Federal Court of Australia

DGYT v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 438

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari be issued quashing the second respondent’s decision made on 18 November 2022.

2.    A writ of mandamus be issued requiring the second respondent to consider the applicant’s application for review according to law.

3.    The first respondent pay the applicant’s costs as agreed or taxed pursuant to r 40.12 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

RAPER J:

Introduction

1    A person is excluded from refugee protection (where they would otherwise fall within the definition of “refugee” under the Migration Act 1958 (Cth)) if the Minister has serious reasons for considering that the person committed a serious non-political crime before entering Australia. Accordingly, the answering of the question as to whether the Minister has serious reasons may have extremely serious consequences, as it may ultimately be a question of life or death for the person who is returned to their country of origin.

2    By originating application, filed 19 December 2022, DGYT, the applicant, seeks judicial review pursuant to s 476A of the Act of the Administrative Appeals Tribunal’s (or AAT’s) (second respondent’s) 18 November 2022 decision affirming a 7 July 2021 decision by a delegate (D) of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, to refuse the grant of a Permanent Protection (subclass XA-866) visa to the applicant pursuant to s 65 of the Act.

3    This application concerns whether the Tribunal committed jurisdictional error warranting remedies of certiorari, mandamus and injunctive relief. The epicentre of the applicant’s challenge is the construction of ss 5H(2)(b) and 36(2C)(a)(ii) of the Act and whether those sections applied to the applicant, excluding him from refugee protection under the Act.

Background

4    The applicant is a thirty-year-old citizen of the People’s Republic of China. The applicant’s Protection visa Application was lodged on 25 July 2019. Accompanying that Application was an initial statement where he made a series of claims which included the following:

(a)    He worked for an enterprise under the General Staff Department of the Ministry of Defence in Mainland China.

(b)    His father and father-in-law are public servants of the Communist Party of China.

(c)    While of a younger age and in possession of an imperfect world view, he had participated in a series of espionage activities involving, among other things, the organised sabotage of democratic activity.

(d)    As he grew in age, a change of world view followed. He became opposed “to the actions imposed by the Communist Party of China that trample on democracy, human rights and freedom”. And so, upon receiving a false passport, identity card and an assignment to arrive in Taiwan on 28 May 2019 to manipulate the 2020 presidential election he chose instead to break away.

5    The applicant’s initial statement made reference to his acute fear of harm if returned to China:

… after I give this statement … if I return to the place under their control, I will surely be killed for disclosing the secrets … This makes me extremely fearful and places me in a state of anxiety. I feel suffocated … my entire family are being affected and put under dark shadows. I request that the Australian government should keep confidentiality of the statement I am to give as follows and provide me with protection.

6    The statement also referred to the applicant’s dealings with a person who, consistent with the Tribunal’s nomenclature, will be referred to as Mr XX. According to his statement, Mr XX was the director-general of an entity operating in Hong Kong controlled by the Chinese Government. Together, the applicant claimed he and Mr XX, among others in the entity, pursued Chinese governmental interests by subverting democratic processes in Hong Kong and Taiwan. In addition, the applicant claims to have been involved in stealing military technology, purchasing weapons, and corporate espionage for the Chinese government.

7    On or around 25 December 2018, the applicant entered Australia, then lodged his Protection Application approximately seven months later. Ten months after lodging that application, the applicant approached various media organisations advancing claims similar to those outlined above.

8    As a result of the applicant’s claims to the media, several print and television publications were published or broadcast. Relevantly among them was a 23 November 2019 piece in the Sydney Morning Herald titled “Defector exposes Chinese spy, interference secrets”. A day later, on 24 November 2019, the applicant appeared on the 60 Minutes program broadcast by the Nine Network.

9    On the same day as the applicant made his appearance on the 60 Minutes Program, the Chinese Embassy in Australia published an article titled “Self-proclaimed Chinese agent a convicted fraud: police” to the following effect:

A Chinese man, who was reported by some foreign media to have worked as a secret agent and then defected, is a convicted fraud and wanted suspect, the Shanghai police said Saturday.

The [applicant], 26, is a native of … China’s Fujian Province and was sentenced to one year and three months in prison for fraud with a suspended sentence of a year and half by the court of Guangze county in Fujian in October 2016, a police statement said.

On April 19, 2019, the Shanghai police opened an investigation into [the applicant] who allegedly cheated 4.6 million yuan (about 654,339 U.S. dollars) from a person surnamed Shu through a fake investment project involving car import in February, the statement said.

[The applicant] left for Hong Kong on April 10, carrying a fake Chinese passport and a fake permanent resident ID of Hong Kong, it added.

The Shanghai police said they are investigating this case.

[The applicant] has reported by some foreign media including The Sydney Morning Herald to have defected to Australia and confessed that he had worked as a secret agent in Hong Kong and Taiwan.

According to the reports, he claimed that he held a Chinese passport, a permanent resident ID of Hong Kong and a passport of the Republic of Korea under the name of [a different person].

10    On 30 November 2019 an article entitled “Beijing bit player at best as cloak-and-dagger claims fall away” was published in the Weekend Australian which included the following statements:

The 27-year-old generated international headlines and roiled Australia’s already turbulent relationship with China when he appeared in Nine’s 60 Minutes program with his extraordinary tale of international intrigue.

[The applicant] claimed to have interfered with elections in Taiwan, infiltrated the student movement in Hong Kong and played a role in the kidnapping of the Causeway Bay Five, a group of Hong Kong booksellers snatched from Hong Kong and rendered to the Chinese mainland.

…

The Weekend Australian understands security agencies are firming in their view [the applicant] was never a highly trained operative, although they leave open the possibility he might have been a fringe player.

…

According to Beijing, [the applicant] was convicted in October 2016 for scamming $32,000 from a man by promising to get his children into school. A second charge of fraud was hanging over him when he arrived in Australia seeking asylum earlier this year. Shanghai police said that on April 19 they opened an investigation into [the applicant] over a car import business which allegedly defrauded a person of $960,000. China claims [the applicant] is a fugitive.

[The applicant] denies any wrongdoing and has since gone to ground. China, of course, has an interest in discrediting him. And it is presumably within China’s power to falsify the many privately owned databases within which the details of [the applicant]’s alleged fraud were held, as well as the CCTV footage released this week that purports to show him front the Guangze People’s Court in Fujian to answer his 2017 charge. But in the hall of mirrors that is international espionage such questions can become endless. There comes a point when you have to ask if the simplest explanation is also the right one. China produces plenty of spies. It also produces its fair share of criminals.

11    By summons filed 24 January 2020, Mr Shu (referred to in the Embassy’s above statement) filed an ex parte application in the New South Wales Supreme Court seeking orders to freeze the assets of the applicant and his wife. In support of the application, Mr Shu filed a ten page affidavit (Shu affidavit) claiming to have entered a series of commercial agreements with the applicant – or alternatively a deed of forbearance with the applicant’s wife on 3 August 2019 – from which he asserted the applicant and his wife owed him approximately $3 million. Mr Shu also deposed that in the course of their dealings, the applicant stated that Mr Shu’s invested capital would be secured against a property he and his wife owned in Shanghai. Mr Shu claimed that he was informed by the Shanghai Public Security Bureau on 18 April 2019 that the property had never been owned by the applicant and his wife. The summons sought declaratory and compensatory relief arising under contract and under the Australian Consumer Law. On 24 January 2020, the NSWSC made the freezing orders sought by Mr Shu. The parties agreed that default judgment was subsequently ordered in favour of Mr Shu on 3 June 2020. The applicant contended that, because of a lack of funds with which to retain lawyers, he was unable to file a defence to Mr Shu’s application.

Relevant legislation

12    It is useful to place this dispute within its legislative context before considering the delegate’s decision and Tribunal’s findings that the applicant fell within the exception under s 5H(2)(b) of the Act, namely that there were serious reasons for considering that the applicant had committed a serious non-political crime.

13    Section 5H defines the circumstances in which a person is or is not a refugee under the Act. Critical to this application is the construction of the exclusion, mentioned immediately above, under s 5H(2)(b).

14    Section 5H provides:

5H Meaning of refugee

(1)     For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)    in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note: For the meaning of well-founded fear of persecution, see section 5J.

(2)     Subsection (1) does not apply if the Minister has serious reasons for considering that:

(a)     the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(b)     the person committed a serious non-political crime before entering Australia; or

(c)     the person has been guilty of acts contrary to the purposes and principles of the United Nations.

    (Emphasis added)

15    Section 5H comprises the legislative embodiment of Arts 1A(2) and 1F of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (Refugee Convention). Article 1F of the Refugee Convention provides:

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.

16    Subsections 36(1A) and (2C) of the Act concern the eligibility or ineligibility for a protection visa and embrace the s 5H definitions in the following ways:

36 Protection visas—criteria provided for by this Act

(1A) An applicant for a protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and

(b)    at least one of the criteria in subsection (2).

…

Ineligibility for grant of a protection visa

(2C)     A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

(a)     the Minister has serious reasons for considering that:

(i)     the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(ii)     the non-citizen committed a serious non-political crime before entering Australia; or

(iii)     the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or (b) the Minister considers, on reasonable grounds, that:

(i)     the non-citizen is a danger to Australia’s security; or

(ii)     the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.

The delegate’s decision

17    On 7 July 2021, the applicant was notified of the Minister’s delegate’s decision to refuse him a protection visa on the basis that whilst the applicant had a well-founded fear of being harmed or persecuted on the basis of his political opinion should he return to China and should he return there is a real risk of him being subject to extra-judicial killing or being sentenced to death, or otherwise being incarcerated for life, he was not a refugee for the purposes of the Act because he had committed a serious non-political crime before entering Australia (at D56–8): ss 5H(2)(b) and 36(2C)(a)(ii).

18    Of particular relevance to this review is whether the Tribunal was required to identify the alleged “crime” and analyse whether there were serious reasons for considering that the applicant had committed a serious non-political crime by a consideration of the crime’s elements. It is worthwhile therefore considering whether the delegate identified an alleged crime and considered its elements. The delegate describes, in the “Summary of the Issues”, the Chinese government’s allegation that the applicant was a “convicted fraudster” who had been convicted of fraud offences in Fujian province in 2016 and separately, had committed “fraud offences” against Mr Shu in 2019: at D8. Thereafter, the delegate, in a generalised way, described the applicant as being “investigated for fraud”: at D19 and D42. The delegate also found that there was sufficient doubt regarding the allegation that the applicant was convicted of a criminal charge in 2016: at D20.

19    In the context of the delegate’s consideration of whether the applicant’s fear of persecution was well-founded, for the purpose of s 5J(1)(b) of the Act, the delegate gave consideration to the country information specific to the Chinese government’s fraud allegations, and made reference to the possible penalties for fraud offences under Chinese criminal law with reference to Arts 266, 192 and 199 of the Chinese criminal code: at D43.

20    The delegate did not, as part of his consideration of the exclusion under either ss 5H(2)(b) or 36(2C)(a)(ii), identify with any precision the alleged “serious non-political crime”. Somewhat inconsistently, the delegate appeared to appreciate the necessity of considering the type of crime and the penalty for the crime when considering whether there were “serious reasons” and whether the crime fell within the “serious” category and was of a non-political nature: at D48.

21    The delegate found that there were serious reasons for considering that the applicant had committed a serious non-political crime by reason of the NSWSC ex parte freezing order being an “exceptional remedy” demonstrating a “good arguable case”, taken together with the affidavit evidence before him: at D49. This is curious given no allegation of a crime underpinned that application. It is useful to extract the delegate’s reasons in relation to the freezing order (at D49, citations omitted):

The ex parte freezing order relates to the claim by the Plaintiff (Mr Shu) that the Applicants were “swindling” him by failing, neglecting and refusing to repay him an amount of AUD 3 million owed pursuant to a loan and a deed of forbearance. Acknowledging that at the time of this decision no further litigation has been commenced by Mr Shu in order to reclaim the alleged outstanding money, the ex parte freezing order granted by the NSW Supreme Court on 24 January 2020 indicates that a judge considered Mr Shu had a good arguable case on an accrued or prospective cause of action.

The courts have previously stated that a “good arguable cause” is “one which is more than barely capable of serious argument, and yet not necessarily one which the judge believes would have a better than 50 per cent chance of success”. However it is noted that it is a less stringent test than requiring proof on the balance of probabilities.

It is also relevant to note that granting an application for a freezing order on an ex-parte basis is an “exceptional remedy” and “one that should not be granted lightly” and is applied for out of fear the other party will dispose of their assets. Noting there has not been substantive consideration of the civil matter, the fact that the judge granted the ex parte application is indicative that Mr Shu has a “good arguable” case and there was consideration of the likelihood of the Applicants disposing their assets.

While this is not decisive and the matter has not progressed, it lends support to the information contained in the affidavits, which together, supports having ‘serious reasons for considering’ the Applicant has committed a serious non-political crime.

22    These observations are made within a vacuum – without having first identified what the alleged crime is. The delegate then considers the affidavits from the Supreme Court proceedings, and finds that the applicant (and his wife) “made false representations to Mr Shu” regarding the alleged employment relationship with Mr XX and others “as a way of aiding them in obtaining Mr Shu’s trust and (ultimately) his money”: at D49. It is unclear how (and by reference to what crime) the delegate determined a false representation was an essential integer and what was the test being applied for it to be concluded to be so.

23    This false representation was said to have been perpetrated by the following (at D50, citations omitted):

I find that this false representation was perpetrated by both Applicants from at least September 2018 until April 2019, and involved:

•    oral and written communications between the Applicants and Mr Shu that the Applicant was doing business on behalf of [Mr XX] - this included forwarding emails to Mr Shu claiming they were from [Mr XX], and encouraging Mr Shu to email [Mr XX] directly by providing him with [Mr XX’s] email address (noting the address itself was a free domain and otherwise unverified);

•    evidence of bank transfers made between the Applicant’s BOC and [Mr XX’s] business bank accounts, which is an unverified document containing discrepancies;

•    showing Mr Shu the Applicant’s counterfeit identity documents and saying that [Mr XX] had made them for him, to further convince Mr Shu of the Applicant’s connection to [Mr XX]; and

•    paying Mr Shu RMB 2 million upon Mr Shu’s request to [Mr XX] and representing that the money came from [Mr XX], despite the Applicants admitting at the PV interview they had borrowed the money from relatives and friends with the explanation that the money from [Mr XX] had not come through in time to give to Mr Shu. It has already been identified above that this lack of explanation given to Mr Shu suggests the most likely explanation for why the Applicants didn’t tell Mr Shu the true source of the money was because they wanted him to believe the money was from [Mr XX] so that their deception could be perpetuated.

24    The delegate then found, on the basis of the above, that the applicants obtained RMB 3 million (approximately AUD582,000) “fraudulently and by deception”. The concept of “deception” is introduced for the first time again without identification of the alleged crime and its elements for which such a finding would be relevant: at D50. The delegate went on to say that admissions made by the applicant and his wife confirmed their deception, which was described in the following way (at D50, citations omitted):

Specifically, the evidence demonstrated that the Applicants made admissions (noting also at one point they recanted this information when it was put to them that they had been deceptive) that they used “an excuse” that “wasn’t true” and used a false pretence to acquire Mr Shu’s money, noting:

•    they used Mr Shu’s money to pay an outstanding court enforcement order against the Applicant in a Bengbu City court, instead of using it for the purpose intended by Mr Shu which was to pay the purchase tax on the Applicants' Shanghai Property as claimed;

•    the manner in which the Applicants obtained the money from Mr Shu was calculated, planned and complex; and

•    in the absence of any other plausible explanation, it appears the Applicant falsified documents in order to make the bank transactions look like they had been sent to an investment fund when in fact the Applicant transferred Mr Shu’s money to his relatives, friends and other creditors.

And most significant and relevant to providing serious reasons for considering the Applicant committed fraud is that there is no evidential basis to support a finding that the Applicant has invested Mr Shu’s money (more than AUD 1.2 million) with any investment project related to [Mr XX] after the money was transferred by Mr Shu into the Applicant’s personal BOC bank account.

25    The delegate then considered that the applicant’s bank statements did not reconcile with the applicant’s claims and found that there was strong evidence to support the allegation that Mr Shu’s money was obtained for purposes other than investing it with Mr XX or his companies and supported the allegation of “financial misappropriation” such that there was “strong probative evidence that crimes relating to fraud have been committed”: at D52.

26    Accordingly, for the purpose of considering whether there were “serious reasons for considering”, the delegate did not identify with precision the alleged crime and its elements and whether could have been satisfied according to Australian or Chinese law.

27    It is only when turning the question of whether the “crime of fraud constitutes a ‘serious’ crime” that any attention is given to what the crime might be. But again, what the alleged crime constituted remained elusive: at D52. The delegate deployed definitions under the Act of “serious foreign offence” and “serious Australian offence” and then, apparently, being aware of the “crime of fraud” being of broad import, and that certain “white-collar” crimes would not fall within those definitions, made reference to what penalty such a crime would attract under Chinese law, referring to “serious fraud offences for amounts over RMB 500,000 …incur[ring] severe penalties including the death penalty”: at D53. The delegate then turned to consider the operation of the Criminal Code 2002 (ACT) and referred, in a cursory way, to the following offences under that code: obtaining property by deception (s 326); obtaining financial advantage by deception (s 332); general dishonesty (s 333); and using false document (s 347) (at D53).

28    The delegate’s finding as to seriousness is predicated, in part, upon imprecision: The delegate concluded that “these considerations support a finding that fraud related acts are sufficiently serious to constitute a ‘serious’ non-political crime” (at D53, emphasis added).

29    Curiously again, in the context of considering how much money was involved in the alleged conduct, for the purpose of assessing the “seriousness” of the crime, the delegate, contrary to what appeared to be how he understood his task (meticulously evaluating the offence and the possible defences: at D48), stated (at D53):

I also note that it is not the role of the department, in the absence of any determination or orders of the court, to examine the financial dealings of the legal parties or to make any conclusions regarding the contractual liability of Applicant 2 under the deed of forbearance they admitted to signing, or any possible defences to the crime (such as the defence of duress), as these are questions of law and are not related to having ‘serious reasons for considering’ whether the Applicant committed a serious nonpolitical crime.

30    It is evident that the delegate had made the initial finding that there were “serious reasons” for considering that the alleged conduct, by reference to either Chinese or Australian law (at D52–3), devoid of any elemental analysis as to what constituted a particular “crime”. There was no symmetry between that finding and whether the alleged crime was “serious”.

The Tribunal’s decision in context

31    Before considering the Tribunal’s decision, it is worth considering how the parties described the alleged crime(s) said to provide or not provide a basis to exclude the applicant from protection under the Act.

32    In his statement of facts, issues and contentions before the Tribunal, the applicant submitted that the Shu affidavit taken at its highest constituted an allegation that he falsely represented owning the Shanghai Property used as security, defined as the “Alleged Crime”.

33    In oral opening before the Tribunal the applicant submitted that consideration need to be given to whether the applicant’s alleged conduct satisfied “the elements of the offences under part 3.3 of the Criminal Code 2002”:

So the applicant says that the questions of law revolve - or basically where the reasons outlined - and those reasons can be found on pages 7 to 11 of that document - whether those reasons are (indistinct) the allegations made in Shu's affidavit - the order of the New South Wales Supreme Court and (indistinct) an affidavit of the second applicant, and the applicant's oral evidence to the Department - whether those four reasons constitute serious reasons for considering, pursuant to section 5H(2)(b) and section 36(2)(C)(a)(ii), and then whether the applicant's alleged conduct satisfy the elements of the offences under part 3.3 of the Criminal Code 2002 ACT. And whether the conduct constitutes serious non-political crime for the purpose of section 5H(2)(b) and section 76(2C)(a)(ii) [sic].

34    The respondent’s statement of facts, issues and contentions did not specify the alleged crime with any greater specificity than “the crime of fraud”. Instead, the respondent submitted that the Tribunal should accept there are serious reasons for considering the applicant “committed a crime, being the crime of fraud”. It is useful to extract paragraphs [46]–[47] of the respondent’s submissions before the Tribunal (which notably are silent as to the particular crime and its elements but pick up possible offences and their sanctions under Chinese law):

46.     The Respondent submits that the information set out above supports a conclusion that the Tribunal should have serious reasons for concluding that the Applicant committed a crime, being the crime of fraud, in 2018. The delegate specifically considered the following fraud offences, and the penalties for those offences (T54):

Section 5. Crimes of Financial Fraud

Article 192. Whoever for the purpose of illegal possession illegally raises funds by fraudulent means, if the amount is quite big, is to be sentenced to not more than five years of fixed-term imprisonment or criminal detention, and to a fine of not less than 20,000 yuan and not more than 200,000 yuan; when the amount is enormous or other circumstances are serious, the sentence is to be not less than five years and not more than 10 years of fixed-term imprisonment, and a fine of not less than 50,000 yuan and not more than 500,000 yuan; when the amount is especially enormous or other circumstances are especially serious, the sentence is to be not less than 10 years of fixed-term imprisonment or life imprisonment, and a fine not less than 50,000 yuan and not more than 500,000 yuan or confiscation of property.

…

Article 199. Offenders of Articles 192, 194, and 195 of this section that cause extraordinarily heavy losses to the interests of the state and the people shall be sentenced to life imprisonment or death, with forfeiture of property.

…

Chapter V The Crime of Encroaching on Property

Article 266. Those defrauding relatively large amounts of public or private money and property are to be sentenced to three years or fewer in prison or put under criminal detention or surveillance, in addition to fines; or are to be fined. Those defrauding large amounts of money and property or having involvement in other serious cases are to be sentenced to three to 10 years in prison, in addition to fines. Those defrauding extraordinarily large amounts of money and property or involving in especially serious cases are to be sentenced to 10 years or more in prison or given life sentences, in addition to fines or confiscation of property. If cases are governed by other stipulations of this law, those stipulations shall apply.

47.     The Respondent contends that there is sufficient evidence before the Tribunal for it to have serious reasons for believing that the Applicant committed the crime of fraud on the basis that:

(a)     The Applicant fraudulently informed Mr Shu that he required 300,000 RMB to pay property tax, rather than informing Mr Shu that he required the money to settle a pre-existing court dispute for the purpose of being able to dispose of property the subject of that dispute;

(b)     The Applicant falsely claimed to be employed by [Mr XX] in order to pursued Mr Shu to transfer money into his account;

(c)     The Applicant fraudulently offered Mr Shu a mortgage on a property he and his wife did not own as security for money he had borrowed from Mr Shu; and

(d)     That the funds obtained from Mr Shu were redistributed to the Applicant's family and friends, rather than being used for the purpose the money was given.

35    The Pt 3.3 offences of the ACT Criminal Code appeared in the applicant’s closing written submissions at [26], where the applicant submitted:

26.     The questions of law include whether the:

a)     reasons outlined in the Respondent’s SFIC at [7]-[11], being (i) Allegations made in Shu’s affidavit; (ii) Order of the NSW Supreme Court; (iii) Bank Statements and Affidavit of the Second Applicant; and (iv) the Applicant’s oral evidence to the Department constitute “Serious Reasons for Considering” pursuant to s5H(2)(b) and s36(2C) (a)(ii).

b)     Applicant’s alleged criminal conduct satisfies the elements of the offences under Part 3.3 of the Criminal Code 2002 (ACT) (the “Criminal Code”) and whether the alleged criminal conduct constitutes “Serious Non-Political Crime” for the purpose of s5H(2)(b) and s36(2C) (a)(ii).

c)     Alleged Serious Non-Political Crime was committed before the Applicant entered Australia on 26 December 2018.

36    The applicant developed his submission, in answer to the question he posed at [26(b)] (extracted immediately above), by performing an elemental analysis of the Pt 3.3 ACT offences and the corresponding evidence at [191]–[210] of his closing written submissions, submitting that none were made out. In response, the respondent submitted, again by an elemental analysis of the Pt 3.3 ACT code offences, how the relevant elements were satisfied on the evidence (at [54]–[55] of the respondent’s submissions before the Tribunal).

The Tribunal’s decision

37    Pursuant to s 500(1)(c) of the Act, the Tribunal reviewed the decision of the Minister’s delegate and decided that the applicant did not meet the requirements for the grant of a protection visa.

38    The issue before the Tribunal concerned whether there were serious reasons for considering that the applicant committed a serious non-political crime before entering Australia: at AAT[19]. The subject matter of the Shu affidavit and the NSWSC proceedings were central to that inquiry.

39    However, somewhat strangely, it is not apparent from the Tribunal’s reasons exactly what the crime was at issue. There are general references in the Tribunal’s reasons to “the allegations of fraud” as arising from the press release from the Chinese Embassy (extracted at [9] above). The Tribunal then introduced (at AAT[27]) the allegation, in the context of “some factual findings”, and referred to the applicant’s denial of “any misleading or deceptive conduct and any fraud” and described the alleged events as the “alleged fraud”: at AAT[30]. There is no identification of what the Tribunal understood comprised the elements of “fraud” nor any indication that they were considered.

40    The Tribunal determined that “there is no significant dispute about much of the factual substratum deposed to by Mr Shu” including in relation to (at AAT[27]):

(a)    transferring considerable sums of money to the applicant to invest in a car importation investment scheme (the Car Project) based on representations of significant returns;

(b)    the Shanghai Property was not available to be mortgaged in favour of Shu and the investment funds have not been repaid; and,

(c)    that in November 2019 the Shanghai police published a statement that the applicant is a fraud and owes money to Shu.

41    The Tribunal determined that there was “strong evidence to support” the following (at AAT [28]):

(a)     The Applicant’s wife became pregnant in 2017 and Mr XX said that he could help them buy the Shanghai Property. They chose a property and told Mr XX who said, “Ok, I’ll do it for you”. A month later, Mr XX said, “You’d better buy this property in your wife’s name”;

(b)     The Applicant’s wife had formed an acquaintance with Mr Shu and asked him if she and her husband could borrow 300,000 Yuan for the purpose of paying a tax liability arising from the purchase of the Shanghai Property. Mr Shu agreed and paid 300,000 Yuan to the Applicant’s bank account on 25 September 2018;

(c)     The sum of 300,000 Yuan was used by the Applicant to pay a liability for legal fees arising from a dispute with the developer of three properties unrelated to the Shanghai Property. The money paid by Mr Shu was not used to pay the purchase tax liability on the Shanghai Property which, on the Applicant’s own evidence, was for an amount of 1,401,000 Yuan. It follows that the Applicant’s wife misled Mr Shu about the purpose for making the loan;

(d)     In late September 2018, the Applicant’s wife introduced Mr Shu to the Applicant who informed him of an investment opportunity in the Car Project which would provide a prospective return of 26 million Yuan by the end of February 2019. At first, Mr Shu said he would invest 1 million Yuan (less the 300,000 Yuan loan) but on 11 October 2018 he agreed to invest 6 million Yuan. The total investment in the Car Project was 14 million Yuan. The Applicant would provide the balance of 8 million Yuan;

(e)     The investment vehicle for the Car Project was Duoda Innovation, a company controlled by Mr XX. On 19 October 2018, Mr Shu entered into a written Entrusted Shareholding Agreement with the Applicant which recorded Mr Shu’s entitlement to a 42.85% share of the Car Project of Duoda Innovation;

(f)     Between 17 October 2018 and 30 January 2019, the Applicant transferred the sum of 6,246,326 Yuan to the Applicant’s bank account;

(g)     The Applicant provided Mr Shu with a copy of his bank transaction record purporting to show that he had transferred 14 million Yuan on 18 October 2018 for the purposes of the Car Project;

(h)     In late February the Applicant sent to Mr Shu via WeChat an image of what appeared to be a text message from the Bank of China advising that a transfer to him of 30,070,000 HKD was in transit. The Applicant then informed Mr Shu that the sum of 30,070,000 HKD was frozen by the Chinese government and that it had been returned to the original account.

(i)     In late February 2019, the Applicant advised Mr Shu that he and his wife needed more time to pay the outstanding money. It was agreed between them that the total outstanding money due to Mr Shu was 14,957,428 Yuan and that to secure this money, a mortgage would be granted over the Shanghai Property, with interest payable at 2% per month;

(j)     Mr Shu received the sum of 2,898,227 Yuan from the Applicant in March 2019 but no further monies have been paid, nor has the mortgage over the Shanghai Property been granted in favour of Mr Shu;

(k)     In late March 2019, Mr Shu spoke to the Applicant and his wife who said that they were in Australia but agreed to enter into a written loan agreement reflecting the amount outstanding;

(l)     In early April 2019, the Applicant offered the Shanghai Property as security for the amount outstanding. The Applicant, his wife and Mr Shu met at the Real Estate Trading Centre. The Applicant and his wife told Mr Shu that a mortgage could not be granted as the Shanghai Property was not in the name of the Applicant’s wife. Later that evening Mr Shu entered into a written loan agreement with the Applicant and his wife;

(m)     On 18 April 2019, the Applicant attended the Shanghai Public Security Bureau and provided a detailed report of the conduct of the Applicant and his wife. The Shanghai Public Security Bureau told Mr Shu that documents purporting to show ownership of the Shanghai Property and transfer of funds were fraudulent documents;

(n)     Mr Shu believes that the Shanghai Property was never owned by the Applicant or his wife and that the money he provided to the Applicant was not invested in the Car Project;

(o)     A “Notification of Filing” records that the Shanghai Public Security Bureau will be filing a criminal case against the Applicant and his wife. On 23 Nov 2019, the Shanghai police published a statement which said that the Applicant is a fraud and owes Mr Shu 4.6 million Yuan.

42    The Tribunal then proceeded to state what it considered to be the “critical and most contentious facts”: first whether the applicant or his wife ever owned the Shanghai Property; and second whether the applicant invested Shu’s money in the Car Project or transferred it to Duoda Innovations for that purpose: at AAT[29].

43    However, before considering each of these purported critical facts, the Tribunal determined, relevant to ground 2 of this review, that despite the parties placing considerable emphasis on the evidence relating to whether the applicant was employed by Duoda Innovations and Mr XX, the Tribunal did not consider this to be an “essential element of the alleged fraud” and therefore did not attempt to make findings of fact in that regard: at AAT[30].

44    In their determination of whether there were serious reasons for considering that the applicant had committed a serious non-political crime before entering Australia, the Tribunal agreed with the question posed by the delegate which was (at AAT[31]):

What is to be considered is whether the applicant or both applicants committed fraud in their dealings with Mr Shu in relation to Mr Shu’s transfer of funds to the applicant for the purpose of a loan to pay the purchase tax on their alleged purchase of the Shanghai property and the later investment in the car project (described by Shanghai police as the Shanghai fraud), and whether these dealings amount to a serious non-political crime.

45    Under the heading of “Is there evidence of fraud?” the Tribunal then posited two main questions, “[d]id the [a]pplicant invest Mr Shu’s money in the Car Project?” and “[w]as the Shanghai property owned by the [a]pplicant’s wife?”, before their “[c]onclusion as to fraud”. The Tribunal then proceeded to address each of these two questions, again without identifying what species of “fraud” they were considering and how these questions were relevant to its determination.

46    Thereafter, the Tribunal came to the following conclusion as to fraud (at AAT[69]):

Having considered all of the evidence before us, we consider that there is strong evidence of fraudulent conduct by the Applicant in relation to the Shanghai Property and the investment of Mr Shu’s money in the Car Project. There is no dispute that Mr Shu is owed a considerable sum of money and that the Applicant failed to provide him with the security he offered over the Shanghai Property. That in itself may not amount to fraud but there is strong evidence to support a finding that Mr Shu’s money was never invested with Duoda Investments and that the Applicant (or his wife) never owned the Shanghai Property.

47    At no point prior to making this conclusion as to whether there was “strong evidence of fraudulent conduct” was there any identification of the alleged “crime” or its elements and how the alleged fraudulent conduct morphed into a crime.

48    The Tribunal then went on to consider “the issue” as to whether there were “serious reasons for considering that the applicant had committed a serious non-political crime” by identifying the following four limbs as requiring analysis (at AAT[70]):

(a)     [t]here are “serious reasons for considering” that the Applicant committed a crime;

(b)    [t]he crime is “serious”;

(c)     [t]he crime is “non-political” in nature; and

(d)    [t]he crime was committed by the applicant “before entering Australia”.

49    After summarising the holdings of certain authorities concerned with the meaning of “serious reasons for considering”, and with reference to the Explanatory Memorandum of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) and FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 88 ALJR 754 at [14], the Tribunal made a finding in respect of there being “serious reasons to believe” the applicant has committed the crime of fraud (at AAT[78]–[79]):

78.    We are of the view that the Applicant’s conduct, and the evidence he has produced to purportedly explain it, clearly demonstrates that there are serious reasons to believe that the Applicant committed a serious non-political crime prior to arriving in Australia. Our findings set out above with respect to the fraudulent conduct of the Applicant establish that there is strong evidence that the Applicant has committed a fraud by misrepresenting that he would invest Mr Shu’s funds as agreed in the Car Project and by misrepresenting that a mortgage would be granted because he (or his wife) owned the Shanghai Property. The “serious reasons” are supported by the fact (as deposed to by the Applicant’s wife) that the Shanghai police published a statement that the Applicant is a fraud and by the statements of the Shanghai Public Security Bureau made to Mr Shu in April 2019 including that the Chinese police would be charging the Applicant for fraud.

79.     We therefore arrive at the conclusion that there is sufficient evidence before the Tribunal to cause us to have serious reasons for believing this Applicant has committed the crime of fraud.

50    The statement of French CJ and Gageler J in FTZK at [14], which the Tribunal had extracted immediately above their finding (at AAT[78]–[79]), provided as follows:

The qualifying term ‘serious’ indicates that the reasons must be sufficient to support a strong inference… 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.

51    Relevantly, for the purpose of the first review ground, in the two extracted paragraphs above, the Tribunal uses the verb “believe” rather than “consider”. More critically, the Tribunal does not identify what the alleged “crime of fraud” is, nor by what definition, and how, by elemental analysis, there are serious reasons for considering, that the applicant has committed that crime.

52    The Tribunal then turned to whether the applicant’s unspecified crime had the requisite seriousness. The Tribunal began by noting that the delegate’s analysis approached the question by reference to “relevant provisions” of the Chinese criminal law (at AAT[80]) and stated that “[f]raud in the nature of the applicant’s conduct would be regarded as a crime of significant magnitude in China attracting a custodial sentence up to life imprisonment”: at AAT[81].

53    The Tribunal then reasoned that in determining whether a crime was “serious” regard could be had to the s 5(1) definition of “serious foreign offence” and “serious Australian offence” to the undefined term of a “serious non-political crime” (at AAT[82]) stating, at AAT[83]:

In the definition of “serious foreign offence” at s 5(1), there is reference to an assumption, “…that the act or omission constituting the offence had taken place in the Australian Capital Territory…” and that, “the act or omission would have constituted an offence…against a law in force in that Territory”.

54    The Tribunal then turned to the Criminal Code and gave the following explanation and cursory findings as to there being serious reasons for considering that the applicant’s conduct as found could have constituted several breaches of the Criminal Code and that there was thereby strong evidence that the applicant committed both a “serious foreign offence” and “serious Australian offence” punishable with a term of imprisonment of up to 10 years (at AAT[84]–[89]):

84.    The Criminal Code 2002 (ACT) (ACT Criminal Code) relevantly contains specific provisions relating to fraud-type conduct. Both the Respondent in its Statement of Facts Issues and Contentions and the delegate in the decision under review have referenced relevant provisions in that legislation that deal with fraud-type conduct. Those provisions comprise:

(a)     Section 326 – obtaining property by deception which stipulates a maximum term of imprisonment of 10 years;

(b)     Section 332 – obtaining financial advantage by deception which stipulates a maximum term of imprisonment of 10 years;

(c)     Section 333 – general dishonesty which provides for a maximum term of imprisonment of five years; and

(d)     Section 347 – using false document which provides for a maximum term of imprisonment of 10 years.

85.     We consider that there is strong evidence to support a finding that the Applicant has breached s 326 of the ACT Criminal Code by inducing Mr Shu to pay him money by deceptive conduct. Mr Shu was also told (falsely) that he could safely secure his money over a property the Applicant owned in Shanghai when there is strong evidence that the Applicant never owned the Shanghai Property. The Applicant thus dishonestly and deceptively put these matters to Mr Shu, who, in reliance upon those falsities, acted to his financial detriment.

86.     Second, there is strong evidence to support a finding that, in breach of s 332 of the ACT Criminal Code, the Applicant has obtained a financial advantage from Mr Shu by means of deceptive conduct towards him. The “financial advantage” derived by the Applicant consequent upon deceiving Mr Shu comprises the obtaining of further funds from Mr Shu for investment in the Car Project which are yet to be repaid to Mr Shu.

87.     Third, there is strong evidence to support a finding that, in breach of s 333 of the ACT Criminal Code, the Applicant has acted in a generally dishonest manner towards Mr Shu and that he did, as a consequence, obtain a financial advantage from Mr Shu and otherwise cause him quantifiable loss.

88.     Fourth, there is strong evidence to support a finding that the Applicant’s conduct has breached s 347 of the ACT Criminal Code by using false documents. Mr Shu deposed in his affidavit that the Shanghai Public Security Bureau told him in April 2019 that the documents provided to him by the Applicant purporting to show ownership of the Shanghai Property were false and that the image provided to him by the Applicant of the HKD30,000,000 entering his account was a fraudulent document.

55    Relevantly, the Tribunal did not identify all of the requisite elements of each of these offences nor how they were satisfied, by an elemental analysis, that there was strong evidence to support a finding of a breach of each of the sections of the Criminal Code. But it then concluded by reason of this finding, that the applicant’s fraudulent conduct towards Mr Shu was a serious crime (at AAT[90]).

56    In relation to whether the crime as found was relevantly “non-political”, the Tribunal found that there was strong evidence that the applicant’s crime of fraud was for personal gain, and the “alleged conduct” (at AAT[101]) did not fall within the s 5 definitions of what a political offence “does not include” in the Extradition Act 1988 (Cth), meant that the s 5(1) Act definition of “non-political crime” was satisfied.

57    Lastly, the Tribunal found that there was no dispute before it that the fraudulent conduct did not occur before the applicant entered Australia and concluded at AAT[104]:

We are satisfied that there is strong evidence of fraudulent conduct by the Applicant. Mr Shu’s considerable investment in the Car Project has not been repaid and we are not satisfied that the Applicant invested the funds in accordance with their agreement. We do not accept the Applicant’s explanation that his bank statements were modified and that the Shanghai Property was wrongfully transferred. We acknowledge that the Applicant has not been charged with any offence in China but there is undisputed evidence that the Shanghai police investigated the Applicant and published a statement that he was a fraud. For the reasons outlined above, we are satisfied that there are serious reasons to consider that the Applicant committed a serious non-political crime prior to entering Australia.

Consideration

58    The applicant advances five grounds of judicial review, where save for the fifth ground, concern the construction of and necessary statutory task arising from ss 5H(2)(b) and 36(2C)(a)(ii); namely whether the Tribunal erred in considering that the applicant was disqualified from refugee protection by reason of the serious non-political crime exception. There are two limbs requiring consideration. The first concerns what constitute “serious reasons for considering”, to which grounds one, two and three relate. The second concerns what a “serious” non-political crime constitutes, to which ground four relates.

59    Relevant to this review, it is worthwhile noting the extent of the parties’ common ground regarding the relevant legal principles informing this task. In order for there to be “serious reasons for considering” there must be rational foundation for a strong inference of guilt; the evidence must be clear and credible or strong; a considered judgment, or meticulous investigation, by and actual persuasion of the decision-maker is required: GZCK v Minister of Home Affairs [2021] FCA 1618; 290 FCR 96 at [149]. However, the existence of serious reasons does not require evidence of formal charge or conviction or a positive or concluded finding about the commission of the crime or act, rather, it is sufficient that there be strong evidence of its commission: Dhayakpa v the Minister of Immigration and Ethnic Affairs (1995) 62 FCR 556 at 563; Ovcharuk v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 173; Arquita v Minister for Immigration and Multicultural Affairs [2000] FCA 1889; 106 FCR 465; WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245; 138 FCR 579; and SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 42; 147 FCR 1 at [79].

60    Furthermore, the High Court has emphasised that there is need for meticulous investigation and solid grounds in order to meet the standard of “serious reasons for considering”: FTZK at [16].

61    As to the identification of a “serious non-political crime” regard may be had to whether the conduct constitutes a crime in the State where it is alleged to have been committed or the receiving country where the person is seeking refuge: Ovcharuk at 179A–180A, 185G and 186B.

62    It is for the decision-maker to select the appropriate instrument to inform the consideration of whether the criterion under the Act is met: SRYYY at [73]. By extrapolation to this case, it is for the decision-maker to identify the relevant statute, from which, it can identify the appropriate definition(s) to be applied to the relevant conduct (said to give rise to the claimed “serious non-political crime”).

Grounds one and four – elements of the crime

63    The applicant submitted jurisdictional error arose from the Tribunal’s determination of both the “serious reasons” and the “serious non-political crime” threshold, by reason of the absence of identification of the precise crime and analysis of its elements.

64    Central to the applicant’s thesis underpinning grounds one and four, is whether the Tribunal was required, to identify, in its determination of both the “serious reasons” and the “serious non-political crime” dimensions, the alleged “crime” and analyse its elements. The Minister resisted the claim that the Tribunal had any such obligation. For the following reasons it is my view that the Tribunal was so required, when attending to its task, under s 500(1)(c) of the Act. It is also my view that the Tribunal failed to attend to this task. The Minister did not submit otherwise.

65    It is beyond doubt that the answering of the question as to whether an applicant should be deprived of refugee protection (which would otherwise be available) may have grave consequences: The exclusion of a person from Convention protection on this basis may be literally a matter of life or death: WAKN at [53].

66    As a consequence, the authorities reveal the balance to be struck. The purpose of the provision is to protect the order and safety of the receiving State: Dhayakpa at 565D, cited with approval in Ovcharuk at 177, 179F, 185F. However, given the stark consequences, meticulous investigation and evident solid grounds are required. The bedrock of such an investigation and the assessment of the strength of the grounds is an identified crime and a consideration of its elements. It may be that ultimately not all elements are required to be considered however all the jurisprudence points in favour of the applicant’s contention. The applicant called in his aid the holding in SRYYY and the Minister, Ovcharuk. It is my view that both decisions favour the applicant’s contention.

67    Ovcharuk concerned whether Mr Ovcharuk was excluded from refugee protection under Australian law by reason of him having been involved in the crime of conspiracy (to import heroin into Australia). The issue in that case was whether a crime, where its commission takes place in part, outside the person’s country of origin, might come within Article 1F(b) of the Refugee Convention (which is in identical terms to s 5H(2)(b)). Of note in that case, the Tribunal had identified the alleged crime. There was no like issue regarding a purported failure to identify and consider the elements of the criminal offence.

68    The Minister was at pains to rely on a portion of Branson J’s reasoning, at 186C, in which her Honour stated that she did not consider that the terms of Art 1F(b) required that every element of an identified offence must be able to be identified and particularised. However, it is evident from her reasoning that her Honour considered that there must be an identified offence and some consideration of its elements. Furthermore, it worthwhile to extract the preceding and subsequent paragraphs in her reasons:

I have discussed above the proper construction of the expression "serious non-political crime". The expression, in the context in which it is found, does not, in my opinion, require the identification of a crime committed outside of Australia which is justiciable according to the law of the foreign jurisdiction in which it was committed. There is nothing in the language of Art IF(b) which suggests that a person with respect to whom there are serious reasons for concluding that he or she has committed, outside of Australia, a crime justiciable under Australian law which is of a serious non-political character does not fall within its terms. It is not necessary in this proceeding to seek to determine exhaustively the categories of conduct capable of amounting to a "crime" within the meaning of Art IF(b).

In my opinion, the terms of Art IF(b) suggest against a requirement that every element of an identified offence must be able to be identified and particularised before the article may be relied upon. What is required is that "there are serious reasons for considering" that the person seeking refuge "has committed a serious non-political crime outside the country of refuge prior to his admission to that country". Whether there are serious reasons for so considering will depend upon the whole of the evidence and other material before the decision-maker.

Mr Ovcharuk, a Russian seaman, brought into Australia a large quantity of heroin. He acted as a courier for the heroin at the request of another Russian seaman from whom he received the heroin in Russia. There was material before the Tribunal upon which it was justified in concluding, according to Australian principles of criminal law, that there are serious reasons for considering that Mr Ovcharuk conspired in Russia with another Russian seaman to import a large quantity of heroin into Australia: Gerakiteys v The Queen (1984) 153 CLR 317 at 327. Although such offence continued so long as the two seamen intended to carry out their design (Savvas v The Queen (1995) 183 CLR 1 at 8), that is, the offence continued beyond the time when Mr Ovcharuk entered Australia, it was open to the Tribunal to conclude that within the meaning of Art IF(b), Mr Ovcharuk had "committed a serious nonpolitical crime" outside of Australia.

69    The context reveals that her Honour was not answering any question of the kind that arises here. Furthermore, it is clear from the last (above extracted) paragraph that her Honour was able to deduce, from the material before the Tribunal, and with the benefit of the identified crime of conspiracy, how it was open to consider, by an elemental analysis with the benefit of High Court authority, whether Mr Ovcharuk had committed a serious non-political crime outside Australia.

70    I do not accept that her Honour’s reference to there not always being a need to identify every element assists the evident deficiencies in the Tribunal’s attendance in this case. Furthermore, her Honour’s reasoning arises in a very different case, where the relevant dispute did not involve the applicant’s contention.

71    Furthermore, more recent authority is instructive. In SRYYY, specific consideration was given to whether the Tribunal erred in its analysis of whether the applicant’s acts might constitute a crime because the Tribunal failed to address the essential elements of the “crimes against humanity”. Interestingly in that case, the Minister did not contest the need for an elemental analysis to be undertaken but rather submitted that the Tribunal had addressed and made findings in respect of the appellant’s conduct in relation to each of the necessary elements: SRYYY at [14].

72    The Full Court recognised that the choice of instrument against which the appellant’s acts were to be assessed can have a significant impact on whether or not those acts constitute the commission of a crime: at [50]. This is obvious. The same can be said for the law chosen in this case.

73    The Full Court at [106] stated:

In order to carry out its statutory obligation in determining whether Art 1F(a) precluded the appellant from claiming protection, the AAT was required to give specific and careful consideration to each of the elements of “crimes against humanity” set out in Art 7. It is clear that it failed to do so.

74    The Minister contended that the holding in SRYYY did not have application in this case because there is no need in s 5H(2)(b) cases for the elements of the offence to be particularised. This was premised on a distinction between the different categories of crime (SRYYY being “crimes against humanity” and in Ovcharuk being “serious non-political crimes”). However, I do not accept that the distinction creates this lesser requirement. The text of s 5H(2) creates no such difference, the result from such a finding under s 5H(a) or 5H(b) is the same and the Minister’s reliance on Ovcharuk is misplaced for the reasoning set out above.

75    As observed in the concurring judgment of French CJ and Gageler J in GZCK, at [146(4)], the potentially profound adverse consequences of exclusion from the protection of the Refugee Convention, underpin the requirement for strong evidence and reinforce why there is a need for precision regarding the identification of the alleged crime and the elemental analysis.

76    This is particularly so where the alleged crime of fraud is spectral and may have many different elements. At one end of the spectrum it could be a crime of fraud to shoplift. There is a fine distinction between fraud and theft. Without identifying the crime (whether it would be considered a crime in or outside the receiving State) and assessing the strength of the evidence as against its elements, the jurisdictional tasks of identifying whether there were “serious reasons for considering” or the crime itself is a “serious non-political crime” are conducted in an ambiguous vacuum.

77    The Minister submitted that whilst the concept of fraud can be amorphous, what one is able to draw from the Tribunal’s reasons (at AAT[78]) is the strong evidence that the Tribunal identified as “manifested as misrepresentations by the applicant to Mr Shu in order to defraud him of money”. As to whether there were “misrepresentations” and whether they could be sufficient to satisfy the different mental elements of the ACT criminal offences is entirely unclear. Furthermore, another apparent difficulty with this aspect of the Tribunal’s reasons, is that (at AAT[78]), in finding that there are strong reasons it is with respect to the apparent “crime of fraud” (at AAT[79]), but then when considering the alleged fraud for the purpose of considering if it is “serious”, account is taken of the delegate’s identification of relevant provisions of the Chinese criminal law (at AAT[80]) and then later under the ACT Criminal Code.

78    There is no apparent symmetry between the kind of alleged fraud referred to in the findings regarding the serious reasons for considering limb (whether based on the alleged fraud (at AAT[78]), or under the ACT Criminal Code (at AAT[85]–[88])) and the findings regarding the serious non-political crime limb supported by breaches of the ACT Criminal Code and/or Chinese law.

79    The Minister submitted that there was no need for the Tribunal to go chapter and verse by reference to the foreign statute. However the issue, as a matter of logic, is how reliance can be placed on purportedly different crimes for the purpose of determining whether there were serious reasons for considering or the crimes were “serious”. There was no clear articulation of the what the alleged crime was and its elements.

80    Furthermore, the need for there to be an elemental analysis is evident from the fact that the exception only arises where there are serious reasons for considering the crime was committed “before entering Australia”: s 5H(2)(b). In this case, as tabulated in Part 3 of the delegate’s reasons, the applicant entered and exited Australia on a number of occasions in 2018 and 2019. The alleged conduct appears to have arisen in both Australia and outside Australia. The alleged criminal offences have both physical and mental elements. The required elemental analysis would ensure that the Tribunal had satisfied itself that there were serious reasons to consider the elements of the crime were complete before entry: Dhayakpa at 565C–D.

81    For these reasons, those parts of grounds one and four, to the extent that they are founded on the Tribunal having failed to attend its statutory task, by identifying with precision the relevant crime and considering its elements, both at the stage of identifying whether there were serious reasons for considering and whether the crime was a serious non-political crime, the applicant has established that the Tribunal’s decision, in this regard, is vitiated by jurisdictional error requiring the matter to be remitted to the Tribunal.

82    Whilst, not strictly necessary, given this finding, I will address briefly each of the remaining grounds of review. For the reasons which follow, by reason of the nature of the jurisdictional error already found, in large part, I am unable to discern from the Tribunal’s reasons whether the additional purported errors are made out.

Other aspects of ground one

83    In addition, by ground one the applicant also contended that the Tribunal erred in construing or applying the “serious reasons for considering” threshold or alternatively a finding that there were serious reasons was not open on the materials before the Tribunal on a number of bases, inter-related with the elemental analysis claim. The applicant submitted that for the exclusion to apply, there must be strong evidence and a strong inference, which was not made out in this case and by this the evidence did not rise to the threshold of satisfaction that there could be “serious reasons”. The applicant submitted that the Tribunal’s use of the verb “belief”, at AAT[78] and [79] (the relevant part extracted at [49] above), illustrated an erroneous understanding of the nature of their jurisdiction because the threshold for “believing” is less than “considering”, citing FTZK at [82] and noting Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54; 1 All ER 1267 at [75]. As a consequence it was submitted that decision lacked the requisite characteristics necessary for it to be given force and affected by statute citing ZYVZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 28 at [8] and [14].

84    The failure on the part of the Tribunal to identify the alleged crime(s) and undertake an elemental analysis, as already found, constituted a failure to construe and apply the “serious reasons for considering” threshold. Whether there were other indicators of that failure, by the Tribunal’s deployment of verb “belief”, is not capable of being resolved by reason of the elemental failure. However, I accept the applicant’s submission, from which there was no demur by the Minister, that the Tribunal was required to “consider” whether there were serious reasons. As held in Al-Sirri, “consider” is stronger than “suspect” or “believe” and requires a considered judgment of the decision-maker: at [75].

85    As to the contention regarding whether it was reasonably open for the Tribunal to make such a finding on the evidence with respect to the serious reasons for considering threshold, again whether there was jurisdictional error is dependent on the identification of the crime and its elements. By way of illustration, the applicant submitted that the Tribunal’s finding of misrepresentation was not open on the material before it because there was no evidence that:

(i)     the Applicant made a false representation with respect to the Shanghai Property or the Car Project at the time he made the relevant representation;

(ii)     the Applicant did so knowing the representation was false, or without knowing whether it was true or false;

(iii)     the Applicant intended to induce Shu to act in reliance on that representation;

(iv)     Shu acted in reliance of the Applicant’s false representation.

and therefore the threshold for “serious reasons for considering” was either misconstrued or unmet.

86    In this respect, the applicant was challenging a number of the Tribunal’s findings regarding the alleged “representations”. The difficulty for this Court is that, by reason of the Tribunal’s failure to identify the crime and its elements, the Court is not able to decipher what element of which serious criminal offence required that there be a representation or deceptive act and what evidence was said to satisfy the Tribunal that there were serious reasons for considering that those elements were made out. This is particularly so given that in the submissions before the Tribunal, the parties were not at one as to what constituted the elements of each of the ACT Criminal Code offences and made different submissions as to what evidence was said to give or not give serious reasons for considering whether the crimes were committed. Indeed, the Minister submitted to the Tribunal that the evidence established that it was the applicant and not his wife that “fraudulently informed Mr Shu that he required RMB300,000 to pay property tax” and relied upon this allegation as part of why the Minister said the elements for each of the ACT offences could be satisfied. It is unclear how this allegation could have been accepted given Mr Shu’s evidence as to the circumstances in which that loan was made, namely by reason of the applicant’s wife’s conduct and not that of the applicant. There is no apparent agency finding. In any event, this difficulty illuminates the difficulty for this Court in descending further into the particulars of the jurisdictional error.

87    Similarly, to the extent that the applicant, in his submissions, sought to attack various of the Tribunal’s findings, this Court is not able to decipher what bearing those findings would have on the ultimate statutory task the Tribunal was required to attend to. It is of concern that the Tribunal accepted the veracity of Mr Shu’s account, as contained in the affidavit filed in the ex parte proceedings in the Supreme Court without having all of the documents exhibited to that affidavit. I note that the Minister was asked at hearing about this and was unable to provide the Court with any understanding as to how procedurally this occurred.

Ground two

88    By the second review ground, the applicant contends that the Tribunal failed to exercise its jurisdiction or failed to take into account a relevant consideration, namely the employment relationship between him and two others. The applicant submitted that this claim was at the heart of his defence and provided the relevant context for the circumstances giving rise to the alleged fraud. The applicant submitted that the Tribunal, after emphasising the importance the parties had placed on the question of the applicant’s employment at Duoda Innovations and Mr XX, then not making any findings upon it, constructively failed to exercise its jurisdiction pursuant to s 500(1)(c) because not making any findings about the employment relationship had adverse effects on the plausibility of the applicant’s claims.

89    Again, for the same reasons as above, as to whether the Tribunal failed to exercise its jurisdiction or failed to take into account the applicant’s employment relationship, it is not possible to discern whether there was a necessity for the Tribunal to make a finding about this issue. Again, before the Tribunal, the Minister submitted, as part of what were the purported serious reasons for believing that the applicant had committed the “crime of fraud”, that a material fact was that:

The Applicant falsely claimed to be employed by [Mr XX] in order to induce Mr Shu to transfer money into his account.

90    Critically, the Minister relied upon this purported representation regarding the employment relationship as forming part of the elements which satisfied each of the ACT Criminal Code offences. Given the Tribunal did not identify the serious non-political crime (and its elements requiring satisfaction) that it found that there were serious reasons for considering had been committed, it is not possible to determine this ground.

Ground three

91    By ground three, the applicant contends that the Tribunal was required to consider as part of construing “serious reasons for considering” the generally serious consequences of refoulement (not the particular consequences his case) and by that failure failed to exercise its jurisdiction, leading to jurisdictional error, relying upon the authorities in GZCK at [150] and FTZK at [14] and NADB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326; 126 FCR 453 at [41].

92    I concur with the holding in GZCK that the generally serious consequences of refoulement, as distinct from the particular circumstances of the case, are taken into account, as described by Stewart J in GZCK, “in giving meaning and content to the requirement that there be ‘serious reasons for considering’”: at [150]. By this, as elucidated by Stewart J immediately before in his reasons, the consequences inform the evidence required, at [146], which is extracted as follows:

146    The following can be drawn from the joint concurring judgment of French CJ and Gageler J:

(1)     The requirement that there be “reasons for considering” that an applicant for refuge has committed a proscribed crime indicates that there must be material before the receiving State which provides a rational foundation for that inference: [13].

(2)     The qualifying term “serious” indicates that the reasons must be sufficient to support a strong inference: [14].

(3)     The position was stated accurately by Weinberg J in Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465 (Arquita) at [54], namely:

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.

(At [14].)

(4)     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: [14].

(5)     With reference to WAKN v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 138 FCR 579 at [52] per French J, the criterion of serious reasons for considering does not require anything less than “meticulous investigation and solid grounds”: [16].

(6)     The decision-maker must pay close attention to the probative relevance of the material said to engage the application of Art 1F(b) in order to answer the question which the Article poses: [16].

93    For the same reasons, as above, by reason of the error found, it is not possible to discern whether the Tribunal erred, in the exercise of its jurisdiction, by failing to take into account the generally serious consequences of refoulement, to the extent that they give meaning and content to the relevant evidence relied upon for the purpose of determining the “serious reasons for considering” threshold.

Ground five

94    By the fifth ground, the applicant contends that the Tribunal relied on findings made by the delegate, at AAT[31], [35], [43] and [46], and effectively presumed the correctness of the delegate’s decision without engaging in the ultimate deliberative process itself and therefore failed to perform its statutory function (under s 500(1)(c) of the Act) and to inform itself, on the material before it to the requisite state of satisfaction under s 65 of the Act.

95    A decision-maker commits an error of law if, in its review of the delegate’s decision, it gives weight to the delegate’s decision (treating the delegate’s reasons as being probative of its own correctness) without performing that statutory function itself: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 602; Aung v Minister for Immigration and Multicultural Affairs [2000] FCA 1562 at [4]–[7]. Whilst the Tribunal is entitled to give weight to governmental policy (and it would normally be expected to do so), it must form its own view on the merits of the case: Collins at 602. This will include the Tribunal forming its own view without any presumption as to the correctness of a finding made in the decision being reviewed: Commonwealth of Australia v Twyman (1985) 8 ALD 554 at 559.

96    As to the first allegation of purported impermissible adoption of the delegate’s reasons, the applicant relies on AAT[31], which is extracted as follows:

31.     In our determination as to whether there are serious reasons for considering that the Applicant has committed a serious non-political crime before entering Australia, we agree with the way that the delegate posed the question in the reasons for the reviewable decision as follows:

What is to be considered is whether the applicants committed fraud in their dealings with Mr Shu in relation to Mr Shu’s transfer of funds to the applicant for the purpose of a loan to pay the purchase tax on their alleged purchase of the Shanghai property and the later investment in the car project (described by Shanghai police as the Shanghai fraud), and whether these dealings amount to a serious non-political crime.

97    I reject the applicant’s submission that this portion of the Tribunal’s reasons constituted an impermissible adoption of the delegate’s reasons, because all that the Tribunal does is agree with the manner in which the delegate formulated the question to be posed and, in any event, it is evident that the Tribunal considered, for itself (and therefore attended to the statutory task itself) the relevant question.

98    The applicant then took issue with the Tribunal’s statement at AAT[35], extracted as follows:

35.    We note that our conclusions with respect to the Applicant’s credibility are consistent with the findings made by the delegate in the reviewable decision. We accept those findings as follows:

Based on a totality of inconsistencies, implausibility, admissions of forgery/procuring false documents and a history of lying to the Department in order to achieve a migration outcome, I find that the Applicant’s credibility is for the most part, unreliable. I find that he (by his own admission) has a tendency to engage in deceptive behaviour if he believes he can justify the outcome, or that the outcome will benefit him in some way. As a consequence of his diminished credibility, in the absence of strong probative evidence or evidence that is objectively verifiable, I am unable to accept the majority of his claims.

99    It is apparent from the context in which the statement is made within the reasons by the Tribunal adverting to its own conclusions that the Tribunal has performed its own statutory function (assessing the applicant’s credibility). I do not accept the applicant’s claim as it relates to this aspect of the Tribunal’s reasons.

100    As to the two further impugned statements made by the Tribunal, they appear at AAT[43] and AAT[46]. To provide context, they appear in the section of the Tribunal’s reasons under the broad heading “is there evidence of fraud?”. As part of addressing this question, the Tribunal then posed one of two ancillary questions, “did the applicant invest Mr Shu’s money in the car project?” (above at AAT[36]). It is in addressing this question that the two relevant statements were made. The Tribunal considered a number of source materials in answer to this question including the applicant’s and his wife’s evidence, the bank statements, the delegate’s description of the applicant’s statements during the Protection Visa interview and a departmental analysis (at AAT[43]) and the applicant’s explanation for the bank statements under cross-examination and the delegate’s description of the applicant’s evidence in the Protection Visa interview (at AAT[46]).

101    The Tribunal’s statements, at AAT[43] and [46], were as follows:

43.     When considering the Applicant’s Protection Visa application, the delegate made a forensic analysis of the transaction receipts provided by the Applicant. We accept and adopt the reasons of the delegate in the reviewable decision which provide:

The Applicant was questioned at length during the second PV interview regarding the alleged RMB 14 million transfer to [Mr XX]’s company. The Applicant was adamant that he had used his BOC bank account for this transaction, confirmed he only had one BOC account and referred to two other significant transactions between him and [Mr XX]. The proof he provided when pressed at his second PV interview, was a transaction record that he claimed to have printed out “on site" when he made the transfer at the branch. This “picture… a snapshot” of the transaction record was photo which was provided as an attachment to Applicant’s 2’s affidavit. In relation to the transaction receipts for the significant money transfers, a photo of the transaction receipts provided as evidence that these transfers were made and received by the Applicant are located on departmental drives. The photo of these two receipts were then examined by an officer from the Department who performed various open source checks including web-based tools to verify the bank/card numbers (maestro, Luhn check digit, ICBC website). Discrepancies were identified in regards to the bank account purported to belong to [Mr XX]’s company including returning an ‘invalid card number’ result, as well as the BOC verification website stating that the entered digital stamp code and date provided on the bottom of the receipt “do not match”. Further, the bank handling fee charged for processing the alleged RMB 14 million transfer on 18 October 2018 (RMB 50) as appearing on the transaction receipt in the photo does not appear to be consistent with what the BOC charges for processing an amount this large.

A full analysis of the transaction receipts can be found on departmental drives. However, the analysis indicates that the purported transactions that the Applicant claims were made between him and [Mr XX] on 18 October 2018 and on 30 November 2018 were unable to be verified, while most other transactions not in dispute that featured on the Applicant’s BOC bank statements provide to the Department in 2018 were able to be verified using the same methodologies. As a result of not being able to verify the bank transactions and with the Department, I do not accept that these significant money transfers including the RMB 14 million, were made as stated by the Applicant.

[Internal footnotes omitted]

…

46.    When the Applicant was being interviewed in relation to his Protection Visa application, the Applicant did not provide any details about the goddaughter of his father-in-law modifying the bank statements. The delegate’s reasons in the reviewable decision provide:

Significantly, when the interviewing officer asked the Applicant why none of the transactions appeared in his BOC bank statements, he responded “I don’t know when you start to prepare, to get the bank statement. But if I say they've got a way to delete...to modify the bank transactions...will you trust me if I say so?”

…

The Applicant’s statements are not only highly implausible based on international banking practices, but not possible based on the BOC bank statement provided by the Applicant to the Department. This is because any alteration or modification to the transactions would result in a different balance being generated in the statement itself, that is, the amounts would not tally up. Contrary to the Applicant’s assertions that he had ‘selected’ and deleted transactions before printing them out, the BOC bank statements provided to the Department in 2018 appear to be regular with no inconsistencies, no deletions and all tally up correctly from one day to the next. By his own admissions, the Applicant’s evolving responses were not particularly credible (“Ok I know that this explanation sounds quite weak.”). On the basis of the foregoing, I reject the claim that the Applicant was able to choose what transactions he wanted to appear in his bank account and do not accept the Applicant’s explanation for why [Mr XX] or any transactions relating to him or his company, do not appear in the Applicant’s BOC bank statements.

[Internal footnotes omitted]

47.     We accept and adopt the above reasons.

102    It is evident from the extracted impugned statements above that the Tribunal adopted a number of findings of the delegate without undertaking its own assessment of the evidence giving rise to those findings.

103    It was the Minister’s submission, with respect to the statement at AAT[43], that the delegate undertook a forensic analysis of the transaction receipts and the Tribunal, “rather than doing a forensic analysis itself, has picked up on the conclusions of that analysis in the reasons”, which was said to not constitute a departure from its own fact-finding task. The Minister relied upon no authority supportive of the ability of the Tribunal to “pick up on the conclusions of that analysis in the reasons”. It is for the Tribunal to undertake the fact-finding task itself (based on the evidence before it) not to adopt the factual findings of the delegate.

104    The Minister submitted that the Tribunal was “picking up findings in relation to that interview” and “accepting and adopting the above reasons”, which was “all in the course of the Tribunal reaching its own conclusions on the appropriate statutory test” and not delegating that task to the primary decision-maker but appreciating that the delegate had made some finding, with which it was in agreement. However, there is an uneasiness in this submission incapable of resolution. The Minister did not submit that it could be inferred that the Tribunal, having reviewed all the relevant evidence before it for itself, then agreed with and adopted the delegate’s findings. Accordingly, there is no basis upon which it could be adequately informed so that it could agree and undertake the statutory task required of it. After the hearing, I asked the parties a series of questions about certain of the material, referred to in AAT[43] and AAT[46], which confirmed that the Tribunal did not have before it all the relevant material referred to by the delegate in the delegate’s findings. There was no dispute between the parties that the Tribunal did not have before it the Protection Visa interview transcripts referred to at AAT[43] and AAT[46] and did not have the other documentation referred to by the delegate (described below).

105    The parties were also asked whether there was any dispute between the parties before the Tribunal as to the conclusion in the departmental analysis referred to by the delegate that “the analysis indicates that the purported transactions that the Applicant claims were made between him and [Mr XX] on 18 October 2018 and on 30 November 2018 were unable to be verified, while most other transactions not in dispute that featured on the Applicant’s BOC bank statements provide[d] to the Department in 2018 were able to be verified using the same methodologies” (at AAT[43]).

106    In response, the parties agreed that the Tribunal did not put this proposition to the applicant and that the “full analysis of the transaction receipts” document, “the forensic analysis of the transaction receipts” made by the delegate, the content of the departmental drives and the substance of the methodology used in the verification process, were not before the Tribunal and were not made available to the applicant.

107    The tenor of the Minister’s submission was, that without having all of the material before the delegate, it was open for the Tribunal to accept the delegate’s conclusions. I do not accept this. The Tribunal was required to determine for itself, based on all of the evidence before it, what could be gleaned from the bank records as well as all of the evidence. I do not accept that the Tribunal could just adopt the delegate’s conclusions without independent analysis.

108    Accordingly, it is my view that if it had been necessary to so decide, review ground five would have been made out in part.

Materiality

109    The applicant submits that but for the Tribunal’s submitted failures and errors the result could realistically been different and therefore materiality is established. The Minister made no submission to the contrary. It is my view that the jurisdictional errors with respect to grounds one and four were such that the decision that was in fact made could realistically have been different had there been no error: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [14] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ.

110    Lastly, I note that whilst injunctive relief was sought in the application, no submission was advanced at all by the applicant in its favour at hearing and it has been assumed that it was not pressed.

Conclusion

111    It follows from these reasons that writs of certiorari and mandamus be issued and the applicant is entitled to his costs.

Associate:

Dated:    30 April 2024