FEDERAL COURT OF AUSTRALIA

FTZK v Minister for Immigration and Citizenship [2013] FCAFC 44

THE COURT ORDERS THAT:

1.    The applicant’s application to amend his amended notice of appeal be dismissed.

2.    The appeal be dismissed.

3.    The applicant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).

REASONS FOR JUDGMENT

GRAY AND DODDS-STREETON JJ:

The nature and history of the proceeding

1    The applicant in this proceeding seeks to overturn a decision of the Administrative Appeals Tribunal (“the Tribunal”), the second respondent to the proceeding. The Tribunal was constituted by a Deputy President. The Tribunal affirmed a decision of the first respondent to the proceeding, the Minister for Immigration and Citizenship (“the Minister”) to refuse to grant the applicant a protection visa, relying on Art 1F of the Refugees Convention. The jurisdiction of the Tribunal to review a decision of the Minister of that kind is conferred by s 500(1)(c)(i) of the Migration Act 1958 (Cth) (“the Migration Act”). The question of substance in the proceeding is whether the Tribunal took into account irrelevant considerations in making its decision.

2    For the purposes of the Migration Act, the term “Refugees Convention” is defined in s 5(1) to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. In conjunction with the Refugees Protocol (defined as the Protocol relating to the Status of Refugees done at New York on 31 January 1967), the Refugees Convention imposes on Australia protection obligations in respect of a person defined by Art 1A as a refugee. In general terms, a refugee is a person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country

3    Section 36(2) of the Migration Act provides that a criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The applicant had been found to satisfy the definition of “refugee” in Art 1A of the Refugees Convention, as amended by the Refugees Protocol. Article 1F of the Refugees Convention provides relevantly:

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;

The Tribunal found that there are serious reasons for considering that the applicant has committed a serious non-political crime in China, prior to his admission to Australia as a refugee. If this finding stands, the applicant is not entitled to a protection visa. The provisions of the Refugees Convention do not apply to him, so he is not a person to whom Australia has protection obligations.

4    The proceeding is in form brought as an appeal from the Tribunal on a question or questions of law. This form, and the assumption that such an appeal could be brought in certain circumstances, have given rise to problems in relation to the jurisdiction of the Court and the exercise of the Court’s jurisdiction. Because the falsity of the assumption was not recognised until after the appeal had been heard by the Full Court, it was necessary to write to the representatives of the applicant and the first respondent, inviting them to make written submissions about the competence of the appeal, the possibility of amending it and the validity of a determination that the original jurisdiction of the Court be exercised by the Full Court. It is necessary to explore these issues in these reasons for judgment.

The jurisdiction of the Court

5    Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) provides:

A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

6    Section 44(3) of the AAT Act provides:

The Federal Court of Australia has jurisdiction to hear and determine appeals instituted in that Court in accordance with subsections (1) and (2) and that jurisdiction:

(a)    may be exercised by that Court constituted as a Full Court;

(b)    shall be so exercised if:

(i)    the Tribunal’s decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a presidential member; and

(ii)    after consulting the President, the Chief Justice of that Court considers that it is appropriate for the appeal from the decision to be heard and determined by that Court constituted as a Full Court; and

(c)    shall be so exercised if the Tribunal’s decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a Judge.

7    The term “presidential member” is defined by s 3(1) of the AAT Act to mean the President, a member who is a judge or a deputy president of the Tribunal.

8    Prior to 1 December 2005, s 483 of the Migration Act provided:

Section 44 of the Administrative Appeals Tribunal Act 1975 does not apply to a privative clause decision

9    The expression “privative clause decision” is defined in s 474(2) of the Migration Act to mean, relevantly, “a decision of an administrative character made...under this Act”. In accordance with well-established authority, the view was taken that s 483 of the Migration Act did not apply to a decision of the Tribunal that was not a privative clause decision because of jurisdictional error on the part of the Tribunal. As a consequence, the Court could entertain an appeal from the Tribunal on a question of law, where the Tribunal’s error of law amounted to jurisdictional error. See, for instance, VWYJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 1 at [19] per Gray J, with whom Kiefel and Lander JJ concurred.

10    On 1 December 2005, s 483 of the Migration Act was repealed and replaced by the current s 483, which provides:

Section 44 of the Administrative Appeals Tribunal Act 1975 does not apply to privative clause decisions or purported privative clause decisions.

11    The amendment was effected by item 27 of Pt 1 of Sch 1 to the Migration Litigation Reform Act 2005 (Cth) (“the Migration Litigation Reform Act”), to which effect was given by s 3 of the Migration Litigation Reform Act. The relevant provisions as to the commencement of the amendment are found in s 2 of, and items 40 and 41 of Pt 2 of Sch 1 to, the Migration Litigation Reform Act. The addition of the reference to “purported privative clause decisions” in s 483 of the Migration Act makes it clear that s 44 of the AAT Act has no application at all to any decision of the Tribunal to which the definition of “privative clause decision” in s 474(2) of the Migration Act does, or might, apply.

12    It seems clear from this reasoning that the purported appeal brought by the applicant, in reliance on s 44 of the AAT Act, falls outside the jurisdiction of the Court. On this basis, the appeal would have to be dismissed as incompetent.

13    The Migration Litigation Reform Act also inserted, in s 5E of the Migration Act, a definition of “purported privative clause decision”. Relevantly, that definition means:

a decision purportedly made...under this Act...that would be a privative clause decision if there were not:

(a)    a failure to exercise jurisdiction; or

(b)    an excess of jurisdiction;

in the making of the decision.

For the Tribunal to reach a decision, purportedly pursuant to s 500(1)(c) of the Migration Act, in reliance on irrelevant considerations would amount to jurisdictional error. Such an error results in the Tribunal exceeding its power and authority (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ) and consequently to an excess of jurisdiction. Alternatively, such an error could be regarded as a failure to exercise jurisdiction, because the applicant has not had the review to which s 500(1)(c) of the Migration Act entitles him. It seems clear, therefore, that s 44 of the AAT Act can have no application to the decision of the Tribunal in the present case. Either that decision is a privative clause decision within the meaning of s 474(2) of the Migration Act, or (if the Tribunal took into account irrelevant considerations) it is a purported privative clause decision, because the Tribunal has exceeded or failed to exercise the jurisdiction conferred on it. In either case, s 483 of the Migration Act operates to deprive s 44 of the AAT Act of any operation in relation to the Tribunal’s decision.

14    The Migration Litigation Reform Act also inserted into the Migration Act a new section, s 476A (see item 17 in Sch 1 to the Migration Litigation Reform Act). Relevantly to this case, s 476A(1) provides:

(1)    Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

...

(b)    the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or

...

(d)    the Federal Court has jurisdiction in relation to the decision under subsection 44(3)...of the Administrative Appeals Tribunal Act 1975.

(2)    Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.

15    In the light of the combination of the provisions of ss 483, 474(2) and 5E of the Migration Act, it is difficult to imagine to what decisions of the Tribunal s 476A(1)(d) could apply. In any event, it seems clear that it could not apply to the decision of the Tribunal in the present case, which falls squarely within ss 483, 474(2) and 5E. The consequence is that any challenge by the applicant to the validity of the Tribunal’s decision could only be brought to this Court in reliance on the grant of jurisdiction in s 476A(1)(b) of the Migration Act. It would be necessary for the applicant to seek relief of a kind or kinds for which s 75(v) of the Constitution provides. The most obvious of the remedies would be a writ of mandamus, directed to the Tribunal, requiring it to hear and determine according to law the applicant’s application for a review of the Minister’s decision to refuse him a protection visa. Usually, this remedy would be sought in conjunction with an application for a writ of certiorari, designed to remove into the Court the decision of the Tribunal and to quash that decision, to make way for the lawful exercise of the Tribunal’s jurisdiction.

16    Although the proceeding is in form an appeal pursuant to s 44 of the AAT Act, it has some unusual features. One is the naming of the Tribunal as the second respondent to the proceeding. Ordinarily, when an appeal on a question of law is instituted pursuant to s 44 of the AAT Act, it is necessary only to name as a respondent or respondents any other party or parties to the proceeding in the Tribunal. The Tribunal itself is not expected to be a contradictor in respect of such an appeal. Section 44(4) of the AAT Act gives the Court wide powers to make “such order as it thinks appropriate” by reason of the decision on the appeal. Section 44(5) gives specific examples of orders that the Court may make. The examples include orders setting aside the decision of the Tribunal and remitting the case to be heard and decided again.

17    In the present case, in both the original notice of appeal filed on 20 June 2012 and the amended notice of appeal filed on 2 August 2012, the orders sought are as follows:

1.    A declaration that the respondent’s decision is invalid and of no effect.

2.    An order that a writ of certiorari issue quashing the respondent’s decision.

3.    An order that the matter be remitted to the Administrative Appeals Tribunal, differently constituted, to be heard and determined according to law.

4.    An order that the First Respondent pay the Appellant’s [sic] costs of and incidental to the application.

5.    Such other or further order as the Court thinks fit.

The references to “the respondent’s decision” in paras 1 and 2 of the orders sought presumably mean the decision of the Tribunal, which is the second respondent to the proceeding. The balance of the notice of appeal, and the amended notice of appeal, suggest that no attention is to be paid to the decision of the Minister, the first respondent to the proceeding, which was affirmed by the Tribunal. The application for a writ of certiorari to quash the Tribunal’s decision is an unusual feature if the proceeding is an appeal under s 44(1) of the AAT Act. The order sought in para 3 appears to have its genesis in s 44(5) of the AAT Act, although it departs from the form of remittal order referred to in that subsection by using the word “determined” instead of the word “decided” and the words “according to law” instead of the word “again”. The addition of the words “differently constituted” might be thought to be intended to invoke the power of the Court, conferred expressly by s 44(5) of the AAT Act, to give directions to the Tribunal as to how the case should be heard and decided again.

18    Importantly, for present purposes, there is no claim for a writ of prohibition, a writ of mandamus, or an injunction, one or more of which is necessary to invoke the jurisdiction conferred on the High Court by s 75(v) of the Constitution, and consequently on this Court by s 476A(2) of the Migration Act.

19    In the course of the hearing, issues were raised as to the adequacy of the statement of questions of law in the amended notice of appeal, on the assumption that the proceeding was in truth an appeal on such questions. As a result of an invitation of the Court, counsel for the applicant formulated the question they saw the appeal as raising, in the following terms:

In determining that a person falls within paragraph (b) of Article 1F of the Convention on the Status of Refugees, can a decision-maker rely on evidence of matters which have no probative weight in relation to the question whether a person has committed a serious non-political crime?

This formulation is open to objection in at least two ways. First, it is based on the assumption that the Tribunal did rely on matters which have no probative weight, in reaching its decision. Second, it misstates the question for the Tribunal to determine, which was not whether the applicant had committed a serious non-political crime, but whether there were serious reasons for considering that he had committed such a crime. The form of the question nevertheless makes clear (as did the arguments put on behalf of the applicant) that the applicant wishes to rely on the proposition that the Tribunal relied on irrelevant considerations. As appears below, if the Tribunal did rely on irrelevant considerations in reaching its conclusion, its decision would be the result of jurisdictional error. The real question is whether the considerations to which the applicant pointed are in truth irrelevant to the Tribunal’s deliberations.

20    In written submissions filed on 8 February 2013, junior counsel for the applicant submitted that the notice of appeal and the amended notice of appeal do invoke the jurisdiction of the Court, referring to the orders sought in paras 2 and 3. Alternatively, the applicant sought leave to amend the notice of appeal, to make it an application for writs of certiorari and mandamus, directed to the Tribunal. The first respondent submitted that neither of those documents could be regarded as an application for the exercise of the jurisdiction of the Court conferred by s 476A(1)(b) of the Migration Act. This submission is clearly correct, in light of the absence of any reference to a writ of prohibition, a writ of mandamus, or an injunction, in the orders sought.

21    While contesting the proposition that the question formulated during the hearing (referred to in [19] above) raised any issue of jurisdictional error, the first respondent conceded that the notice of appeal could be treated as invoking the Court’s jurisdiction under s 476A(1)(b) of the Migration Act, or amended so as to invoke it expressly, because the substance of the argument at the hearing was concerned with what, if the argument is made out, is an example of jurisdictional error. In written submissions in reply, counsel for the applicant argued that jurisdictional error was claimed in clear enough terms. This dispute is somewhat arid. Clearly, it would be more satisfactory to allow the applicant to amend, in order to regularise the record of the proceeding, than simply to regard the notice of appeal or the amended notice of appeal as having invoked the jurisdiction of the Court when, on its face, neither document has done so. There is no point in dealing with the application to amend the notice of appeal, however, if the substantive argument put on behalf of the applicant is not capable of succeeding.

22    There is another issue. On the incorrect assumption that this proceeding could be a valid appeal under s 44 of the AAT Act, the Chief Justice consulted with the President of the Tribunal in accordance with s 44(3)(b)(ii) and made a determination that the Court be constituted as a Full Court for the purposes of the hearing and determination of the appeal. That determination is dated 27 July 2012. Because the effect of s 483 of the Migration Act, in conjunction with s 474(2) and s 5E, is to oust the operation of s 44 of the AAT Act altogether in relation to the Tribunal’s decision, it appears that the purported determination pursuant to s 44(3)(b)(ii) of the AAT Act has been made without any power to make it. The determination might be invalid.

23    By s 19(2) of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”), the original jurisdiction of the Court includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts. As a consequence, a valid appeal under s 44 of the AAT Act, although designated as an “appeal”, requires an exercise of the Court’s original jurisdiction. The conferral on the Court of jurisdiction by s 476A(1)(b) of the Migration Act is also a conferral of original, not appellate, jurisdiction. Section 20(1) of the Federal Court Act provides:

Except as otherwise provided by this Act or any other Act, the original jurisdiction of the Court shall be exercised by a single Judge.

24    Section 20 also contains provisions concerning the exercise of the original jurisdiction of the Court by a Full Court. The power found in s 20(1A) could have been exercised by the Chief Justice, if the original jurisdiction had been invoked validly in the present case. Section 20(1A) provides:

If the Chief Justice considers that a matter coming before the Court in the original jurisdiction of the Court is of sufficient importance to justify the giving of a direction under this subsection, the Chief Justice may direct that the jurisdiction of the Court in that matter, or a specified part of that matter, shall be exercised by a Full Court.

25    Unlike s 44(3)(b)(ii) of the AAT Act, s 20(1A) of the Federal Court Act does not require any consultation with the President of the Tribunal. The criterion by reference to which any determination of the Chief Justice as to the exercise of the Court’s jurisdiction is to be made differs as between the two provisions. Under s 44(3)(b)(ii) of the AAT Act, the question for the Chief Justice is whether it is “appropriate” for the appeal to be heard and determined by a Full Court. Under s 20(1A) of the Federal Court Act, the question is whether the matter is of sufficient importance to justify the giving of a direction for the exercise of the jurisdiction of the Court by a Full Court. It is not clear that, in making a determination under s 44(3)(b)(ii) of the AAT Act, the Chief Justice’s mind was directed to the criterion in s 20(1A) of the Federal Court Act, so that his Honour would have made a direction in any event.

26    A subsidiary question to that of the validity of the determination made by the Chief Justice is whether it is open to the Chief Justice to make another determination, pursuant to s 20(1A) of the Federal Court Act (if his Honour should see fit to do so), when the purported exercise of the original jurisdiction of the Court has already been embarked upon by a Full Court. The applicant’s written submissions suggest that there is power to revoke the original determination and to make a further determination pursuant to s 20(1A) of the Federal Court Act. Those submissions seem to be based on the assumption that the power to make either determination as to the exercise of the original jurisdiction of the Court by a Full Court (and therefore the power to revoke such a determination) is a power of the Court. This is not so. The power is exclusively that of the Chief Justice, exercisable only by him, or by the Acting Chief Justice in the absence of the Chief Justice (see s 7 of the Federal Court Act). The first respondent contended that the case would fall within the line of authority under which a purported exercise of one statutory power, which turns out to have been inapplicable, has been held to give rise to a valid exercise of another statutory power, which would have been applicable but was not considered expressly. See Eastman v Director of Public Prosecutions of the Australian Capital Territory [2003] HCA 28 (2003) 214 CLR 318 at [124] per Heydon J, with whom Gleeson CJ and Gummow, Kirby, Hayne and Callinan JJ agreed, and Australian Education Union v Department of Education and Children’s Services [2012] HCA 3 (2012) 285 ALR 27 at [34]. The obstacle to the application of that line of authority in the present case is the subtle, but nonetheless real, difference between the criteria in the respective provisions that are the sources of the powers to make a determination or give a direction.

27    For practical purposes, the question of validity of the determination of 27 July 2012 does not need to be determined. On 26 February 2013, the Chief Justice gave a direction pursuant to s 20(1A) of the Federal Court Act. His Honour stated that he considered that this matter is of sufficient importance to justify the giving of a direction under that subsection, and directed that the original jurisdiction of the Court in relation to the whole of the matter be exercised by a Full Court. The Court can proceed to consider the substance of the proceeding on that basis.

The evidence before the Tribunal

28    The Tribunal had before it a number of documents, provided by the government of China. A case summary report by the Tianjin Public Security Office No 5 Team 1 recorded a report on 20 December 1996 of the kidnapping of a 15 year old student on his way to school. A witness had seen the boy dragged into a vehicle. The student’s father reported a ransom demand by telephone, with which he had endeavoured unsuccessfully to comply. On the following day, the student’s body was found in a pond, with his hands and feet tied. A mobile phone that had been purchased on 8 December 1996 was found at the scene. The student had drowned. Three suspects were identified, a Mr Zhong, a Mr Wu and the applicant.

29    An autopsy report stated that the student was alive when thrown into the pond.

30    What was described as a transcript of an interview conducted by an investigator with Mr Wu contained an admission that Mr Wu had taken part in the kidnapping and killing of the student. He said that the applicant and Mr Zhong planned and carried out the kidnapping. Mr Wu said that the applicant was 24 or 25 years old, living behind a particular named bureau (Mr Wu did not know his exact address), formerly a security guard in the Jili Building and now living in Australia. Mr Wu said the applicant was involved in purchasing the mobile phone used to contact the student’s father, and in the planning of the kidnapping and the means of collecting the ransom. He said the applicant had pulled the student from his bicycle into the vehicle driven by Mr Zhong and the applicant took part in trying to contact the student’s father to collect the ransom. Mr Wu said he and the applicant wished to release the student but Mr Zhong opposed this and it was then decided to throw the student into the pond. Mr Wu said the applicant and Mr Zhong did this. Mr Wu also said that he saw the applicant once after the events and the applicant told him to forget about what had happened.

31    What was described as a transcript of an interview with Mr Zhong contained an admission by Mr Zhong that he had taken an active role in the kidnapping. Mr Zhong said he was an employee of the company of which the student’s father was a manager. He said that he and Mr Wu discussed the plan to kidnap the student initially, and Mr Wu introduced him to the applicant later. Mr Zhong gave a description of the kidnapping similar to that given by Mr Wu, but he said that Mr Wu and the applicant threw the student into the pond. Mr Zhong also said that, after the kidnapping and “before he left”, the applicant came to his home and asked Mr Zhong to get him a job.

32    There was an arrest warrant dated 26 May 1997 for the arrest of the applicant.

33    In a written statement dated 13 October 2011, the applicant denied any involvement in, or knowledge of, the kidnapping and murder. He said he did not know Mr Wu and Mr Zhong and could not explain why they named him in their statements to the investigators. The applicant then gave an account of how he obtained a passport and a visa to come to Australia, of his religious affiliations, his application for a business visa, his application for a protection visa and his false evidence to the Refugee Review Tribunal. He alleged that the official who signed the warrant for his arrest was corrupt and was known by others to be so. He said that, by 2003, he no longer feared returning to China as he believed the police would have ceased looking for him and there would not be a risk in returning as he has not argued strongly against the government. He said he first learned of the kidnapping and murder allegations against him in June 2004 when he was being interviewed by authorities whilst in detention.

34    In a further written statement dated 26 March 2012, the applicant addressed the contents of the documents provided by the Chinese authorities. He said that he did not know anyone by the name of either of the two suspects named in the documents and had not been shown photographs of them to see if either of them was familiar to him. He said he is not related to anyone of the same name as either of them. He said that the buildings mentioned in the documents are between three and five kilometres from his family home, where he lived prior to coming to Australia. He was aware of the company for which the student’s father was said to work, as it was located in the area in which the applicant lived. He denied that he had ever worked as a security guard in the Jili Building, but said he was employed as a salesperson by a security company.

35    The applicant also gave evidence before the Tribunal. Under cross-examination, he denied any involvement in, or knowledge of, the matters alleged against him. He denied any knowledge of Mr Wu and Mr Zhong and said that the kidnapping occurred at least five kilometres from his home. He gave evidence of having been detained by the Chinese government and having been tortured and mistreated, because of his religious activities. He gave evidence of the circumstances in which he left China, including his provision of false information in order to obtain a visa to come to Australia. He gave evidence of his applications for subsequent visas and of false statements he made in support of his application for a protection visa. He said he made these false statements because he was afraid of being persecuted if he returned to China. He said that the reason for his persecution was that he had been copying and distributing pages of the Bible. He admitted knowing that he was staying in Australia without a visa, but said that, prior to his detention in 2004, he thought he was lawfully in Australia. He said that his reason for an attempted escape from detention in 2004 was to re-establish a relationship with a girlfriend and to recover some money owed to him.

36    The Tribunal also had before it a detailed report of Dr Nesossi, a researcher into issues of justice in China, particularly miscarriage of justice in the criminal justice system, human rights and social justice. She commented on anomalies and procedural issues in relation to the two transcripts of interviews and made some general comments on aspects of the criminal investigation system in China.

37    Also before the Tribunal was a statement of Dr Sapio, an expert on the criminal justice system of China. Dr Sapio also expressed opinions about anomalies in the documents before the Tribunal and the omission of documents that she expected would have been provided. Dr Sapio also expressed an opinion about the frequent use of torture in criminal investigations in China.

38    The applicant advanced to the Tribunal evidence of his own good character, including three official documents from China.

The Tribunal’s reasoning

39    The Tribunal correctly identified as the issue for determination, “are there serious reasons for considering that the Applicant has committed the crime or crimes alleged.” The Tribunal also expressed its satisfaction that each of the crimes alleged is a serious non-political crime under the terms of Art 1F of the Convention. Indeed, it recorded that this question was not in dispute.

40    The Tribunal’s reasoning is encapsulated in the following paragraphs from its reasons for decision:

69.    First I have taken into account the allegations contained in the documents provided by the government of China. On the basis of the evidence of Ms Nance, I am satisfied that these documents were so provided. The documents include the two transcripts of the interrogation of Mr Wu and Mr Zhong. This is direct evidence, albeit of possible accomplices, implicating the Applicant in the crimes. Each of those persons interviewed implicated the Applicant and there is nothing in the evidence to suggest that they conspired to name him.

70.    Secondly, on the basis of the evidence of the Applicant I am satisfied that he left China shortly after the crimes were committed and that he provided false information to the Australian authorities in order to obtain a visa to do so. I am satisfied also, again based on the evidence of the Applicant, that he deliberately provided false information when applying to the Australian authorities for a protection visa in 1998.

71.    Thirdly, I am satisfied that the Applicant was evasive when giving evidence as to his religious affiliations in Australia and China and I am satisfied that he was not detained and tortured in China as he alleges. I am satisfied that his evidence in this regard was fabricated in order to strengthen his claim to remain in Australia. The Applicant was unable to explain satisfactorily why, when giving evidence to the Refugee Review Tribunal, he did not inform that Tribunal of what he now alleges happened to him before he left China.

72.    Fourthly, I have taken into account also that the Applicant attempted to escape from detention in 2004, shortly after his application for a long term business visa was refused. I am satisfied that in attempting to escape he intended to return to live unlawfully in the Australian community. I am satisfied of these facts on the basis of the Applicant’s evidence. I am not satisfied that his stated reasons for attempting to escape were accurate. I am satisfied also that the Applicant remained in Australia from January 2000 to February 2004 without lawful permission to do so. In view of his experience in applying for various visas beforehand, I do not accept his evidence that he believed he was entitled to remain in Australia during this period. There is no evidence which suggests that an application was made to the Minister by, or on behalf of, the Applicant during his period of unlawful residence.

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

41    The Tribunal then dealt with the reports of Dr Nesossi and Dr Sapio. It did not accept the opinion of Dr Sapio that the applicant did not commit the crimes alleged, because Dr Sapio did not set out the evidence on which she relied in reaching that conclusion. The learned Deputy President did not consider the opinions expressed sufficient to diminish the seriousness of the reasons he had stated. Even if the system in China were as described, in the Tribunal’s view there was insufficient evidence to find that any of the features described affected the investigation into the crimes alleged against the applicant. At its highest, the views of the experts amounted to speculation. The Tribunal rejected an argument that the two transcripts of interrogation were deliberately falsified or that those being interrogated had been persuaded to make false allegations against the applicant. The Tribunal found that this argument was also based on speculation, rather than on evidence. It acknowledged that there were many inconsistencies between the transcripts, but found that there were none that caused the Deputy President to disregard either or both of those transcripts. The Tribunal also dealt with the argument that the Chinese government had not produced all the documents in relation to the investigation. It accepted that this was probably so, but was not satisfied that the failure to do so detracted from the status of the documents produced. The Tribunal said it was unaware of any reason to expect that the authorities would have produced all documents.

Irrelevant considerations

42    There can be no doubt that for an administrative decision-maker to take into account irrelevant considerations, in a way that affects the decision-maker’s exercise or purported exercise of the decision-making power, is one of the core elements of jurisdictional error. In its classic formulation of the concept of jurisdictional error in Craig v South Australia (1995) 184 CLR 163 at 179, the High Court referred to “to rely on irrelevant material” as one of the circumstances that would give rise to jurisdictional error. As McHugh, Gummow and Hayne JJ (with whom Gleeson CJ expressed agreement) said in Yusuf at [82], relying on irrelevant material in a way that affects the exercise of power is to make an error of law and to exceed the authority or powers given by the relevant statute. If such an error occurs, the decision-maker did not have authority to make the decision that followed. There was no jurisdiction to make it.

43    This analysis suggests strongly that the question whether material is irrelevant depends not upon the view taken by the administrative decision-maker, but upon the determination by the Court reviewing the administrative decision. Further, the party alleging that an administrative decision is the result of jurisdictional error (in this case, the applicant) must establish that such an error has been made. In other words, it is for the applicant in this case to establish that material taken into account by the Tribunal was objectively irrelevant to the task of the Tribunal in determining whether there were serious reasons for considering that the applicant had committed a serious non-political crime.

44    All of the matters to which the Tribunal referred in [70]-[72] of its reasons for decision concerned actions of the applicant after the offences in relation to the student in China had been committed. The Tribunal did not express in its reasoning how it was that those actions came to be relevant to the possible involvement of the applicant in the commission of those criminal offences. It is the absence of such an expression of the way in which the Tribunal saw the relevance of the actions that has caused the applicant to mount the argument that the actions were in truth irrelevant to the Tribunal’s deliberations. This argument cannot be sustained because, on an objective basis, the actions could be regarded as relevant to the Tribunal’s task. In Wigmore on Evidence, (3rd ed, Little Brown and Company, Boston 1940) at para 173, the learned author said:

Consciousness of Guilt. The commission of a crime leaves usually upon the consciousness a moral impression which is characteristic. The innocent man is without it ; the guilty man usually has it. Its evidential value has never been doubted. The inference from consciousness of guilt to “guilty” is always available in evidence. It is a most powerful one, because the only other hypothesis conceivable is the rare one that the person’s consciousness is caused by a delusion, and not by the actual doing of the act. The difficulty in connection with this evidence is, not its own relevancy to show the doing of the act — that is universally conceded — but the mode of proving this consciousness of guilt in its turn by other evidence. There are two processes or inferences involved, — from conduct to consciousness of guilt, and then from consciousness of guilt to the guilty deed. The latter, belonging here, gives rise to no disputed questions of evidence. The former gives rise to many questions, due to the variety of conduct offerable in evidence.

These questions are dealt with (post, §§ 273-291), in discussing evidence of consciousness or knowledge in general.

At para 276, the learned author also said:

Flight, Escape, Resistance, or Concealment. Flight from justice, and its analogous conduct, have always been deemed indicative of a consciousness of guilt. “The wicked flee, even when no man pursueth ; but the righteous are bold as a lion.” In our primitive system of law, the accused who fled, whether innocent or guilty, suffered forfeiture and escheat ; though this was rather a mode of deterring him from refusing to appear for judgment than an evidential rule.

It is to-day universally conceded that the fact of an accused’s flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself

45    The copious citations of authority in support of this proposition begin with very old cases. On an objective basis, all of the findings of fact stated in [70]-[72] of the Tribunal’s reasons for decision are capable of showing that the applicant fled China shortly after the criminal offences had been committed, and took steps to ensure that he would not be sent back to China. The Tribunal clearly regarded these facts as demonstrating the applicant’s consciousness of his guilt of the criminal offences and desire to escape from the consequences of his criminal conduct. It was unnecessary for the Tribunal to express this link in order to make it exist.

46    If the applicant’s decision to leave China and come to Australia, and his attempts to remain in Australia subsequently, were irrelevant to any question of his association with the criminal offences in China, it is difficult to see why the applicant himself addressed some of these matters in his written statement of 13 October 2011, which he tendered to the Tribunal. Similarly, if these actions were entirely irrelevant, it is strange that counsel appearing for the applicant in the Tribunal did not object to cross-examination of the applicant about those actions. There has been no suggestion in argument in this Court that any such objection was made. The reason for the failure to object is the obvious one, that the connection between the applicant’s actions and his participation in the commission of the criminal offences, by way of the actions demonstrating his consciousness of guilt, is readily apparent.

47    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.

48    As the Tribunal expressly stated at [73], it did not regard any of the matters referred to in [70], [71] and [72] of its reasons as sufficient to establish serious reasons. It did not treat those matters independently of each other. Rather, it considered each of those matters (including the direct evidence referred to in [69], implicating the applicant in the commission of the crimes) as an element of a combined totality.

49    In doing so, particularly in emphasising that it assessed each factor in combination with the others, the Tribunal implicitly recognised and found that the factors in [70], [71] and [72] were relevant as evidence of flight and consciousness of guilt. The Tribunal’s observations at [69]-[73] can bear no other logical construction.

50    Accordingly if, contrary to the views expressed above, it were necessary for the Tribunal to make a finding as to the relevance of the matters referred to in [70], [71] and [72] of its reasons, it did so. Such a finding is implicit when the Tribunal’s reasons in [69]-[73] are read fairly and in the context of its reasons as a whole, the nature of the evidence before it, and the course of the hearing it had conducted.

Conclusion

51    The applicant’s purported appeal from the Tribunal’s decision is incompetent as being outside the jurisdiction of the Court, and must be dismissed for that reason. To allow any amendment of the proceeding, to convert it into a proceeding within the jurisdiction of the Court, would be futile, because the allegation of jurisdictional error on which such an amended proceeding would be based is bound to fail. The Tribunal did not take into account irrelevant material. The application to amend must therefore be refused. In accordance with the principle that costs follow the event, the applicant must pay the Minister’s costs of the proceeding.

Associate:

Dated:    6 May 2013

REASONS FOR JUDGMENT

KERR J:

52    I regret I have come to a different ultimate conclusion than that reached by the majority in this application. Their Honours, Gray and Dodds-Streeton JJ, have concluded at [45] that the findings of fact on which the Tribunal said it relied in coming to its conclusions show that the Tribunal “clearly regarded these facts as demonstrating the applicant’s consciousness of his guilt of the criminal offences and desire to escape from the consequences of his criminal conduct”. That is despite the Tribunal mentioning neither of those considerations and making no such express findings.

53    The majority concludes at [49] that “the Tribunal’s observations at [69]-[73] can bear no other logical construction”. I do not share that conclusion. In view of the way the matter was argued before the Tribunal, a conclusion that the Tribunal, having heard extensive argument pressed on behalf of the Minister that findings of flight and consciousness of guilt should be made against the Applicant, refrained from making them, in my opinion, is equally plausible.

54    But whether or not the Tribunal did refrain from making those findings ultimately is immaterial. The Tribunal’s statements at [69]-[73] were not mere observations. The Tribunal was bound by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to state its findings on material questions of fact and refer to the evidence or other material upon which those findings were based. Paragraphs [69]-[73] stated the Tribunal’s findings and its conclusion. They did not include findings of fact of flight or consciousness of guilt.

55    Had the Tribunal made those findings of fact I would have shared the majority’s conclusion that the Tribunal’s decision is immune from review. There were matters put to the Tribunal on behalf of the Applicant that weighed against making such findings but the task of weighing those considerations against other considerations was one the law conferred exclusively upon the Tribunal.

56    But the Applicant’s attack on the Tribunal’s decision is not based on there being any want of logic on the hypothesis that the Tribunal did make such findings. Whether or not irrationality in fact finding is an independent ground of review (see the discussion of the relevant law and cases by Katzmann J in SZQDI v Minister for Immigration and Citizenship [2012] FCA 932 (2012) 131 ALD 270 [74]-[75]) the Applicant was correct to anticipate that no circumstance for its application could possibly have arisen in the circumstances of this case had the Tribunal expressly made those findings.

57    Rather the Applicant contends that because findings of flight or consciousness of guilt were not made the conclusion reached by the Tribunal was based upon irrelevant considerations. The Applicant submits that relying upon irrelevant considerations is a jurisdictional error if the decision was thereby affected. That appears to be a correct analysis.

58    All members of this court appear to share the common premise that the factual findings expressly stated by the Tribunal were of the kind which Jagot J (Nicolas J in agreement) in Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 at [104], if used not as the foundation of the dispute between the parties, but to reach the ultimate conclusion, would have regarded as a form of faulty reasoning about which logical or reasonable minds could not differ. (If I am wrong in so characterising the majority, it is in any case the conclusion I have reached. In my opinion to conclude otherwise would be contrary to the decision of the High Court in Edwards v The Queen [1993] HCA 63 (1993) 178 CLR 193).

59    Where we differ is as to whether this court is entitled to conclude that critical additional findings of flight and consciousness of guilt were impliedly arrived at by the Tribunal despite there being no reference to them in the Tribunal’s reasons.

Background

60    In late December 1996, a 15 year old boy was kidnapped on his way to school. Ransom was demanded. The boy's father was unable to make contact with the kidnappers. The next day the boy's body was discovered in a frozen pond. His hands and feet were bound. An autopsy report revealed that the boy had been alive when he had been thrown into the pond or pushed under the ice.

61    The Tianjin Public Security Bureau of the People’s Republic of China investigated the death. It alleges that FTZK, the Applicant, was one of three perpetrators. The other two were arrested. Both are said to have confessed. They were later executed.

62    The Applicant had left China before those arrests took place. He entered Australia on 1 February 1997 on a UC Temporary Business subclass 456 visa.

63    In June 1998 the Australian Federal Police received a copy of an arrest warrant for the Applicant issued in China for kidnapping and murder.

64    In December that year the Applicant applied for a protection visa. He stated he had been subjected to detention and torture in China as a practising Christian. His application was refused. In December 1999 that decision was affirmed by the Refugee Review Tribunal (RRT).

65    The existence of an arrest warrant was not referred to in any of those proceedings.

66    The Applicant then disappeared into the community and could not be located. As a result his immigration status became that of an “unlawful non-citizen”.

67    Eventually in February 2004 his whereabouts were discovered and he was detained at Maribyrnong Detention Centre pending return to China. He made an unsuccessful attempt to escape from that Centre in March 2004.

68    All of those events happened before the Applicant was told that a warrant for his arrest had been issued. He learnt of that in June 2004.

69    In 2007 the Applicant filed an urgent application with the High Court seeking, inter alia, a review of the RRT decision that had rejected his claim for refugee status.

70    When the matter came before the High Court the Commonwealth conceded that it had known about the Chinese arrest warrant since 1998 but had informed neither the RRT nor the Applicant of its existence. Counsel for the Applicant submitted that had the existence of the arrest warrant been disclosed it would have corroborated the Applicant’s allegation in the RRT that bogus charges would be proffered against him upon his return: see Plaintiff M117/2007 v Minister for Immigration and Citizenship [2007] HCATrans 616.

71    On 18 October 2007 the High Court issued an injunction preventing the Applicant’s removal and, following other proceedings, the Applicant’s claim for a protection visa was remitted in 2009 to the RRT for reconsideration.

72    The RRT rejected the Applicant’s contention that the Applicant would be persecuted because of his religion but accepted that, in view of the steps that had been taken to link him to the murder of the young boy since he left China, he had a well-founded fear of persecution by reason of political opinion.

73    However, in light of the grave crimes alleged against the Applicant by the Chinese authorities, the RRT also referred to Article 1F of the United Nations 1951 Convention relating to the Status of Refugees (the Refugees Convention).

74    Article 1F excludes the application of the Refugees Convention in certain circumstances. The provision relevant to the present case is Article 1F(b). It states:

The provisions of this convention shall not apply to any person with respect to whom there are serious reasons for considering that… he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.

75    Relying on Article 1F(b) the First Respondent concluded that there were serious reasons for considering that the Applicant had committed a serious non-political crime outside of Australia prior to his admission as a refugee. The Minister therefore refused the Applicant’s application for a protection visa.

76    The Applicant sought review of the Minister’s decision pursuant to the provisions of s 500(1)(c)(i) of the Migration Act 1958 (the Migration Act). That section entitles a person who has been refused the grant of a protection visa for a reason falling within Article 1F of the Refugees Convention to seek review of the decision in the Administrative Appeals Tribunal (AAT). Hearings in the AAT were held in Melbourne on 10, 11 and 12 April 2012.

77    The decision of the Tribunal was that “[t]he decision under review, being the decision of the Minister made 24 May 2011, is affirmed”.

78    The Applicant then appealed to this Court from the decision of the AAT.

Jurisdictional issues

79    The complex jurisdictional issues that this appeal gave rise to have been addressed comprehensively in the joint judgment of Gray and Dodds-Streeton JJ at [5]-[27]. I agree with all of what their Honours have stated in respect of those issues; excepting only that, because I have taken a different view as to the substantive merits of the appeal, I would grant the Applicant leave to amend his application so as to invoke the Court’s jurisdiction under s476(A)(1)(b) of the Migration Act.

80    Because s 44 of the AAT Act does not apply to this application I would dismiss the First Respondent’s Objection to Competency which was advanced and argued on the contrary assumption.

81    The Court has heard full argument as to whether the AAT fell into jurisdictional error. That is the relevant test for review for the purposes of s 476A(1)(b) of the Migration Act. Neither party can be prejudiced if the Court proceeds to judgement on the merits.

The evidence in the proceedings before the AAT

82    The Tribunal was provided with a case summary report by the Tianjin Public Security Office No 5 Team 1 regarding the kidnapping and murder and an Autopsy report on the death of the student. It was also provided with a copy of a warrant issued in Tianjin on 26 May 1997. The warrant authorised the Applicant’s arrest as a criminal suspect in respect of those crimes.

83    The material implicating the Applicant in those crimes put before the Tribunal included two transcripts purporting to be records of interview that had been conducted by Chinese investigators with;

(a) Mr Wu Zhijun (on 24 May 1997). Mr Wu admitted taking part in the kidnapping and killing with the assistance of Zhong Weidong and the Applicant; and,

(b) Mr Zhong Weidong (on 23/24 May 1997). Mr Zhong admitted taking part in the kidnapping. He blamed Mr Wu and the Applicant for having thrown the youth into the pond.

84    The Tribunal was informed that both Mr Wu Zhijun and Mr Zhong Weidong had been executed by the Chinese authorities for their part in these crimes.

85    The Applicant called two expert witnesses on the Chinese criminal justice system, Dr Nesossi and Dr Sapio, to respond to the seemingly damning statements by his alleged former accomplices naming him as a co-offender.

86    Each gave unchallenged evidence to the effect that the confessional materials that had been provided by the Tienjin authorities contained serious anomalies. Dr Sapio stated that the police records were incomplete, inconsistent and contradictory and insufficient to allow an understanding of whether Mr Zhong, Mr Wu and the Applicant really engaged in criminal conduct.

87    Both Dr Nesossi and Dr Sapio testified that it was very common for the Chinese authorities to obtain coerced confessions by torture. Dr Sapio opined that the statements by Zhong and Wu “have either been constructed by the police, or obtained through torture.”

88    The Applicant tendered two written statements (dated 13 October 2011and 26 March 2012 respectively) and a statement dated 6 June 2008 that he had provided to the RRT. He gave oral evidence and was subject to cross examination. He did not dispute that the kidnapping and murder had occurred. However, he denied all involvement in or knowledge of those events.

89    It was not in contest before the Tribunal that the Applicant had obtained a Chinese passport in July 1996. He said he had lost it for some time. He said he applied for his visa to travel to Australia on 16 January 1997. He admitted that in order to get that visa he had falsely stated he was an engineer. He said he made that false statement because his family had been worried about his safety. He said that was because he had come to police attention as a result of his religious activities. His family had done everything they could to get him out of China after he had been detained and beaten by police.

90    The Applicant did not dispute that he had given conflicting accounts about the periods of detention, beatings and torture he had been subjected to. He conceded that he had given false evidence to the RRT in 1999 when he had first sought a protection visa about (a) his profession, (b) his address in Australia, (c) his previous employment in China, and (d) his conversion after his arrival in Australia from Catholicism to the beliefs of the Jehovah’s Witnesses. He said he had provided those false statements because of his fear of persecution by the Chinese government.

91    However, he said, those fears had receded as the years passed. He claimed that by 2003 he had thought it would be safe for him to return to China because he had not argued strongly against the government and therefore the police would no longer be looking for him. That had been his understanding in early 2004 when he had told Australian officials, before he had been made aware of the arrest warrant, that there was no reason he could not return home.

92    He said that at all times until his detention in 2004 he thought he was lawfully in Australia. He explained his attempted escape from the Maribyrnong Detention Centre in March 2004 as being because he had wanted to re-establish a relationship with his girlfriend and to recover some money owed to him.

93    The Applicant maintained that the first time he had heard of allegations against him regarding kidnapping and murder had been in June 2004. He denied knowing anyone by the names of Zhong Weidong or Wu Zhijun. He said he had not been shown photographs of either of them and had had no opportunity to discover if they were familiar to him. He asserted that the Chinese official who had signed the warrant for his arrest was corrupt and known to be corrupt.

94    The Applicant tendered a Notarial Certificate dated 10 May 2005 obtained from the Heping District Notary Public Office, Tianjin, certifying that he was not subject to criminal punishment during his residence in China. He tendered two similar documents dating from as late as 2007. He also provided statements of several persons who had known him since his arrival in Australia stating that they believed him to be a person of good character.

The AAT’s findings

95    The Tribunal’s decision and reasons were published on the 23 May 2012. The Tribunal affirmed the decision under review.

96    The learned Deputy President correctly characterised the issue that he was required to determine as a narrow one—were there serious reasons for considering that the Applicant had committed the crime or crimes alleged against him before his arrival in Australia—the crimes of hijacking (the equivalent of kidnapping under Australian law), extorting and the malicious killing of a 15 year old male?

97    The Tribunal recorded its satisfaction that each of the crimes alleged against the Applicant were serious non-political crimes within the meaning of Article 1F (b) of the Refugees Convention. That conclusion is not attacked in these proceedings. It is plainly correct.

98    The Tribunal then set out the legal principles relevant to determining the issues before it. Again no attack is made on those statements of law. It is common ground that the learned Deputy President accurately and adequately summarised the legal principles that he was bound to apply at [66]:

The provisions of the convention are beneficial and should not be construed narrowly; however the provisions of Article 1F are protective of the order and safety of the State in which refuge is being sought.

It is not necessary that the Tribunal is satisfied that the alleged crime has been committed.

Strong evidence that the person has committed the alleged offence is sufficient.

The evidence need not be of such weight as to meet either the criminal or civil standard of proof.

99    The learned Deputy President stated that in accordance with the approach taken by the AAT in Al-Habr and Minister for Immigration and Multicultural Affairs [1999] AATA 150 he was required to examine all of the evidence against the Applicant in minute detail given the seriousness of the possible consequences for the Applicant.

100    The learned Deputy President set out his findings at [68]-[78]. As the majority has also found, his critical findings are those at [69]-[73]. Those paragraphs are set out in full in the judgment of Gray and Dodds-Streeton JJ at [40].

Submissions by Counsel for the Applicant

101    Mr Nash QC for the Applicant submitted that the learned Deputy President’s reasons at [69]-[72] expressed the entirety of the Tribunal’s findings of fact.

102    Those findings had to be read in the light of the Tribunal’s statement at [73] that “any one of the various factors would not have been sufficient” to establish that there were serious reasons for considering the Applicant to have committed the crimes alleged.

103    Mr Nash conceded that the materials received from China including the alleged transcripts of the interrogations of Mr Wu and Mr Zhong referred to by the Tribunal at [69] pointed to the Applicant’s participation in a serious crime. However the court was bound by the Tribunal’s finding of fact that as a single factor those materials were insufficient to permit the conclusion that there were serious reasons for considering the Applicant had committed those crimes.

104    Each of the other findings made by the Tribunal and relied upon, Mr Nash submitted, were in law irrelevant considerations lacking any probative value. Individually and cumulatively those findings added nothing to what the Tribunal itself had conceded was otherwise insufficient to establish serious reasons.

105    In respect of the Tribunal’s finding that it was satisfied that the Applicant had departed China shortly after the crimes were committed, Mr Nash submitted that without a further finding that the circumstances of the departure amounted to flight no significance could be attached to any particular date of his departure. Evidence before the Tribunal established that the Applicant had obtained his passport intending to leave China well before the crimes were said to have been planned.

106    In respect of the Tribunal’s finding that the Applicant had provided false information in order to obtain his visa Mr Nash submitted that there were many obvious and understandable reasons unconnected to guilt or flight why a person who wanted to enter Australia and who did not meet its visa requirements might tell lies in order to do so. Absent a further finding that such a lie was evidence of consciousness of guilt the Applicant’s false claims when applying for a visa were probative of nothing other than his want of general credibility. The lies did not relate to anything linking the Applicant with the crime alleged and there was no inherent logical connection between those lies and the crime.

107    In respect of the Tribunal’s finding that it was satisfied that the Applicant had been evasive about his evidence of religious affiliation and the falsity of his accounts of detention and torture in China Mr Nash submitted that even if the Tribunal had been correct to conclude that the Applicant’s claims had been “fabricated in order to strengthen his claim to remain in Australia” that fact had no relevance to proof of his participation in the crimes alleged against him. Similarly the Tribunal’s finding that the Applicant had lied about his attempt to escape from detention in 2004 because he had wanted “to return to live unlawfully in the Australian community” was irrelevant to his participation in the crimes alleged against him.

108    Accordingly, by relying on such irrelevant considerations, Mr Nash submitted, the Tribunal had fallen into jurisdictional error.

109    Mr Nash summarised the Applicant’s position by saying that the Tribunal had clearly and fully set out its reasons and those reasons disclosed that it had taken into account “matters not probative and therefore irrelevant and ha[d] misconstrued its function”.

Submissions by counsel for the Respondent

110    Dr Donaghue SC, for the Minister, submitted that the learned Deputy President had correctly stated the tests the Tribunal was obliged to apply. Moreover the Tribunal had accepted the Applicant’s submission that all of the evidence before it had to be examined in minute detail. Having accepted that obligation the First Respondent’s written submissions at [35] contended that the Tribunal had:

…considered all of the evidence, assessed the strength of the evidence, and identified the key factual matters that it relied upon in concluding that there were serious reasons for considering the Appellant had committed crimes of a serious non-political nature.

Dr Donaghue submitted that the Tribunal’s ultimate conclusion had been plainly open to it on the evidence. The findings by the Tribunal on matters of fact were immune from review unless they were vitiated by an error of law. No error had been shown.

111    Responding to the suggestion that the Tribunal had taken into account irrelevant considerations the First Respondent submitted that a fact could not be characterised as an “irrelevant consideration” unless the Tribunal was bound by the Migration Act not to consider it (either expressly or by implication). Matters that the Tribunal was bound to consider or not consider were to be identified by reference to the Migration Act as had been held by the majority of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 206 CLR 323 at [73]:

The considerations that are, or are not, relevant to the Tribunal’s task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider.

(Dr Donaghue’s emphasis).

Nothing had been advanced by the Applicant to demonstrate why the Migration Act prohibited the Tribunal from considering the matters it had taken into account.

112    Dr Donaghue submitted that the learned Deputy President’s finding at [70] “on the basis of the evidence of the Applicant I am satisfied that he left China shortly after the crimes were committed” was probative of the conclusion that the Tribunal had reached. Read in isolation it might appear not to be but, understood in context, the finding was responsive to the live dispute between the parties in the Tribunal regarding the significance of the timing of the Applicant’s departure from China. It was properly to be read as the Tribunal’s rejection of the alternatives to flight that had been advanced by the Applicant.

113    Similarly the learned Deputy’s President’s findings at [70] and [71] that the Applicant had told lies indicated that Tribunal had concluded that those lies evidenced the Applicant’s consciousness of his guilt.

114    Dr Donaghue submitted that because a conclusion for flight and consciousness of guilt had been vigorously advanced by the Minister and contested by the Applicant in the Tribunal, when the learned Deputy President stated his reasons at [69]-[72] he should be understood to have been rebutting and rejecting things put in issue by the Applicant. Read in that light there could be no want of relevance in what had been relied upon and there was no fault in the Tribunal’s reasoning processes.

115    As an alternative ground for resisting review Dr Donaghue referred in his oral submissions to the “SZMDS debate” and submitted that in that case “two members of the [High Court had] said the actual reasoning process doesn’t matter” provided the materials before the Tribunal would have permitted a rational decision-maker to have reached the same conclusion. That presumably was a reference to the reasoning of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (2010) 240 CLR 611 at [131]-[135].

116    That alternative submission emerged in oral argument. It was put as follows:

…we still deny that that is a jurisdictional error because whatever this tribunal did there were confessions from two co-accused, there was flight a couple of weeks after for a reason held to be a lie, there was a series of false statements given to Australian authorities in all the initial visa applications, including the protection visa application, and that there was, when those processes went wrong, a period of time evading Australian authorities, including an escape attempt. Whether or not [what was said by the Tribunal] discloses a reasoning process that your Honours find attractive it in my submission was plainly open to a rational decision-maker to take those facts and reach the conclusion that was reached.

Consideration

“The actual reasoning process doesn’t matter”

117    It is not to be supposed that the Minister was submitting that, provided this court were to be satisfied that the Tribunal had before it evidence we might think was capable of supporting the conclusion the Tribunal had reached, the reasons actually given by the Tribunal can be ignored.

118    That proposition would turn on its head the fundamental relationship between administrative decision-makers and Chapter III courts exercising the power of judicial review. Courts exercising administrative law review do not decide whether or not there is sufficient evidence. Fact-finding and the function of applying the law to those facts is for the Tribunal.

119    The task of the Court is only to examine whether or not the AAT fell into legal error in undertaking that task.

120    Because the Tribunal’s decision is protected by a privative clause its decision can be set aside only for jurisdictional error. In Craig v South Australia [1995] HCA 58 (1995) 184 CLR 163 at 179-180 the High Court of Australia recognised the difficulty of distinguishing between jurisdictional and non-jurisdictional errors while maintaining the distinction. In respect of tribunals exercising governmental powers amenable to certiorari the High Court said at 179:

If… an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which would invalidate any order or decision of the tribunal which reflects it.

That proposition was affirmed by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Kirk v Industrial Relations Commission [2010] HCA 1 (2010) 239 CLR 561 at [66]-[67].

121    An administrative tribunal is entitled to considerable latitude as to how it expresses itself. Its reasons must not be subjected to pedantic criticisms or examined with an eye focused on or ear attuned to the possibility of error. However, it is settled law, at least since the High Court’s decision in Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 (2003) 211 CLR 476, that a Commonwealth administrative tribunal’s decisions cannot be immunised from review for jurisdictional error. And, as the High Court’s decision in Re Minister for Immigration and Multicultural and Indigenous Affairs: ex parte Palme [2003] HCA 56 (2003) 216 CLR 212 at [48] per Gleeson CJ, Gummow and Heydon JJ makes clear, “[s]uch error may be found from what is disclosed by [the tribunal’s] reasons…”

122    Dr Donaghue’s reference to the “SZMDS debate” should therefore be taken not as a general assertion by the Minister that this court has a free-standing entitlement to ignore what the Tribunal stated to be its reasons but rather as drawing attention to the difficulty attending a successful attack on a decision-maker’s conclusions on grounds that his or her reasoning was irrational or illogical. Since Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (2010) 240 CLR 611 debate has raged regarding the availability and scope of those grounds: see SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 at [14]-[19] per Rares J; Lilley v Comcare [2013] FCA 26 at [24] per Rares J; cf the earlier decision of Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 (2010) 187 FCR 389 per Kenny J. Recently in SZQDI v Minister for Immigration and Citizenship [2012] FCA 932 (2012) 131 ALD 270 Katzmann J at [74]-[75] stated that the current position is as described by McClellan CJ at CL in D’Amore v Independent Commission Against Corruption [2012] NSWSC 473 at [81]:

[A]fter SZMDS, irrationality or illogicality in the finding of a jurisdictional fact may constitute jurisdictional error. The High Court has not decided whether irrational fact-finding more generally is an independent ground of review: SZMDS at [31] (Gummow ACJ and Kiefel J), [124] (Crennan and Bell JJ).

(Original emphasis).

However, it is unnecessary to express any concluded view on that debate.

123    Decisions of administrative tribunals are frequently challenged on overlapping grounds. Arguments for illogicality can overlap with those put forward to establish that a decision-maker took into account irrelevant considerations. But each of those grounds is premised on different intellectual footings. Perhaps aware of the SZMDS debate and wishing to avoid its complexities, Mr Nash QC, for the Applicant, did not rely on illogicality or irrationality as grounds to seek review.

124    Mr Nash confined his criticism of the Tribunal to the proposition that its reasons disclosed that it had taken into account irrelevant considerations and submitted that it had thereby misconstrued its function. The Court is required to deal with what the Applicant asserted, not what he did not.

125    If the Applicant could demonstrate, by reference to the Tribunal’s reasons, that the learned Deputy President had relied upon irrelevant considerations and thereby misconceived the Tribunal’s function and the result was affected as a consequence the Applicant would have established that the Tribunal had fallen into jurisdictional error.

Relevant and irrelevant considerations

126    A relevant consideration is one that must be taken into account having regard to the scope, purpose and ambit of the relevant statutory provisions: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J.

127    The power exercised by the AAT under the Migration Act was that conferred upon it by s 500(1)(c) to review:

a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on:

(i) one or more of the following Articles of the Refugees Convention, namely, Article 1F…

That Article states:

The provisions of this convention shall not apply to any person with respect to whom there are serious reasons for considering that… he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.

128    The Tribunal was therefore correct that the issue for its determination was a narrow one—“are there serious reasons for considering that the Applicant has committed the crime or crimes alleged”.

129    That was the sole issue that the Migration Act required the Tribunal to determine—it being properly conceded by the Applicant that the crimes, if committed, were serious non-political crimes. In this instance the scope, purpose and ambit of the relevant statutory provisions were narrow. The terms of the legislation reveal that the matters that the learned Deputy President was bound to consider were those things probative of the Applicant having committed one or more of the crimes alleged against him. The matters that the Tribunal was bound not to consider or give weight to in reaching its conclusion were things lacking any probative value.

The Tribunal’s stated reasons

130    Ordinarily the telling of a lie merely affects the credit of the witness who tells it. However, as the majority has adverted to at [44] there is longstanding authority for the proposition that a lie may also indicate consciousness of guilt. Such lies are probative. But to the extent that the passages in Wigmore on Evidence cited by the majority might be taken to suggest that it is a universal consequence whenever an accused lies that such lies are probative of guilt that is not the law of Australia. Deane, Dawson and Gaudron JJ held in Edwards at pp 208-209 that for lies to be capable of being relied upon to prove guilt those lies “must relate to a material issue” and the telling of the lie “must be explicable only on the basis that the truth would implicate” an accused in the offence alleged against him. It must be for that reason that he told the lie.

131    The position is similar in respect of flight. For the timing of the Applicant’s departure to be capable of providing corroboration or proof of guilt, the circumstances had to be such that the time of his departure was explicable only on the basis of his acknowledgment of guilt.

132    Where a fact or circumstance (A) has no probative value unless linked to fact or circumstance (B) in respect of conclusion (C); then A has no relevance to a finding of C unless B is also found to exist.

133    The Tribunal was not conducting a criminal trial nor was it bound by the rules of evidence but the propositions affirmed in Edwards are not rules of evidence. Rather they are principles of universal application in respect of the circumstances in which Australian jurisprudence permits lies to be regarded as relevant to proof. Even if that is too general a statement those principles were required to be applied by a Tribunal obliged to give “minute attention” to the question of whether there were serious reasons for considering that the Applicant had committed a serious non-political crime.

134    Each of the findings made by the Tribunal at [70], [71] and [72] was of no probative value unless linked to a further fact or circumstance: motive or consciousness of guilt. The Tribunal made none of the findings of fact required by Edwards that would have entitled the Tribunal to use those objective (and uncontested) facts not as the foundation of the dispute between the parties, but to reach its ultimate conclusion that there were serious reasons for considering that the Applicant had committed the crimes alleged against him. To do so would fall into that class of reasoning that Jagot J (Nicolas J in agreement) described in Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 at [104] as a form of faulty reasoning about which logical or reasonable minds could not differ.

135    Dr Donaghue implicitly acknowledged that proposition by asking the Court to read the Tribunal’s reasons beneficially as the other side of a dialogue and by eliding the Tribunal’s findings regarding the Applicant’s departure with “flight” when summarising the Minister’s submissions to the Court. That submission is set out at [116] above.

136    If the Tribunal took into account irrelevant facts or circumstances as reasons for considering that the Applicant had committed a serious non-political crime the Tribunal took into account factors that it was required not to consider by reference to the Migration Act. If it did so, and the Tribunal’s exercise or purported exercise of its powers was thereby affected, it made a decision infected by jurisdictional error: Craig v South Australia.

137    The Tribunal’s decision at [73] shows that the Tribunal did rely on those findings. Its exercise of power was thereby affected.

138    Dr Donaghue’s submission that it is the Migration Act which determines what is or is not a relevant consideration is sound. But unless the Court is persuaded that a fair reading of the learned Deputy President’s reasons requires the decision to be understood as including the additional findings that Dr Donaghue submitted it did, that proposition is of no assistance to the Minister. The Migration Act required the Tribunal to consider whether there were serious reasons for considering that the Applicant had committed those crimes. The Migration Act denies the possibility that facts or circumstances lacking any probative weight can serve as relevant considerations.

The Tribunal’s implied findings

139    Findings of fact made by the Tribunal are generally binding upon a reviewing court. As Branson and Stone JJ held in Colby Corporation Pty Ltd v Federal Commissioner of Taxation [2008] FCAFC 10 (2008) 165 FCR 133 at [16]; Jessup J agreeing at [53]:

It is … uncontroversial that, except in limited circumstances identified by s 44(7), the legislature intended the Tribunal to be the final arbiter of fact and the Federal Court not to be permitted to make factual findings on an appeal under s 44(1). For this reason, an appeal under s 44(1) is not a vehicle whereby a party may have the Federal Court review the Tribunal's findings of fact. Unless the answer to the question of law, which is the subject matter of the s 44(1) appeal, reveals that a factual finding of the Tribunal is affected by error (in which case the matter will ordinarily be remitted to the Tribunal), an appeal under s 44(1) must proceed on the basis of the findings of fact made by the Tribunal.

140    Although their Honours were considering an appeal under s 44(1) of the AAT Act the separation of powers doctrine requires all federal courts not to usurp the fact finding function of an administrative decision-maker.

141    Yet the way a decision-maker sets out his or her findings of fact may reveal that he or she has misconceived his or her statutory function. As Gleeson CJ, McHugh, Gummow and Hayne JJ held in Yusuf at [69] (applied by the Full Court of the Federal Court of Australia in Soliman v University of Technology, Sydney [2012] FCAFC 146 (2012) 207 FCR 277 (Marshall, North and Flick JJ) at [54]):

The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration

(Emphasis in original).

142    An omission may reveal that the Tribunal has made an error of law amounting to jurisdictional error: Yusuf at [10]. Scrutiny enables the courts to supervise the work of Tribunals and ensure they act according to law. As Rares J observed in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 (2010) 187 FCR 362 at 388:

Hence, the importance the courts have placed on the absence from the written statement… of some matter that would have demonstrated that the decision was made according to law or not affected by jurisdictional error. A written statement ensures transparency in the tribunal's exercise of a power conferred on it by the Parliament. This transparency is essential… to enable the Court to exercise the judicial power of the Commonwealth in reviewing whether the decision was made according to law or affected by a jurisdictional error.

143    In Yusuf their Honours also held at [69] that where a Tribunal has the duty to give reasons a reviewing court is entitled to infer “that any matter not mentioned …was not considered by the Tribunal to be material”.

144    A party seeking to contend that a tribunal’s stated reasons should be augmented by implied unstated findings therefore faces a difficult task. For recent examples see Spruill v Minister for Immigration and Citizenship [2012] FCA 1401 per Robertson J at [18] and Tauariki v Minister for Immigration and Citizenship [2012] FCA 1408 per Cowdroy J at [43]-[44].

145    However, one cannot construe what the High Court said in Yusuf as elevating, to a fixed rule of law, the proposition that a reviewing court must always conclude that any matter not mentioned by a tribunal was not considered by it to be material. The way a decision is expressed, read fairly and in context, will sometimes show that a tribunal has made a particular finding despite there being no mention of it in its reasons.

146    That is what counsel for the Minister invited the Court to conclude had happened in the present instance. Dr Donaghue submitted that the Tribunal’s findings took their form as a response to the way in which the issues had been in dispute in the Tribunal.

147    The learned Deputy President’s findings, on a fair reading, were therefore to be understood as indicating that the Tribunal had regarded that conduct as evidencing the Applicant’s consciousness of guilt. The learned Deputy President’s finding that the Applicant had left China shortly after the crimes had been committed, on a fair reading, should be understood as indicating that the Tribunal had regarded that conduct as flight and motivated by knowledge of guilt and the fear of discovery.

148    The Tribunal’s decision is entitled to be read fairly, in the context in which it appears, and not parsed cynically to expose error. However, I am unpersuaded that the Tribunal’s decision, even beneficially read, requires the construction for which the Minister contends.

149    A submission that the Tribunal’s reasons should be read as the other side of a dialogue responding to the way in which the matter was contested between the Minister and the Applicant during the hearing requires attention to the nature of that contest and how reasons that adjudicated upon the dispute might be expected to have been expressed.

150    Take as an example the live issue in dispute that Dr Donaghue referred to in respect of the Minister's contention that the Applicant’s departure from China should be accepted by the Tribunal as evidence of flight. The Applicant contended that no such conclusion should be drawn. In respect of that dispute the actual date of the Applicant’s departure from China and his arrival in Australia was common ground as was the fact that he had told lies to obtain his visa.

151    If the Tribunal’s findings had been responsive to that dispute one would have expected the learned Deputy President to have said something about those contentions and to have stated his conclusion. Instead at [70] the Tribunal recorded only the shared position of the parties: that the Applicant had left China shortly after the crimes had taken place and that he had provided false information to the Australian authorities to obtain his visa. Such findings give no appearance of having been responsive to the contest Dr Donaghue posited.

152    Nor was an adverse conclusion in respect of that contest the only one open to the Tribunal. It was not in dispute that the Applicant had left China and had arrived in Australia on 1 February 1997 shortly after the kidnapping and murder in Tianjin. A finding by the Tribunal in those terms was inevitable. But many hundreds, if not thousands, of Chinese nationals might have entered Australia over the relevant period. Several may have come from Tianjin or nearby. For them that timing was mere co-incidence. It may also have been so for the Applicant. The Tribunal had undisputed evidence that the Applicant had obtained the first of his travel documents (his passport) well before the alleged planning for the crime was said in the materials submitted by the Minister to have been in contemplation. That circumstance would not necessarily have stood in the way of a finding of flight but it was some objective evidence, not reliant on the credibility of the Applicant, of an alternative innocent explanation for the circumstances of his departure. An adverse finding cannot be regarded as inevitable and self-evident.

153    In respect of the contest before the Tribunal about whether the Applicant’s lies should be held to be manifestations of his consciousness of guilt, had the Tribunal’s findings been responsive to that dispute one would have expected a discussion about the circumstances and a conclusion about that issue rather than a statement of what was not in dispute; that is the fact the Applicant had lied.

154    And, to the extent the Tribunal did address the Applicant’s motives for lying and the other conduct it referred to, its stated findings were of matters other than those having anything to do with flight or consciousness of guilt.

155    The Tribunal found that the Applicant’s motives for giving false information to the Australian authorities when leaving China were “in order to obtain a visa to do so” [70]. His motives for giving false evidence as to his religious affiliations in Australia and his detention and torture in China were stated to be “in order to strengthen his claim to remain in Australia” [71]. That for his attempted escape from detention in 2004 was “to return to live unlawfully in the Australian community” [72]. It is impossible, on any fair reading, to see in those words any reflection of the adverse findings against the Applicant the Minister submits should be implied. Nor is it possible to see in those conclusions any of the considerations permitting adverse findings required by Edwards. It was not the Applicant’s reputation for honesty that was in issue before the Tribunal.

156    Moreover, had the Tribunal made findings of flight, or lies as consciousness of guilt, then, consistent with its approach to other matters in dispute, some reasoning to explain its conclusions could have been expected to have been stated.

157    At [74]-[78] the Tribunal provided some additional explanations and reasoning to support its finding at [69]. That suggests that the learned Deputy President regarded it as his responsibility to explain why he had recorded a conclusion regarding a disputed fact adverse to the Applicant. Given that conclusions adverse to the Applicant regarding flight and consciousness of guilt would have required the Tribunal to grapple with and reject the considerations standing against them, a decision-maker conscious of that responsibility would also have set out the reasons why he had formed such a view. Yet nothing more was said. That suggests that the Tribunal regarded those paragraphs as recording uncontentious facts rather than critical but unreasoned and contentious conclusions.

158    It is possible that the learned Deputy President did make additional findings adverse to the Applicant but overlooked referring to them in his reasons. However there is nothing to warrant that that was the case and the court cannot place weight on mere speculation. Nothing in the text, form, structure or context of the learned Deputy President’s reasons provides sufficient justification for this court to infer that the Tribunal made findings adverse to the Applicant that it did not express. There is no reason to suppose that the Tribunal did other than hear the extensive argument pressed on behalf of the Minister that such findings should be made but refrained from making them. There is nothing in the record to suggest that Edwards was drawn to the Tribunal’s attention. Not having been taken to the principles Edwards established there is nothing implausible in supposing that the Tribunal (wrongly) regarded the objective facts it recorded at [70]-[72] as, without more, relevant to the conclusion the learned Deputy President reached.

Conclusion

159    The learned Deputy President correctly approved of the approach taken in Al-Habr and Minister for Immigration and Multicultural Affairs [1999] AATA 150 in which it was held that all of the evidence against an applicant in the position of FTZK had to be examined in minute detail bearing in mind the seriousness of the allegations against him.

160    Such a careful approach is warranted by the nature of the jurisdiction. The paradigm case for the application of Article 1F of the Refugees Convention is that the Minister will be returning a person who has a well-founded fear of persecution for a Convention reason to the country from which they have fled. That is permitted only because there are serious reasons for considering they have committed a serious non-political crime before coming to Australia as a refugee. In the paradigm case it cannot be assumed that the person facing return will get a fair trial.

161    The Tribunal correctly recognised that in deciding whether there were serious reasons for considering that the Applicant had committed the alleged crimes the Tribunal was not required to take into account evidence as to how he might be dealt with should he be returned to China to face trial. Whether the death penalty was in prospect did not bear on the correct and preferable result. Nor did the undertaking given by the government of China that the death penalty carried out on his alleged co-offenders would not be imposed on the Applicant.

162    However, although the circumstances facing the Applicant were he to be returned were to be disregarded, the jurisdiction the Tribunal exercised pursuant to s 500(1)(c)(i) of the Migration Act is not premised upon the respective States Parties to the Refugees Convention mutually recognising that each will accord fair trial and adequate protection of the rights of those returned. The starting point for Article 1F determinations is distinctly to the contrary.

163    Article 1F removes the protections of the Refugees Convention, including those of non-refoulement, preventing the transfer of an individual to a State even if there is a real risk that they will suffer torture or cruel, inhuman or degrading treatment. Dhayakpa v Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 at 563 is authority for the proposition that proof beyond reasonable doubt is not required and it is sufficient that there be strong evidence that the person has committed the alleged serious non-political crime prior to their arrival in Australia. In my opinion that there be strong evidence is the minimum necessary requirement.

164    The Tribunal was obliged by s 43(2B) of the AAT Act to state its findings on material questions of fact and to refer to the evidence and materials upon which its findings were based.

165    It does not raise the bar of review too high to insist that all findings critical to its conclusion be expressly or by necessary implication clearly made. Such a requirement engages the decision-maker in grappling with the considerations for and against making such findings—even if only brief reference to the evidence upon which they are based need be stated. In the present case, the Tribunal’s reasons reveal that findings of flight and consciousness of guilt critical to its conclusion were not made and that, in consequence, it relied on irrelevant considerations. That constitutes jurisdictional error.

166    Once jurisdictional error has been established relief generally follows as of right. If, as in this case, the error clearly could have affected the outcome the Tribunal’s decision must be set aside. Had I not been in the minority I would have made orders quashing the Tribunal’s decision. I would have made orders remitting the matter to the Tribunal to be determined according to law.

Associate:

Dated:    6 May 2013