In the last of the series of recent Migration Act decisions, FTZK v Minister for Immigration and Border Protection  HCA 26 dated 27 June 2014, the High Court considered the meaning of “serious reasons for considering that [a person] has committed a serious non-political crime” (‘the serious meaning clause’) which is a phrase that appears in the Refugees Convention. Such serious reasons can ground a refusal to grant a protection visa to a person who otherwise satisfies the definition of a refugee because the Migration Act makes it a condition of a protection visa that the person is someone to whom Australia has protection obligations under the Convention.
The context of its decision was the refusal of a protection visa to a Chinese national on the basis that he had allegedly been involved in the kidnapping and murder of a student in China in 1996. The appellant came to Australia in 1997. Shortly afterwards he was implicated by two co-accused in the kidnap and murder of a fifteen year old boy in China. From then until 2010 when the Refugee Review Tribunal found that he was a person to whom Australia had protection obligations under the Convention, he tried unsuccessfully to be allowed to stay in Australia.
After the Tribunal made its decision, the Minister decided that he was excluded from protection because there were serious reasons to consider he had committed serious crimes in China. He appealed to the Administrative Decisions Tribunal (the AAT) which upheld the Minister’s decision. The Tribunal said that there were four reasons for thinking he had committed serious crimes. They were the transcripts of the interrogation of the co-accused; the fact that he left China shortly after the crimes were committed and provided false information in his application to the Australian authorities for a visa; the fact that he had been evasive about his religious affiliations in Australia and China (which was the basis on which he applied to be accepted as a refugee); and that he attempted to escape from immigration detention in Australia in 2004 after his application for a long term business visa was refused.
In reaching its decision, the AAT said “The conclusion … is based on the totality of the evidence … Any one of the various factors would not have been sufficient to establish serious reasons; it is the combination of the factors which gives rise to reasons of sufficient seriousness to satisfy … the Convention.”
The appellant appealed to the Full Federal Court which upheld the AAT’s decision, and then to the High Court where he was successful.
The High Court stated firstly that, although the appellant’s visa application was made under the Migration Act not the Convention (as international law obligations do not have effect in Australia unless they are incorporated into domestic law), since the Migration Act required the person to be someone to whom obligations were owed under the Convention, then the serious reasons clause should be interpreted in accordance with the international law on asylum, rather than the international law that deals with extradition. The Court looked at how the serious reasons clause had been interpreted in Australia, the United Kingdom, Canada and New Zealand, and agreed with the approach taken by the Australian Federal Court in the case of Arquita v Minister for Immigration and Multicultural Affairs. There, Weinberg J said that the serious reasons test could be met if “there is evidence available upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged.”
Applying this test to the reasons given by the AAT, the High Court said that only the first of the four reasons were “probative” in finding that the appellant had committed a serious crime. The other reasons, which were composed of lies and conduct by the appellant could be due to other reasons entirely, such as a fear of being persecuted for his religion if he returned to Australia. The Court stressed the significance of a finding that serious reasons existed for the appellant as it would mean he could not obtain a protection visa, and therefore the need for clearly incriminatory evidence. It was not enough for the reasons put together as the AAT had said to satisfy the serious reasons test.
The High Court allowed the appeal and made orders requiring a differently constituted AAT to review its decision. Again, the High Court has demonstrated that the rule of law requires close consideration to the facts and evidence in particular cases that affect the liberty of individuals.