FEDERAL COURT OF AUSTRALIA

ZYVZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 28

ORDERS

THE COURT ORDERS THAT:

1.    There be an extension of time to enable the application to be brought.

2.    The application be dismissed.

3.    The applicant pay the costs of the first respondent to be assessed if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The applicant travelled to Australia by boat. The boat was intercepted and he was transferred to Christmas Island in September 2012. He sought refugee protection. A delegate of the Minister refused his application. In 2016 he was also found by the Immigration Assessment Authority not to be a refugee. However, the Authority found that if the applicant was returned to Sri Lanka there was a real risk that he would suffer significant harm in the form of torture by the Sri Lankan security forces. The risk of harm was found to arise because he was likely to be held in detention pending investigation or charges of facilitating a people smuggling venture. The risk of detention arose in part because the Authority found that the applicant had left Sri Lanka while charges of rape and abduction were pending against him.

2    In consequence of its findings, the Authority determined that the applicant's application for protection should be reconsidered for complementary protection reasons. Speaking generally, complementary protection is afforded where it is a necessary and foreseeable consequence of removal from Australia to another country that a person seeking refuge will suffer significant harm.

3    The application was remitted for reconsideration. A delegate of the Minister then found that the applicant had been charged and convicted of the abduction and gang rape of a woman in Sri Lanka and had also committed people smuggling offences. On that basis, the delegate concluded that there were serious reasons for concluding that the applicant had committed serious non-political crimes before entering Australia. The significance of that finding was that the Migration Act 1958 (Cth) provides that a person is taken not to satisfy the criterion for complementary protection if, amongst other things, 'the Minister has serious reasons for considering that … the [visa applicant] committed a serious non-political crime before entering Australia': s 36(2)(a) and (aa), s 5H (definition of refugee) and s 36(2C).

4    The effect of the decision by the Minister's delegate was that certain aspects of the matters that had been advanced by the applicant to support his protection visa application came to be relied upon to conclude that he was not entitled to protection because one of the exclusions in s 36(2C) applied.

5    The applicant sought review in the Administrative Appeals Tribunal. The Tribunal affirmed the decision under review. The applicant now seeks to review the Tribunal's decision.

6    The applicant raises two grounds of review. First, as to the rape and abduction offences, it is contended that the reasoning by the Tribunal shows that it misconstrued or misapplied s 36(2C) of the Migration Act, or failed to undertake its statutory function, because it did not establish a rational connection between the material before the Tribunal and its inference that the applicant had committed the rape offences. Second, as to the people smuggling offences, it is said that there were three matters that the Tribunal failed to undertake each of which were said to amount to jurisdictional error.

7    For the following reasons, the application for review should be dismissed.

The nature of the application

8    The right to seek review in the Tribunal is conferred by s 500(1)(c). Therefore, the Tribunal's decision was a privative clause decision for the purposes of the Migration Act. As a result, the Federal Circuit Court has no jurisdiction to review the Tribunal's decision: s 476(2)(b). However, this Court has original jurisdiction to review. It is confined in express terms to be the same as the constitutional writ jurisdiction of the High Court: s 476A. For present purposes, that means the applicant must demonstrate jurisdictional error. In order to demonstrate error of that kind, it must be shown that the decision that has been made lacks the characteristics necessary for it to be given force and effect by the statute. It must be a decision of a kind that the Tribunal was not authorised by the statute to make: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [24]-[25].

9    An application invoking the jurisdiction to review on the basis of jurisdictional error must be brought with 35 days: s 477A. In error, the present application was first brought in the Federal Circuit Court. The application in that Court was commenced within time. After delay caused by that error, the matter is now before this Court. Strictly speaking an extension of time is required for the proceeding in this Court. Quite properly, the Minister does not oppose the grant of an extension on the basis of an informal application. In the circumstances, I grant the extension of time.

The nature of the statutory task under review

10    The provisions to the effect that the criteria for a protection visa will not be met if there are serious reasons for considering that the visa applicant committed a serious non-political crime reflect the terms of the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) (Convention). The relevant provision in the Convention is Art 1F(b) which provides:

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.

11    It can be seen that Art 1F(b) expresses a circumstance in which a person will be ineligible for the protections afforded under the Convention. There are other exclusions in the Convention. The UNHCR Background Note on the application of the exclusion clauses in Art 1F of the Convention (which forms part of the UNHCR Guidelines dated 4 September 2003) (Background Note), describes the rationale for the exclusion clauses as being twofold.

Firstly, certain acts are so grave that they render their perpetrators undeserving of international protection as refugees. Secondly, the refugee framework should not stand in the way of serious criminals facing justice. While these underlying purposes must be borne in mind in interpreting the exclusion clauses, they must be viewed in the context of the overriding humanitarian objective of the 1951 Convention.

12    Section 36(2)(a) of the Migration Act previously incorporated the Convention provisions by expressing the criteria to be met in order to obtain a protection visa in terms that required the applicant to be a person 'to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol'. It thereby adopted those provisions: NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; (2005) 222 CLR 161 at [57] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ).

13    It is to be noted that the Migration Act provision operated by reference to the state of satisfaction of the Minister. The same form was continued when the complementary protection provisions of the Act were amended by the Migration Amendment (Complementary Protection) Act 2011 (Cth) and s 36(2C) was introduced. Since that amendment, s 36(2)(aa) has provided that a criteria for a protection visa is that the person is someone:

in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;

14    The exclusions are now expressed in s 36(2C). The ineligibility criteria expressed in that section apply where 'the Minister has serious reasons for considering' that any one of them applies. So, whether there is ineligibility on the basis that serious non-political crimes have been committed by the applicant for protection depends upon whether the Minister has reasons that meet the description 'serious reasons for considering' that the criterion is met. There must be actual reasons of the Minister and they must have the requisite character.

15    The meaning of the requirement in Art 1F(b) that there be 'serious reasons for considering' that the person seeking protection had committed a serious non-political crime was addressed by Weinberg J in Arquita v Minister for Immigration and Multicultural Affairs [2000] FCA 1889; (2000) 106 FCR 465, where his Honour said at [54]:

It is sufficient … if the material before the decision-maker demonstrates that there is evidence available upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged. To meet that requirement the evidence must be capable of being regarded as 'strong'. It need not, however, be of such weight as to persuade the decision-maker beyond reasonable doubt of the guilt of the applicant. Nor need it be of such weight as to do so on the balance of probabilities. Evidence may properly be characterised as 'strong' without meeting either of these requirements.

16    In FTZK v Minister for Immigration and Border Protection [2014] HCA 26, a case decided before the introduction of s 36(2C), French CJ and Gageler J approved of the statement by Weinberg J: at [14]. However, their Honours went on to state:

Underpinning the requirement for strong evidence is a consciousness of the potentially profound adverse consequences of exclusion from the protection of the Refugees Convention for a person otherwise entitled to that protection.

For similar reasons, Crennan and Bell JJ said that Art 1F(b) should be interpreted restrictively and applied with caution: at [74]-[75].

17    Hayne J did not refer to Arquita although his Honour did make a general reference to Federal Court decisions: at [33]. His Honour approved a statement by Sedley LJ to the effect that the language of the Convention 'sets a standard above mere suspicion' and beyond that 'it is a mistake to try to paraphrase the straightforward language of the Convention': at [36]. Crennan and Bell JJ (at [82]) approved the following passage from the decision of the Supreme Court of the United Kingdom in Al-Sirri v Secretary of State for the Home Department [2013] 1 AC 745 at 790:

We are, it is clear, attempting to discern the autonomous meaning of the words 'serious reasons for considering'. We do so in the light of the UNHCR view, with which we agree, that the exclusion clauses in the Refugee Convention must be restrictively interpreted and cautiously applied. This leads us to draw the following conclusions: (1) 'Serious reasons' is stronger than 'reasonable grounds'. (2) The evidence from which those reasons are derived must be 'clear and credible' or 'strong'. (3) 'Considering' is stronger than 'suspecting'. In our view it is also stronger than 'believing'. It requires the considered judgment of the decision-maker. (4) The decision-maker need not be satisfied beyond reasonable doubt or to the standard required in criminal law. (5) It is unnecessary to import our domestic standards of proof into the question.

18    In Al-Sirri, the approach in Arquita was said to be accepted. However, the character of that acceptance is to be found in the above passage. There must be a considered judgment that expresses reasons that are stronger than reasonable grounds, but the decision-maker need not be satisfied to the criminal standard.

19    All members of the Court in FTZK cautioned against reading the words of the Convention as reflecting common law notions of the burden or standard of proof: at [14] (French CJ and Gageler J), at [33]-[34] (Hayne J) and at [81] (Bell and Crennan JJ). Those notions must be put to one side. However, there were a number of observations by members of the court concerning the nature of the standard. French CJ and Gageler J approved of language to the effect that the requirement for serious grounds means there must be meticulous investigation and solid grounds, and for that reason the decision-maker must pay close attention to the probative relevance of the material said to engage the ineligibility criterion: at [16]. Hayne J said that evidence that is as consistent with innocence as with guilt does not meet the requirement: at [39] (see also (Crennan and Bell JJ at [91]). Crennan and Bell JJ said that the requirement for serious reasons is 'an exacting standard of satisfaction which is not derived from domestic standards of proof': at [83].

20    Therefore, care must be exercised in considering the language used by Weinberg J in Arquita to the effect that evidence may be properly characterised as strong without being of such weight as to satisfy the decision-maker on the balance of probabilities. That language was not approved by the majority of the members of the Court in FTZK and its adoption by French CJ and Gageler J must be understood in the context of the whole of their Honours' joint reasons.

21    It is to be noted that Weinberg J went on to say at [56]-[58]:

The expression 'serious reasons for considering' means precisely what it says. There must be reason, or reasons, to believe that the applicant has committed an offence of the type specified. That reason or those reasons must be 'serious'.

It is dangerous to reason by analogy in this area. The meaning to be attributed to the word 'serious' will depend upon the context in which that word is used. It would be wrong, for example, to equate the test under Art 1F(b) with what would arguably be a lesser standard required for the grant of an interlocutory injunction, namely, that there be a 'serious question to be tried': … In both situations the word 'serious' operates as a filter, ensuring that allegations of insufficient strength are discounted.

In determining the meaning to be ascribed to the word 'serious' in the context of Art 1F(b) it is necessary to bear in mind the fact that the Article operates to deprive a claimant for refugee status of the opportunity to have his or her claim considered on its merits. An unduly wide interpretation of the word 'serious' in this context would affect the rights of the individual in a most profound way. One would expect, therefore, that the material in support of a belief that a person has committed an offence of the type specified would have significantly greater probative value than the material required to support an interlocutory injunction. Certainly it would have to go beyond establishing merely that there was a 'prima facie' case, the test formerly favoured for the grant of an interlocutory injunction: …

(citations omitted)

22    However, the notion that reasons to believe would be sufficient is contrary to the passage from Al-Sirri approved by Crennan and Bell JJ and contrary to the statement by French CJ and Gageler J that there must be material which provides a 'rational foundation' for a 'strong inference' that a serious crime has been committed by the applicant.

23    In FTZK all members of the High Court concluded that the process of reasoning adopted by the Tribunal in that case did not conform to the requirement for ineligibility. French CJ and Gageler J found that there was jurisdictional error because the reasons given did not provide a rational basis for the conclusion that the appellant had committed a serious non-political crime and therefore the requirement that there be serious reasons had not been met: at [17]-[19]. Hayne J reached a similar conclusion at [40] on the basis that none of the factors on which the Tribunal relied was logically probative of whether the appellant had committed the crime. Crennan and Bell JJ found that because the Tribunal's reasoning pathway was logically flawed it had misconstrued its statutory functions and powers and therefore the reasons revealed jurisdictional error: at [90]-[97].

24    I note that at the time of the decisions in Arquita and FTZK, the form of the legislation was to incorporate the provisions of the Convention as expressing Australian law. That form led the Court in FTZK to consider the meaning of the provisions as a matter of international law. Such meaning depends upon the construction which the international community would attribute to the treaty and the application of the principles codified in the Vienna Convention on the Law of Treaties: CRI026 v The Republic of Nauru [2018] HCA 19 at [22].

25    The present form of the legislation is different. It enacts a provision which reflects the language of the Convention as Commonwealth statute law. However, it may be comfortably concluded that the law was intended to give effect to Australia's treaty obligations. As explained by Edelman J in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [69]-[71] the scheme for complementary protection was introduced into the Migration Act for the express purpose of conforming its terms to the requirements of the Convention: see also Kiefel CJ, Nettle and Gordon JJ at [1]. Therefore, a construction which accords with those obligations should be favoured: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 38; and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287 (Mason CJ and Deane J).

26    For those reasons, the phrase 'significant reasons for considering' should be interpreted in the manner described in FTZK.

27    Counsel for the applicant sought to place reliance upon statements at paras 105 and 106 in the Background Note concerning the burden of proof in applying the exclusions in Art 1F of the Convention. However, as the Background Note indicates, the approach is not consistent across Convention countries. The issue of the nature of the reasons that must be provided to meet the requirements of the Convention has been addressed by the High Court in FTZK. It is that approach that should be given effect.

28    Therefore, if the reasons of the Minister (or the Tribunal standing in the shoes of the Minister) lack the character of 'serious reasons for considering' that the relevant excluding criterion is met, then the exclusion stated in s 36(2C) does not apply. A decision that lacks the required character cannot be the basis for a lawful decision that an applicant for a protection visa is ineligible for the visa.

29    At times the submissions for the applicant adopted the form of contending that a particular conclusion reached by the Tribunal was not supported by the evidence. Submissions expressed in that way do not capture the nature of the inquiry to be made on an application for review of the present kind. The inquiry is not whether there was an error of fact or law in the decision of a kind that might found an appeal.

30    Nor is this a case where it is necessary to demonstrate that the reasoning lacked an evident or intelligible justification of a kind that might demonstrate jurisdictional error in the form of a failure to conform with an implied requirement that a decision-making power be exercised reasonably of the kind described in the decisions considered in Minister for Immigration and Border Protection v Haq [2019] FCAFC 7 at [35] (Griffiths J, Gleeson J agreeing), [72] (Colvin J). This is a case where there is an express requirement that a particular person must have reasons of a particular quality, namely serious reasons for considering that there has been criminal conduct of a particular character. The jurisdictional errors alleged in the appeal must be approached on that basis.

Ground 1: Principal contentions

31    Counsel for the applicant raised no issue concerning the conclusion by the Tribunal that the crimes of gang rape and abduction were serious crimes. The focus of submissions was the requirement in s 36(2C) that the Tribunal (standing in the shoes of the Minister) have 'serious reasons' for considering that such crimes had been committed by the applicant. There were a number of respects in which the applicant said that the reasons did not conform to the statutory requirement, namely:

(1)    the Tribunal found that the applicant had given a previous account (subsequently disclaimed) that he had consensual sex with the victim of the alleged gang rape when there was no evidence that such an account had been given;

(2)    the Tribunal dealt with the claim by the applicant as if it involved an allegation that the charges were politically motivated when the evidence was that the charges were politically facilitated. As a result, there was no proper basis for adverse credibility findings made against the applicant because they depended upon disbelieving his account that the charges against him were politically motivated when that was not his account;

(3)    the Tribunal found that the reason that the applicant left Sri Lanka was, by his own admission, largely because he did not want to face the trial for the rape and abduction offences when the evidence given was that he escaped for political reasons;

(4)    the Tribunal found that the applicant had been legally represented at a trial in absentia in Sri Lanka (where he was convicted of the offences of rape and abduction) when he had not been legally represented at the trial;

(5)    the Tribunal found that the trial on its face seemed not 'dissimilar to that of Australia' when that was not the case because, in Australia, a person could not be represented or convicted in absentia for an indictable offence;

(6)    the Tribunal relied upon the fact that the applicant absconded when an inference of guilt could not be drawn from that conclusion in circumstances where other explanations were given for the applicant leaving Sri Lanka; and

(7)    the Tribunal failed to refer to the applicant's evidence of the complainant's reluctance to prosecute.

32    In oral submissions, counsel for the applicant focussed upon the need for 'meticulous investigation and solid grounds'. Counsel made clear that no complaint was made about the Tribunal's understanding of what was required by the phrase 'serious reasons for considering' in relation to the crimes of gang rape and abduction. The complaint was about whether the reasoning was of the requisite character and the matters identified above were advanced both individually and as part of a collective submission concerning the character of the reasons as a whole.

33    A further submission was advanced to the effect that the Tribunal failed to apply principles of proportionality in determining whether there were serious reasons.

Consensual sex with the complainant

34    The evidence before the Tribunal was as follows:

(1)    In the applicant's arrival interview in 2012 his response to the question why did you leave your country of nationality is recorded as 'I have some Court cases at home and I do not want to go to jail or prison, I need to look after my family'.

(2)    When the applicant was transferred to Nauru in January 2013, he was interviewed and the interview record concerning whether the applicant was arrested records answers concerning two occasions, including the following:

Q: What did the police charge you with?

A: The reason, I attacked the other group member.

Q: Is that the only time that you've been arrested?

A: Yes, there's another involvement.

Q: When is the next time you were arrested?

A: I reckon it's going to be back in 2010, but I'm not sure of the dates.

Q: Briefly tell me why you were arrested that time.

A: Now this time my wife was in and I had an affair with another girlfriend, so what happened is meantime one day I was talking to her at back of her house and her husband saw that we actually talking each other and then after that he gone to police and put a investigation on it and then the police arrested me for questioning.

Q: When is the next time that you were arrested?

A: No, that's it.

(3)    The interview record also includes the following answer to the question, 'why did [the applicant leave] Sri Lanka to travel to Australia':

As I told you before, the reason, the incident, I've been having an affair with the other girl or her partner put a, that's the only reason, as I told you before that person put an incident against my name against the court, so it's really threatening to my life and especially myself, the person's is [name redacted] and he's relations they threatening to my life because of the affair against, I really can't stay there.

(4)    In 2016, the applicant completed an application for a safe haven enterprise visa which attached a supplementary statement which said (paras 18-26):

In about May 2010 or 2011, [B], my friend, invited me to go and see the Wesak decorations. He picked me up in a three wheeler and we went to a temple, but we went to the wrong one - they didn't have the Wesak decorations at that one. We kept driving and came to a town, called [redacted]. We got some take-away food.

While we were eating, a lady approached us, I had not officially met her before but I had seen her around, her family were supporters of the SLFP. Her name was [the complainant]. I think she may have had a relationship with my friend, [B], they seemed to know each other. She asked me to drive, and she sat at the back to speak to [B]. We drove back to our village, it was becoming night time, and we stopped along the way. [B] and [the complainant] talked for a while, in a shrub area. I was waiting with the vehicle. We then continued and stopped close-by her house to drop off her. She went into her house to get us some water. We left after having a glass of water.

Her sons, who were about 18 years or so, were suspicious upon learning about our presence. They were very angry about their mother's indiscretions with my friend [B], and so they assaulted her along with her husband. They then took her to the police station and told the police that [B] and I had raped their mother.

The police came looking for me that night and I was charged with rape. I was taken into custody for about two months. [B] had gone into hiding, but they found him within a week and charged him too. We were both released on bail.

I spoke with [the complainant] on the phone, and pleaded with her to drop the charges because I was an innocent party. She said to me that she knew I didn't do anything wrong, however she had to go along with the charge to protect her family life. [The complainant] was regularly beaten by her husband and her sons, and due to this she had to go along with their claims that she was raped. She was also pressured by the court sergeant to continue the prosecution, partly because [B] was wanted in connection to other charges.

The prosecution of the case continued. This is because there was a member of the SLFP called [redacted], who was the brother of [redacted]. He was a local council member. They were still against me due to my political beliefs. Due to his power and connections in the army, the police continued to prosecute. I began to receive death threats from their family - …; as well as [the complainant's] family.

After I departed Sri Lanka, the court case progressed through the courts. My father told me about the progress of the case. The police charged [B] and he was sentenced to 13 years gaol. He was sentenced in the past six months, or so, as the case went on for a number of years. I have heard that there is a court order against me, and the sentence imposed on me was the same as [B]. My father told me this.

It is my understanding that there has now been an order issued by the High Court of Sri Lanka which authorises my death by shooting if I ever return. This is due to my absconding. My father told me about this too.

In my entry interview and Nauru application, I said that I had a relationship with this lady, [the complainant]; but actually it was my friend [B], I wish to correct this. My story was different because I was ashamed to say that I was charged with rape. I left my friend [B] out of my earlier statements because I didn't want to implicate or accuse him.

(5)    A detailed request for information about the rape and abduction charges was issued by the Department in relation to the visa application. The applicant provided a response in the following terms (paras 2-17):

[B] is the same person as [redacted]. [B] is his common name.

I can't remember exactly when I was charged or when or who told me what the charges were.

[B] told me in gaol that [B] had a sexual relationship with [the complainant].

I do think that [the complainant] did consent to have sexual intercourse with [B], on the day I was arrested.

I didn't have any relationship with [the complainant].

…

I was convicted and sentenced in 2015 not 2011.

I did not appeal as I'm in detention.

…

I said I had a relationship with [the complainant] as I had to let immigration know about the court case but I didn't want to implicate [B] and I felt shame for having a rape charge.

(6)    On review, the Immigration Assessment Authority, made the following findings:

From his first arrival interview the applicant has consistently indicated that he faced court in Sri Lanka in connection with some involvement that he had with a married woman … I consider that his reference to an 'affair' in the entry interview was a euphemism, because, understandably he was ashamed. I consider that the first references by the applicant at the entry interviews in Australia and Nauru to the problems he faced as a consequence of a relationship with a married woman in fact reflect the reality, consistent with the newspaper report - that he was involved in a sexual relationship which resulted in his being charged with rape.

(7)    When the matter came back to the Minister after the Authority made the decision concerning complementary protection and a delegate of the Minister decided that the exclusion applied, the delegate gave reasons that included the following:

I note the applicant initially advised the department and Nauruan immigration officials he had a consensual sexual relationship with [the complainant] although the applicant subsequently advised that he did not have such a relationship with her and it was his friend [B] who had consensual sexual intercourse with [the complainant].

            and later:

The applicant has recanted initial advice that he had a sexual relationship with [the complainant] … and he claims that [the complainant] consented to sexual intercourse with [B].

35    Therefore, by the time the matter came before the Tribunal it was well and truly clear that the account that had been given by the applicant was consistently described as one in which he first said that he had a consensual sexual relationship with the complainant and then he gave a different version of events. The explanation given was that he was ashamed and did not want to implicate his friend. Further, the applicant's version of events was that the charges had been brought because the complainant's family members were angry about the complainant's indiscretions.

36    When the matter came before the Tribunal, the applicant was legally represented. In the statement of facts, issues and contentions filed for the applicant before the hearing, the following statement was made:

[The applicant] has claimed that [the rape and abduction] charges are politically motivated…and has previously claimed to have had a sexual relationship with [the complainant] which he has since resiled from.

…

The second inference [made by the delegate] was drawn from [the applicant's] inconsistent statements about his sexual relationship with [the complainant]. It is submitted that these go to his credibility but do not evidence a consciousness of guilt and are not reasons for considering that [the applicant] committed the crimes for which he was convicted.

37    Counsel for the applicant referred to the interview in Nauru in January 2013 and then led the following evidence (ts 23):

COUNSEL: … During that interview you said that you had had an affair with another girlfriend, someone other than your wife.

APPLICANT: I may have said that, but I can't remember.

COUNSEL: Okay. So you said that you had charges against you due to an affair that you had with another woman. Do your remember that?

APPLICANT: I can't remember about that.

COUNSEL: Okay. All right, so did you ever have sex with [the complainant]?

APPLICANT: No.

38    When asked questions by counsel for the Minister, the applicant gave the following evidence (ts 25-26):

COUNSEL: You were asked by [counsel for the applicant] about when you arrived in Australia, and you - on Nauru. Do you remember being interviewed in Nauru?

APPLICANT: I can remember that I had an interview.

COUNSEL: And you were asked questions about why you had left Sri Lanka.

APPLICANT: Yes.

COUNSEL: But you said to [counsel for the applicant] you don't remember what you said in that interview.

APPLICANT: Yes.

COUNSEL: So your evidence is that you don't remember telling the officers who interviewed you in Nauru that you had had an affair with [the complainant], or with another person?

APPLICANT: Yes, I can remember saying that, because there are some older people (indistinct), most the poor people came to Australia before that, they were older to me, and they advised me when I told them my story, so they were the senior refugees, sort of, and they said 'You tell - you'll give - when you give evidence you tell this this way'.

COUNSEL: All right, so now what you're saying is that you were told to tell this story on Nauru, not that you don't remember that you had said an affair, but you were told to say that you'd had an affair?

APPLICANT: I didn't have any relationship with [the complainant], but people told me to say this.

COUNSEL: When you say 'people', do you mean other - well, who do you mean when you say 'other people'?

APPLICANT: They have about 200 people who came from Sri Lanka. They have some educated - well-educated people there. When they - they advised me to say this.

COUNSEL: Right. So you're saying that you lied in that interview?

APPLICANT: Yes, because they told me to say this.

39    I note that the explanation that the applicant was told by others to say that he had a relationship with the complainant was not the explanation he had previously given for the change in his account. The applicant was then asked the following questions (ts 27-28):

COUNSEL: You gave evidence that you had been told by other Sri Lankans to say that you'd had an affair with a woman.

APPLICANT: Yes.

COUNSEL: But in this statement given last year you said that the reason you said - you didn't mention that you had been told by other people to say that you had an affair. You said that you did so because you didn't want to implicate [B] and you felt shame for having a rape charge. Now, that's two different answers, and I want to know, which is the right one?

APPLICANT: The truth is that I didn't have an affair with [the complainant].

COUNSEL: But that's not the question I asked. I want to know why you said that you did have an affair with [the complainant] when you were first interviewed.

APPLICANT: Is that what I said in Nauru?

COUNSEL: Yes.

APPLICANT: Yes, the people who were there, the senior people - there were older people who were in Sri Lankan (indistinct), told me - advised me to say this, that I had an affair with [the complainant].

COUNSEL: So your evidence today is that you didn't say it because you were worried about implicating [B]?

APPLICANT: Yes, the reason - that is the reason, because I feel ashamed to say that I was charged for rape.

40    The applicant was re-examined by his own counsel in the following way (ts 41-42):

COUNSEL: … You told [counsel for the Minister] that you did remember telling the interviewer that you'd had a sexual relationship with [the complainant], is that correct?

APPLICANT: Yes.

COUNSEL: Do you admit that that was a lie?

APPLICANT: No, I did not have any relationship.

COUNSEL: You gave two explanations as to why you'd lied to [counsel for the Minister], one of the explanations was that you felt shame for having a rape charge and you didn't want to implicate [B]. The other explanation was that some other asylum seekers told you to lie to the interviewer.

APPLICANT: Yes.

COUNSEL: Which explanation is correct?

APPLICANT: The one that's the second one, that is the other people who were in the Nauru camp at the time, the senior people, they told me to say this, that's it.

COUNSEL: Why did they tell you to say that?

APPLICANT: I had no idea that I want to say, because then I asked him, I told him my story and said to them, they ask me I ask them, what is the best thing I are to tell. They listen then they said to say this.

41    In closing address, counsel for the applicant submitted (ts 43):

Ultimately, we don't know what happened during the trial. The other evidence we have of these crimes is that from [the applicant] himself. He's consistently denied raping and abducting [the complainant]. He has told at least one lie in the course of giving evidence and that was to the interviewer at Nauru, when he said that he had a sexual relationship with [the complainant].

In order for that lie to be evidence of [the applicant's] guilt, it would have to either go to motive or a consciousness appeal. He's given at least two explanations of why he told that lie. The one that he gave today was that he was put up to it by other asylum seekers who thought it was in his best interests to tell that lie. In my view, that lie goes to his credibility, not to a consciousness of guilt and therefore, it can't be evidence of the commission of those serious crimes. The other - I'm not sure if it's a lie - but the other thing that's been alluded to in both the decision of the delegate and in [counsel for the Minister's] cross-examination, is the fact that [the applicant] claimed that the reason he was charged was due to his political activity. That these charges were in fact fabricated due to the opposition that he had previously had to the ruling party.

42    As to these matters, the Tribunal reasoned as follows:

(1)    After dealing with the applicant's claim that the charges against him were politically motivated (see below), the Tribunal observed that the explanation that the charges were brought against him because of his political views was 'at odds with his alternative explanation that he and/or his co-accused (his story varies) had consensual sex with the woman and that she had been pressured by her family into claiming that she had been raped to avoid accusations of extra-marital sex'.

(2)    The Tribunal then found that the applicant's story as to whether he had sex with the woman was inconsistent, referring to his statements to the Nauruan authorities in January 2013 and in his statement in 2017.

(3)    The Tribunal then referred to the applicant's evidence explaining why he had told immigration authorities that he had an affair with the complainant and said that it lacked any logical basis but demonstrated a preparedness to lie and give answers he perceived to be in his best interests.

43    Submissions were advanced for the applicant to the effect that his statements that he had been in a relationship and had an affair with the complainant were not to the effect that he had consensual sex and the Tribunal was wrong to approach the evidence in that way. It was submitted that the Tribunal could not make a finding of the requisite character (that is, to form part of the serious reasons for considering that the applicant had committed the crimes) on the basis that he had previously given an account that he had consensual sex with the complainant but then recanted that account. The submission was advanced on the basis that the applicant had used the words 'affair' and 'relationship' when referring to the nature of his connection to the complainant.

44    I do not accept the submission. Having regard to all the circumstances, it was well and truly open for the Tribunal to approach the evidence on that topic in the manner in which it did. It was the manner in which the applicant's own counsel approached the evidence. The Tribunal gave coherent reasons for its view. It was not the only reason given for considering that the applicant had committed the crimes. However, the reasoning provided a basis to doubt the credibility of his account as to what happened which is the manner in which the evidence was used by the Tribunal.

Political motivation for the charges

45    In his early accounts of what happened, the applicant did not describe the charges of rape and abduction as politically motivated. His statements concerning persecution for his political beliefs recounted his activities for the United National Party in 2009. The events concerning the complainant were placed by him in about May 2010 or 2011. Then, in his supplementary statement in 2016 (in support of his protection visa application), the applicant said that the prosecution of the case against him was brought because of actions by the family of the complainant but was continued because of the family's political connections with people who the applicant said were still against him due to his political beliefs. His claim to protection on the basis of his political beliefs was rejected by a delegate of the Minister and on review by the Authority.

46    In the Tribunal, the applicant's lawyers described his claim of a political motivation for the charges brought against him as having been made 'at a late stage just before he lodged his SHEV application'. In that context, the following submission was made in the statement of facts, issues and contentions for the applicant:

Among his protection claims, was the claim that he feared persecution on the grounds of his political opinion. If [the applicant] did lie about his convictions being politically motivated, then, given the timing, it would be far more consistent with an attempt to bolster his protection claims [than] it would be with a consciousness of guilt.

Given the credible alternative explanation for claiming that his charges were politically motivated and the fact that there is no strong evidence that it is [a] lie, it is submitted that [the applicant's] claim that his charges were politically motivated does not constitute reasons for considering that he committed crimes for which he was convicted.

47    In closing address, counsel for the applicant made submissions concerning the plausibility of the applicant's version that he was charged with the offences due to his political activity. They concluded as follows (ts 43-44):

The IAA did find, at paragraph 22 on page 218, that [the applicant] had given credible evidence on the account of his political activity and that it was accepted by the IAA that he was involved in some violent incidents in 2009 and his house was damaged. The IAA said that these incidents were not personally targeting [the applicant], they were just broadly targeted acts of violence. Of course, the incident behind the charges occurred in May 2010, which was only between a year-and-a-half to six months after the damage to [the applicant's] house and his involvement in violent incidents. It, of course, is implausible that he has been charged with these offences for political reasons. However, that doesn't mean that he's lied. The IAA observed that these claims arose at a late stage before he lodged his protection visa application.

If he did lie, then it's just as plausible that he lied in order to bolster his chances of successfully applying for a protection visa. The alternative explanation, which is what I submit is preferable, is that given his involvement in these violent incidents and given that he was broadly targeted with political violence, [the applicant] may well have perceived that these charges were politically motivated due to this previous involvement in violence. His perception may well be incorrect, but he could still honestly hold that belief and not be lying in his claims about these charges being politically motivated.

48    As to these matters, the Tribunal found as follows (para 60):

I do not accept the Applicant's claims that the crimes of which he was charged and for which he was convicted were politically motivated or that the complaints made to the police by the woman who claimed to have been abducted and raped were made as a result of pressure or for some ulterior purpose. Generally I did not find the Applicant to be a credible or truthful witness. Even allowing for the Applicant speaking through an interpreter, I found him evasive and inconsistent in his evidence. One example of this is his changing story concerning the stealing of the fishing boat on which he and the other five people came to Australia.

49    The Tribunal then referred to conflicting evidence about whether the boat had been stolen.

50    The oral evidence by the applicant on the topic of whether the charges were brought for political reasons included the following:

(1)    Asked by his counsel why he thought the charges of gang rape and abduction were brought against him, the applicant said (ts 24):

They had political issues, problems. They were - they belonged to the Sri Lanka party. My house was damaged. They destroyed my house. I had - I was assaulted twice with batons, I received an injury that - due - that was the reason.

(2)    The matters described in that answer were referred to in his earlier statements as having occurred in 2009.

(3)    In response to questions from counsel for the Minister, the applicant said (ts 33, 36-37):

APPLICANT: From 2010 to 2012 I attended the courts. So this woman had left Sri Lanka and she was not there. She was not coming to the court case, so then we - with the other issues - I had some problems I had to face - I decided to come to Australia. So she did not - because she did not attend the court case was not heard.

…

APPLICANT: These charges were instigated by the woman's husband. They - through a politician they - politicians, because he was - he belonged to a political party and through the ministers and MPs he influenced the police.

COUNSEL: He influenced the police? Why? Why were false charges made - laid against you?

APPLICANT: The minister they supported was - knew me well, and because I worked for the other party in 2009 they were angry with me, so that's why they got hold of the minister. [They] told the minister that I was involved in political activities, campaigns against him. That's the reason why they brought these charges against me.

COUNSEL: Was [B] involved in these political activities?

APPLICANT: No, he was not with us.

COUNSEL: No. So your evidence is that because of your activities the father of - or the husband of [the complainant] decided that charges should be laid against you and somebody else who was not involved in these political activities?

…

COUNSEL: Right. So is it your evidence that the charges were politically motivated against you, but they weren't politically motivated against [B]?

APPLICANT: (Indistinct) they took the woman, took to the police station. Their children took the woman to the police station to make the complaint against us, so by force.

COUNSEL: But that's not an answer to my question. You say that the charges against you are politically motivated. Are you saying that the charges against [B] were not politically motivated?

APPLICANT: I can't explain that and why they brought charges against [B] and me, both of us together, but maybe the reason why, because at that night, at that time at night we were talking to [the complainant], that woman - both of us were talking to [the complainant], and because they saw that I - both of us were there, that may be the reason why they charged both.

COUNSEL: So not politically motivated?

APPLICANT: Against me it was - the intention was about - because it was political motivated - charges against me.

…

APPLICANT: Because of the issues I had, I had to come, because I - the political reasons, the other issues I had been facing, I had to leave Sri Lanka.

51    It was submitted that the claim made by the applicant was not that the complaints against him were brought for political reasons, but was properly characterised as a claim that the charges were politically facilitated in the sense that political contacts were used by the complainant's family to make sure that the prosecutor proceeded with them. I do not accept that characterisation of the evidence as being accurate. At times, the evidence from the applicant was to that effect. However, as can be seen from the above, there were points at which the applicant claimed that the charges themselves were brought and proceeded with for political reasons associated with his own political activities.

52    Therefore, it could not be said that the Tribunal's reasoning by reference to the lack of evidence of the applicant having any significant political role was illogical or not properly responsive to the nature of the evidence. Nor could the Tribunal's reasoning (para 55) by reference to the inability of the applicant to explain why charges were brought against his friend who was not involved in the alleged political activities be criticised.

53    Further, in the context of the applicant's other evidence that the charges were brought because the complainant was forced to bring the complaint by members of her family who beat her because she was seen with the applicant and his friend, there is obvious inconsistency. The Tribunal was entitled to bring that to account (para 56).

Reason for the applicant leaving Sri Lanka

54    The Tribunal placed some significance upon its finding as to the reason the applicant left Sri Lanka in reaching its conclusion that it had serious reasons for considering that the applicant had committed the crimes of gang rape and abduction. It reasoned as follows (para 53):

While it may be that in some cases a conviction in absentia should be treated with some caution, in this case, the only reason that the convictions were entered in absentia was because the Applicant absconded, by his own admission largely, because he did not want to face the trial.

55    Elsewhere, the Tribunal described the fact that the trial had been in absentia to be a consequence of a choice made by the applicant to abscond rather than face the charges (paras 51 and 62). The Tribunal's findings on these matters rested on evidence given by the applicant in the Tribunal. The evidence has already been quoted. The evidence was in a form where the applicant said that he decided to come to Australia because of other problems and issues he had to face. The only evidence of other problems he had to face was his general evidence that political reasons were behind the bringing of the charges. There was otherwise no evidence of any mistreatment or problems that the applicant faced at the time he decided to leave (as distinct from the earlier matters that were said to have occurred in 2009 and which had not been accepted as a basis for refugee protection).

56    It may have been a step too far to describe the evidence by the applicant as amounting to an admission that he had absconded largely because he did not want to face the trial. His 'admission' was confined to his acceptance of the proposition that he knew that by leaving Sri Lanka he abandoned his opportunity to give his side of the story at a trial. However, the reasons of the Tribunal should not be read with an eye attuned to error. The reasons of the Tribunal provided a proper foundation for its view that the applicant had left Sri Lanka to escape the trial and, by reason that his political beliefs were not the reason for the charges, his decision to leave was a choice made by him.

Legal representation at the trial in Sri Lanka

57    Before the Tribunal, there was a translation of a newspaper article that had been presented by the applicant in support of his visa application. It was a report of the decision by the High Court in Sri Lanka to sentence the applicant and his friend on convictions for rape and abduction. The report said that the woman was raped after being abducted to a coconut estate. The report named an attorney who 'appeared for the defendants'.

58    There was also a translation of a sentencing order before the Tribunal. It referred to the first defendant being represented by an attorney. It referred to the applicant as the second defendant and described him as 'not present'. It named the State Counsel who appeared for the prosecution. The sentencing order stated that the judge had considered 'the submissions made by both parties'.

59    On the basis of the terms of the sentencing order it was accepted before me that no lawyer had appeared for the applicant at the sentencing hearing and that the reference to submissions by both parties was to submissions for the first defendant and the prosecution. There were no submissions for the applicant at the sentencing hearing.

60    The offences were described as 'abduction of a woman in order that she may be forced or seduced to have illicit intercourse' and 'gang rape'. It was submitted that the Tribunal found wrongly that the applicant was legally represented at the trial by the same attorney who appeared for the other defendant. This was said to be a significant error because it had a substantial bearing upon the nature of any trial and therefore the weight that might be afforded any conviction. Further, it was said that the nature of the charges were said to give rise to the possibility of a cut-throat defence in which each defendant might claim that the other was responsible for the offending. In those circumstances, even if the defendants had been jointly represented at the trial, it could not be said that joint representation was consistent with a fair trial and that should have been considered by the Tribunal. For the Minister it was submitted that the nature of the charge of gang rape meant that the prosecution had to prove that both the defendants were involved in the offending.

61    There were a number of points in the reasons of the Tribunal where the issue of legal representation at the trial was considered. The reasoning pathway was as follows.

62    First, the Tribunal began by expressing the view that provided the convictions were the result of a proper legal process in a jurisdiction adhering to recognised legal standards and the rule of law, the fact of the convictions would normally be a serious reason for considering that the person committed the crimes. Before me no party disputed the logic of that approach. It accords with general principle as to the manner in which the fact of a conviction should be approached when it is advanced as a means of proving the fact of criminal conduct in the Tribunal: HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [77]-[79] (McKerracher J), [150], [167] (Derrington J), [191] (Colvin J).

63    Second, the Tribunal referred to the applicant having been convicted after a trial, albeit in absentia. Then, the Tribunal referred to the statement in the sentencing order that referred to 'submissions made by both parties' and the newspaper report referring to an attorney appearing for the defendants (para 47). These matters may be a recital of the evidence or, being put together, they may indicate that the Tribunal approached the sentencing order on the basis that it showed that there were submissions for the applicant made at that time.

64    Third, the Tribunal found that 'the process in Sri Lanka that lead up to the trial and the Applicant's convictions was not dissimilar to the process that would be followed in Australia' (para 48).

65    Fourth, the Tribunal found that on the bail appearances the applicant was represented by a lawyer for whom he paid and on those occasions his co-accused was 'separately legally represented'. No issue was taken with these particular findings which reflect the applicant's evidence.

66    Fifth, the Tribunal then observed 'it seems that there was due process leading up to the Applicant's conviction and he was legally represented throughout the process, even potentially at trial' (para 49). It is significant that the Tribunal at this point refers to the potential for the applicant to have been represented at trial. Particularly in the light of what follows in the reasons (see below), the statement at this point indicates that the Tribunal, having cited the terms of the newspaper report and the sentencing order, was yet to make a finding as to what the position was concerning legal representation of the applicant at trial.

67    Sixth, the Tribunal then quoted the submissions advanced for the applicant as to why the convictions should not be treated as serious reasons for considering that the applicant committed the crimes (para 50). Those submissions included a claim that the applicant was unrepresented at trial and placed emphasis upon the fact that the applicant was convicted in absentia.

68    Seventh, as already noted, the Tribunal concluded that the fact that the trial was in absentia was a matter of choice made by the applicant when he absconded rather than face the charges. In the course of doing so, the Tribunal said that the applicant 'was legally represented and it was solely as a result of his choice that he was not present at trial' (para 53). Expressed in those terms the reasons express no finding as to whether the applicant was legally represented at trial. The emphasis may be upon the opportunity for the applicant to have been represented at trial because he had been represented in the bail hearings when he was in Sri Lanka. There is no express reference to that earlier representation at this point but, as I have noted, it was the subject of earlier findings by the Tribunal.

69    Eighth, the Tribunal then dealt with the claims by the applicant that the charges were politically motivated. It made the following finding (para 55):

The Applicant's claim that the charges were politically motivated does not explain why charges were laid against his co-accused, who, as far as the evidence before the Tribunal indicates (including the Applicant's oral evidence), was convicted after a trial in which he was represented by legal counsel. The Applicant was cross-examined on that issue (Transcript pages 36 to 37), however, his explanation of why his co-accused, who had no political affiliations, was charged and convicted of abduction and rape if it was in fact the Applicant who was the target of the political interference, was less than convincing. In effect he couldn't provide any coherent reason why that would have been the case if, as he claims, he was the target of politically motivated charges.

70    It was submitted for the Minister that the reference to 'convicted after a trial in which he was represented by legal counsel' is a reference to the applicant's co-accused. I accept this submission. Given the nature of the charges requiring proof of gang rape this was a significant aspect of the convictions and might be expected to be addressed as part of considering whether the convictions at a trial where the applicant was not present but his co-accused was represented by a lawyer might form part of serious reasons for considering that the crimes had been committed by the applicant.

71    Ultimately, the Tribunal expressed its conclusion in the following terms (para 62):

I find that in the circumstances of this case the convictions for abduction and rape following what, on the evidence, appears to have been due process, constitute a serious reason for considering that the Applicant did commit those crimes notwithstanding that the convictions were in absentia. The fact that the convictions were in absentia was effectively by choice of the Applicant. His conduct in breaching bail, stealing a boat and illegally leaving Sri Lanka to avoid the trial are indicative of him having committed the crimes of which he stood charged.

72    No reliance was placed upon any conclusion that the applicant was legally represented at trial (noting that the translation of the sentencing order did not refer to what had occurred in the trial). If it was a significant factor in the Tribunal's reasoning (as is the substance of what is contended for the applicant) it is a matter that might be expected to feature expressly in the conclusion.

73    Reading the reasons of the Tribunal with some care, the reference to the applicant being 'potentially' represented at trial is striking. As is the finding that the co-accused was 'separately legally represented' at the bail hearings. As is the fact that the Tribunal focussed upon the fact that the co-accused was legally represented at trial without making a finding about representation of the applicant at the trial. As is the fact that the only clear finding to the effect that the applicant was legally represented concerns the period leading up to trial before he absconded.

74    The Tribunal's conclusion rested on a general view that there appeared to have been due process because the co-accused was represented at trial and there was the potential for the applicant to have been represented at trial if he had not absconded. The applicant made a choice to leave and thereby gave up his opportunity to defend himself and did so in circumstances where it was to be inferred that he avoided the trial because he had committed the crimes of which he stood charged. Those findings were made on the basis of reasoning supported by consideration of the evidence. They met the standard of 'serious reasons for considering' as to the issue of legal representation and its significance for the ultimate conclusions reached by the Tribunal.

Trial in absentia

75    The applicant submitted that there could not be a trial in Australia in absentia for a trial on indictment. It is the case that there is 'no trial in absentia at common law in the ordinary course': Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485 at [69]; Ebatarinja v Deland [1998] HCA 62; (1998) 194 CLR 444 at [26]; and Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456 at [54].

76    However, the common law and the relevant statute law as to criminal procedure both contemplate a discretion whether to proceed in absentia: see, for example, Criminal Procedure Act 2004 (WA), s 88; Criminal Code 1899 (Qld), s 617(2); R v Abrahams (1895) 21 VLR 343 at 346-347; Hellenic Republic v Tzatzimakis [2003] FCAFC 4; (2003) 127 FCR 130 at [89]; and R v Gee [2012] SASCFC 86; (2012) 113 SASR 372 at [57]-[107]. Amongst other reasons, the discretion to proceed in the absence of the accused may be exercised where the defendant has absconded. In some instances it may be treated as a form of waiver.

77    In those circumstances, I do not accept the submission that the fact that the applicant was convicted in absentia and that conviction formed part of the Tribunal's reasons for considering that the applicant had committed the crimes of gang rape and abduction meant that there were not 'serious reasons'. This is especially so given the Tribunal's reasoning to the effect that the applicant absconded. There was a sufficient basis for the Tribunal to find, as part of its overall reasons, that the legal system in Sri Lanka was on its face not dissimilar to that of Australia. Certainly no evidence or submissions were advanced before the Tribunal to demonstrate that there were material respects in which the process in Sri Lanka was such that it was not appropriate to repose any confidence in the fact of the convictions after a trial at which the co-accused was legally represented. The material before the Tribunal did not invite further inquiry as to whether that was so.

Inference from the applicant absconding

78    For reasons I have given, the quality of the Tribunal's reasoning for rejecting the claim that there were political motivations behind the charges against that applicant has not been impugned. His evidence in that regard was acknowledged by his own counsel to have been included in his account more recently. His claims as to Convention reasons had not been accepted with the consequence that he had not been accepted to be a refugee and there was no attempt to rely upon those claims before the Tribunal. There was no other reason advanced for the applicant leaving Sri Lanka. Therefore, the present case is to be distinguished from instances where there is evidence of other reasons for a visa applicant seeking refuge in a foreign country. In the absence of such evidence and by reason of the other matters relied upon by the Tribunal, including its adverse finding concerning the applicant's credibility, it could not be said that there were not serious reasons for the conclusion that the applicant's actions were indicative of him having committed the crimes of which he stood charged.

Evidence of the complainant's reluctance to prosecute

79    The Tribunal did not ignore the evidence given by the applicant that the complainant was forced by her family to bring the complaint. The Tribunal dealt with that evidence by finding expressly that it did not accept the applicant's claims that 'the complaints made to the police by the woman who claimed to have been abducted and raped were made as a result of pressure' (para 60). The evidence was rejected on the basis of reasoned adverse findings as to the credibility of the applicant's account.

80    The Tribunal did not refer expressly to the evidence given by the applicant that there was a period of about two years when he was held on bail because the complainant 'did not turn up'. However, that specific evidence was simply part of the evidence advanced by the applicant to support his claim that the complainant was pressured to bring the complaint. The evidence was considered by the Tribunal and not accepted on the basis of the credibility finding.

Proportionality

81    An argument was advanced for the applicant to the effect that s 36(2C) required the Tribunal to evaluate whether there were serious reasons for considering that the applicant had committed a serious non-political crime by applying principles of proportionality. It was said that the Tribunal failed to conform to the requirements of s 36(2C) because it failed to undertake any proportionality assessment.

82    There was also an argument advanced for the applicant along the lines that the serious reasons had to evaluate the consequences if he was returned to Sri Lanka and required to serve the sentence that had been imposed in absentia. It appears that an argument of that kind was sought to be advanced in FTZK, but was not entertained: at [99]. In the decision in FTZK, French CJ and Gageler J expressed reserved the question whether the requirement as expressed in Art 1F(b) for the offence to be serious required the application of a proportional or balancing approach: at [12], fn 31.

83    The submissions for the applicant did not identify how an issue of that kind arose on the materials before the Tribunal. The sentence imposed was for terms of imprisonment to be served concurrently with a maximum of 13 years. There was a fine imposed which, if not paid, might result in a further term of 2 years. No submissions were developed as to how these consequences might affect the degree of seriousness that was required in the reasons of the Tribunal. There is no particular consequence for the applicant beyond the length of the term of imprisonment that was identified. Having regard to my rejection of the arguments advanced by the applicant to support the review application I can see no basis on which those reasons might be said to be inadequate when there is regard to the maximum length of imprisonment that the applicant will face if returned to Sri Lanka. There being no matters developed to support the submission it is not made out.

Conclusions as to ground 1

84    For the above reasons each of the matters raised to support ground 1 must be rejected. It follows that those matters taken together do not establish the ground of review. Therefore, ground 1 must be rejected. Counsel for the applicant accepted that the applicant had to succeed on both grounds in order to establish a basis for the review orders sought. The concession was properly made. If the Tribunal had serious reasons for considering that the crimes of rape and abduction had been committed by the applicant and those crimes were serious non-political crimes for the purposes of s 36(2C) then the applicant was ineligible. It did not matter whether there was error as to the separate finding concerning people smuggling charges.

85    Therefore, strictly speaking, it is not necessary to consider ground 2. The submissions of the parties as to ground 2 were quite brief. In the circumstances, I will deal briefly with the matters raised by ground 2.

The Tribunal's reasons as to people smuggling

86    As to people smuggling, The Tribunal reasoned as follows (paras 63-65):

The uncontroverted evidence, largely that of the Applicant himself, is that:

(a)    the Applicant stole the boat in which he and five others left Sri Lanka without the 'permission of the Sri Lankan authorities and….valid travel documents' for the express purpose of coming to Australia (T24, paras. 21 and 22);

(b)    the Applicant was the skipper of the boat nominated on the fishing pass issued by the Sri Lankan Navy (T24, para. 20);

(c)    the Applicant was the skipper of the boat for the purposes of leaving the harbour (Transcript page 39);

(d)    it was the Applicant who determined that there should not be any more than six people on the boat when it left the harbour because any more than that would have aroused Sri Lankan Navy suspicion (Transcript pages 39 to 40); and

(e)    all of the people on the boat were non-citizens of Australia and none had a lawful right to come to Australia.

The above facts are a serious reason for considering that the Applicant committed the serious crime of people smuggling contrary to s 233A of the Act and/or aggravated people smuggling contrary to s 233C of the Act. In particular his action of stealing the boat, of which he was the nominated skipper, facilitated the coming to Australia of five other non-citizens, none of whom had a lawful right to come to Australia.

The fact that others may also have been involved in organising the boat trip from Sri Lanka to Australia, or elements of the venture, such as purchasing fuel or supplies, does not alter the fact that the Applicant's actions significantly and critically facilitated the coming to Australia of the five other people. The single most important element of the venture was the stealing of the boat by the Applicant. Without that there would have been no boat trip to Australia. Accordingly, I find that there are serious reasons to consider that the Applicant also committed the offences of people smuggling or aggravated people smuggling. For the reason set out in [64] above, I have determined that offences against ss 233A and 233C of the Act are serious non-political crimes.

Ground 2: Alleged failures to consider certain matters in finding people smuggling

87    Three matters were raised as to the Tribunal's finding that there were serious reasons for considering that the applicant had committed people smuggling which was a serious non-political crime.

88    First, it was said that the Tribunal failed to have regard to the absence of evidence that the applicant had been prosecuted for the offences. Mere failure to have regard to a matter, even a matter that might be said to be relevant, is not a jurisdictional error unless it be shown that there was a statutory duty to have regard to that matter (which is not the case in this instance). Further, failure by the Tribunal to refer to a matter may indicate that the Tribunal did not consider the matter to be material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5]-[10] (Gleeson CJ), [69] (McHugh, Gummow and Hayne JJ). The position was summarised by Bell, Keane and Gordon JJ in ETA067 v The Republic of Nauru [2018] HCA 46 at [13]-[14] in the following way (citations omitted):

The absence of an express reference to evidence in a tribunal's reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had to the content of the obligation to give reasons, which, here, included referring to the findings on any 'material questions of fact' and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.

Further, there is a distinction between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant's claims, and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant's claim or that would be dispositive of the review.

89    The fact that the applicant had not been prosecuted for the offences of people smuggling was not dispositive of the question before the Tribunal. Nor was it of fundamental significance or an essential integer to the applicant's claim. There may be many reasons why the applicant was not prosecuted. There is no suggestion that a prosecution had been considered and not pursued. Even if that were the case, one of the reasons why a prosecution may not have occurred is the need to prove matters beyond reasonable doubt, a standard which does not apply in determining whether there are serious reasons for considering that the applicant committed such offences (see above). In those circumstances, there is nothing to indicate that the failure to refer to the absence of evidence that the applicant had not been prosecuted for people smuggling was a failure to consider that matter.

90    Second, it was said that the Tribunal failed to consider whether the people smuggling offences were serious non-political offences. Expressed in those terms, the point is misconceived. The Tribunal considered that matter expressly and concluded that the offences were serious crimes for the purposes of s 36(2C) of the Migration Act (para 35).

91    A submission was advanced that in determining whether a crime was sufficiently serious various matters were required to be taken into account. The Tribunal's reasoning as to the matters to be taken into account in deciding whether the people smuggling offences were serious was undertaken by reference to the reasoning in JSDW and Minister for Immigration and Border Protection [2017] AATA 2420. In that decision, reference was made to the Background Note; the term 'serious Australian offence' used in other provisions in the Migration Act; the maximum penalties that apply; and the risk to life and safety of those smuggled. It was also recognised that all relevant factors must be taken into account. The analysis included the consideration of personal mitigating factors and the circumstances of the particular offence. Therefore, the Tribunal in JSDW had taken into account a broad range of factors in reaching its conclusion.

92    However, the submission advanced did not seek to demonstrate error in the approach in JSDW (a matter about which, in the absence of argument, I express no view). Rather, the submission was to the effect that the Tribunal could not reason by simply saying it was of the view that the crimes of people smuggling contrary to s 233A and s 233C of the Migration Act were serious crimes 'for the reasons set out in JSDW'.

93    The Tribunal can reason by adopting an analysis in a previous decision. The question is whether the Tribunal has by copying or adopting reasoning in another decision failed to discharge its statutory function to make its own findings: MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133; (2015) 234 FCR 154 at [36]-[60].

94    The reasoning in JSDW that was expressly adopted by the Tribunal in its decision in the present case was reasoning to the effect that the nature of the offence and the level of the penalty were matters that prima facie established that an offence under s 233A was a serious crime. The Tribunal in the present case referred to JSDW at [40]-[46] and the prima facie conclusion based on those matters was stated at [47]. The same reasoning was applied for the more serious offence against s 233C. Therefore, the Tribunal's reasoning by reference to JSDW in the present case rests upon the view that the people smuggling offences are prima facie serious crimes. Applying reasoning of that kind by reference to a legal analysis in an earlier Tribunal decision does not indicate a failure to undertake the statutory task.

95    Later in the Tribunal's reasons, after considering the circumstances said to amount to people smuggling, the Tribunal then concluded that 'there is nothing in the circumstances in which those serious crimes were committed or the circumstances specific to the Applicant at the time that he committed those offences or subsequently, which should cause those crimes to be treated as anything other than serious non-political crimes for the purposes of [s 36(2C)]' (para 67). Therefore, it is not the case that the Tribunal failed to consider the specific circumstances and whether they led to a different conclusion to that indicated prima facie by the nature of the conduct prescribed by the offence provisions. This is not a case in which there was a failure to consider the question.

96    There was a submission advanced orally that the Tribunal failed to consider whether the crimes of people smuggling were common crimes in the sense that they were generally recognised as criminal by the common consent of nations: see FTZK at [78] (Crennan and Bell JJ). It was said that by reason that s 36(2C) gave effect to the Convention the reference to 'serious non-political crime' should be interpreted consistently with that requirement which applied under the Convention. On that basis, it was submitted that there had been error by the Tribunal in failing to consider whether people smuggling was generally recognised as a crime, particularly in circumstances such as that which pertained to the applicant where a small group of people had acted together to leave Australia by boat and all those involved were on the boat.

97    No such contention was raised before the Tribunal. An issue was raised as to whether any contravention of unlawful departure from Sri Lanka contrary to s 45C of its Immigrants and Emigrants Act 1948 was a serious crime. However, as to people smuggling, the matter was put on the basis that the issue was whether there were serious reasons for considering that the applicant had committed such an offence. Despite those circumstances, there was no attempt by the applicant to articulate why the Tribunal ought to have embarked upon its own investigation and consideration as to whether people smuggling was generally recognised internationally as a serious crime and its failure to do so gave rise to a jurisdictional error. Nor did the applicant seek to advance any argument to the effect that had the Tribunal embarked upon that course then it might have reached the conclusion that people smuggling was not a common crime.

98    Whether people smuggling is a crime that is generally recognised as serious and, if so, whether the nature of the alleged offending in this case was of that character are issues the resolution of which would benefit from detailed argument. In all the circumstances, and given the conclusion I have reached as to ground 1, I do not consider it necessary or appropriate to reach a concluded view as to the additional contention raised orally on behalf of the applicant.

99    Third, it was said that the Tribunal failed to carry out an assessment of proportionality of the effects of the applicant being returned to Sri Lanka. This is the same argument that was advanced in relation to ground 1, but presented in relation to the people smuggling offences. For reasons I have given in relation to ground 1, I reject the submission.

Submission that applicant deserving of protection

100    Finally, I note that submissions were advanced for the applicant to the effect that he had been found to be deserving of Australia's protection and it would be extraordinary in those circumstances if he was deprived of protection by the manner in which he sought to escape the harm from which he deserved protection.

101    The submission ignores the fact that the Convention has been framed with exclusions. One consequence is that its protections do not extend to those who leave a country to escape responsibilities for serious non-political crimes. On the findings of the Tribunal, the applicant left Sri Lanka so as not to face the serious charges brought against him. The consequence of the Tribunal's decision is one contemplated by the Convention. It is likewise contemplated by s 36(2C) which was enacted to conform to its terms. It is entirely a matter for the Executive whether it will return the applicant to Sri Lanka given the findings by the Authority as to the consequences he may face. The criteria for a protection visa are taken not to be satisfied in a case like the present.

Costs

102    Both parties accepted that costs should follow the event. Accordingly, the application should be dismissed with costs.

Associate:

Dated:    24 January 2020