FTZK v Minister for Immigration and Border Protection and Anor [2014] HCATrans 41 (11 March 2014)

Last Updated: 12 March 2014

[2014] HCATrans 041

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M143 of 2013

B e t w e e n -

FTZK

Appellant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

FRENCH CJ
HAYNE J
CRENNAN J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 MARCH 2014, AT 10.15 AM

Copyright in the High Court of Australia

MR P.G. NASH, QC: If the Court pleases, I appear with my learned friend, MS N.P. KARAPANAGIOTIDIS , for the appellant. (instructed by Maddocks)

MR S.P. DONAGHUE, SC: If it please the Court, I appear with my learned friend, MS R.J. SHARP, for the first respondent. (instructed by Australian Government Solicitor)

FRENCH CJ: I note a submitting appearance for the second respondent. Yes, Mr Nash.

MR NASH: If the Court pleases, may I first apologise, there is no outline of oral argument. I was not aware of the need for one until about three minutes ago.

FRENCH CJ: Well, it is a requirement which has been in place for some time, Mr Nash, and it is a very important document. We treat that as the most recent crystallisation, as it were, of the way in which the argument is being put by counsel. It is regrettable, but you will just have to proceed.

MR NASH: I apologise, if the Court pleases. The Tribunal in this case needed to be satisfied that there were serious reasons for considering that the appellant had committed a serious non-political crime, and it posed this question at paragraph 7 of its reasons at page 709 of the appeal book, and it posed it in the appropriate terms. But the Tribunal then went on to find that there were serious reasons for considering and it made this finding at page 722 of the court book at paragraphs 68 to 72 of its reasons. At paragraph 68, the Tribunal stated:

I have reached this conclusion on the basis of several findings I have made on the evidence before me. I have taken into account these findings in assessing the strength of the evidence, and therefore the seriousness of the reasons, in this application.

That conclusion was based on four findings of fact set out in paragraphs 69 to 72. Of those, one, the finding of fact set out in paragraph 69, was clearly highly relevant, but the Tribunal held that none of those findings of fact of itself would have been sufficient. The other three findings, in paragraphs 70, 71 and 72, are, in our submission, not relevant to the question the court was required to determine. The fact that the applicant left China shortly after the crimes were committed and that he provided false information to the Australian authorities in order to obtain the visa did not constitute evidence as articulated by the Tribunal at this stage, evidence of the commission of a serious non-political crime.

FRENCH CJ: What do you mean when you say they are not relevant? Do you mean by that that they lack the logical connection with the question whether the appellant had committed an offence of the kind covered by Article 1F?

MR NASH: Yes, your Honour. They carry no logically probative content, none whatsoever, in our submission, of themselves, and I say that in relation to all three. If I can divert from where I was going, the Full Court interpreted the Tribunal as treating all of these matters as evidence of “consciousness of guilt”. That is the phrase used by the Full Court.

HAYNE J: That description should not be permitted to mask that if this is relevant it is relevant as an implied admission of commission of the offence.

MR NASH: I accept that, your Honour.

HAYNE J: Saying that somebody has told a lie, saying that somebody is feeling guilty may be interesting, may be relevant, you have got to go the further step and say it is an implied admission of guilt of the particular kind of criminal conduct.

MR NASH: With respect, your Honour, that is a part of our contention, that if one were to treat these admissions as the Full Court did as evidence of “consciousness of guilt” – and I am sticking to the phrase used by the Full Court – as, effectively, conduct inconsistent with anything except guilt, then one finds the situation that (a) the Tribunal did not analyse any of these matters in this way and, secondly, the Full Court, even if entitled to add that step in the reasoning of the Tribunal and to add that implicit finding of fact to the reasoning of the Tribunal, erred because, in our submission, in saying these matters are evidence of “consciousness of guilt”, they bear no other logical construction was, in fact, making the same error as the direction in Edwards is designed to prevent juries from making.

GAGELER J: Does the direction in Edwards derive from the criminal standard of guilt and can it be translated to the present standard of fact finding?

MR NASH: It probably needs qualification and rounding out, your Honour. We are not saying the criminal standard has to apply. Just taking the civil standard, it has to be more probable than not that a person who – taking our strongest point – escapes into the community, or attempts to escape into the community in 2004, does so because he is conscious that he has committed an offence in China some eight years earlier, even though he does not know at that stage that a warrant has issued for his arrest.

If one looks at the facts as found by the Tribunal he told lies to get his visa. I am not sure whether the Court can take judicial notice of the fact that lies told to obtain visas do not necessarily constitute an admission of guilt or conduct inconsistent - sorry, if I can switch back to the civil standard – conduct which, on balance with probabilities, must indicate guilt, an admission of guilt.

One of the things to be remembered is that the Tribunal did not reason in relation to any of these matters in the way that I am now putting to the Court. It may be if the Tribunal had found that these constituted admissions of guilt then we would be arguing for an error of law within jurisdiction and I would have problems, but the Tribunal did not make any finding at all. The Tribunal found as a matter of fact that it was entitled to treat his behaviour in Australia as in some way relevant to the allegation that he had committed a serious non-political crime before he came to Australia.

HAYNE J: Well, shorn of questions of standard of proof, the relevant reasoning is identified in Edwards v The Queen (1993) 178 CLR in the joint reasons of Justices Deane, Dawson and Gaudron at page 208:

Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt.

It is the necessity, I think, to link the discreditable conduct upon which reliance is had with the particular subject matter of inquiry, namely, commission of identified criminal conduct in China, which is the first step that has to be taken in using evidence of lies, evidence of other discreditable conduct.

MR NASH: With respect, your Honour, we accept that and our contention is that the Tribunal did not even attempt to take the step of making these matters relevant. It was the Full Court that, without any analysis of the reasoning in Edwards or the weight that could be given to lies or the circumstances in which lies could evidence guilt - - -

HAYNE J: Well, is it uncharitable to ask, Mr Nash, whether the Full Court’s attention was ever drawn to Edwards?

MR NASH: I certainly did not draw the Full Court’s attention to Edwards, your Honour, but your Honour will notice that Justice Kerr seemed to be very alive to the problems of Edwards. I am not sure that the - the argument before the Full Court, from my recollection, was that on the face these matters were irrelevant. They could have no relevant probative value. My learned friend, Mr Donaghue, may have mentioned Edwards; I am not sure. But certainly the reasoning of the Full Court is, in our submission, (a) inconsistent with Edwards and also involves the Full Court in conducting a merits review because the Full Court has said he took these into account, therefore they must be relevant. The only way they could be relevant is relying on Edwards. I do have copies of Edwards here if the Court were interested to receive them.

FRENCH CJ: For the purposes of your argument, there is no difference in terms of the construction of Article 1F and the notion of serious reasons, et cetera, between you and the respondent, is there? It is really about whether or not this set of factors which the Tribunal took into account, none of which on its holding was sufficient to constitute a serious consideration, included matters which were not logically relevant to the question which had to be asked and answered.

MR NASH: That is the essence, yes, your Honour.

FRENCH CJ: It is in a sense no more complicated than that. Consciousness of guilt is simply a pathway to establishing relevance, is it not, or logical connection?

MR NASH: It is, your Honour, and I was a little bit scared of trying to make this case too simple, but one feels that one should not annoy the High Court with matters that, on their face, in our submission, are self-evident. There are actually two legs. One is these matters were not probative. Secondly, the Full Court actually engaged in merits review. It made findings of fact not made by the Tribunal in order to justify the Tribunal’s decision.

If the Tribunal had actually said that this was evidence of consciousness of guilt or constituted an admission of guilt, then we might well have an error of law within jurisdiction, but the Tribunal has not said that. The Tribunal has said that in deciding whether a person – whether there were serious reasons for considering that a person has committed a serious non-political crime abroad, one can take into account the person’s behaviour in Australia, even though that has no logical connection with the offence allegedly committed. The Full Court has endorsed that and given it a label and interpolated an additional finding of fact in order to justify what the Tribunal did.

CRENNAN J: Do these arguments have a bearing on the remedy you seek?

MR NASH: Well, the remedy we seek, your Honour, is that the matter be remitted to the Tribunal, because if the Tribunal did commit jurisdictional error there has been no valid determination of the appeal from the Minister. I am not sure that your Honour did not have something else in mind that I have missed.

CRENNAN J: Well, just that your reference to irrelevant considerations covers, as I understand it, three matters which you say may not be inculpatory.

MR NASH: The Tribunal, of course - - -

CRENNAN J: If the evidence remains the same you seem to be suggesting that it would be open to the Tribunal to look at those three matters which you put to us may have other reasons other than inculpatory reasons.

MR NASH: I am sorry, I was not, your Honour. I was saying that if what we had before the Court today was a decision of the Tribunal, which however illogically justified what we say now is exceeding its power, it might then have been acting within jurisdiction and I would not be entitled to the remedy I seek. I am sorry, your Honour, I may not have expressed that in the most articulate fashion. The other thing we would stress, as our learned friends have provided us and presumably the Court with a list of consistencies in the evidence of the two alleged accomplices, and if we may hand to the Court – we received that this morning – a copy of the table of inconsistencies which was placed before the Tribunal.

We say, of course, that consistencies or inconsistencies in the transcripts of the two alleged accomplices are, in fact, irrelevant because the Tribunal said that the transcripts of themselves were not sufficient, possibly because of the inconsistencies, possibly because of the expert evidence given to the Tribunal which the Tribunal appears to have accepted in part, but - - -

CRENNAN J: Part of your argument is the Full Court was bound by that finding of fact, as I understand it.

MR NASH: Yes, your Honour, so that we have a positive finding of fact that the transcripts of themselves do not satisfy the requirements of Article 1F.

FRENCH CJ: Now, going back to the remedy question - I do not want to necessarily be diverted by this - but your submissions then with the proposed orders including certiorari and mandamus, you are, in effect, asserting that the Federal Court should have given you the benefit of the exercise of jurisdiction under section 39B of the Judiciary Act.

MR NASH: Yes, and the - - -

FRENCH CJ: On the basis of jurisdictional error by the Tribunal?

MR NASH: Yes. In substance the claim we make – of course the Court will note that we arrived at the Full Federal Court by the wrong process but the court itself was prepared to look at the merits. Having looked at the merits it decided we had no merits and, therefore, did not amend. What we seek from the Court today is an order by way of certiorari setting aside the decision of the Full Court and the Federal Court and remitting the matter to the Tribunal to be determined according to law.

One other matter that we did raise in our outline of argument was the question of the standard to be applied. In deciding serious grounds for considering, your Honour the Chief Justice, in a previous incarnation, did make the point that there had to be meticulous examination and analysis, although apparently rejecting the argument that the principles in Briginshaw applied.

We are not contending that the test involved looking at the fate of the individual. The authorities seem to be against us on that. What we are contending that, in deciding whether there are serious reasons for considering, one has to have regard to the consequences, the consequences in a general sense, that the individual person, prima facie a refugee - because Article 1F is not relevant if a person is not prima facie a refugee – should be deprived of his status as a refugee and, therefore, should be sent back to the country where he is subject to the possibility of persecution.

That, in weighing up serious reasons for considering should, in our submission, take it further – take the test further – than the mere requirement of satisfying a committal proceeding. It should go close to the balance of probabilities. The House of Lords in fact has made the point that it is hard to see the situation where you do not satisfy the balance of probabilities and yet there are serious reasons for considering.

If the Court pleases, I have been briefer than I meant to be. I meant to take the Court to a number of authorities, but they are all set out in our outline of submissions. Our submission is that the appeal should be upheld and that I would just make one comment in relation to the argument of the respondent. The respondent now contends that even if there is not a “consciousness of guilt” evidenced, nonetheless those three additional matters were properly taken into account because they go to credibility. We say that adds nothing to the argument and it is totally inconsistent with the

statement of the Full Court that the reasons bear no other logical meaning except consciousness of guilt. If the Court pleases.

FRENCH CJ: Thank you, Mr Nash. Yes, Mr Donaghue.

MR DONAGHUE: Your Honours, the facts underlying these appeals are clearly confronting. They are confronting in part because of the horrible nature of the crime with which it is alleged the appellant is guilty, the kidnapping and ransom of a child and then his murder to cover the tracks of the ransomers when their ransom demand was unsuccessful. But undoubtedly it is also confronting because the evidence, by far the main evidence, that the appellant was guilty of those crimes comes in the form of the confessions of two alleged co-conspirators, both of whom have been executed. While the People’s Republic of China has undertaken not to carry out the death penalty with respect to the appellant, no doubt this matter has very serious consequences for him personally.

The respondent’s submission, your Honours, is that, notwithstanding those facts and, in particular, the execution of the alleged co-accused, the AAT was not wrong in finding that there were serious reasons for considering that the appellant had committed those crimes, and it certainly did not make a jurisdictional error in so finding that be the relevant matter for your Honours to determine.

We say that because if the statements of these two co-accused would have provided a proper foundation for the conclusion that there were serious reasons for considering that the appellant had committed the crimes if the co-accused had not been executed, the fact of their execution a year after those confessions were made cannot change the position.

It changes the position in respect of the manner in which any subsequent trial of the appellant might occur in China, undoubtedly so, but that is not the question. The Article 1F question is concerned with whether there are serious reasons for considering that the crime was committed, not with an evaluation of the criminal justice processes in the country to which a person might be returned.

BELL J: The Tribunal recognised that the statements of the two possible accomplices was insufficient to establish strong reasons to consider that the appellant had committed the offences, so that consideration of whether or not the accomplices had been executed and what effect that might have on the cogency of what the Tribunal itself acknowledged to be inconsistencies in the account and recognised was insufficient to establish the strong reasons which it identified as necessary before it could apply Article 1F.

MR DONAGHUE: Your Honour, what I am proposing to do now is to take the Court in some detail to the facts that underlie all of this, not for the purpose of inviting your Honours to get into the merits of the question but to endeavour to assist your Honour in understanding how these issues that form the subject of the findings in paragraphs 70 to 72 of the reasons were – why they were in issue before the Tribunal and how they were used.

What we submit is that it was never the Minister’s case that those facts independently provided reasons for considering that there were – independently got you to the conclusion that there were serious reasons for considering that the crime had been committed. The case, from the Minister’s point of view, focused on the transcripts or the records of the interview, but the case from the appellant’s point of view focused on an attack on why those transcripts or those records of interview did not provide enough to provide serious reasons for considering.

It was that debate and the attempt by the appellant to explain or undermine the evidence in the transcripts that caused, in our submission, the Tribunal to need to make findings disposing of the case against. So when the Tribunal says the transcripts are not - - -

HAYNE J: But be it so, is that not a proposition that says no more than that the present appellant succeeded in persuading the Tribunal that the transcripts, standing alone, would not support the requisite conclusion?

MR DONAGHUE: What the Tribunal said was that any one of its findings would not have been sufficient.

HAYNE J: Does it not inevitably follow that the transcripts, standing alone, were treated by the Tribunal as not sufficient to support the requisite conclusion?

MR DONAGHUE: No, your Honour, for this reason - I do need to explain that answer, your Honour. I will try to give you a short answer, and then I will give you a longer one.

FRENCH CJ: A short answer would be good.

MR DONAGHUE: The appellant had said, multiple times, in his statement, “I had nothing to do with these crimes. It is not me. I have got no explanation for how I could have been named. Probably what has happened is this has been fabricated against me because I have been persecuted in the past.” If the Tribunal had thought that that was all credible then that would necessarily have a bearing upon whether or not the transcripts got the Tribunal to the point of thinking that there were serious reasons for considering that the crime had been committed. You could not evaluate the transcripts by themselves without evaluating the explanation that had been advanced by the appellant.

So it is part of the acceptance of – the reason I say that the Tribunal says looking at all of these matters together it can be more confident in accepting the transcript, in part because it thinks that the denials that have occurred are completely lacking in credibility, and it can be more confident in accepting the transcripts because it finds that the explanation for the departure from China a very short time after the crime was committed was not truthful.

So one bears on the other is the submission that we put, so that finding should not, in our submission, be viewed as a rejection of the probative value of the transcripts. The transcripts were the main reason that there were serious reasons for considering that the crime was committed. What it says is that I might not have accepted the transcripts if I had not formed the conclusions that I had formed about the explanations the appellant gave.

BELL J: At appeal book 724, paragraph 73, the second sentence reads:

Any one of the various factors would not have been sufficient to establish serious reasons –

That is the finding that the Tribunal makes.

MR DONAGHUE: Yes, your Honour.

BELL J: May I add to that some consideration when you speak of the weight of the transcripts in a context in which, as you put it, the issue was had the appellant, as it were, established that the Chinese authorities might have had a reason to nominate him or to coerce others to nominate him, and when that reason was exposed as not acceptable, somehow the transcripts acquired sufficient cogency, standing alone, to provide the serious reasons.

Just in that context, if one goes to appeal book 91 - this is in the report of the Tianjin Public Security Bureau under the heading “Process in Solving this Case” - according to the report, the Security Bureau had on 23 May finally confirmed three suspects in this case, nominating the appellant as one of the three. Then when one goes to appeal book 512, 513, in the report of Dr Nesossi whose report was not challenged, one sees that this investigation took place during the course of the “Strike Hard” investigations. Going back to the case report – I am sorry, I do not know whether it is the case report or elsewhere – one finds that this had been identified, the investigation of this particular kidnapping and murder, as the number one priority for the Tianjin Public Security Bureau.

MR DONAGHUE: The last line of page 90, your Honour.

BELL J: Yes, the number one priority, with a time limit for the investigation. Against unchallenged evidence of an incidence of coercion of interviewees in the course of interviews, that material might perhaps explain the Tribunal’s reluctance to accept the transcripts alone provided serious reasons to consider the appellant’s guilt of the offence, surely.

MR DONAGHUE: It might have, your Honour, and I am going to take your Honour to some of those facts but, for example, the finding in paragraph 70 about departure, the circumstances of departure, it was accepted that the appellant sought the visa to come to Australia on 14 January, some three weeks after the crime was committed. It was accepted that he did so providing false information to the embassy so as to get the visa.

Now, that may have been explicable and, indeed, the appellant attempted to explain it by reference to his need to flee from the persecution that he had experienced, but once that explanation is rejected, your Honour, that fact is capable of being used in two ways. We submit, as the Full Court found, it is capable of being used as evidence of flight, but even if that is wrong it is capable of otherwise corroborating the accounts that were given by the - - -

HAYNE J: How? How?

MR DONAGHUE: Well, to give your Honour one example. Both of the transcripts reflect the co-accused saying, we committed this crime with our other co-accused and with the appellant, who has fled to Australia at a particular period of time.

HAYNE J: The two in custody pointed to someone who was not in the country. Yes.

MR DONAGHUE: Pointed to someone they had never met, on the appellant’s case, and pointed to him being here rather than – pointed to someone of the same name, being here, having left at the right time according to their versions of events.

BELL J: Each gave an account when being interviewed by the Tianjin Security Bureau that the person whom the Tianjin Security Bureau had identified in its report as the third suspect, the security bureau having concluded at least three people were involved, each person during the course of the interrogation identified the person whom the authorities suspected of being complicit but each gave differing accounts of how that association between the three had been formed, one saying that the appellant had only been introduced to the scheme after he and his accomplice had settled on its details and the other giving the appellant a more prominent role. In other words, the two accounts did not stand together in terms of the circumstances in which the conspiracy had been hatched but they were consistent in nominating the person whom the police had already identified as the third suspect.

MR DONAGHUE: That is so, your Honour, and that type of analysis is part of the reason we handed up – we have provided to the Court the document that my learned friend referred to where we go through, in a propositional style, identifying the main elements of the narrative and what your Honours will see each of the accused saying about them. It is true that in respect of the very initial involvement of the appellant there are some differences between the two but, in our submission, those transcripts do not on their face give any appearance of fabrication or having been created in an attempt to frame the appellant, and the Tribunal - we submit it was open to the Tribunal to so find.

BELL J: The Tribunal did not find that; this is the point, Dr Donaghue. The Tribunal, for reasons that one might think understandable, considered in paragraph 73 of its reasons at 724 that the factor of the transcripts was not “sufficient to establish serious reasons”.

MR DONAGHUE: That is true, your Honour, but at paragraph 76 the Tribunal said:

The argument put on behalf of the Applicant in support of a finding . . . have not been established is based in part on the proposition that the two transcripts of the interrogation were deliberately falsified by a person or persons in authority or, alternatively, that both those being interrogated had been persuaded to make false allegations against the Applicant. Counsel for the Applicant referred me to the many inconsistencies . . .

Again, this argument is based on speculation rather than on the evidence. There are many inconsistencies between the transcripts, but none that cause me to disregard either or both of them.

FRENCH CJ: What we are looking for here, of course, is the reasoning which led the Tribunal to conclude that there were serious reasons for considering within Article 1F. You may have covered this in some nuance of what you said earlier, but is your proposed examination of these transcripts meant to end in a proposition that the transcripts, taken alone, were or constituted serious reasons for considering for the purposes of Article 1F? In other words, you are inviting us to some kind of substituted - - -

MR DONAGHUE: Your Honour, that was of the effect of the Minister’s case in the Tribunal.

FRENCH CJ: Yes, I know, but I am asking what is your proposition here?

MR DONAGHUE: My proposition here is that – to try to put it within a legal framework that is relevant to us being here – is that in light of the way that the matter was fought in the Tribunal, including the appellant putting on evidence dealing with these matters, they cannot, on any view of it, be mandatory irrelevant considerations because the Tribunal was entitled to deal with and make findings about evidence that the appellant had put forward in this hearing. They just were not irrelevant considerations.

HAYNE J: Well, that is masking the real problem, Mr Donaghue. It is masking the real problem in this way: that we have four factors mentioned by the Tribunal, three of them relate to events occurring after the alleged offence, is that right?

MR DONAGHUE: Yes, your Honour. Well, sorry, your Honour, I should qualify that. No. The third paragraph deals with the claims about persecution before the events occurred.

HAYNE J: And if those matters constituted an implied admission of guilt of kidnap and murder, they would plainly be relevant.

MR DONAGHUE: Indeed.

HAYNE J: No doubt, in the course of argument in the Tribunal, there was debate about these matters and their significance. But, absent the Tribunal forming and expressing the view that these constitute implied admissions, why are they not, then, properly regarded as considerations irrelevant to the decision actually reached?

MR DONAGHUE: For several reasons, your Honour. First, given that the appellant had said, I did not commit these crimes and I had nothing to do with these and it is inconsistent with my character – I think he expressly said in one of his statements, it is consistent with my character – it was not irrelevant to reject that claim that the appellant had made, that I did not commit the crimes. So, even if they are not capable of uses implied admissions, they were relevant at least to the extent of rejecting the affirmative claim that had been made. That is answer one.

Answer two, your Honour, is that, in our submission, it is necessary to separate the question of the sufficiency of the reasons from the question of relevant or irrelevant considerations. We accept that these reasons are less than optimal in exposing the reasoning process by which the Tribunal thought that these facts were relevant.

But, that in itself is not a jurisdictional error, and I do not understand it to be put against us that it is. So even if your Honours are of the view, and we respectfully submit we can understand a view that says that these reasons could have much more adequately set out the way in which these conclusions were said to be relevant, but if they are conclusions which, we submit, were, by a proper mode of reasoning, capable of being relevant because they go to the credit of the appellant, which was in issue, because they corroborate or are circumstantial evidence supporting - - -

HAYNE J: But - - -

MR DONAGHUE: I know, your Honour, but even if I am wrong about that - - -

HAYNE J: Well, finish your proposition.

MR DONAGHUE: - - - if they are capable of being relevant, now, your Honour might say – indeed, I think your Honour said to me in a question, but absent a further finding of an Edwards type to make it relevant then the matter was irrelevant - we submit that – and again one needs the legal rubric – that cannot be a relevant considerations argument, in my submission. It cannot be that the factor would have been something the Tribunal could consider if it had made a further finding, but absent the further finding it then became a prohibited matter because that would be to identify the relevant considerations by reference to the reasoning process in fact adopted by the decision-maker.

It might suggest a deficiency in the reasoning process if the only way that the fact could have been relevant was via an Edwards process of reasoning, but we respectfully deny that proposition. We have given to your Honours a copy of this Court’s decision in Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, in the joint judgment of five members of the Court, which I hope your Honours have.

Could I ask your Honours to go to page 211 of Doney? It is really the whole of that page that is relevant, but the first and last paragraphs are dealing with corroboration, the middle paragraph is dealing with circumstantial evidence and, as we understand what the Court is saying in that middle paragraph, it draws a distinction between circumstantial evidence being used to prove a matter beyond reasonable doubt and circumstantial evidence being used to prove a matter to a lesser standard and suggests, as we understand the proposition, that where a lesser standard is in issue:

the existence of other reasonable hypotheses is simply a matter to be taken into account in determining whether the fact in issue should be inferred from the facts proved –

In other words, to pick up Justice Gageler’s question to my friend earlier, this case and Edwards are analyses that are necessarily informed by the existence of the criminal standard of guilt and what needs to be done to achieve that standard and, in our submission, where one is not talking about that standard it is not appropriate in the context of an administrative decision to overlay onto the administrative decision-maker a set of rules designed to deal with proof in a different context.

FRENCH CJ: But this is a case in which the administrative decision-maker has – now, you may contest this reading – has identified four factual findings, none of which is a sufficient condition for answering the question in Article 1F, each of which is a necessary condition, on the Tribunal’s logic, in order to reach the affirmative answer to the question posed by Article 1F. Now, if it be the case that as to three, or even one of those factors there is simply no logical connection between that finding and the question which has to be answered in relation to Article 1F then has not the Tribunal simply misapplied Article 1F? This is not a circumstantial evidence analysis because the Tribunal is treating each of them as a necessary condition. It is not strands of a rope where you can lose one and you can still - - -

MR DONAGHUE: What it says in 73 is “any one” would be insufficient and then it says “it is the combination” that gives rise. So there is a little bit of ambiguity. Certainly, any one, we accept – it is certainly saying the transcripts by themselves would not have been sufficient. Whether the sentence “it is the combination of factors” means that every one is essential, in my submission, is perhaps a little unclear. But assume against me that that is what is meant, we submit every one of those findings, at a minimum, is relevant to the credit of the appellant.

BELL J: But how does satisfaction that the appellant is a liar go any way to establishing serious reasons for considering that he committed the offences with which - - -

MR DONAGHUE: By itself it does not, your Honour, but in circumstances where the appellant says part of the reason that - - -

BELL J: Dr Donaghue, let us assume the appellant said nothing. What would there be to establish serious evidence to consider that he had committed these offences?

MR DONAGHUE: The transcripts - - -

BELL J: The transcripts, and the transcripts alone. Now, let us - - -

MR DONAGHUE: And, we submit, the circumstances of departure within a short time of the crime being committed.

BELL J: So it is the circumstances of departure.

MR DONAGHUE: At least those two things.

BELL J: The circumstances of departure involve an application for a passport to be issued by the PRC some months before it is alleged this conspiracy was hatched.

MR DONAGHUE: That occurred in July, yes, before the conspiracy was hatched, but it is not embraced within my reference to circumstances of departure. But I accept that that occurred as a necessary prerequisite to him leaving.

BELL J: The circumstances of departure are not circumstances – I will come to it another way – the circumstances of departure must surely take into account the application for an issue of a passport as a starting point, and that occurs before the offence is said to have been in contemplation.

MR DONAGHUE: That is true, yes, but in our submission, all that I am putting to your Honours is that in the context of an administrative decision and saying nothing about whether this would be true in a criminal trial, because I accept it probably would not be true in a criminal trial, but in the context of an administrative decision, for a tribunal to say, “I have a person of a particular name who lives in a particular city very near the place where a crime has occurred who has applied using false information for a visa to come to Australia a very short time after that crime occurred and has given an explanation for why he did that which I think is a lie”, that that conglomeration of circumstances is logically capable of being used by the Tribunal, at least to support the other evidence.

MR GAGELER: But, Mr Donaghue, is not the point that that is so only through the making of an intermediate finding of fact and that is consciousness of guilt or implied admission of guilt, however you wish to put it? Justice Kerr’s point is, in circumstances where a tribunal is obliged by the statute to set out in its reasons material findings of fact and you do not find that intermediate finding of fact, one can comfortably say that these factors were not used in that way.

MR DONALDSON: In my submission, your Honour, you can – can I answer that in two ways? One, we submit that the application of that label, “consciousness of guilt”, we submit is not a finding of fact. It is an explanation of the reasoning process by which the fact is used. I accept that that explanation of the reasoning process does not appear in this reasons and I accept therefore that that might be properly regarded as a deficiency in the reasons, but the deficiency in the reasons does not generate the jurisdictional error. If our friends had sought further reasons or better reasons, had sought mandamus in the way that the decisions of the court demonstrate can be done, then that might have generated a different factual foundation. But the fact itself, we submit, is capable of properly being used in the way that I have articulated.

HAYNE J: You have said more than once that various of the matters go to the credit of the present appellant. Is it necessary to bear in mind what Justice Brennan said in Edwards by reference to Justice Lowe in 1935 Victorian Law Reports in Edmunds v Edmunds? By no torturing of the statement “I did not do the act”, can you extract the evidence “I did do the act” and is that not precisely the chain of reasoning that you would attribute to the Tribunal when you say that it took account of this man’s credit?

MR DONALDSON: No, your Honour, I am certainly not seeking to use the evidence in that way. My submission is not that the various things that the Tribunal did not accept that might be regarded as bearing on his credit show that he committed the crime. What they show is – what they do is that they provide a basis to discount his denial of having committed the crime and that, having discounted the denial of having committed the crime, one can more comfortably accept the evidence of the co-accused that says that he did.

Your Honours, we say that because if the Tribunal had found that there are serious reasons for considering this crime not having considered anything the appellant had said, as night follows day, that would have been said to involve error. It would have been said to involve a failure to grapple with or engage with the appellant’s reasons why the Minister’s case did not clear the bar, and that is what the Tribunal was doing. It grappled with the case that was being put.

I am not using the credit answer to say this was an independent foundation for a conclusion of serious reasons for considering, but it was a reason to reject the appellant’s evidence, just as your Honours will – if your Honours go to the appellant’s statement, if you will just give me a moment to find the reference. Take, for example, the paragraph 72 findings. If your Honours go to the first volume of the appeal book at page 14 – this is in the appellant’s statement to the Tribunal – you will see that in his statement on that page, paragraphs 22 and 23, he gives an account of his living in the Australian community for a period of some four years.

Now, whether or not that tells you anything about the serious commission of the crime, the appellant advanced this evidence as part of the material that was put before the Tribunal and the Tribunal rejected his account of what he was doing and his explanation that he believed that he was lawful throughout this period was rejected. Similarly, in relation to the escape from detention, it is dealt with by the appellant in his statement in paragraph 14 and he gives an explanation which the Tribunal rejected.

So our point, your Honours, is that the fact that the Tribunal made findings about these things does not show that, contrary to its expressed statements of what test it thought it was addressing, it does not show that it had gone off the rails and that it was somehow asking itself the wrong question. All it shows is that it was dealing with things that the parties had put in issue before it. In doing so, we submit, no jurisdictional error is made because, in our submission, our friends cannot point to any one of those paragraphs and say, in light of the way this matter was conducted, on no rational view, could the Tribunal have thought it was appropriate to make the findings that it made.

So, we respectfully submit, for that reason that the irrelevant considerations ground that was the only ground that our friends advanced in the Full Federal Court cannot be made good as a matter of law and that no other ground has been identified that could demonstrate that a jurisdictional error was made.

HAYNE J: May I take you back to the significance that is to be attached to the time of the appellant leaving China?

MR DONAGHUE: Yes, your Honour.

HAYNE J: One is used to understanding that flight can constitute an implied admission of guilt. This man left China on an apparently lawfully issued Chinese passport - - -

MR DONAGHUE: Yes.

HAYNE J: - - - in his own name?

MR DONAGHUE: Yes.

HAYNE J: You point to the telling of untruths in connection with the obtaining of a visa.

MR DONAGHUE: That is right.

HAYNE J: Why is that to be understood as anything other than pursuit of the desire to live in Australia?

MR DONAGHUE: The desire to live in Australia was a desire that the appellant said arose from the untenable nature of his life in China.

HAYNE J: Let it be assumed that this is wholly false.

MR DONAGHUE: Yes.

HAYNE J: Let it be assumed, as an alternative hypothesis, that his desire to live in Australia is motivated – I think the current debate would have it – by wholly economic considerations. So what?

MR DONAGHUE: What your Honour puts to me is an alternative hypothesis to the hypothesis of flight and it appears on the basis of Edwards and Doney that the existence of that alternative hypothesis, in the context of a criminal trial, would exclude the possibility of using the evidence in the way that we suggest it should be used.

HAYNE J: But, even if we were concerned – we may not be – to determine this on a balance of probabilities, why would that not be an equally probable explanation? Indeed, on one view, why would it not be a more probably explanation? We are not unused, I think, to people wishing to come here.

MR DONAGHUE: Well, undoubtedly, that is so, your Honour, but the combination of circumstances of the – the fact of the departure in the circumstances – if the appellant had explained it in a different way then that might have had a bearing on the weight that would be - - -

HAYNE J: The circumstances are what? Date? That is all.

MR DONAGHUE: Date of departure combined with date of crime, and location within China. This is not a person leaving from anywhere within China within a couple of weeks of the crime being committed. It is a person of the same name as the person who is ultimately thought to be involved in the crime who lives in the same place, effectively, as the place where the crime was committed, leaving.

Now, I do not seek to persuade your Honours that there is no alternative hypothesis open. My submission is that that is not the test; that is not the question for the Tribunal. If there was a mode of reasoning consistent with the matter being properly relevant then it was for the Tribunal to make that decision and it was not necessary for it to apply a criminal law test as a filter to whether that mode of reasoning was permissible.

BELL J: If the Tribunal was applying a test of serious reasons to consider, conformably with decisions such as Dhayakapa and Arquita, and it accepted that the transcripts did not alone afford those serious reasons, if the remaining three factors were simply not capable of supporting the conclusion it would be clear that the Tribunal had not applied the test, albeit that it had stated it correctly, would it not?

MR DONAGHUE: If the Tribunal’s finding is properly understood as divorcing each one of the four factors, and really my case stands or falls on the proposition that that is not a proper reading of the reasons because the Tribunal was, in light of the way this case was conducted, dealing with a situation where there were things said to undermine the credibility of those transcripts which were rejected. So had they succeeded in undermining the credibility of the transcripts, had, for example, the Tribunal accepted that there was a history of past persecution in China that might have created a circumstance that made fabrication credible, then that would have meant that the transcript was not itself enough, having rejected that finding.

So you need the findings in combination. You cannot just say – the reason the Tribunal, in our submission, says that factor one is not enough is that without the other findings the transcript may have been undermined in the way the appellant had sought to undermine it, but because of the other findings it was not. So, in my submission, the matters – the various findings are linked rather than providing four freestanding reasons why there was serious reasons for considering.

GAGELER J: Mr Donaghue, do you depart from or go beyond the reasoning of the majority in the Full Court?

MR DONAGHUE: In one respect, we do, your Honour. We respectfully agree with what their Honours have said, save in this one respect, that their Honours said the only construction, logical construction, that those paragraphs could bear is that they went to flight or consciousness of guilt. We submit that that is a construction that can be borne, an explanation for those findings, but not the only one. There is an additional explanation which is that they were findings made responsibly to the case being made going to credit and/or corroboration in addition to flight.

As I understand it, your Honour, the flight use of the evidence would make it circumstantial evidence that itself, independently of the transcripts, supported the conclusion that was reached. The other uses would not have that effect, but they would nevertheless make the material relevant, and so not an irrelevant consideration.

Your Honours, in light of the way that the argument has developed it might not be helpful for me to take the Court in the detail that I was proposing to take the Court through some of the material. We have addressed in some detail the legal points in writing. We do contend that our friends should be confined to the case that they ran in the Full Court, which was an irrelevant considerations case and that they have not demonstrated any exceptional circumstances that would warrant a departure from that. But we have dealt with that in writing. Unless your Honours have any further questions, those are my submissions.

FRENCH CJ: Thank you, Mr Donaghue. Yes, Mr Nash.

MR NASH: If the Court pleases, just three quick points by way of reply. The issues, 3, 4 and 5, really came before the Tribunal by reason of the reasons that the Minister gave dealing, amongst other things, with the conduct of the applicant in Australia, which appears at appeal book page 306 and following. The issues that relate to those three grounds arose because they were the only matters that the Minister had, the transcripts were received only after the hearing before the AAT had commenced.

That is a bit of context that may not have appeared to date. So, the discussion before the Tribunal started off with a discussion of the Minister’s reasons and the Minister’s reasons canvassed the third, fourth and fifth of those criteria or those grounds. The second short point is that, whatever else could be relevant to why the transcripts had weight, the grounds set out in paragraph 72 could not, the attempt to escape from Immigration custody.

The last point we would wish to make is, of course, that may have appeared from our learned friend’s argument, this is not a question of insufficient reasons. It is a question of reasons revealing the taking into account of irrelevant matters and, therefore, absence of jurisdiction, in terms of Craig. Subject to any questions, they are the responses by the appellant.

FRENCH CJ: Thank you, Mr Nash. The Court will reserve its decision.

AT 11.23 AM THE MATTER WAS ADJOURNED