Minister for Immigration & Multicultural Affairs v Betkhoshabeh

THE LEGISLATION 3 Article 33 of the Convention Relating to the Status of Refugees provides as follows: "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.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country." In The Minister v Thiyagarajah (1997) 80 FCR 543 a Full Court held that the "well‑founded fear" test which applies under Art 1A(2) of the Convention applies under Art 33 notwithstanding the words "would be threatened" in Art 33(1). 4 In Betkoshabeh Finkelstein J held that while in some cases a crime can be characterised as particularly serious merely by reference to its nature, that will not often be the case, for it will usually not be possible to determine whether a crime is particularly serious without having regard to the circumstances surrounding its commission. Burchett and Lee JJ in A v The Minister [1999] FCA 227 appear to have agreed with Finkelstein J's approach. It was on this ground that Finkelstein J allowed the first of the respondent's appeals. His Honour held that the Tribunal had decided that the offences we have described were in their nature particularly serious offences, and had not had regard to the facts and circumstances underlying their commission, in particular the fact that the respondent was suffering from a psychological illness at the time.

THE TRIBUNAL'S REASONING 5 The Tribunal first considered whether the respondent was entitled to the protection afforded by Art 33(1). It observed that a person who had been granted refugee status may lose the protection of Art 33 because of changes in a country after the person's departure. The Tribunal noted that a more recent country profile on Iran prepared by DFAT acknowledged that Assyrian Christians may suffer "various levels of discrimination mainly on account of their faith", but that they do not face "serious discrimination on the basis of ethnicity alone". It also noted that none of the countries deporting people to Iran had seen evidence of reprisals or persecution directed at those who had returned. The Tribunal went on to say that the delegate's decision to grant refugee status had been based in part on the respondent's psychiatric illness, on the ground that his behaviour might draw the authorities' attention to him. The Tribunal continued: "I have formed the conclusion that he could well suffer a recurrence of his delusional behaviour if returned to Iran. Such a recurrence could well bring him to the attention of the authorities and, combined with his being an Assyrian Christian against whom there is some level of discrimination, could possibly lead to a loss of his freedom. I am unable on the evidence to go further and state that his 'life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion' as required by Article 33(1)." Accordingly, the Tribunal found that the Minister was not precluded by Art 33(1) from deporting the respondent. 6 In view of the Tribunal's conclusion that Art 33(1) did not protect the respondent, it was unnecessary for it to consider Art 33(2). Nevertheless it did so. In dealing with the first limb of the second part of Art 33(2) - "having been convicted by a final judgment of a particularly serious crime" - the Tribunal set out the relevant passages from Finkelstein J's reasons in Betkoshabeh. It first considered the seriousness of the offences in the absence of the respondent's psychiatric condition, and concluded that they were particularly serious crimes. The Tribunal then took into account that condition, and said: "The substantial nature of the sentences reflected the seriousness with which the Chief Judge viewed the crimes even after he had made allowance for Mr Bet Khosabeh's psychiatric illness. I too have reached the same conclusion. In the circumstances of these crimes, their seriousness is diminished by Mr Bet Khosabeh's illness but not to the point at which they can no longer be described as 'particularly serious'. Although he does not now understand his behaviour and explains it from another point of view, his behaviour at each of the incidents was disturbing in the extreme and most threatening to Ms Aghajani in particular. The fact that the crimes arose from two incidents and were preceded by the third underlines that his behaviour was persistent, repetitive and directed at one person (whom he agreed had caused him no harm) to whom he caused great anguish and fear. That history of behaviour is not only serious but is of a type that distinguishes it from other crimes of Aggravated Burglary and Threat to Kill." The Tribunal then considered whether the respondent constituted a danger to the Australian community, and concluded that he did.

THE PRIMARY JUDGE'S REASONING 7 Having set out the Tribunal's findings and conclusion on Art 33(1), the primary judge said: "Given the findings of the AAT concerning what would be likely to happen to the applicant on return to Iran and its finding that a return to a psychotic state would be likely to bring him to the attention of the authorities and further, given that because of his ethnicity and religion he may lose his freedom, I find that the AAT's conclusion that the applicant does not have the protection of Art 33(1) of the Convention so unreasonable that no reasonable tribunal would so conclude ….

The Court finds that the applicant is a refugee whose freedom would be threatened on account of his race and religion if he returned to Iran. As indicated above, in holding to the contrary the Court is of the view that the AAT erred in law by reaching a conclusion that no reasonable tribunal on the facts before it could possibly have reached." Turning to Art 33(2), the primary judge said: "In my opinion the AAT merely paid lip service to the relevant principles identified by Finkelstein J in Betkoshabeh. It failed to properly consider the mitigating circumstances constituted by the applicant's state of mind at the time the offences were committed. It failed specifically to consider whether the moral culpability, as distinct from the legal culpability, of the applicant is a matter to take into account in determining whether an offence is a 'particularly serious' one. In so doing the AAT erred in law by acting on a misconstruction of Art 33(2) of the Convention." In view of this conclusion his Honour did not need to consider the danger to the community limb of Art 33(2). GROUNDS OF APPEAL (a) Unreasonableness 8 The Minister appeals against the primary judge's conclusion that the Tribunal's decision that the respondent does not have the protection of Art 33(1) was "so unreasonable that no reasonable tribunal would so conclude". In Attorney‑General (NSW) v Quin (1990) 170 CLR 1 at 36‑37, after observing that on judicial review courts do not scrutinise the merits of a particular case, Brennan J said: "There is one limitation, 'Wednesbury unreasonableness' … which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power …. … The limitation is extremely confined. As Professor Wade explains …:

'The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The court must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislature is presumed to have intended.'" Brennan J went on to say (at 37‑38) that the courts, above all other institutions of government, have a duty to uphold and apply the law which recognises the autonomy of the three branches of government within their respective spheres of competence, and which recognises the legal effectiveness of the due exercise of power by the executive government and other repositories of administrative power. His Honour quoted with approval the words of Frankfurter J in Trop v Dulles (1958) 356 US 86 at 119 - "Judicial power … must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self‑restraint". 9 In The Minister v Eshetu [1999] HCA 21 Gleeson CJ and McHugh J, with whom Hayne J agreed, said at par 40: "Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as 'illogical' or 'unreasonable', or even 'so unreasonable that no reasonable person could adopt it'. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence." Their Honours then approved the following passage from the judgment of Lord Brightman in Puhlhofer v Hillingdon London Borough Council [1986] AC 484 at 518: "Where the existence or non‑existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision‑making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely." Gleeson CJ and McHugh J then referred to the facts of Wednesbury, and noted Lord Greene MR's observation that what a court may consider unreasonable is a very different thing from "something overwhelming" such that it means that a decision was one that no reasonable body could have come to. 10 Gummow J at pars 137 et seq said: "where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision‑maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.

The fact‑finding and reasoning of the Tribunal are discussed in the judgment of the Chief Justice and McHugh J. They show that its decision was not based on findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds. That other decision‑makers may have reached a different view, and have done so reasonably, is not to the point."

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.

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the Respondent: P N Rose and G J Moloney