Federal Court. Was the Tribunal required to identify, in its determination of both the “serious reasons” in s 5H(2) and the “serious non-political crime” in s 5H(2)(b) of the Migration Act 1958 (Cth), the alleged “crime” and analyse its elements? Although s 5H(2) required the decision maker to "consider" whether the elements in ss 5H(2)(a), (b) or (c) are met, can it ask itself whether it "suspects" or "believes" that they are met?
Section 5H of the Migration Act 1958 (Cth) provided (emphasis added):
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
(2) Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b) the person committed a serious non-political crime before entering Australia; or
(c) the person has been guilty of acts contrary to the purposes and principles of the United Nations.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that, "in order for there to be “serious reasons for considering” there must be rational foundation for a strong inference of guilt; the evidence must be clear and credible or strong; a considered judgment, or meticulous investigation, by and actual persuasion of the decision-maker is required"?
Question 2: If the answer to Question 1 is 'yes', can it be said that, "however, the existence of serious reasons does not require evidence of formal charge or conviction or a positive or concluded finding about the commission of the crime or act, rather, it is sufficient that there be strong evidence of its commission"?
Question 3: As to the identification of a “serious non-political crime”, may regard "be had to whether the conduct constitutes a crime in the State where it is alleged to have been committed or the receiving country where the person is seeking refuge"?
Question 4: Is it for the administrative decision-maker to select the appropriate instrument to inform the consideration of whether s 5H(2)(b) is met?
Question 5: Was the Tribunal required to identify, in its determination of both the “serious reasons” in s 5H(2) and the “serious non-political crime” in s 5H(2)(b), the alleged “crime” and analyse its elements?
Question 6: Even though s 5H(2) required the decision maker to "consider" whether the elements in ss 5H(2)(a), (b) or (c) are satisfied, can the decision-maker ask itself whether it "suspects" or "believes" that they are satisfied?
Question 7: Are the generally serious consequences of refoulement, as distinct from the particular circumstances of the case, taken into account "in giving meaning and content to the requirement that there be ‘serious reasons for considering’"?
Question 8: Does the Tribunal make an error if, "in its review of the delegate’s decision, it gives weight to the delegate’s decision (treating the delegate’s reasons as being probative of its own correctness) without performing that statutory function itself"?
The FCA answered those questions as follows: