REASONS FOR JUDGMENT
8 KATZ J: On 8 April 1997, a delegate of the Minister for Immigration and Multicultural Affairs ("the delegate" and "the Minister" respectively) ordered, under s 200 of the Migration Act 1958 (Cth) ("the Act"), the deportation from Australia of a male person, called in this proceeding "A". (The Appeal Book contains no order for the use of such a pseudonym in this proceeding, but I will assume that such an order has been made and conduct myself accordingly.) A sought administrative review of the delegate's decision by the Administrative Appeals Tribunal ("the Tribunal"), but, on 17 April 1998, the Tribunal affirmed the delegate's decision. A then sought judicial review of the Tribunal's decision by this Court constituted by a single Judge, but, on 17 August 1998, the primary Judge dismissed A's application for judicial review. The present proceeding is an appeal by A from that decision of the primary Judge.
9 A is a twenty-nine year old Vietnamese citizen, who, having left Vietnam in 1986 and having spent four years living in Thailand, arrived in Australia on a refugee visa on 18 October 1990. On some date after his arrival in Australia (I am unaware when, but it must have been no earlier than mid-1992), A obtained from the Australian government a travel document of the type referred to in Art 28 of the Refugees Convention ("the Convention"): see the Passports Regulations (Cth), reg 8, conferring the power to grant to a refugee a "convention travel document" (noting the period for which, pursuant to par 8(4)(a), convention travel documents are effective). Further, A obtained from the Vietnamese government, on a date of which I am also unaware, a visa/permit for travel to Vietnam. Then, on 6 July 1994, while unemployed and receiving unemployment benefits (as indeed he had been during at least half of the time since his arrival in Australia), A travelled to Vietnam. He did so using the convention travel document and visa/permit to which I have just referred, apparently for the purpose of visiting his ill mother, who still lived in Vietnam, in Ho Chi Minh City. (How A financed his trip to Vietnam, given his apparent economic circumstances, is a matter which was not explored with him in his evidence before the Tribunal.)
10 On his return to Australia on 18 August 1994, A was arrested at Sydney airport, Customs officers having found 385.4 grams of heroin secreted in the hollowed-out heels of the shoes he was wearing. He was charged with importing into Australia prohibited imports to which s 233B of the Customs Act 1901 (Cth) applied, namely, narcotic goods consisting of a quantity of heroin being not less than the trafficable quantity thereof. He pleaded guilty to the charge and was sentenced by the New South Wales District Court to six years' imprisonment, commencing on 18 August 1994, with a non-parole period of three years and six months.
11 A's conviction and sentence brought him within the provisions of s 201 of the Act. That section provides relevantly that s 200 of the Act (which, as is implicit in par 1 of these reasons for judgment, confers upon the Minister a power to order the deportation of non-citizens) applies to a person if that person: is a non-citizen; committed an offence when a non-citizen who had been in Australia as a permanent resident for less than ten years; and was convicted of that offence and sentenced to at least one year's imprisonment in the result.
12 Some features of A's offence, according to his account of it before the Tribunal, were that: he himself did not use heroin; he had bought the heroin in Vietnam for the purpose of reselling it in Australia; it was only when he reached Vietnam that he had formed the intention of buying the heroin for the purpose of reselling it in Australia; his motivation for the scheme was to earn money to send to his ill mother in Vietnam; he had initiated the scheme by asking a drug user he "just met … in the street"in Ho Chi Minh City about buying heroin; that person had introduced him to a heroin seller, whose name he had not learned; the heroin had cost him US$4800; he had financed the entire cost of the purchase by borrowing US$5000 from a Mr Hoang, a person unconnected with the seller; he had first met Mr Hoang in Vietnam, only a couple of weeks before borrowing the money from him; Mr Hoang had lent him the money interest free, on the basis that he would repay it after his return to Australia and not knowing why he wished to borrow it; he had intended to repay Mr Hoang from the proceeds of the sale of the heroin in Australia; the idea of transporting the heroin in shoes was his and he had bought the heroin already secreted in a pair of shoes, the size of which shoes he had given to the seller in advance; at the time of his buying the heroin, he had no contacts in Australia to whom he believed he could resell the heroin on his return; and, as to his reselling the heroin on his return to Australia, his intention was as follows: "I would go to the streets and look for someone who was willing to buy". (Before the Tribunal, there was no exploration with A of a great many questions which arose if his circumstances were as he had described them to be. Among the more obvious of them were: how he had decided upon the quantity of heroin he had ultimately purchased; how he had known of the feasibility of secreting heroin in shoes; and how he had formed the view that he would be able to resell the heroin in Australia either at all or for a sum great enough to permit his repaying Mr Hoang, let alone for a sum great enough to permit his making a profit to send to his ill mother. Neither was there any exploration of the means by which he had intended to transmit the proceeds of any resale, which proceeds he obviously expected to exceed US$5000, either to Mr Hoang or to his mother.)
13 Among the considerations which the Tribunal took into account in the course of its review of the delegate's decision to order the deportation of A was whether A would suffer hardship if he were to be deported to Vietnam. Although complaints were also made before the primary Judge about other aspects of the Tribunal's decision, it was solely the Tribunal's treatment of the hardship issue which was claimed by A before this Court to have involved legal error on the Tribunal's part, such legal error being said to justify an order remitting the case to the Tribunal to be heard and decided again.
14 In US v Rabinowitz 339 US 56 at 69 (1950), Frankfurter J, in dissent, expressed the view that "the safeguards of liberty have frequently been forged in controversies involving not very nice people". In their submissions to this Court, counsel for A, conceding in effect (as indeed they had to do), although without reference to Frankfurter J's aphorism, that their client fell into the "not very nice people" category, sought to persuade the Court that this appeal nevertheless raised issues of equal moment to that which had been referred to by Frankfurter J. They did not persuade me. In my view, their approach (for which they cannot be faulted, since they were, of course, obliged to take it in order to do the best they could for their client) was merely an attempt to avoid the effect of the application to the Tribunal's statement of findings and reasons in the present matter of the approach of Brennan CJ and Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
15 Their Honours had said in that case that two propositions were well settled: first, that a court exercising a supervisory jurisdiction should not be concerned with looseness in the language or unhappy phrasing of the reasons of an administrative decision-maker; and, secondly, that the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. Their Honours had then said (footnote omitted) that those well settled propositions,
"… recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed…. [A]ny court reviewing a decision … must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision."
16 A's attack before this Court upon the Tribunal's treatment of the hardship issue was directed to the language used in two of the paragraphs in the Tribunal's statement of findings and reasons, those numbered 37 and 40. I will deal with A's attack upon each of those paragraphs in turn, but in reverse order.
17 In par 40, the Tribunal was expressing its conclusion upon certain submissions which had been made to it by A's counsel. It had summarised those submissions in par 38 as being that A,
"… could be subjected to torture or other cruel and inhumane punishment if he were to be deported to Vietnam as a result of committing the heroin related offence. This was because the offence was inextricably linked to a transaction that had taken place in Vietnam. Mr Vincent [A's counsel] submitted that the Vietnamese authorities would be interested in this transaction, and could seek to elicit further information from the applicant about his involvement in the offence in order to launch a prosecution and trial."
Having summarised those submissions, the Tribunal had then, in the same paragraph, drawn attention to the fact that,
"Several documents regarding the claimed lack of respect by Vietnamese authorities for the rule of law and for human rights were tendered as evidence in support of the applicant's likely fate should he become involved in a criminal prosecution upon his return to Vietnam…."
The Tribunal had then, still in the same paragraph, made reference to a number of such documents, including an article from the South China Morning Post of 8 December 1997.
18 In response to the submissions by A's counsel set out above, the Tribunal had begun relevantly, in par 39, by saying that it recognised,
"… that any further criminal sanctions the applicant might face upon his return to Vietnam should in general have no impact upon its deliberations. The Tribunal will in most circumstances only consider such sanctions where they are in excess of any appropriate punishment for an offence, and violate standards set out in relevant international conventions to which Australia has acceded. Beyond a real risk of inhumane treatment of this type, fears by the applicant of harsh treatment under the domestic criminal process of the receiving country will usually be extraneous to the core issues requiring consideration in the deportation process."
It had then continued, in the crucial paragraph of its statement of findings and reasons for present purposes,
"40. In the present case no evidence was presented to the Tribunal to support the submission that the applicant was at any risk of being tortured or subjected to an unfair trial or to capital punishment upon his return to Vietnam. The evidence which was tendered did refer to isolated examples of abuses of the judicial process in Vietnam, but the Tribunal is not satisfied by this evidence alone that the applicant would be subjected to such abuses…."
Finally for present purposes, the Tribunal had drawn attention to the existence of the evidence before it of Mr Peter Job, an officer in the Minister's Department, which evidence it had said had "greatly assisted" it in reaching the conclusion which it had just expressed. That evidence (to which I will later refer in more detail) had been to the effect that, if the Australian authorities deported A to Vietnam by reason of his offence, the only information which they would supply to Vietnam about his offence would be that he had been convicted of importing a prohibited drug into Australia. They would give no further details thereof.
19 It was the Tribunal's use of the phrase "no evidence" in paragraph 40 of its statement of findings and reasons to which A's attack presently under discussion was directed.
20 The submission was that the Tribunal had erred in denying the existence of any evidence before it supporting the submission that the applicant was at risk of being subjected to an unfair trial upon his return to Vietnam. It was said that there had been such evidentiary material before the Tribunal and that its erroneous view that there had not been had prevented it from fulfilling the duty which it had to consider properly, genuinely and realistically the merits of A's case before it, thus involving an error of law by it.
21 I reject the submission which I have just set out for a reason which I have already foreshadowed in par 14 of these reasons for judgment. It approaches the Tribunal's language in its statement of findings and reasons in the very fashion which Wu's Case deprecates.
22 As I read par 40 of its statement of findings and reasons, the Tribunal was there drawing a distinction between evidence related specifically to A's own situation and evidence of a generalised type regarding the Vietnamese legal system. It was saying that A had presented to it no evidence of the former type from which it could infer that he was at risk of being subjected to an unfair trial upon his return to Vietnam as a result of his having bought heroin in Vietnam; all that he had presented to it had been evidence of the latter type. It was further saying that it was not satisfied by that generalised evidence that A was at risk of any trial in Vietnam, whether fair or unfair, especially in light of Mr Job's evidence, which had been specifically related to A's own situation, that the only information which the Australian authorities would supply to Vietnam about A's offence on his deportation was that he had been convicted of importing a prohibited drug into Australia.
23 Two matters confirm me in my view about what it was that the Tribunal was seeking to convey by its use of the phrase "no evidence" in par 40 of its statement of findings and reasons.
24 First, there is the very language of the second sentence of par 40, in which the Tribunal acknowledged the tendering of evidence before it which had referred to abuses of the Vietnamese judicial process, which evidence it said, however, did not "alone" satisfy the Tribunal that A would be subjected to (relevantly) an unfair trial upon his return to Vietnam.
25 Secondly, there is the fact that the Tribunal had, in a passage in par 38 of its statement of findings and reasons, which passage I have quoted in par 17 of these reasons for judgment, already pointed out that several documents regarding the Vietnamese authorities' claimed lack of respect for the rule of law and for human rights had been tendered as evidence in support of A's likely fate should he become involved in a criminal prosecution upon his return to Vietnam. (Incidentally, one of those documents, the extract from the South China Morning Post to which the Tribunal made express reference in par 38, was said by A before this Court to be among the documents which had been before the Tribunal, but the existence of which it had denied by its use of the "no evidence" language in par 40. It would be a surprising thing if, by its use of the "no evidence" language in par 40, the Tribunal had intended to deny the existence of a document to which it had expressly referred only two paragraphs earlier in its statement of findings and reasons.)
26 My view as to what the Tribunal had intended to convey by its use of the "no evidence" language in par 40 being as I have expressed it above, I add that for the Tribunal to deny that A had presented to it any evidence which was related specifically to his own situation from which it could infer that he was at risk of being subjected to an unfair trial as a result of his having bought heroin in Vietnam was accurately to state the fact.
27 However, even if such denial by the Tribunal had not accurately stated the fact, it would have been open, and, in light of Wu's Case, apparently appropriate, to conclude that the Tribunal had not used the phrase "no evidence" "in a technical sense", and instead to "treat the [Tribunal's] reference [to 'no evidence'] as being to a lack of probative material confirmatory of what the applicant had put [to the Tribunal]". The words which I have just quoted come from the reasons for judgment of Gummow J in Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 479 and they were treated by the primary Judge in the present matter as justifying, of themselves, the rejection of A's attack on the use of the phrase "no evidence" in par 40 of the Tribunal's statement of findings and reasons. However, it is unnecessary for me to express a concluded view on that aspect of the matter, holding, as I do, the view which I have expressed above as to what the Tribunal had intended to convey by its use of the "no evidence" language in par 40.
28 Before I leave A's attack on par 40 of the Tribunal's statement of findings and reasons, there is one further matter to which I should refer. In the written submissions filed by A's counsel in this Court, it was submitted that it had not been open in law to the Tribunal to conclude on the evidentiary material before it that A was not at risk of being subjected to an unfair trial upon his return to Vietnam. That submission was, however, given no prominence in oral argument. Perhaps that was because it was recognised that, in truth, the submission raised no question of law (to which type of question A is restricted in this proceeding by virtue of subs 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth)): see, for example, my reasons for judgment in Zizza v Commissioner of Taxation [1999] FCA 37 (unreported, 1 February 1999) at par 33. In any event, however, the submission misstated the effect of the evidence before the Tribunal. The submission was predicated upon Mr Job's evidence having been that the Australian authorities would be supplying to the Vietnamese authorities, in connection with A's deportation, information which included the date of the commission of A's offence and the type of drug involved, from which information the Vietnamese authorities would be able to infer that the heroin which A had imported into Australia had been exported by him from Vietnam. In my view, Mr Job's evidence is fairly to be read as denying that any such information would be supplied, so that all that the Vietnamese authorities would be made aware of was that A had been convicted of having imported into Australia from some unspecified country, at some unspecified time, some unspecified prohibited drug. That evidence was relevantly as I set it out in the following paragraph.
29 First, Mr Job referred to the fact that, on the first occasion when Australia had deported a Vietnamese to Vietnam for reasons of crime, the Vietnamese authorities did "ask for the criminal record of that individual which was essentially the record that had been provided from the criminal process". He was then asked what the Department would now provide in response, if asked for a criminal deportee's criminal record. His answer was, "Simply the information relating to the record. If the conviction showed for example break, enter, and steal, that's all that would be depicted on the record [sic]". Later, he was asked, concerning the first occasion of criminal deportation to Vietnam, whether the offence involved might have had any connection with Vietnam. He said that he could not recall and added that "such details would not have been passed on of course to the Vietnamese anyway, it would simply be the record [sic] that showed on his police record". Finally, the following exchanges occurred:
"If I was to, I will ask you to assume that the offence for which he [that is, A] was convicted is, and I will just get the exact wording: Importation of prohibited drug, and that is the wording as appears on the criminal record?---Yes, yes, and that's all that would be available to the Vietnamese.
And if they were to make inquiries in regard to that what would you intend to do?---We would have no basis on which we could release that detail, it would not be a matter for us, we'd have to refer them to the authorities that have custody of that record. As far as our situation is concerned privacy provisions prevail."
30 I turn now to A's attack upon the language used by the Tribunal in par 37 of its statement of findings and reasons, pointing out immediately that this attack was made for the first time on the appeal to this Court. It was not an attack which was made before the primary Judge.
31 In par 37, the Tribunal was expressing its conclusion upon the question of whether A might suffer, upon his return to Vietnam, persecution for a Convention reason. (It will be recalled that A had arrived in Australia in 1990 on a refugee visa, so that, at that time, the view was presumably taken that A then had a well-founded fear of being persecuted for a Convention reason at the hands of the Vietnamese authorities.) The Tribunal said (in part; I will quote the paragraph in full below),
"The applicant has presented no evidence to the Tribunal which can substantiate his claim that he will suffer persecution, as a former refugee, upon his return to Vietnam. Accordingly the proscription against the expulsion of a refugee contained in Article 33 of the Convention does not apply in the present case."
32 The Tribunal's reference to "Article 33" was actually a reference to par 1 thereof, which provides,
"1. No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."
It is convenient, at the same time as I am setting out par 1 of Art 33, to set out par 2 thereof as well. It provides (relevantly),
"2. The benefit of the present provision may not, however, be claimed by a refugee … who, having been convicted by a final judgement [sic] of a particularly serious crime, constitutes a danger to the community of that country."
33 It is apparent from the passage in par 37 of the Tribunal's statement of findings and reasons which I have quoted in the next preceding paragraph of these reasons for judgment that the Tribunal considered it a relevant matter, when deciding whether to exercise the discretion conferred upon the Minister by s 200 of the Act, whether exercising it would bring Australia into breach of its international obligation under Art 33(1) of the Convention. For the Tribunal to proceed upon that basis would not generally be inappropriate.
34 At the same time, however, it must be acknowledged that, in the particular circumstances of A's case, the Tribunal's consideration of the question of whether A's deportation would bring Australia into breach of its international obligation under Art 33(1) of the Convention was, for two reasons, somewhat surprising.
35 The first of those two reasons is that A's counsel before the Tribunal had uttered not a single word in his closing submissions to the Tribunal in support of the proposition that A should not be deported to Vietnam because, if he were, "his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion" (to use the precise words of Art 33(1)). Nor had he made any submission similar in substance. In fact, counsel had not even referred to the existence of Art 33(1) or to the international obligation imposed thereby. The Tribunal's reference, in par 37 of its statement of findings and reasons, to A's "claim that he will suffer persecution, as a former refugee, upon his return to Vietnam" was a reference, not to anything submitted on his behalf by his counsel at the Tribunal hearing, but (as the preceding paragraph of the Tribunal's statement of findings and reasons makes clear) to something A himself was reported to have said to a parole officer on some earlier occasion.
36 As was said by Deane J as a member of a Full Court of this Court in Sullivan v Department of Transport (1978) 20 ALR 323 at 342, a case which, like the present, involved the Tribunal, "In the ordinary case, a tribunal which is under a duty to act judicially and which has the relevant parties before it will be best advised to be guided by the parties in identifying the issues…." I can see no reason why the present case was not an ordinary one in the relevant respect.
37 The second reason why the Tribunal's consideration of the question of whether A's deportation would bring Australia into breach of its international obligation under Art 33(1) of the Convention was somewhat surprising is that Art 33(1) only applies to persons who are refugees at the relevant time and then only if such refugees are not excluded from the benefit of Art 33(1) by reason of the application to them of Art 33(2). Neither of those two matters preliminary to the application of Art 33(1) was addressed by the Tribunal in its statement of findings and reasons before it embarked upon its consideration of Art 33(1). However, although the Tribunal addressed neither of those two preliminary matters, I propose to say something herein of each of them.
38 First, as to whether, at the time of the Tribunal's decision, A continued to be a refugee (accepting that he had had such status at the time of his arrival in Australia in 1990), that question is one the answer to which depends (relevantly) upon Art 1C(1) of the Convention. Article 1C(1) provides that the Convention ceases to apply to a person falling under the terms of Art 1A thereof if the person has "voluntarily re-availed him[/her]self of the protection of the country of his[/her] nationality". According to par 125 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (1992 ed) (which I do not, of course, suggest is binding in any way, but upon which I rely simply by way of assistance in understanding Art 1C(1)),
"Where a refugee visits his former home country not with a national passport but, for example, with a travel document issued by his country of residence, he has been considered by certain States to have re-availed himself of the protection of his former home country and to have lost his refugee status under the present cessation clause [that is, under Art 1C(1)]. Cases of this kind should, however be judged on their individual merits. Visiting an old or sick parent will have a different bearing on the refugee's relation to his former home country than regular visits to that country spent on holidays or for the purpose of establishing business relations."
39 I have already referred above to A's having apparently travelled to Vietnam for the purpose of visiting his ill mother in Ho Chi Minh City, although, according to his own evidence before the Tribunal, he did spend at least part of his time in Vietnam in another part of the country, visiting other relatives. However, A's evidence before the Tribunal, including his fanciful account of the circumstances of his buying of the heroin which he had imported into Australia, must surely raise the question of whether his true purpose in travelling to Vietnam had been to buy heroin on his own account, or at least to transport heroin from Vietnam to Australia on someone else's account. If the Tribunal had considered that question, it would plainly have been open to it to conclude that the purpose of A's visit to Vietnam had been a(n illicit) business one and that that visit had been incapable of being repeated solely because of A's imprisonment upon his return to Australia. If the Tribunal had so concluded, it could also have concluded, consistently with the UNHCR's approach to Art 1C(1) of the Convention, that, by travelling to Vietnam as he had, A had voluntarily re-availed himself of Vietnamese protection within the meaning of that paragraph, in which case no issue under Art 33(1) of the Convention could have arisen.
40 Leaving aside now the question of whether, at the time of the Tribunal's decision, A continued to be a refugee, a further question arises of whether Art 33(2) applied to him at that time (in which case, of course, Art 33(1) did not). The application to A of Art 33(2) depended upon his being a person "who, having been convicted … of a particularly serious crime, constitute[d] a danger to the [Australian] community".
41 As to whether A had been convicted of a particularly serious crime within the meaning of Art 33(2), in Betkoshabeh v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 95 at 100 (Finkelstein J) held that, in order to determine whether a crime is a particularly serious one for present purposes, it is generally necessary to have regard to the circumstances in which it was committed, although he accepted the possibility that there can be crimes which are particularly serious per se. In Betkoshabeh v Minister for Immigration and Multicultural Affairs [1999] FCA 16 (unreported, 15 January 1999), a later case involving the same parties, Marshall J (at par 8 of his reasons for judgment) agreed with the approach of Finkelstein J. Accepting that it would be necessary, in order to determine whether A had been convicted of a particularly serious crime, to have regard to the circumstances in which he committed it, it would certainly have been open to the Tribunal here to conclude that the crime of which A had been convicted had been, in the circumstances, a particularly serious one. I say that because the crime had involved an attempt to introduce a substantial quantity of heroin into the Australian community, not for personal use by a person addicted to the drug, but for financial gain. Be that as it may, the Tribunal did not describe A's crime as being a "particularly serious" one, although it did describe it both as being "serious" and as being of such "gravity" that the Tribunal could not conclude that the risk of A's re-offending was sufficiently small to justify his continued presence in Australia.
42 If the Tribunal had considered the question of whether A's crime had been a "particularly serious" one within the meaning of Art 33(2) and had concluded that it had been, then an issue would have arisen as to whether the Tribunal was required to consider separately the question of whether A constituted a danger to the Australian community or whether, alternatively, satisfaction as to his crime's having been a particularly serious one gave rise to a conclusive presumption that he constituted a danger to the Australian community. The issue was not one addressed directly by Finkelstein J in the Betkoshabeh Case, although there may be a suggestion that his Honour favoured the conclusive presumption approach in his statement (at 100) that the crime committed "must be 'particularly serious' as well as a crime that shows that the refugee is a danger to the community". Certainly, the conclusive presumption approach has been taken by federal Courts of Appeals in numerous Circuits, when construing American domestic legislation both materially identical to and enacted to implement Art 33(2): see, for example, the annotation in 87 ALR Fed 646 at 651-53 (1988), and the October 1998 supplement thereto at 21; and see, for a similar Canadian approach, Hoang v Minister of Employment and Immigration (1990) 120 NR 193 at 197 (Federal Court of Appeal; Urie, MacGuigan and Linden JJA).
43 On the assumption, however, that the question of danger to the community is a question to be decided separately from the question of whether a crime is a particularly serious one, it is plain that the Tribunal did not in terms address the question of whether A constituted a danger to the Australian community. At the same time, however, it is impossible to doubt that the Tribunal's decision was predicated upon his being such a danger, as, for instance, when it expressed the view already referred to that the risk of A's re-offending was too great to justify his continued presence in Australia.
44 The discussion in the preceding paragraphs of these reasons for judgment about Arts 1C(1) and 33(2) of the Convention shows how extraordinarily generously the Tribunal treated A, in so far as it even considered in his case the Art 33(1) question. However, such extraordinary generosity by the Tribunal will not, it appears to me, avail the Minister on the present appeal if, in par 37 of its statement of findings and reasons, the Tribunal committed legal error. I therefore turn now to the question of whether it did.
45 As with his attack upon par 40 of the Tribunal's statement of findings and reasons, A's attack upon par 37 of the Tribunal's statement of findings and reasons approaches the Tribunal's language in the fashion deprecated by Wu's Case. I have already set out in par 31 of these reasons for judgment the first part of par 37 of the Tribunal's statement of findings and reasons, but it will be convenient now to set out that paragraph in its entirety, including the part already quoted. It read,
"37. The applicant has presented no evidence to the Tribunal which can substantiate his claim that he will suffer persecution, as a former refugee, upon his return to Vietnam. Accordingly the proscription against the expulsion of a refugee contained in Article 33 of the Convention does not apply in the present case. It is also relevant to note that paragraph 18 of the [Australian government's criminal deportation] Policy [of 24 December 1992] requires 'cogent and substantiated evidence of any claim of likely persecution to be produced' in a situation like that applying to the applicant. Otherwise, 'it is very difficult to give weight to the unsubstantiated claim' (see T3 [which was a copy of that Policy])."
46 It was A's submission that, in par 37, the Tribunal had revealed that it had approached the Art 33(1) question on the basis that, before that provision applied, the Tribunal had had to be satisfied, on the balance of probabilities, that A would be persecuted for a Convention reason if he were to be returned to Vietnam, whereas all that it had had to be satisfied of had been that there was a real chance of such persecution.
47 The submission to which I have just referred had a certain Heath-Robinsonesque quality about it. In substance, it appeared to have the following eight steps to it: (1) in the first sentence of par 37, the Tribunal manifested its view that A's (assumed) claim that "his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion" if he were to be returned to Vietnam was required to be supported by evidence; (2) in the third and fourth sentences of par 37, the Tribunal adopted and applied the Australian government's criminal deportation policy; (3) the Australian government's criminal deportation policy required that the evidence supporting a claim of the type presently under discussion be "cogent and substantiated"; (4) that policy also recognised that, unless such "cogent and substantiated" evidence were produced, it would be "very difficult" to accept the claim; (5) the Australian government's requirement in its policy that, generally, a claim of the type presently under discussion be supported by evidence which is "cogent and substantiated" was intended to reflect its (unexpressed) view that Art 33(1) did not apply unless the relevant decision-maker was satisfied, on the balance of probabilities, of the existence of the claimed threat to life or freedom for a Convention reason; (6) in reflecting that view in that requirement in its policy, the Australian government was giving effect (quaere, knowingly) to the construction given to Art 33(1) by the United States Supreme Court in INS v Cardoza-Fonseca 480 US 421 (1987); (7) the construction given to Art 33(1) in Cardoza-Fonseca was wrong, as was held by a Full Court of this Court in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685; and (8) in adopting and applying the Australian government's criminal deportation policy, the Tribunal intended to reflect the same (unexpressed) view as to the operation of Art 33(1) as was (wrongly) held by the Australian government.
48 There is more than one flaw in the steps which I have just outlined. First, the Tribunal's reference in par 37 of its statement of findings and reasons to the Australian government's criminal deportation policy succeeded its expressed conclusion that Art 33(1) was inapplicable in A's case and was preceded by the words, "It is also relevant to note …" I do not read the Tribunal as having made that policy an essential part of its process of reasoning regarding the applicability of Art 33(1); instead, I read it as having referred to the policy merely as additional material of interest. Secondly, I do not read the Australian government as having intended to express silently, by its use of a general requirement that there be "cogent and substantiated" evidence in support of a claim, a requirement that such evidence persuade the decision-maker on the balance of probabilities. If that had been the government's intention, surely nothing would have been easier than simply to use in its policy the latter form of words, which is, after all, extremely well-known, as opposed to using the unknown (at least by me) phrase "cogent and substantiated". (Lest it be thought that the latter phrase had been taken from the United States Supreme Court case of Cardoza-Fonseca, I confirm that it had not been.) Thirdly, even if the government's intention had been to impose, by its use of a requirement that supporting evidence be "cogent and substantiated", a requirement that such evidence persuade the decision-maker on the balance of probabilities, there is no reason to conclude either that the Tribunal was aware that that had been the government's intention, such intention not having been made explicit in the policy, or that the Tribunal itself understood that phrase in that sense.
49 For the reasons given above, I reject A's attack on par 37 of the Tribunal's statement of findings and reasons, concluding that, in that paragraph, the Tribunal had not approached the Art 33(1) question on the basis that, before that provision applied, the Tribunal had had to be satisfied, on the balance of probabilities, that A would be persecuted for a Convention reason if he were to be returned to Vietnam.
50 In the circumstances, A's appeal to this Court should be dismissed with costs.