FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE APPEALS TRIBUNAL
DATE OF ORDER:
21 NOVEMBER 2018
THE COURT ORDERS THAT:
2. The appellant pay the first respondent’s costs, to be taxed or agreed.
3. The non-publication order made by the primary judge on 13 April 2018 and extended on 11 May 2018 be discharged.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 MRWF (a pseudonym) has appealed from a judgment of a single judge of this Court delivered on 13 April 2018 (see MRWF v Minister for Immigration and Border Protection  FCA 504). In that judgment, the primary judge dismissed MRWF’s appeal against a decision of the Administrative Appeals Tribunal (the Tribunal) given on 19 May 2017. The Tribunal had upheld a decision of a delegate of the then Minister for Immigration and Border Protection to refuse to grant MRWF a protection (class XA) visa.
2 As the primary judge pointed out in the introductory paragraphs to his judgment (see  FCA 504 at –), to obtain the protection (class XA) visa that he sought, MRWF had to show that he satisfied the definition of “refugee” in the Convention Relating to the Status of Refugees (the Convention). Importantly, for the purposes of his particular application, that definition contained a number of exclusions in Art 1F, as follows:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that :
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes ;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee ;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
Ultimately, the delegate relied upon sub-clauses (a) and (c) of this Article to refuse MRWF’s application.
3 It should be noted that the parties accepted before the primary judge that the relevant law was that applying as at the date MRWF made his application for a protection visa (see  FCA 504 at ).
THE FACTUAL AND PROCEDURAL BACKGROUND
4 The factual and procedural background to this appeal is complex. It involves two separate decisions of a delegate of the Minister and a lengthy decision (278 pages) of the Tribunal. The most convenient way to outline that background is to set out verbatim the comprehensive summary that the primary judge provided in his judgment (see  FCA 504 at –) as follows:
15 The applicant is a 50 year old male citizen of Turkey of Kurdish ethnicity. He arrived in Australia in 2010 on a student visa.
16 In April 2011, he applied for a protection visa.
17 In his application, the applicant claimed he feared returning to Turkey based on his involvement with the Jandarma and Jandarma Istihbarat ve Terorle Mucadele (JITEM) [also known as Jandarma, a group within the Turkish paramilitary force responsible for policing the rural regions of south-east Turkey in which the PKK, the Kurdistan Workers’ Party, operated], as well as by reason of a blood feud between his family and another family. He said he feared harm including being attacked, imprisoned or killed.
18 The applicant attended an interview before a delegate of the Minister in July 2011 as part of his initial protection visa application. At this interview the applicant was assisted by his legal representative, a support person and a Turkish interpreter.
19 On 31 October 2011, this delegate (the first delegate) refused his application. The first delegate found that, although the applicant had a genuine fear of harm with regard to his fear of being persecuted by JITEM and the PKK as a result of his involvement with the Jandarma and JITEM, there was not a real chance of the persecution occurring. Accordingly, the first delegate was not satisfied the applicant was owed protection obligations under s 36 of the Act.
20 On 22 November 2011, the applicant applied for merits review of the first delegate’s decision before the then Refugee Review Tribunal (RRT).
21 On 3 March 2012, the applicant’s representative provided the RRT with detailed submissions regarding the applicant’s fear of persecution by the Turkish authorities. These submissions outlined that the applicant was not involved in the commission of crimes against humanity and that the applicant began his involvement with JITEM because he believed it to be a legitimate group, as opposed to the PKK, and because he was able to use his position with JITEM to save some people from torture and death.
22 The applicant appeared before the RRT on 13 March 2012 and 21 March 2012 with the assistance of an interpreter. He was represented by his migration agent.
23 On 29 June 2012, the RRT found that the applicant was “a reliable witness who showed no evidence of overstating or exaggerating his claims” and that his claims were consistent with, and supported by, independent country information.
24 The RRT concluded that the applicant’s fear of serious harm amounting to persecution was well-founded. However, the RRT considered country information which indicated that JITEM had been found to have carried out serious crimes of the kind which may fall within the type described in Art IF of the Convention.
25 In this light, the RRT noted that the material before it may have given rise to issues relating to Art 1F of the Convention. The matter was remitted to the Minister’s Department for further consideration as to whether the applicant was excluded from protection by Art 1F.
26 On 12 March 2014, another delegate of the Minister (the second delegate), following further consideration, refused to grant the applicant a protection visa by reason of the Art 1F consideration, despite noting the RRT’s direction that “the applicant has a real chance of being persecuted for a Refugees Convention Reason” and that the “applicant’s fear of persecution, as defined under the Refugees Convention, is therefore well-founded”.
27 The second delegate noted that there were “significant developments in the field of Turkish-Kurdish relations which appear to offer a real chance of a negotiated peace settlement”, in reference to whether a cessation clause applied, for the purposes of Art 1C of the Convention. However, because the delegate found that the applicant was excluded from protection by Art 1F, he did not find it necessary to finally consider Art 1C.
28 In considering Art 1F, the second delegate accepted that the applicant “did not personally commit any acts of murder, torture, enforced disappearance of persons and persecution against any identifiable group or collectivity”. However, the second delegate found it was necessary to determine if the applicant was complicit in committing a crime against humanity. The second delegate concluded that, despite the applicant not having been convicted or formally accused of committing a crime, he had voluntarily admitted to providing information to the Jandarma about the PKK.
29 As a result, the second delegate was not satisfied that Australia had protection obligations in respect of the applicant under the Convention by virtue of his exclusion under Art 1F. The second delegate found that the applicant therefore did not meet the criteria for the grant of a protection visa under s 36(2)(a) of the Act.
30 The applicant sought merits review of the second delegate’s decision, this time in the Tribunal (following the merger of the RRT with the Administrative Appeals Tribunal). On 19 May 2017, the Tribunal affirmed the decision of the second delegate to refuse to grant the applicant a protection visa for the Art 1F reason. It is this Tribunal’s decision that is the subject of the present “appeal”.
31 The Tribunal was satisfied that there was a serious reason for considering that the applicant was complicit in the commission of a crime or act contemplated by Art 1F(a) and 1F(c) of the Convention.
32 As a result, the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Act.
(Emphasis in original; headings omitted)
5 The primary judge considered the three questions of law raised by MRWF before him (set out below and at  FCA 504 at ) and concluded ( FCA 504 at ) that none of those three questions, nor the related grounds or issues relied upon, could be sustained. The three questions were:
(1) Did the Tribunal apply the correct legal test in relation to the Art 1F question?
(2) Was the Tribunal’s decision irrational, illogical or unreasonable?
(3) Does the Tribunal’s decision comply with s 43(2B) of the AAT Act?
6 On 3 May 2018, MRWF filed his notice of appeal in this Court.
THE GROUNDS OF APPEAL
7 MRWF raised three grounds of appeal in his notice of appeal as follows:
1. His Honour erred when he failed appropriately to engage with and determine the legal issue raised by the appellant’s first ground of review [which was whether the Tribunal’s decision complied with the provisions of section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)]
2. His Honour erred in his reliance upon the reasons for judgment of the Full Court in SHCB v Minister for Immigration and Multicultural Affairs [(2003) 133 FCR 561;  FCAFC 308 [SHCB]] in his approach to the issue of whether there could be ‘serious reasons for considering’ that the appellant was complicit in ‘crimes against humanity’ or ‘acts contrary to the purposes and principles of the United Nations.’
3. His Honour erred in refusing the appellant’s application to file and read his affidavit annexing the media report that Colonel Temizoz and others connected with JITEM had been cleared of involvement in the deaths of 21 persons in Cizre between 1993 and 1995.
8 MRWF’s contentions on his three grounds of appeal broadly followed the detailed particulars which he provided in support of those grounds. In his written and oral submissions, he also raised a number of other issues which went beyond those raised in his three grounds of appeal (see further at – below).
Ground 1 – Alleged failure to comply with s 43(2B) of the AAT Act
9 In relation to his first ground of appeal, MRWF provided the following particulars:
1.2. Section 43(2B) required that the reasons of the Tribunal include:
1.2.1. ‘its findings on material questions of fact’; and
1.2.2. ‘a reference to the evidence or other material on which those findings were based’.
1.3. Logically the first question as to compliance with section 43(2B) required determination before the second question of law proposed:
1.3.1. whether the Tribunal applied the correct legal test in determining that the present appellant was complicit in ‘crimes against humanity’ or ‘acts contrary to the purposes and principles of the United Nations.’
His Honour addressed the first question last.
1.4. In the circumstances the finding of complicity by the appellant in ‘crimes against humanity’ or ‘acts contrary to the purposes and principles of the United Nations’ required that findings be reached after a two-stage process involving:
1.4.1. A finding of acts amounting to ‘crimes against humanity’ or ‘acts contrary to the purposes and principles of the United Nations’ committed by JITEM during the period that the appellant acted as an informer for the Jandarma; and then
1.4.2. A finding of acts on the part of the appellant sufficient to render him complicit in those crimes.
1.5. Only after such findings had been made, and the evidence identified, could the Tribunal proceed to determine whether these could give rise to the ‘serious reasons for considering’ that the appellant has committed the crimes or been guilty of the acts required for exclusion from protection under Article 1F of the Refugees Convention.
1.6. Section 43(2B) required of the Tribunal’s decision ‘a reference to the evidence or other material on which those findings were based’.
1.7. The failure of the Tribunal to provide such a reference in the undifferentiated ‘cut-and-paste’ of evidence, transcript, and submissions rendered it impossible for the applicant/appellant to determine which items of evidence the Tribunal regarded as relevant, which it accepted, and which it rejected.
1.8. His Honour erred in finding that there had been sufficient compliance with the provisions of section 43(2B) to exclude jurisdictional error on the part of the Tribunal.
(Emphasis in original)
10 In response, the Minister submitted that the primary judge dealt with this issue in the primary judgment ( FCA 504 at –) and concluded (at ) that MRWF’s contentions with respect to it could not be sustained. The Minister submitted his Honour’s reasoning for reaching that conclusion did not demonstrate any appellable error.
Ground 2 – Alleged error in relying on SHCB
11 MRWF provided the following particulars of this second ground of appeal:
2.1. The applicant in [SHCB], unlike the present appellant, was a high-ranking member of the organization alleged to have been responsible for the crimes against humanity in which he was held to have been complicit.
2.2. There was evidence of two incidents that could have amounted to crimes against humanity, and of the applicant’s involvement in those incidents.
2.3. There was evidence of the likely consequence of the applicant’s involvement in those incidents.
2.4. There was no evidence that the victims were members of, or associated with, a proscribed terrorist organisation such as the PKK that Turkish authorities were seeking to suppress in the present case.
2.5. In dismissing SHCB’s application for special leave to appeal against the orders of the Full Court by a majority, on the basis that, given the factual findings, the appeal had no reasonable prospects of success, the High Court added the caveat: ‘but we would emphasise, as has often been said, that refusal of special leave is not to be taken as an endorsement of any of the statements of principle in the judgment below.’
(Emphasis in original)
12 In his written submissions, MRWF submitted that the correct approach to the question whether there could be “serious reasons for considering” that he was complicit in crimes against humanity, or acts contrary to the purposes and principles of the United Nations, was settled by the High Court in FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1;  HCA 26 (FTZK).
13 In response, the Minister agreed that the construction of the expression “serious reasons for considering” was settled in FTZK. Accordingly, he submitted that, to amount to “serious reasons for considering”, the evidence must be capable of being regarded as “strong” (see FTZK at  per French CJ and Gageler J and at  per Crennan and Bell JJ). The Minister submitted that the primary judge had concluded ( FCA 504 at ) that the Tribunal had correctly stated the legal test for complicity for the purposes of the application of Art 1F of the Convention (including the requirement that there be “serious reasons for considering”) and had applied that test correctly having regard to the facts as found by it, which findings were open to it on the evidence before it. The Minister further contended that it was “clearly apparent from [the primary judge’s] Judgment and from the Tribunal’s reasons to which his Honour referred, that his Honour did not place any reliance upon SHCB in determining that there was no error by the Tribunal in its consideration of what amounts to ‘serious reasons for considering’”.
Ground 3 – Alleged error in failing to receive further evidence
14 The following particulars were provided by MRWF with respect to the third ground of appeal:
3.1. It was within his Honour’s discretion to admit the evidence in the affidavit notwithstanding that it had not been before the Tribunal.
3.2. The evidence had become available only after both parties had completed giving their evidence, but before their final submissions were due.
3.3. The evidence was equally available to both parties.
3.4. As the prosecutor of the case, the Minister had a greater duty than the appellant to ensure that all evidence was before the Tribunal supporting his claim that the appellant was disentitled to protection under the provisions of Article 1F of the Refugees Convention.
3.5. The evidence was relevant insofar as it involved the principals in the crimes in which the Tribunal held that there was serious concern that the appellant, as an informer to the JANDARMA, was complicit as an accomplice to the crimes and acts alleged against JITEM.
3.6. While arguably hearsay, as was all of the evidence in support of the alleged crimes of JITEM, the evidence would have been admissible before the Tribunal notwithstanding its hearsay character.
3.7. The interests of justice required that the affidavit be admitted in support of the applicant’s claim for judicial review, as it cast doubt upon whether there could be ‘serious reasons for considering’ that the appellant was complicit in ‘crimes against humanity’ or ‘acts contrary to the purposes and principles of the United Nations.’
(Emphasis in original)
15 In his written submissions, MRWF submitted that s 44(7) of the AAT Act empowered the Federal Court on appeal under s 44(1) to make certain findings of fact and under s 44(8)(b) to receive further evidence. In dismissing his interlocutory application to lead the evidence in the Reuters report concerning the acquittal of Colonel Temizoz and members of JITEM, MRWF submitted that the primary judge had erred ( FCA 504 at ) in holding that he had no jurisdiction to receive that evidence.
16 The Minister submitted that, contrary to MRWF’s contention, the primary judge did not conclude ( FCA 504 at ) that he had no jurisdiction to receive such evidence. Rather, his Honour noted that the proceeding before him was an appeal on questions of law under s 44 of the AAT Act and it was not an appeal by way of rehearing under the Federal Court of Australia Act 1976 (Cth) in which, in appropriate circumstances, new evidence could be adduced. Further, the Minister submitted that, as his Honour observed ( FCA 504 at ), MRWF had accepted that JITEM was guilty of crimes and acts against humanity and that issue was not in dispute before the Tribunal. Accordingly, the Minister submitted his Honour correctly stated that he could not see how any error concerning that question could now be made an issue in the appeal before him.
17 As we have mentioned above, MRWF also attempted to raise two additional issues which were not addressed in any of his grounds of appeal. First, he submitted that he should have been warned that the evidence he gave before the Tribunal in relation to his application for a protection visa could later be used against him if a question were to arise about the application of Art 1F. He based this submission on the Canadian decision in Malouf v Canada (Minister of Citizenship and Immigration)  1 FC 537. In response, in addition to submitting that this issue was not the subject of a ground of appeal, the Minister contended that this proposition was not the law in Australia. Because this issue can be disposed of briefly, it is convenient to deal with it at this point. The Minister is correct in pointing out that this issue was not raised in MRWF’s notice of appeal. Having regard to the Minister’s objection to it now being raised and in the absence of any application from MRWF to remedy that state of affairs, we do not consider it is in the interests of justice to allow it to be agitated in this appeal.
18 Secondly, MRWF claimed that there were problems with the interpreters who assisted the Tribunal, a matter which he claimed the Tribunal itself had acknowledged in its decision. In particular, MRWF claimed the interpreter problems arose with respect to the question whether he had provided attendance lists for PKK meetings to the Jandarma. This issue can also be disposed of briefly. Not only was this issue not raised in MRWF’s notice of appeal, but the critical evidence to which it relates, concerning the provision of attendance lists for PKK meetings, was information that MRWF himself provided in his statutory declaration. It was not, therefore, information that was affected by any interpreter error, even if there were such an error. For these reasons, we will confine our consideration to the three issues that are properly raised by MRWF’s grounds of appeal.
Ground 1 – Alleged failure to comply with s 43(2B) of the AAT Act
19 As the Minister pointed out in his submissions, the question whether the Tribunal complied with s 42(2B) of the AAT Act was considered by the primary judge ( FCA 504 at –). After describing the scope of the question raised by MRWF (at ) and setting out the terms of s 43(2B) of the AAT Act (at ), the primary judge observed that “[t]he substantive question is whether, even if some non-compliance with the requirements of this provision is shown, jurisdictional error is established” (at ). On that question, his Honour referred to a judgment of the Full Court in Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362;  FCAFC 108 and he then summarised the submissions made by MRWF with respect to it (at –). Following that summary, his Honour identified the main conclusions the Tribunal reached and the evidence upon which it relied to reach those conclusions as follows (at  and –):
123 I consider that on a fair reading the Tribunal’s conclusion, at , as to the Turkish based group known as JITEM being responsible for crimes against humanity which follows its reference to “on the evidence”, that clearly is a reference to the evidence set out by the Tribunal in the preceding paragraphs of its reasons at -.
125 The Tribunal’s statement at  of having reviewed the extensive and conflicting evidence must be seen in its proper context, namely, that it follows the Tribunal’s reference to the evidence and submissions made at - and the subsequent discussion by the Tribunal of that evidence at -.
126 Similarly, there was no relevant failure of the Tribunal, in relation to , by reason of “the exclusion of non-specified evidence”. The Tribunal concluded, at , by stating that in the circumstances (as set out earlier in that paragraph) it was appropriate for the Tribunal to rely on those portions of both translations (of the first delegate’s interview and the RRT hearings) but exclude those sections of the evidence that were not subsequently translated. I accept that the Tribunal was not referring to the exclusion of “unspecified” evidence but was referring to the evidence of the first delegate’s interview and the RRT hearings that was not subsequently translated.
127 I also consider that the Tribunal’s reasons at  and  do not demonstrate any failure to comply with s 43(2B). These paragraphs stated the Tribunal’s overall conclusions based on its assessment of the evidence and its findings as to that evidence as set out at -.
20 The primary judge then proceeded to reject MRWF’s primary contentions on this ground of appeal, that the Tribunal had “merely cut and pasted large segments from the evidence before jumping to a conclusion without any reasoned analysis”, in the following terms at :
… Properly and fairly read the Tribunal dealt with a large mass of evidence that had been produced in the course of the decision-making processes I have outlined. The applicant, before the Tribunal, challenged the reliability of much of the evidence as translated. In the result, the Tribunal very carefully decided what of the transcribed evidence it could properly rely upon. The Tribunal, as it was entitled to do, indicated that it was not prepared to rely on any of that evidence that came later and conflicted with the evidence of the applicant given earlier in the decision-making processes. The Tribunal was not prepared to accept the applicant’s account of events before it in preference to the position as he had stated it in earlier processes. In the circumstances, this finding was open to it. It fully explained, in logical terms, why it came to that view.
21 His Honour also rejected MRWF’s contention that the Tribunal’s approach to the assessment of evidence was irrational or illogical, as follows (at ):
While counsel for the applicant suggests that the purposes of the initial visa application processes were not directly related to the Art 1F issue, and for that reason the applicant’s later evidence going directly to the Art 1F issue should have been preferred, and indeed the Tribunal’s failure to prefer the later evidence should be considered irrational or illogical, I do not consider there is any warrant for that submission. There is nothing in the way the Tribunal approached the question of what evidence it should rely upon that suggests the preferences it made were either irrational or illogical.
22 Accordingly, his Honour rejected MRWF’s contention that the Tribunal had not duly and properly considered the evidence before him. He said (at –):
130 This indeed was a case that required the Tribunal carefully to consider all of the evidence it had been given and appropriately to refer to it. A failure to have done so may well have invited a question of law whether the Tribunal had given proper consideration to a complex set of evidentiary materials.
131 Thus, the Tribunal’s long decision, with detailed references to the evidence given at various times, was entirely explicable and appropriate.
132 It follows that this question of law and the related grounds stated on behalf of the applicant cannot be sustained.
23 In our view, the primary purpose of s 43(2B) is to require the Tribunal to disclose the reasoning process it employed to make its material findings of fact and the evidence or other material upon which it based those findings. The primary judge was clearly aware of this obligation and he carefully and exhaustively reviewed the Tribunal’s reasons with it in mind. Having considered his Honour’s reasoning relating to that review, we agree entirely with the conclusions he reached ( FCA 504 at –) set out above. We do not therefore consider his Honour committed any error in assessing the Tribunal’s compliance with s 43(2B) of the AAT Act. It necessarily follows that we reject the assertions contained in the particulars provided in support of this ground of appeal above. In particular, for the reasons illuminated by the primary judge, we reject MRWF’s claim that the Tribunal provided an “undifferentiated ‘cut-and-paste’ of evidence, transcript, and submissions” in its reasons in a way which made it impossible to discern its reasoning process. To the contrary, we agree with the primary judge’s description of the Tribunal’s reasons as a “long decision, with detailed references to the evidence given at various times, [which] was entirely explicable and appropriate”. It follows that this first ground of appeal has no merit and must be dismissed.
Ground 2 – Alleged error in relying upon SHCB
24 The particulars MRWF has provided in support of this ground of appeal do not shed any light on the error allegedly made by the primary judge with respect to SHCB. MRWF’s written submissions were equally unrevealing. They did not mention SHCB at all and instead claimed that this issue had been resolved by the High Court decision in FTZK. The Minister agreed with that proposition in his written submissions and contended that the proper test to be applied was that the Tribunal required “strong evidence” for there to be “serious reasons for considering” that a person was complicit in crimes against humanity. We will therefore approach this ground on the footing that MRWF’s main concern is that the Tribunal did not correctly apply this test.
25 The Tribunal identified this “strong evidence” test at  of its reasons as follows:
As it has been agreed between the parties that JITEM is indeed guilty of crimes against humanity, the core issue before this Tribunal is whether MRWF was complicit in the commission of those crimes. On the basis of the jurisprudence outlined above, to so find the Tribunal requires strong evidence to that effect. To make any decision that effectively denies MRWF of a protection visa without strong evidence of complicity would, to again quote the Supreme Court of Canada, prevent an unreasonable extension of the notion of criminal participation. The modes of commission recognized in international criminal law articulate a broad concept of complicity, but even at their broadest they do not hold individuals liable for crimes committed by a group simply because they are associated with the group or passively acquiesced to the group’s criminal purposes.
26 The jurisprudence to which the Tribunal referred in this paragraph was reviewed at – of its decision.
27 For his part, the primary judge set out a summary of the Tribunal’s review of that jurisprudence ( FCA 504 at  and ). At , the primary judge noted that the Tribunal had accepted MRWF’s counsel’s submissions to the following effect:
By reference to SHCB – a decision of the Full Court of this Court on point – the Tribunal accepted the submission of counsel for the applicant that:
• the applicant need not actually have directly committed the act in question;
• there must be awareness of the act of participation and a conscious decision to participate in aiding, abetting or otherwise assisting in the commission of the crime. This includes planning, instigating, ordering or committing;
• there does not necessarily need to be a finding with respect to a specific incident. If there are many such incidents and the applicant took steps knowing that those actions would result in criminal activity that would suffice;
• there must be the “requisite intent” to assist in the act; mere knowledge is not sufficient;
• presence alone at the scene of a crime is not sufficient, but if presence is coupled with other circumstantial or other evidence then it may be used;
• membership of an organisation is usually insufficient by itself to establish complicity, depending on the principal aims of the organisation and the closeness of the applicant to the organisation’s decision-making process; and
• rank may be an important factor. A high ranking officer may be held responsible as they are closer to the decision-making process.
28 At , the primary judge set out his conclusion on this issue in the following terms:
In my view, the Tribunal’s statement of principle at  of its reasons has not been demonstrated by the applicant to be wrong. Indeed, I consider the Tribunal correctly stated the relevant complicity test in those passages, based as it was on the established authority to which I have just made reference, including SHCB and Ezokola.
29 There are two other passages of the primary judgment that are pertinent to this issue. First, at , his Honour noted:
At , the Tribunal observed:
Overall, in order to find that [the applicant] was complicit in criminal offences committed by JITEM (and accordingly, that Article 1F of the Refugees Convention applies to him), the Tribunal must address the core principles articulated in SHCB ….
It then repeated the statement adopted by the Full Court in SHCB as set out above.
30 Secondly, at , his Honour said:
In my view, the Tribunal correctly stated the legal test for complicity for the purposes of the application of the Art 1F exception to the Convention and applied the test correctly having regard to the facts as found by it. I consider it was open to the Tribunal to make the findings it made on the evidence before it.
This conclusion followed a careful and exhaustive review ( FCA 504 at –) of the Tribunal’s review of the relevant evidence (at – of the Tribunal’s decision).
31 It is clear from the Tribunal’s decision at , which the primary judge referred to in his conclusion ( FCA 504 at ), that the Tribunal identified the “strong evidence” test outlined in FTZK and correctly applied that test to the facts as found by it on the evidence before it. Those findings were not open to challenge before the primary judge and they are certainly not open to challenge before this Court. It follows that neither the primary judge nor the Tribunal made any error in identifying and applying that test. For these reasons, we consider this ground of appeal has no merit and must be dismissed.
Ground 3 – Alleged error in failing to receive further evidence
32 In rejecting the tender of the media report concerning the acquittal of Colonel Temizoz, the primary judge observed (at –):
50 There are a number of obvious difficulties with the proposition and the tender proposed, including the ability of the Court to receive this “evidence” on this appeal. The proceeding before me is an appeal on questions of law under s 44 of the AAT Act, not an appeal by way of rehearing under the Federal Court of Australia Act 1976 (Cth) in which questions of law and fact may be challenged and, in appropriate circumstances, new evidence adduced. See s 27.
51 I am concerned only to ascertain whether the Tribunal on the materials before it, made the errors arising from the questions of law identified by the applicant. The line of reasoning underlying the application to introduce this “evidence” also assumes that if it were to be adduced there would have been no basis for the Tribunal finding that there were any relevant crimes and acts in relation to which the applicant could be found complicit. However, even if a person such as the Colonel had been acquitted under Turkish law, this would not necessarily mean that it was not open to the Tribunal, on relevant evidence before it, to find the applicant was complicit in relevant crimes and acts.
52 Moreover, in this case, as I explain below, the applicant accepted that JITEM was guilty of crimes and acts against humanity. There was simply no issue before the Tribunal in that regard and I cannot see how it can now be made an issue on this appeal before me.
33 The explanation “below” to which his Honour was referring (emphasised above) has already been summarised in considering the second ground of appeal above. That explanation clearly demonstrates why this media report concerning Colonel Temizoz’s acquittal could not have assisted MRWF. The primary judge’s other reason above is equally as compelling in demonstrating why this ground of appeal has no merit. In short, this was not one of those “most unusual circumstances” where the admission of this fresh evidence would have been justified (see Committee of Direction of Fruit Marketing v Delegate of the Australian Postal Commission (1979) 37 FLR 457 at 459 per Franki J with whom Brennan J agreed).
34 There is a further reason why this ground of appeal must fail. MRWF accepted that the primary judge’s decision on this question was discretionary in nature. Accordingly, the principles in House v The King (1936) 55 CLR 499 at 504–505 applied to it. Despite this acceptance, MRWF’s submissions on this ground of appeal were bereft of any attempt to identify any such error of principle in the primary judgment. The most obvious explanation for this failing is that none existed. For these reasons, this ground of appeal must also be dismissed.
35 In conclusion, we are not satisfied that the primary judge committed any of the errors alleged in the three grounds set out in MRWF’s notice of appeal. We therefore order that the appeal filed 3 May 2018 be dismissed and that the appellant pay the first respondent’s costs, to be taxed or agreed.
Dated: 21 November 2018