Protection Visas and Immigration: FTZK v Minister For Immigration And Border Protection [2014] HCA 26

Today (27 June 2014), the High Court unanimously allowed an appeal against a decision of the Full Court of the Federal Court of Australia and held that the Administrative Appeals Tribunal committed jurisdictional error in affirming the decision of the Minister for Immigration and Border Protection (the Minister) to refuse the appellant a protection visa in the case of FTZK v Minister For Immigration And Border Protection [2014] HCA 26.

Facts

The appellant was a national of the People's Republic of China, and applied for a protection visa under s 36 of the Migration Act 1958 (Cth). The applicant claimed to be a person in respect of whom Australia owed protection obligations under the Refugees Convention.

In refusing the appellant a protection visa, the Minister found that notwithstanding that the appellant was a refugee within the meaning of Art 1A(2) of the Convention, he was excluded from protection under the Convention by Art 1F(b) on account of his alleged involvement in the crimes of kidnapping and murder in the People's Republic of China. The Convention states that it shall not apply to any person with respect to whom there are serious reasons for considering that he or she has committed a serious non-political crime outside the country of refuge prior to admission to that country as a refugee. 

On Appeal

In the exercise of its review function, the Administrative Appeals Tribunal applied recorded that it was not in dispute that the crimes alleged against the appellant were serious non-political crimes for the purposes of the Convention. The Administrative Appeals Tribunal was satisfied, on the basis of several findings, that there were serious reasons for considering that the appellant had committed serious non-political crimes and affirmed the decision of the Minister.

An appeal against the orders made by the AAT to the Full Court of the Federal Court of Australia was dismissed.

High Court Appeal

The High Court unanimously held that the reasons of the Administrative Appeals Tribunal revealed jurisdictional error as the factors relied upon were not logically probative of the appellant having committed one or more of the crimes alleged.

The Court quashed the Administrative Appeal Tribunal's decision and ordered that a differently constituted tribunal review the Minister's decision according to law.

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FTZK v Minister For Immigration And Border Protection [2014] HCA 26