11 The primary judge did not refer to the line of cases, of which Quin is one, in which the confined nature of Wednesbury unreasonableness is explained, and it may be that his Honour's statement that the Tribunal's decision on Art 33(1) was "so unreasonable that no reasonable tribunal would so conclude", was merely an emphatic way of expressing strong disagreement with the decision. Nor did his Honour refer to the line of cases which includes The Minister v Wu Shan Liang (1996) 185 CLR 259, in which the High Court has stressed that it is not a court's function to enquire into the merits of a matter of fact committed to an administrative tribunal. His Honour's positive finding that the respondent was a "refugee whose freedom would be threatened on account of his race and religion if he returned to Iran" clearly exceeded his supervisory role. It was a determination of the merits of the claim under Art 33(1).
12 This was not a case in which, to use the language of Gummow J in Eshetu, the evidence was "all one way", that is to say, all pointed to the conclusion that there was a real chance of persecution on return. There was "some probative material" which supported the Tribunal's conclusion. More recent DFAT information disclosed that Assyrian Christians do not face serious discrimination on the basis of ethnicity. None of the countries deporting people to Iran had seen evidence of reprisals or persecution directed at those who returned. Given that evidence, it was not "perverse" for the Tribunal to reach the conclusion it did. Within the broad spectrum ranging from the obvious to the debatable to the just conceivable, the matter was for the Tribunal and not for the Court. On the material before it, the conclusion of the Tribunal was not "obvious" in the sense that no other was available. Nor was "just conceivable" in the sense that one would have to strain to reach it. It was in the "debatable" category - it was a conclusion the "correctness" of which could be argued either way. Put shortly, it was open, though the opposite conclusion may also have been open.
13 In our view the primary judge erred in concluding that Wednesbury unreasonableness infected the Tribunal's conclusion, and in going on to make his own finding of fact about the respondent's prospects on return to Iran.
(b) Lip service
14 As we have said, the Tribunal set out the whole of the reasoning of Finkelstein J in Betkoshabeh. It then entered upon an examination of the offences in question "with these principles in mind". The "principles" were re‑stated a few lines later - "I have had regard not only to the circumstances of the offence but to his psychiatric condition at the time". The Tribunal then examined the circumstances, and concluded that although the respondent's illness diminished the seriousness of the offences, it did not do so to the extent that they ceased to be "particularly serious".
15 We doubt that the primary judge's conclusion that the Tribunal "merely paid lip service" to the relevant principles was meant to convey that the Tribunal pretended to apply them. We prefer to think, as was contended by the respondent's counsel, that what his Honour meant by "lip service" is in effect defined in the sentences following that expression - "failure to properly consider the mitigating circumstances constituted by the applicant's state of mind", and failure specifically to take into account the "moral culpability, as distinct from the legal culpability" of the respondent - the conclusion is simply wrong. The Tribunal set out Chief Judge Waldron's sentencing remarks in which he said that the "reduced moral culpability resulting from your mental illness results in a moderating effect on the consideration of punishment for your offending". The Tribunal quoted from the decision of the Victorian Court of Appeal in Reg v Tsiaris [1996] 1 VR 398 at 400, to which Finkelstein J had referred, in which it was said that serious psychiatric illness is relevant to sentencing in that, amongst other things, "it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility". As we have said, the Tribunal first considered whether, apart from the respondent's psychiatric condition, the offences of which he had been convicted were particularly serious, and concluded that they were. The whole of its ensuing discussion is directed to whether that seriousness was sufficiently reduced by his condition. In those circumstances it cannot be said that the Tribunal failed to consider the mitigating circumstances constituted by his condition, or failed to take into account his moral as opposed to his legal culpability.
16 In view of the conclusion we have reached on the other issues in the appeal, we do not need to consider whether, as claimed by the Minister, the primary judge should have held that an offence can constitute a particularly serious crime regardless of the circumstances in which it is committed. There was said to be a conflict between Finkelstein J's decision in Betkoshabeh and Goldberg J's decision in Vabaza v The Minister (unreported, 27 February 1997). If there is such a conflict, its resolution can await a case in which it is material to the outcome of the appeal.
INTERPRETATION OF ARTICLE 33(1)
17 In support of the decision below, counsel for the respondent repeated the submission he had made to the primary judge, that the Tribunal had applied to Art 33(1) a "higher test" than the "real chance" test. On the view his Honour took of unreasonableness, he did not need to deal with this point. Counsel fastened on the passage in the Tribunal's reasons that we have quoted in par 5, and submitted that the Tribunal had failed to apply the "real chance" test because it had asked, quoting the exact words of Art 33(1), whether the respondent's freedom "would be threatened" rather than whether there was a real chance that it would be threatened. When regard is had to the context in which the remarks relied on appear, it is apparent that the Tribunal was aware that the "real chance" test was applicable to Art 33(1) just as it is under Art 1A(2). That is made clear by the passage which precedes that relied on by the respondent:
"Mr Bet Khosabeh has been granted refugee status on the basis that he had 'real chance of persecution for a Convention reason' if returned to Iran …. Article 33(1) allows for the possibility that there may have been changes in a country between the time at which a person left it and was granted refugee status and some later time."
The Tribunal drew attention to the material relating to changes in Iran in the period in question. It is clear that the "changes" contemplated by Art 33(1) to which the Tribunal referred are changes relevant to the "real chance of persecution". So long as the Tribunal was applying the "real chance" test, no criticism can be levelled at it for quoting the words of Art 33(1) - "would be threatened" - rather than rendering them in the terms required by cases such as Thiyagarajah. Cf that case at 705.
18 The way in which this issue was argued before the Tribunal confirms that the Tribunal applied the "real chance" test to Art 33. Counsel for the Minister referred to Art 1A(2) of the Convention and to Chan v The Minister (1989) 169 CLR 379. He then referred to Art 1C(5) which provides that the Convention ceases to apply to a person falling within Art 1A(2) if "he can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality". Counsel paraphrased Art 1C(5) by saying that "if circumstances have changed in your home country such that you are no longer properly described as a refugee", then you are no longer a refugee. Counsel then referred to Art 33(1). He said that the respondent had acquired refugee status because as an Assyrian Christian he was a member of a minority group which was discriminated against in Iran. He took the Tribunal to the country report which, he said, disclosed that Assyrian Christians were now tolerated without anything in the way of active or institutionalised discrimination. Thus the Minister's case was that the circumstances that had led to the respondent's acquisition of refugee status had changed, and that that status had been lost.
19 Counsel for the respondent answered the Minister's case that the respondent "is no longer a refugee" by taking the Tribunal to the material that led to the respondent obtaining that status - harassment and mistreatment of Assyrian Christians. He submitted that nothing had changed. The evidence on which refugee status had been granted and the evidence that was now before the Tribunal "would bolster up the fact that this man is likely to be at risk if he returns to Iran". He said that the respondent has a well‑founded fear of persecution if he returns to Iran. He referred to the evidence of three witnesses who said that he would be at risk on his return.
20 What these submissions disclose is that the parties were at one as to the matter in issue. Had the circumstances in Iran changed so that the respondent's character as a refugee had been lost? There was no suggestion that the test under Art 1C or Art 33(1) was different from that under Art 1A(2). If, contrary to our view, the Tribunal did misconstrue Art 33(1), that would not have affected its decision, because of its conclusion on Art 33(2) which is not affected by error.
CONCLUSION
21 The Tribunal, constituted by Deputy President Forgie, gave extended and anxious consideration to what she described as an "extremely difficult case". We agree that it was such a case. As we observed in the opening paragraph of these reasons, Mr Betkoshabeh's illness developed as a result of his detention pending the determination of his application for a protection visa. That application was ultimately determined in his favour. The illness was a significant factor causing Mr Betkoshabeh to commit the crimes which gave rise to his liability to deportation. Further, while Mr Betkoshabeh's illness can be controlled by medication available in Australia, the medication is probably not available in Iran. Whilst these considerations contributed to the difficulty of the case so far as Mr Betkoshabeh's interest was concerned, Deputy President Forgie carefully balanced the factors which militated in favour of one conclusion or the other on the matters in issue. The attack on her decision consisted of taking parts of her reasons out of context and meticulously examining them in pursuit of error. When counsel contended that she had failed "properly" to do this or that, what was really asserted was that she had not come to the conclusion he had been briefed to obtain. In essence the Court was asked to substitute its view on the merits of the case for the view of the Tribunal. As we have explained in these reasons, the function of the Court on judicial review is much more limited. The appeal should be allowed. The decision of the primary judge should be set aside. The respondent's Notice of Appeal from the Tribunal's decision should be dismissed. The respondent must pay the appellant's costs of the appeal and of the Notices of Appeal from the Tribunal's decision.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor, the Honourable Justice Sundberg and the Honourable Justice North.