FTZK v Minister for Immigration and Citizenship [2013] FCAFC 44

In a 2:1 decision, the full court of the Federal Court has dismissed an appeal from the Administrative Appeals Tribunal which affirmed a decision to refuse to grant a protection visa.

In China, the applicant had been accused of the crimes of hijacking (the equivalent of kidnapping under Australian law), extortion, and the malicious killing of a 15 year old male. The AAT relied on Article 1F of the Refugees Convention which excludes the protections of the convention. 1F(b) states that the convention does not apply to any person “…with respect to whom there are serious reasons for considering that… he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.”

Facts

In late December 1996, a 15 year old boy on his way to school was kidnapped. Ransom was demanded. The boy's father was not able to contact the kidnappers. The next day the boy's body was located in a frozen pond. His hands and feet were tied up. An autopsy report showed that the boy had been alive when he had been thrown into the pond or pushed under the ice. The Tianjin Public Security Bureau of the People’s Republic of China investigated the death, and alleged that FTZK, the Applicant, was one of three culprits. The other two were arrested, were reported to have confessed and were later executed.

The Applicant departed China prior to the arrests of the alleged co-conspirators. He arrived in Australia on 1 February 1997 on a UC Temporary Business subclass 456 visa.

The Decision Under Appeal

The AAT based their decision partly on the conduct of the applicant after the crimes had taken place, which included giving false information to the Australian authorities when leaving China shortly after the crime, giving false evidence as to his religious affiliations in Australia and his detention and torture in China when applying for a protection visa and attempting escape from immigration detention in 2004.

The applicant argued that the AAT failed to articulate how the subsequent conduct was relevant to their consideration and therefore fell into jurisdictional error.

On the contrary, a majority of the Full Federal Court held that the Tribunal’s failure expressly to state the basis of the relevance of factors it took into consideration did not negate them of objective relevance.

The Majority Decision

To establish jurisdictional error the applicant needed to establish that the material taken into account by the Tribunal was objectively irrelevant to the task of the Tribunal in determining whether there were serious reasons for considering that the applicant had committed a serious non-political crime.

Gray and Dodds-Streeton JJ reasoned that on an objective basis, all of the findings of fact recorded in the Tribunal’s reasons for decision are capable of showing that the applicant fled China soon after the criminal offences had been committed, and took steps to make sure that he would not be deported back to China. The Tribunal plainly considered these facts as showing the applicant’s consciousness of his guilt of the criminal offences and aspiration to escape the consequences of his criminal conduct.

“It was unnecessary for the Tribunal to express this link in order to make it exist” and therefore, the majority held, the Tribunal did not take into account irrelevant material.

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