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Court: High Court of Australia
Legislation considered: Migration Act 1958 (Cth) 
Links:  Judgment | Submissions and transcript
Download:  Casenote FTZK v Minister for Immigration and Border Protection [2014] HCA 26 (PDF)




In FTZK v Minister for Immigration and Border Protection [2014] HCA 26, the High Court allowed an appeal against a decision by the Administrative Appeals Tribunal (AAT) to refuse a Chinese national a protection visa. The AAT had applied the exclusion clause in the Refugee Convention (in this case, article 1F(b)) because it was satisfied that there were ‘serious reasons for considering’ that the man had committed a ‘serious non-political crime’ while in China. The High Court held unanimously that the AAT had relied on evidence which was not logically probative of whether the alleged crimes had been committed, and therefore had fallen into jurisdictional error by misconstruing the test it was bound to apply. The court also observed that the question of whether there are ‘serious reasons’ in this context cannot be equated to either the civil or criminal standard of proof, as understood by domestic courts.


The appellant, FTZK, was wanted in China on murder and kidnapping charges. The AAT refused his claim for a protection visa. The AAT applied article 1F(b) of the Refugee Convention, which relevantly provides that a person who otherwise meets the refugee definition is excluded from refugee status where there are ‘serious reasons for considering’ that he or she has committed a ‘serious non-political crime’ outside the country of refuge. An appeal to the Full Federal Court was dismissed by majority (Gray and Dodds-Streeton JJ; Kerr J dissenting). The appellant appealed by special leave to the High Court.

‘Serious reasons for considering’

The central issue before the High Court was whether the AAT had misconstrued the relevant test under article 1F(b) of the Refugee Convention. The AAT had relied on four ‘factors’ supporting the conclusion that there were ‘serious reasons for considering’ that the appellant had committed the alleged crimes. First, the Chinese authorities suspected him and possessed transcripts of interrogation of two men who had been convicted of the crimes and had named the appellant as a co-offender. Secondly, the appellant had left China soon after the commission of the crimes and had provided false information to Australian authorities in order to travel to Australia. Thirdly, the appellant was evasive in giving evidence to the AAT. Finally, the appellant had attempted to escape from Australian immigration detention.

The court considered that the AAT’s reliance on these factors revealed the commission of jurisdictional error by failing to ask the question required by article 1F(b). Hayne J held that reliance on the second, third and fourth factors showed that the AAT misconstrued the expression ‘serious reasons for considering’, because they were not logically probative of whether the appellant committed the alleged crimes (at [31]). Crennan and Bell JJ observed that an ‘equally probable explanation’ for the second, third and fourth factors was ‘a desire on the part of the appellant to live in Australia’ (at [91]). The AAT did not explain ‘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’ (at [93]). French CJ and Gageler J held that ‘the AAT’s process of reasoning did not comply with the logical framework imposed on its decision-making by Art 1F(b)’ (at [19]). The requisite ‘rational foundation’ for the inference that the appellant had committed a serious non-political crime was absent (at [13]).

Standard of proof

The court also considered whether the requirement of ‘serious reasons for considering’ is assisted by the concept of ‘standard of proof’. French CJ and Gageler J held that the criterion cannot be equated to a standard of proof (at [15]), and Hayne J considered that use of the phrase in this context is apt to mislead (at [33]). By contrast, Crennan and Bell JJ would have been ‘disinclined’ to accept a challenge to the use of the phrase ‘standard of proof’, and held that a decision-maker who adopts that expression does not commit an error (at [79]). However, they acknowledged that the criterion ‘does not derive from, or replicate, a standard of proof in any domestic legal system’ (at [82]). Their Honours did note that article 1F should be ‘interpreted restrictively and applied with caution’, because its application will exclude a person who is otherwise a refugee from protection (at [74]–[75]).

Relevance of refoulement

Finally, the appellant argued that the AAT was bound to consider the consequences of refoulement in determining whether there were ‘serious reasons for considering’ that a ‘serious non-political crime’ had been committed. Although Crennan and Bell JJ acknowledged that the argument ‘raises considerations of considerable significance’ (at [99]), it was unnecessary for the judges to decide it.

Author: Jackson Wherrett
27 June 2014

The Kaldor Centre plays a vital role in developing legal, sustainable and humane solutions for displaced people around the world.