There is a perception, whether or not correct in itself (but also not without foundation), that the current bench of the High Court of Australia is “pro-refugee”. By virtue of a person coming to this perception, it is therefore possible that the person’s view as to the correctness of judgments of the High Court in migration matters becomes clouded by their prejudice.
I do not doubt that there may be decisions of the High Court on migration matters that may eventually be overturned for being incorrectly decided. But equally, I hold the current line of cases on jurisdictional error in high confidence.
Today FTZK v Minister for Immigration and Border Protection  HCA 26 was decided. It is a judgment that may cause people of less informed views to take offence.
FTZK was a national of the People’s Republic of China and he first entered Australia in 1997. When he applied for his visa, he falsely recorded his occupation as “Engineer” even though he was not an engineer and never was an engineer. FTZK explained that “this was the only way [he] could get the visa and leave [the PRC]”.
Meanwhile, in the PRC in May 1997, FTZK was implicated by two alleged co-accused in the crimes of kidnap and murder of a 15 year old school boy in Tianjin in December 1996. FTZK’s two alleged co-accused were executed by authorities in the PRC in May 1998.
In December 1998, FTZK applied for a Protection visa, claiming that he had left the PRC because he had been persecuted on the ground of his religious beliefs. The Minister refused and the Minister’s decision was affirmed by the Refugee Review Tribunal in December 1999. Therefore between January 2000 and February 2004 FTZK lived in Australia as an unlawful non-citizen. In February 2004, he was located and taken into immigration detention. In March 2004, soon after the refusal of a fresh application by FTZK for a bridging visa, he attempted to escape from immigration detention.
On a fresh application in 2011 the Minister concluded that FTZK was excluded from protection under the Refugees Convention by Art 1F(b). Article 1F of the Convention provides:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
FTZK appealed to the AAT. It was not in dispute that each of the crimes alleged against him was a “serious non-political crime” within the meaning of Art 1F(b). In May 2012, relying on Art 1F(b), the AAT affirmed the decision to refuse to grant a protection visa.
The Tribunal’s Decision
The Tribunal’s conclusion was based upon four findings.
- Documentary evidence provided by the PRC government, including transcripts of interrogation of the two alleged co-accused implicating FTZK in the alleged crimes;
- FTZK leaving China shortly after the crimes were committed and him providing false information to the Australian authorities in order to obtain a visa;
- FTZK being evasive when giving evidence as to his religious affiliations in Australia and China;
- FTZK’s attempt to escape from detention in 2004, shortly after his application for a long term business visa was refused.
The Tribunal recited the four findings and said:
The conclusion I have reached is based on the totality of the evidence I have referred to above. Any one of the various factors would not have been sufficient to establish serious reasons; it is the combination of factors which gives rise to reasons of sufficient seriousness to satisfy Article 1F of the Convention.
On appeal to the Full Federal Court
On the appeal in the Full Court, the majority considered the Tribunal’s findings and said:
The Tribunal clearly regarded these facts as demonstrating [FTZK’s] consciousness of his guilt of the criminal offences and desire to escape from the consequences of his criminal conduct. It was unnecessary for the Tribunal to express this link in order to make it exist.
Kerr J dissented and found that each of those findings made by the Tribunal was of no probative value unless linked to a further fact or circumstance which the Tribunal was required to find, being motive or consciousness of guilt. In other words, the findings on their own do not lead to the conclusion that there are serious reasons for considering that FTZK committed a serious non-political crime in China. Importantly, his Honour said that a reviewing court implying or inferring critical findings of fact, not expressed in the decision-maker’s reasons, would “turn on its head the fundamental relationship between administrative decision-makers and Chapter III courts exercising the power of judicial review.”
What was the legal basis for the decision?
It is Kerr J’s reasons for judgment that prevailed upon appeal to the High Court.
French CJ and Gageler J said first that the ultimate conclusion that Art 1F(b) was engaged is critically dependent upon the existence of a rational connection between the Tribunal’s findings of fact taken in combination and the commission by FTZK of the alleged crimes.
Their Honours acknowledged that a rational connection of that kind existed with respect to the material produced by the Chinese government (accepted by the AAT as “direct evidence” of the allegations). However, they also observed that “the AAT did not regard that material, taken by itself, as constituting serious reasons for considering that [FTZK] had committed the alleged crimes”.
Consequently, the rest of the AAT’s findings were not pertinent to the question of whether there are serious reasons for considering that FTZK has committed a serious non-political crime. Their Honours found:
Those findings are consistent with [FTZK] having the purpose of leaving China and living in Australia. Whether or not they evidence a consciousness of guilt of the alleged offences was not the subject of any explicit finding by the AAT. Nor, contrary to the views of the majority in the Full Court of the Federal Court, is a finding on the part of the AAT that they evidence consciousness of guilt so apparent that the finding should be implied.
Their Honours thereby concluded that the AAT based its ultimate conclusion on findings of fact which it did not demonstrate by its reasons to respond to the question it had asked and that by that omission it committed a jurisdictional error.
Hayne J came to a similar conclusion, finding that:
[O]nce it is recognised that [FTZK had] a well-founded fear of persecution for a Convention reason, his departure from China, his telling lies to obtain the first visa he obtained and his telling lies or giving evasive testimony in connection with his application for a protection visa are as readily explained by his desire to escape from China for innocent reasons as they would be by a desire to run away from the scene of a crime. Likewise, his attempt to escape from immigration detention might be thought to bespeak a disregard for authority and a willingness to break Australian immigration law. But neither of those conclusions bears upon whether there are serious reasons for considering that he has committed kidnapping and murder.
Crennan and Bell JJ observed that all the evidence that the Tribunal took into account had an equally probable explanation in the desire on the part of the refugee to live in Australia – after all, it is exactly also what someone fearing prosecution would do, even if they had not committed a serious non-political crime! Therefore their Honours held that, as a matter of law, the Tribunal had to ask of the evidence before it whether that evidence was probative of “serious reasons for considering” that FTZK committed one or more of the alleged crimes.
Their Honours concluded that:
The path by which the Tribunal reached its conclusion… did not include any consideration of whether, and if so how, the lies and conduct relied upon were concerned with circumstances or events connected with one or more of the alleged crimes. The Tribunal’s findings in respect of [FTZK’s] credit did not involve a rejection of his denial that he committed the alleged crimes or amount to a finding that the lies and conduct constituted an admission against interest by him in respect of those crimes.
In other words, every one of the judges decided that the Tribunal fell into error because its reasons were evasive. It identified evidence that could support the view that FTZK committed a serious non-political crime, but did not then use a process of logic to show why it preferred one interpretation of the evidence over the other.
Those who are somewhat versed in the law might be screaming House v The King right now – if the factual findings were open to the decision maker, ought the Court to give the decision maker the benefit of the doubt?
The short answer to that is, no. This betrays a fundamental misunderstanding of the relationship between courts of appeal and courts of review (and the relationship between merits review and judicial review).
This brings into focus Kerr J’s observation that a reviewing court implying or inferring critical findings of fact, not expressed in the decision-maker’s reasons, would “turn on its head the fundamental relationship between administrative decision-makers and Chapter III courts exercising the power of judicial review.”
It goes without question that judicial review is not merits review. A court undertaking the task of judicial review is not permitted to traverse the merits of the decision or the findings of the decision maker. The High Court, I should add, did not traverse the findings of the Tribunal. Just as significant as the principle that a court undertaking the task of judicial review must not traverse the merits of the decision, it must not add to or supplement the merits of the reasons of the decision maker. To do so would cause the reviewing court to be undertaking merits review.
There is nonetheless a principle that reasons of the decision maker should not be read with the scrutiny of a legally trained eye for error. Nonetheless, this does not excuse decision makers from giving incomplete reasons or evasive and illogical reasoning. If my interpretation is correct, the principle might excuse grammar, expression and weakness in substance, but it does not excuse absence of substance.
Therefore the principle decided in the present case is completely consistent with the principle that reasons of the decision maker should not be read with the scrutiny of a legally trained eye for error.
For the Tribunal to perform its task according to law, it must ask whether there were serious reasons for considering that the refugee has committed a serious non-political crime. The Tribunal is therefore tasked with publishing reasons that show how the facts, as found, lead to the conclusion as follows. There may well be facts that are self-evident so to speak, for example, an admission by the refugee. But the facts found by the Tribunal in the present case were not self-evident. Without a process of reasoning, the Tribunal was not entitled to conclude there were serious reasons for considering that the refugee has committed a serious non-political crime.
So there was a legal basis for the decision, but why did the law develop this way? It was clearly to further the interests of refugees, no?
As to the latter question, in short: no. The law developed in this way for the benefit of all persons who are subject to executive power. In other words, non-refugees, Australian residents and Australian citizens who, for example, might be denied a mining licence, or permission to import goods necessary for their business. It just so happens that so much of the government’s energy and resources is applied against refugees that migration law cases become prevalent. It is less a failing of the High Court than it is an indicator of the resource allocation priorities of the government.
There was another aspect to the case, and that is the construction of the Convention, particularly the question of the meaning of “reasons for considering”. On that question all Justices of the High Court held that it did not import a domestic standard of proof (whether on the balance of probabilities or beyond reasonable doubt). To the lay person, I do not think that issue is seriously subject to controversy.
I just want to say one more thing. The thing is, it seems these days refugees are the main benefactors of our rule of law. Our cultural value that the government should be kept within the limits of the law appears to be of greater assistance to the “undesirable” elements of our society. Furthermore, I acknowledge that some people find it offensive that an unelected High Court should have the power to restrain an “executive given a mandate to stop the boats” or strike down legislation made by a “democratically elected government”. To these criticisms I only have one thing to say: the High Court has no raw power. Its power derives from the observation by each civilised person in our society of its decisions. I take great pride in that fact because it shows that, at the core, we are a moral people. Nonetheless, within every society there will be those who disobey the law. I only hope that our traditional conscientiousness is not corrupted to the extent that the executive government, with all its raw power, decides that it no longer has to obey the law. It all comes down to one question, should we allow the government to dispense with the law and ride, with arms and all, on the tide of temporal and inconstant popular opinion?