The High Court has allowed an appeal against the decision of the Full Federal Court in FTZK. FTZK is an asylum seeker who was accused of involvement in a kidnapping-murder while he was in China, an accusation he claims was motivated by his religious practices. The Administrative Appeals Tribunal held that a combination of doubts about his account and his conduct following the accusation constituted ‘serious reasons’ for considering that he had committed a serious non-political crime, meaning that the Refugee Convention will not apply. Rejecting an argument that this ruling took into account irrelevant grounds, a majority of the FCAFC held that there had been no jurisdictional error on the part of the Tribunal and dismissed the appeal as beyond the Federal Court’s jurisdiction.

Allowing the appeal, the High Court held that the tribunal had fallen into jurisdictional error. Article 1F(b) required that the Tribunal ask whether the evidence before it was probative of ‘serious reasons for considering’ that FTZK had committed the alleged crimes. Here the Tribunal took the timing of FTZK’s departure, lies told by him and his escape from detention as determinative, however, as Crennan and Bell JJ put it, ‘[a]n equally probable explanation for all of these matters is a desire … to live in Australia’ (at [91]). The Tribunal’s reasons neither indicated how this evidence was relevant to the circumstances or events of the alleged crimes nor how it constituted of ‘serious reasons’ for considering that he had committed them. French CJ and Gageler J held at [15] that the exclusion criterion in art 1F(b) was not equivalent to a standard of proof: ‘Standards of proof are applied in judicial proceedings for the purpose of making findings of fact which attract legal consequences … They are not substitutes for the application of the ordinary words of Art 1F(b)’. Hayne J likewise noted that ‘serious reasons for considering’ is not well described as a standard of proof’ (at [33]ff). The Tribunal misconstrued the test by examining factors that could not be probative of FTZK’s commission of the alleged crime (and therefore could not be a reason for considering that he had committed them), and therefore fell into jurisdictional error. The Court ordered that a newly constituted Tribunal review the Minister’s decision to refuse to issue a protection visa to FTZK.