FTZK v Minister for Immigration and Border Protection: Over-zealous judicial review?

In this post Anna Olijnyk examines the High Court’s recent decision in FTZK v Minister for Immigration and Border Protection.  The case involved judicial review of a migration decision made by the Administrative Appeals Tribunal.  The High Court’s reasoning subjects the decision of an administrative tribunal to a level of scrutiny more commonly applied to a judge’s directions to a jury in a criminal trial.

In the 1996 decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang, Brennan CJ, Toohey, McHugh and Gummow JJ made some observations about the ‘practical restraints on judicial review’.  Their Honours approved the remarks of the Full Federal Court in Pozzolanic, that a court in judicial review proceedings ought not to concern itself ‘with looseness in the language … nor with unhappy phrasing’ of the reasons for the decision under review:  ‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’  Brennan CJ, Toohey McHugh and Gummow JJ explained that these propositions

recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

It is hard to reconcile the High Court’s recent decision in FTZK v Minister for Immigration and Border Protection with this approach.

The case concerned the refusal – originally by the Minister, and then by the Administrative Appeals Tribunal on review – to grant FTZK a protection visa.  To be eligible for a protection visa, a person must be ‘a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention’: Migration Act 1958 (Cth) s 36(2)(a). FTZK has a well-founded fear of persecution in his country of origin, China, on the ground of his religious beliefs.  He therefore satisfies the definition of ‘refugee’ in Art 1A(2) of the Refugees Convention.  The case before the High Court concerned the application of Art 1F(b) of the Convention, which 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.
In other words, if there are serious reasons for considering that a person has committed a serious non-political crime outside Australia, that person is not eligible for a protection visa even if they have a well-founded fear of persecution in the country they have left.

The Minister refused to grant FTZK a visa on the basis that there were serious reasons for considering that he had been involved in the kidnapping and murder of a 15 year old student in China in 1997.  It was not in dispute that these were serious non-political crimes.  However, FTZK denies any involvement in the offences.

The Administrative Appeals Tribunal affirmed the Minister’s decision.  FTZK challenged the Tribunal’s decision in the Federal Court, initially as an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).  When it became apparent that the s 44 jurisdiction could not be invoked, the case was treated as a judicial review matter.  The Federal Court dismissed FTZK’s challenge (by 2:1) but a five-judge bench of the High Court (French CJ, Hayne, Crennan, Bell and Gageler JJ) unanimously allowed an appeal and issued writs of certiorari and mandamus quashing the Tribunal’s decision and requiring FTZK’s application to be determined according to law by a differently constituted Tribunal.
The arguments on judicial review centred on the matters the Tribunal had taken into account in reaching its conclusion that there were serious reasons for considering FTZK had committed a serious non-political crime.  The Tribunal explained:

The conclusion I have reached 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 factors which gives rise to reasons of sufficient seriousness to satisfy Article 1F of the Convention.

The factors to which the Tribunal referred were the following:

  • First , the government of China provided documents relating to the alleged offending.  These included transcripts of interviews with two co-accused (both of whom have since been convicted and executed) naming FTZK as a co-offender. They also included an arrest warrant for FTZK.
  • Secondly, FTZK left Australia shortly after the offences occurred.  He provided false information to Australian migration authorities in order to obtain a visa to enter Australia, and again when applying for a protection visa in 1998.
  • Thirdly, the Tribunal rejected FTZK’s claims that he was detained and tortured in China because of his religious beliefs, and found that FTZK was evasive in giving evidence about his religious convictions.  The Tribunal found that FTZK’s ‘evidence in this regard was fabricated in order to strengthen his claim to remain in Australia.’
  • Fourthly, the Tribunal found that FTZK had remained in Australia without a visa, knowing that he did so unlawfully; and that he had attempted to escape from immigration detention.  In these respects the Tribunal rejected some of FTZK’s evidence.

The first of these factors directly bears upon the question of whether there are serious reasons for considering that FTZK has committed a serious non-political crime.  The second, third and fourth factors are capable of supporting two different inferences.  They may manifest a consciousness of guilt on the part of FTZK, suggesting that he has fled China and lied to Australian authorities in order to evade prosecution.  They may, alternatively, demonstrate that FTZK wished to leave China and remain in Australia in order to escape persecution.

Crucially (as it turned out) the Tribunal did not state expressly which of these inferences had been drawn from the findings of fact.  The Tribunal’s reasons simply list the matters taken into account and conclude that, based on the totality of evidence, there were serious reasons to consider that FTZK had committed a serious non-political crime.

The substance of FTZK’s judicial review challenge concerned the Tribunal’s use of the second, third and fourth matters listed above: that is, FTZK’s departure from China and subsequent dealings with Australian immigration authorities.  FTZK argued that these were irrelevant considerations or, alternatively, demonstrated that the Tribunal had misconstrued or misapplied Art 1F.

The majority in the Federal Court (Gray and Dodds-Streeton JJ) found that, although the Tribunal had not expressly stated that FTZK’s lies and other conduct were evidence of a consciousness of guilt, it was clear that the Tribunal took that view and it was unnecessary to make an express statement to that effect.  On this view, the matters were clearly not irrelevant, and there was no error in the Tribunal’s reasoning.

The High Court read the Tribunal’s reasons in a different, and far more critical light.  The Tribunal’s failure to explain the inferences it drew from the second, third and fourth matters listed above proved fatal.  French CJ and Gageler J, for instance, said that there was no explicit finding that FTZK’s conduct evidenced a consciousness of guilt, and that ‘a finding on the part of the AAT that they evidence consciousness of guilt [is not] so apparent that the finding should be implied.’

This is not a generous reading of the Tribunal’s reasons.  Like the majority of the Federal Court, I find it fairly clear that the Tribunal did regard FTZK’s exit from China and subsequent lies as evidence of a guilty conscience.  Certainly, there were other inferences that could have been drawn from that conduct but the Tribunal does not appear to have drawn those inferences.  To me, the High Court appears to have read the reasons in the manner cautioned against in Pozzolanic and Wu Shan Liang: with an ‘eye keenly attuned to the perception of error’.

Once the High Court had concluded that the Tribunal did not find that FTZK’s conduct in, and after, leaving China manifested a guilty conscience, what followed?  Hayne, Crennan and Bell JJ rejected the submission that this conduct constituted irrelevant considerations; French CJ and Gageler J accepted the possibility that these might be irrelevant matters but did not decide the case on that basis.  Instead, the High Court found that the Tribunal’s use of the evidence of FTZK’s conduct showed that the Tribunal had asked the wrong question and thereby fallen into jurisdictional error.  This was because, in the absence of a finding that the conduct evidenced a consciousness of guilt, the conduct could not bear upon the question of whether there were serious reasons for considering that FTZK had committed  a serious non-political crime.  Crennan and Bell JJ relied on Edwards v The Queen, in which the High Court set the standards for the instructions that must be given to a jury if the prosecution wishes to rely on lies by an accused as corroboration of other evidence.

Once again, this seems to be holding tribunals to an inappropriate standard.  A decision whether to grant a protection visa is, of course, an extremely serious matter with potential life and death consequences for the applicant.  Yet it is a task that is committed to the Executive, not to the criminal trial process.  The Administrative Appeals Tribunal has an obligation to ‘pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick’ (AAT Act s 2A).  Its members are not all lawyers (although many, including the Tribunal member in this case, are).  The Tribunal is not bound by the rules of evidence (s 33(1)(c)) and its proceedings are to be ‘conducted with as little formality and technicality, and with as much expedition, as the requirements of [relevant legislation] and a proper consideration of the matters before the Tribunal permit’ (s 33(1)(b)).  The Tribunal has an obligation to give reasons for its decision (s 43) which, if in writing, must include the Tribunal’s ‘findings on material questions of fact and a reference to the evidence or other material on which those findings were based’ (s 43(2B)).  There was no complaint, in FTZK, that the Tribunal’s reasons themselves were inadequate; rather, the argument was that the reasons disclosed an error in reasoning.  The High Court in FTZK seems to require a degree of formality and technicality from the Tribunal that are not consistent with the Tribunal’s object and functions.

FTZK may be viewed as protective of the rights of the individual and, in that sense, a decision upholding the rule of law.  But the rule of law and its close relative, the separation of powers, also require that the executive and judicial branches of government stay within the bounds of their respective spheres of authority.  When a court performing the function of judicial review becomes over-zealous in its scrutiny of executive action, it threatens to step outside those bounds.


Anna Olijnyk is a Lecturer at the Adelaide Law School and member of the Public Law and Policy Research Unit.

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