CRENNAN AND BELL JJ. The appellant, a national of the People's Republic of China ("the PRC"), applied unsuccessfully for a protection visa under s 36 of the Migration Act 1958 (Cth) ("the Act") claiming to be a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol ("the Convention"). At that time, a criterion for the grant of a protection visa was that the first respondent, the Minister for Immigration and Border Protection, be satisfied that an applicant was a person to whom Australia had such obligations. In refusing the application, a delegate of the Minister found that the appellant was excluded from Australia's protection obligations pursuant to Art 1F(b) of the Convention, which is part of Australian law.
The appeal in this Court raises two issues of administrative law which arise out of a decision of the second respondent, the Administrative Appeals Tribunal ("the Tribunal"), to affirm the delegate's decision. The first is whether the Tribunal misconstrued its functions and powers in respect of Art 1F(b) in determining whether there were "serious reasons for considering" that the appellant had committed "serious non‑political crime[s]". The second is whether the Tribunal took into account irrelevant matters when deciding that the appellant fell within the scope of Art 1F(b).
The appellant also sought to pursue an additional question not raised below. That question was whether the Tribunal, exercising functions and powers under Art 1F(b), was required to take into account, and to weigh up, the consequences of refoulement. However, as these reasons will explain, that question is not reached. The second respondent has filed an appearance submitting to this Court's jurisdiction.
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:
(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."
The appellant appeals to this Court against orders made by the Full Court of the Federal Court of Australia (Gray and Dodds‑Streeton JJ; Kerr J dissenting) dismissing an appeal against the orders of the Tribunal and refusing the appellant leave to amend process in that Court. That amendment would have enabled the appellant to overcome an objection to the competency of the appeal and to recast the proceedings as an application invoking the original jurisdiction of the Federal Court under s 476A(1)(b) of the Act to seek relief of the kind provided for in s 75(v) of the Constitution. With the concurrence of the Minister, the Full Court proceeded to deal with the matter as one involving the original jurisdiction of the Federal Court. It can be noted that in this Court the appellant seeks writs of certiorari and mandamus directed to the Tribunal. The issue of substance before the Full Court was whether the Tribunal fell into jurisdictional error by taking into account irrelevant matters in making its decision.
The Convention
The Convention is concerned with the status and protection of refugees. Chapter I contains Art 1, covering the definition of "refugee". Article 1 (comprising Arts 1A to 1F) has three parts, distinguished in the Handbook of the United Nations High Commissioner for Refugees ("the UNHCR") as "inclusion", "cessation" and "exclusion" provisions.
As explained recently in Plaintiff M61/2010E v The Commonwealth, the Act is the source of power for Australia to respond to its international obligations in respect of refugees. The Act incorporates Art 1 of the Convention into Australian law.
Article 1A(2) of the Convention (an "inclusion" provision) relevantly defines a "refugee" as a person who:
"owing to well-founded fear of being persecuted for reasons of ... religion ... or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence … is unable or, owing to such fear, is unwilling to return to it."
The appellant was found to come within Art 1A(2) by reason of his political opinion. To that extent he qualified as a person to whom Australia has protection obligations under the Convention.
Article 1C (the "cessation" provision), which is not presently relevant and may be put aside, provides six conditions under which a refugee ceases to be a refugee.
Articles 1D, 1E and 1F (the "exclusion" provisions) all provide for different circumstances in which the Convention does not apply to a person who otherwise comes within the definition of refugee. Articles 1D and 1E may also be put aside for present purposes.
Article 1F has been set out above. Notwithstanding the finding that he was a refugee within the meaning of Art 1A(2), the appellant was found to be excluded from Australia's protection obligations. That conclusion was reached because the Tribunal was satisfied that there were "serious reasons for considering" that the appellant had committed "serious non‑political crime[s]", as alleged, in the PRC prior to seeking protection in Australia.
Article 35 provides that member States are to cooperate with the UNHCR to facilitate its duty of supervising the application of the provisions of the Convention.
Facts and history of the proceedings
On 1 February 1997, the appellant entered Australia on a Class UC Temporary Business Subclass 456 visa. He was granted a bridging visa in December 1998, which expired on 21 January 2000. The appellant conceded that details on his visa recording his occupation as "Engineer" were incorrect as he is not an engineer and has never worked as an engineer. The appellant's explanation for this was that "this was the only way [he] could get the visa and leave [the PRC]".
Meanwhile, in the PRC in May 1997, the appellant 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. The allegations are now the subject of criminal charges laid by the Chinese authorities against the appellant. In June 1998, the Australian Federal Police received a copy of an arrest warrant for the appellant issued by authorities in the PRC in May 1997. The appellant's two alleged co‑accused were executed by authorities in the PRC on 21 May 1998. On 22 May 2006, the Ministry of Foreign Affairs of the PRC provided written assurance to the Australian government that if the appellant were returned to the PRC and found guilty of the crimes charged against him, the death penalty would not be imposed.
On 8 December 1998, the appellant applied to the Minister for a Protection (Class XA) visa, claiming that he had left the PRC because he had been persecuted on the ground of his religious beliefs. A refusal of that application by a delegate of the Minister was affirmed by the Refugee Review Tribunal ("the RRT") in December 1999. On the cessation of the appellant's bridging visa, between January 2000 and February 2004 he lived in Australia as an unlawful non‑citizen. In February 2004, the appellant was located and taken into immigration detention. In March 2004, soon after the refusal of a fresh application by the appellant for a bridging visa, he attempted to escape from immigration detention. On 23 June 2004 the appellant was advised by an officer of the Minister of the PRC arrest warrant.
On 5 and 8 October 2007, the appellant filed applications in this Court seeking judicial review of the RRT's decision made in December 1999 and an injunction to prevent his removal to the PRC. An injunction was issued and the matter was remitted to the Federal Court and subsequently to the RRT to be determined according to law. Following a further decision made by the RRT and subsequent judicial review proceedings, the matter was again remitted to the RRT. On 11 May 2010, the RRT found that the appellant was a person to whom Australia had protection obligations under Art 1A(2) of the Convention, and remitted the matter to the Minister for reconsideration of any issues falling within the scope of Art 1F(b).
On 24 May 2011, a delegate of the Minister concluded that the appellant was excluded from protection under the Convention by Art 1F(b). The appellant appealed to the Tribunal. 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). The appellant gave evidence before the Tribunal in which he denied committing the alleged crimes. On 23 May 2012, relying on Art 1F(b), the Tribunal affirmed the delegate's decision to refuse to grant the appellant a protection visa.
The Tribunal's conclusion, that there were "serious reasons for considering" that the appellant had committed the alleged crimes, was based upon four findings in respect of the evidence. First, the Tribunal accepted documentary evidence provided by the PRC government, including transcripts of interrogation of the two alleged co‑accused, as "direct evidence, albeit of possible accomplices", which implicated the appellant in the alleged crimes. The Tribunal noted that there were "many inconsistencies between the transcripts" although none that caused the Tribunal to "disregard either or both of them." The appellant accepted that the transcripts were relevant to the consideration by the Tribunal of whether the appellant fell within the scope of Art 1F(b). The Tribunal also considered unchallenged evidence of experts concerning coercive interrogation techniques which may have been employed in respect of the interrogation of the two alleged co‑accused.
The Tribunal then made three further findings (which the appellant contended were irrelevant) as follows:
"Secondly, on the basis of the evidence of the [appellant] I am satisfied that he left China shortly after the crimes were committed and that he provided false information to the Australian authorities in order to obtain a visa to do so. I am satisfied also, again based on the evidence of the [appellant], that he deliberately provided false information when applying to the Australian authorities for a protection visa in 1998.
Thirdly, I am satisfied that the [appellant] was evasive when giving evidence as to his religious affiliations in Australia and China and I am satisfied that he was not detained and tortured in China as he alleges. I am satisfied that his evidence in this regard was fabricated in order to strengthen his claim to remain in Australia. The [appellant] was unable to explain satisfactorily why, when giving evidence to the Refugee Review Tribunal, he did not inform that Tribunal of what he now alleges happened to him before he left China.
Fourthly, I have taken into account also that the [appellant] attempted to escape from detention in 2004, shortly after his application for a long term business visa was refused. I am satisfied that in attempting to escape he intended to return to live unlawfully in the Australian community. I am satisfied of these facts on the basis of the [appellant's] evidence. I am not satisfied that his stated reasons for attempting to escape were accurate. I am satisfied also that the [appellant] remained in Australia from January 2000 to February 2004 without lawful permission to do so. In view of his experience in applying for various visas beforehand, I do not accept his evidence that he believed he was entitled to remain in Australia during this period. There is no evidence which suggests that an application was made to the Minister by, or on behalf of, the [appellant] during his period of unlawful residence."
After this description of lies and conduct of the appellant, which were admitted, the Tribunal 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 the appeal in the Full Court, the majority considered the Tribunal's findings, extracted above, and said:
"The Tribunal clearly regarded these facts as demonstrating the [appellant'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."
In dissent, Kerr J 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. Relying on Edwards v The Queen and Craig v South Australia, Kerr J concluded that the Tribunal had relied on irrelevant considerations and had thereby fallen into jurisdictional error. His Honour considered that a reviewing court was not entitled to be satisfied of an adverse conclusion under Art 1F(b) if the reasons given by the decision‑maker did not consider properly, or at all, the evidentiary support for that conclusion. For a reviewing court to imply or infer critical findings of fact, not expressed in the decision‑maker's reasons, would, his Honour said, "turn on its head the fundamental relationship between administrative decision‑makers and Chapter III courts exercising the power of judicial review." Kerr J's approach was correct and should be followed.
Article 1F(b) - interpretation
It was common ground that Art 1F(b) has an autonomous meaning to be found in international rather than domestic law.
In Applicant A v Minister for Immigration and Ethnic Affairs, Gummow J remarked:
"The Convention resolves in a limited fashion the tension between humanitarian concerns for the individual and that aspect of state sovereignty which is concerned with exclusion of entry by non‑citizens, '[e]very society [possessing] the undoubted right to determine who shall compose its members'."
That passage has been relied upon subsequently by this Court and has been considered with approval by Lord Bingham of Cornhill in R (European Roma Rights Centre) v Immigration Officer at Prague Airport (United Nations High Commissioner for Refugees intervening).
While Art 1A(2) exemplifies humanitarian concerns for the individual, Art 1F concerns that aspect of state sovereignty to which Gummow J referred, as "it recognises a state's interest in declining to receive and shelter those who have demonstrated a propensity to commit serious crime." It operates to exclude from the protections afforded by the Convention three types of persons who might otherwise qualify as refugees.
The text of Art 1F, like the text of many international instruments, represents an accommodation of a kind directed to attracting a maximum number of contracting States, by being drafted generally and with an eye to different legal systems. Notwithstanding a somewhat complicated drafting history, the general language of the text, and a difficult distinction between "political" and "non‑political crime", the "ordinary meaning" of Art 1F(b) is clear. The subject matter and purpose of Art 1F(b) is to ensure that criminals cannot avoid prosecution and punishment for serious non‑political crimes committed outside the receiving country, by claiming refugee status in that country.
In Dhayakpa v Minister for Immigration and Ethnic Affairs, French J described the exception in Art 1F(b) as protective of the order and safety of the receiving State, which should not be "construed so narrowly as to undercut its evident policy." That approach has been followed subsequently in decisions of the Federal Court. His Honour stated that it is unnecessary for a receiving State to make a positive or concluded finding about the commission of a crime and that "strong evidence" is sufficient, about which more will be said later.
In this field of public international law, scholarly writings and international instruments can provide assistance to courts charged with the task of interpreting the autonomous meaning of certain provisions. Whilst not binding on the courts of contracting States, the UNHCR's Background Note on the Application of the Exclusion Clauses ("the UN Background Note") states:
"3. The rationale behind the exclusion clauses is twofold. Firstly, certain acts are so grave that they render their perpetrators undeserving of international protection as refugees. Secondly, the refugee framework should not stand in the way of serious criminals facing justice. While these underlying purposes must be borne in mind in interpreting the exclusion clauses, they must be viewed in the context of the overriding humanitarian objective of the 1951 Convention.
4. Consequently, as with any exception to human rights guarantees, the exclusion clauses must always be interpreted restrictively and should be used with great caution." (emphasis added)
In Al‑Sirri v Secretary of State for the Home Department (United Nations High Commissioner for Refugees intervening), the Supreme Court of the United Kingdom held that Art 1F (particularly Art 1F(c)) should be "interpreted restrictively and applied with caution" because of the serious consequences of excluding from protection under the Convention a person who has a well‑founded fear of persecution.
In adopting that approach, the Supreme Court acknowledged its UNHCR provenance. In determining the correct approach to the interpretation and application of Art 1F, the Supreme Court took into account not only the approach taken earlier in that Court, but also the approach taken by the Supreme Court of Canada and the Grand Chamber of the Court of Justice of the European Union. That approach should be followed in respect of Art 1F(b).
Before turning to the submissions concerning the appellant's case on jurisdictional error, it is convenient to say a little more about two specific expressions in Art 1F(b) relevant to those submissions.
"Serious non‑political crime" − the concession
The expression "serious non‑political crime" has its roots in Art 14(2) of the Universal Declaration of Human Rights (1948) and references to extraditable crimes found in the Statute of the Office of the United Nations High Commissioner for Refugees. The competence of the High Commissioner is there said not to extend to a person "[i]n respect of whom there are serious reasons for considering that he has committed a crime covered by the provisions of treaties of extradition". The meaning of the expression "serious non‑political crime", occurring in Art 1F(b), was considered by the House of Lords in T v Secretary of State for the Home Department. As was explained in the reasons of Lord Mustill, notwithstanding a distinct echo in the expression of the political exception which had been a feature of extradition treaties for a considerable period, it is the purposes of asylum, rather than extradition, which bear on the meaning of Art 1F(b). The purposes of asylum, seen in the light of the drafting history of Art 1F(b), support the conclusion that Art 1F(b) is not confined to crimes of an extraditable nature.
It is sufficient for this case to note that each of the crimes alleged against the appellant is a "common crime" (un crime de droit commun) as that expression is used in this field of discourse to refer "to 'ordinary crime', or conduct recognised as criminal by the common consent of nations." Recognition that a crime is a "common crime" may be premised on the character and nature of the crime, the modes of prosecution and the penalties which can be imposed. Given that frame of reference, the appellant was right to concede in the Tribunal that the crimes alleged against him fell within the relevant requirement of Art 1F(b) as "serious non‑political crime[s]".
"Serious reasons for considering" − the standard of proof
The expression "serious reasons for considering" that a person has committed a "serious non‑political crime" has been considered frequently by courts in Australia and elsewhere. As will become evident, the expression has been referred to consistently as a "standard of proof" in authorities and scholarly publications and is referred to as such in the UN Background Note. Had that usage been challenged in this appeal, which it was not, we would have been disinclined to accept the challenge. An Australian decision-maker applying Art 1F(b) who is assisted by, or who adopts, the usage does not, for that reason, make an error. The usage does not imply any requirement that a decision‑maker be satisfied beyond reasonable doubt of a person's guilt.
In Arquita v Minister for Immigration and Multicultural Affairs, Weinberg J, following earlier Federal Court authorities, said that "serious reasons for considering" that a person had committed a crime under consideration did not require a positive or concluded finding, but did require "strong" evidence of the commission of the crime. His Honour explained:
"It is sufficient, in my view, 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."
That approach to the standard of proof set out in Art 1F(b) has now been followed many times in the Federal Court. It is an approach also followed by the UNHCR and by Professor Hathaway and other commentators. All reiterate that the standard of proof - "serious reasons for considering" − does not derive from, or replicate, a standard of proof in any domestic legal system.
In Al-Sirri, the Supreme Court considered the approaches to the standard of proof taken in authorities in the United Kingdom, Australia, Canada and New Zealand and accepted the approach taken in Arquita. The Court then set out the meaning of the expression "serious reasons for considering":
"We are, it is clear, attempting to discern the autonomous meaning of the words 'serious reasons for considering'. We do so in the light of the UNHCR view, with which we agree, that the exclusion clauses in the Refugee Convention must be restrictively interpreted and cautiously applied. This leads us to draw the following conclusions: (1) 'Serious reasons' is stronger than 'reasonable grounds'. (2) The evidence from which those reasons are derived must be 'clear and credible' or 'strong'. (3) 'Considering' is stronger than 'suspecting'. In our view it is also stronger than 'believing'. It requires the considered judgment of the decision‑maker. (4) The decision‑maker need not be satisfied beyond reasonable doubt or to the standard required in criminal law. (5) It is unnecessary to import our domestic standards of proof into the question."
The passage draws together international consensus about an exacting standard of satisfaction which is not derived from domestic standards of proof.
Submissions
The appellant relied on two grounds of jurisdictional error identified in Kirk v Industrial Court (NSW) by reference to Craig. The Tribunal was said to have asked itself a wrong question and to have taken into account, impermissibly, irrelevant matters. Thus it was said that an examination of the matters which the Tribunal treated as determinative showed that the Tribunal misconstrued the limits of its functions or powers to decide whether Art 1F(b) applied to the appellant.
This case was an unusual one in which to invoke a relevancy ground for judicial review. Moreover, the two separate grounds of jurisdictional error complained about overlapped because each ground depended on the same failures or flaws alleged in the Tribunal's reasoning. Those failures or flaws were said to be that the Tribunal gave probative weight to matters which were not relevant; it relied on factors which were relevant only to the appellant's credibility; and it disregarded logically probative evidence, namely that of two experts, Dr Nesossi and Dr Sapio.
The appellant relied on the decision of Mason J in Minister for Aboriginal Affairs v Peko‑Wallsend Ltd, in which his Honour explained that the ground of failure to take into account relevant considerations can only be made out if a decision‑maker fails to take into account a consideration which the decision‑maker is bound to take into account, having regard to the empowering legislation. The appellant proceeded on the basis that the same reasoning applies to the ground of taking into account irrelevant considerations.
The sole question before the Tribunal was whether there were "serious reasons for considering" that the appellant had committed one or more of the crimes alleged against him. It was contended that the matters which the Tribunal in this case was bound to take into account were matters probative of that question. It was further contended that the second, third and fourth matters identified by the Tribunal (extracted above), being lies and conduct of the appellant, were not probative of that question. It was in this context that the appellant submitted that the Tribunal's reliance on those matters showed that it had answered (and therefore asked) the wrong question and had taken into account matters which it was bound not to take into account.
In response, the Minister contended that in applying Art 1F(b) the Tribunal was not limited to considering evidence which was directly probative of the commission of the alleged crimes and that evidence going to credit might also be considered. That submission is correct. It was further contended that since the appellant gave evidence in which he advanced innocent explanations for his admitted lies and conduct, it was relevant for the Tribunal to consider the appellant's conduct since coming to Australia. That submission can also be accepted.
It was then submitted that even if it were proven that the Tribunal relied on facts not probative of "serious reasons for considering" that the appellant had committed one or more of the alleged crimes, that circumstance, without more, would not constitute jurisdictional error or indicate that the Tribunal had asked itself the wrong question. In particular, the Minister relied on the transcripts provided by the PRC, demonstrated a degree of consistency between them, and urged that lies and conduct taken into account by the Tribunal amounted to circumstantial evidence capable of corroborating the evidence of the alleged co‑accused to be found in those transcripts. It can be accepted that the lies and conduct relied on by the Tribunal may have been capable of corroborating the transcripts, but the path by which the Tribunal reached its conclusion that the appellant fell within Art 1F(b) did not establish any such corroboration.
Was there jurisdictional error?
The Tribunal's reasons cannot be equated with a total failure to give reasons, as considered by this Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme. Nevertheless, empowering legislation can show that a tribunal's identification of what it considered to be relevant matters may demonstrate that it asked itself the wrong question, as explained in Minister for Immigration and Multicultural Affairs v Yusuf. Equally, it may demonstrate that a tribunal has misconstrued its functions and powers to decide, by taking into account matters which are irrelevant given the language of the empowering provision and the scope and purpose of the whole Act. Either form of error requires the impugned decision to be set aside.
Here, the Tribunal took into account (and treated as determinative) the timing of the appellant's departure from the PRC, lies told by the appellant both to obtain a visa and to obtain protection under the Convention, and the appellant's conduct in escaping from detention and living in Australia unlawfully. An equally probable explanation for all of these matters is a desire on the part of the appellant to live in Australia. That desire is not unique to the appellant, particularly as he has been found to fall within Art 1A(2) of the Convention. A correct application of Art 1F(b) to the facts required the Tribunal to ask of the evidence before it whether that evidence was probative of "serious reasons for considering" that the appellant had committed one or more of the alleged crimes.
In Edwards v The Queen this Court considered the instructions which need to be given to a jury by a trial judge if lies by an accused are relied upon as corroboration of other evidence. In a key passage in the majority opinion it was recognised that "[a] lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence". It was then said that in any case where a lie is relied upon to prove guilt (here, the commission of an offence) "the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest". Furthermore, Brennan J identified the inherent difficulties in treating false denials of guilt as admissions constituting independent proof of guilt.
The path by which the Tribunal reached its conclusion that the appellant fell within Art 1F(b) 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 the appellant'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.
As to the relevancy ground, undoubtedly the language of Art 1F(b) and the scope and purpose of the Act obliged the Tribunal not to rely on irrelevant considerations when considering whether there were "serious reasons for considering" that the appellant (who qualified for protection under Art 1A(2)) had committed the alleged crimes before entering Australia. The appellant's submission on relevancy depended critically on the Tribunal's finding that the transcripts of the alleged co‑accused were insufficient to persuade the Tribunal that there were "serious reasons for considering" that the appellant had committed those crimes.
In the Full Court, the dissenting judge demonstrated that to the limited extent that the Tribunal addressed the appellant's motives for lying and for his other conduct, there was no finding that the lies and other conduct had anything to do with motive or consciousness of guilt in respect of the alleged crimes. Further, his Honour found that adverse conclusions in respect of the lies and other conduct, namely that they constituted admissions against interest, were not the only conclusions open to the Tribunal.
The Tribunal was bound to consider whether the matters it relied upon, in addition to the transcripts - which it said were insufficient - were probative of "serious reasons for considering" that the appellant had committed one or more of the alleged crimes. As already demonstrated, the Tribunal's path to its conclusion in that respect was flawed.
The criminal standard of proof - "beyond reasonable doubt" - is not to be subsumed into "serious reasons for considering" that an alleged crime has been committed. Nevertheless, the absence of any finding by the Tribunal that the lies and conduct were concerned with circumstances or events connected with the alleged crimes shows that the Tribunal misconstrued its functions and powers under Art 1F(b) to determine whether the appellant was excluded from Australia's protection obligations under the Convention. It is impossible to state that this failure or flaw in the reasoning could not have materially affected the decision.
The Tribunal's reasons reveal jurisdictional error. The majority of the Full Court erred in refusing to quash the Tribunal's decision.
Refoulement consequences
Finally, it can be noted that the appellant sought to raise an argument in this Court which was not raised below. The appellant contended that the Tribunal was required to have regard to the consequences of refoulement when assessing the degree of satisfaction needed for "serious reasons for considering" that a "serious non‑political crime" had been committed. That argument was said by the Minister to be contrary to a concession made by the appellant before the Tribunal. There was no reason advanced as to why the argument had not been raised in the Full Court or why the Full Court was not asked to consider earlier decisions of the Federal Court making some reference to the point. The argument raises considerations of considerable significance: whether the purpose of Art 1F(b) would be defeated if the more serious the crime, the harder it would be to apply Art 1F(b), and whether it would be necessary for a decision‑maker to ascertain the consequences of committing a serious non-political crime in the country in which the crime was alleged to have been committed. In the light of the finding that jurisdictional error was made by the Tribunal, the argument about the consequences of refoulement is not reached.
Conclusions and orders
For the reasons given, the following orders should be made: