[75]It is unnecessary to import our domestic standards of proof into the question. The circumstances of refugee claims, and the nature of the evidence available, are so variable.
Underpinning the requirement for strong evidence is a consciousness of the potentially profound adverse consequences of exclusion from the protection of the Refugees Convention for a person otherwise entitled to that protection.
(Footnotes omitted.)

In ZYVZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 28 (ZYVZ), Colvin J considered the phrase “significant reasons for considering” in the context of s 36(2C) of the Migration Act. At [24]–[26], his Honour stated:
I note that at the time of the decisions in Arquita and FTZK, the form of the legislation was to incorporate the provisions of the Convention as expressing Australian law. That form led the Court in FTZK to consider the meaning of the provisions as a matter of international law. Such meaning depends upon the construction which the international community would attribute to the treaty and the application of the principles codified in the Vienna Convention on the Law of Treaties: CRI026 v The Republic of Nauru [2018] HCA 19 at [22].
The present form of the legislation is different. It enacts a provision which reflects the language of the Convention as Commonwealth statute law. However, it may be comfortably concluded that the law was intended to give effect to Australia’s treaty obligations. As explained by Edelman J in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [69]–[71] the scheme for complementary protection was introduced into the Migration Act for the express purpose of conforming its terms to the requirements of the Convention: see also Kiefel CJ, Nettle and Gordon JJ at [1]. Therefore, a construction which accords with those obligations should be favoured: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 38; and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287 (Mason CJ and Deane J).
For those reasons, the phrase ‘significant reasons for considering’ should be interpreted in the manner described in FTZK.
In GZCK v Minister for Home Affairs [2021] FCA 1618, Stewart J stated, at [149]:
In summary, the requirement of “serious reasons for considering” requires that there is a rational foundation for a strong inference of guilt; the evidence must be clear and credible or strong; a considered judgment, or meticulous investigation, by and actual persuasion of the decision-maker is required.
The Applicant was not convicted or formally charged with any offences. However, as noted by Whitlam J in in Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 549, “charges or convictions are not required” for there to be “serious reasons for considering” that a person has committed a serious non-political crime. Further, in NADB v Minister for Immigration & Multicultural Affairs [2002] FCA 200, the Court observed at [20] that “The applicant’s admissions and the conduct of his application were sufficient to establish that there are serious reasons for considering that the applicant committed a serious non-political crime outside Australia and before his admission to Australia”.
As I outlined above, the Applicant has provided generally consistent evidence over time about his activities with the [redacted] in his evidence to the Department, the MRD Tribunal and before this Tribunal. The fact that he made numerous admissions to his detriment throughout these processes also suggests that he was a truthful witness.
Therefore, I find that it can “reasonably and properly be concluded that the Applicant committed the crime [that is, the Casino Incident] alleged” (Arquita; see also FTZK; ZYVZ).
It is therefore unnecessary for the me to consider whether there are “serious reasons for considering” that the Applicant has committed a serious non-political crime with respect to the other incidents I outlined in these reasons. I note, however, that some of the offences involving violence that the Applicant conceded committing as part of the Debt Collection Incidents (for example, inflicting bruises and bleeding on the face) and the Second Casino Incident are also likely to meet the definition of actual bodily harm and would also constitute serious non-political crimes.
I find that there are “serious reasons for considering” that the Applicant committed the Casino Incident offence. Consequently, I find that the Casino Incident, is a “serious non-political crime” of such a nature as to result in Australia not having protection obligations towards persons who commit such a crime (NADB).
CONCLUSION
For the reasons outlined above, I am satisfied that there are “serious reasons” to consider that the Applicant committed a serious non-political crime before entering Australia.
DECISION
The Reviewable Decision, being the delegate’s decision of 28 October 2022, is affirmed.

I certify that the preceding 114 (one hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

..............[Sgd]..........................................................
Associate
Dated: 27 October 2023

Date of hearing: 25 July 2023

Applicant: Self-represented

Solicitors for the Respondent: Mr T Lettenmaier instructed by Mr A Burgess, Sparke Helmore Lawyers

Date of hearing:	25 July 2023
Applicant:	Self-represented
Solicitors for the Respondent:	Mr T Lettenmaier instructed by Mr A Burgess, Sparke Helmore Lawyers