Betkhoshabeh v Min for Immig

[2000] HCATrans 18

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M79 of 1999

B e t w e e n -

VILPERIT BETKHOSHABEH

Applicant

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 FEBRUARY 2000, AT 10.24 AM

Copyright in the High Court of Australia

MR P.G. NASH, QC:   If the Court pleases, I appear with my learned friend, MR G.J. MOLONEY, for the applicant.  (instructed by Phillips Fox)

MR R.R.S. TRACEY, QC:   If the Court pleases, I appear on behalf of the respondent.  (instructed by the Australian Government Solicitor)

McHUGH J:   Yes, Mr Nash.

MR NASH:   If the Court pleases, this application raises for consideration what we say is a fundamental question relating to the interpretation of the international covenant on the status of refugee and, incidentally, the interpretation of the – or, directly, really, the interpretation of the Minister’s guidelines.  The reason that we say this is that the decision of the Tribunal and of the Full Court, in fact, places a different interpretation on Article 33(1) from that placed upon it by the Full Court of the Federal Court in Thiyagarajah, where the Full Court adopted the interpretation which has been adopted by the House of Lords and the US Department of State.

If I could take the Court to the decision in Thiyagarajah.  I apologise.  I understand our cases are not tabbed but it is the second‑last or fourth case in the bundle of cases and if I could take the Court to pages 564 to 556 at paragraph ‑ ‑ ‑

KIRBY J:   Did this one come up to this Court?  Was an application for special leave made in this case?

MR NASH:   I am sorry, your Honour.

KIRBY J:   Was an application for special leave made in this case, Thiyagarajah?

MR NASH:   I do not know, your Honour.

McHUGH J:   I think it may have been.

KIRBY J:   I have a dim recollection it was.  Anyway, press on.

MR NASH:   But at page 564 just below D there is a reference to the decision of the House of Lords in Reg v Secretary of State for the Home Department (1988) AC 958 and there is a reference to what Lord Goff there said, if I can slip a couple of lines:

the House of Lords disagreed with the Master of the Rolls, Sir John Donaldson MR in the Court of Appeal who had suggested that even if the Secretary of State were to decide that the applicant was a refugee within the definition in Art 1A(2), he nevertheless had to decide whether Art 33…..prohibited the deportation of the applicant.  Lord Goff said, (at 1001):

“I am unable to accept this approach.  It is, I consider, plain as indeed was reinforced in argument…..with reference to the travaux préparatoires, that the non‑refoulement provision in article 33 was intended to apply to all persons determined to be refugees under article 1 of the Convention.”

And Justice von Doussa then goes on to refer to “the prohibition imposed by Art 33” and to say at the last line of that page:

but the prohibition extends also to a return to the frontiers of the country of nationality.  Having regard to this possibility, it would be a very strange result if different standards for the threat of harm were to be applied under Arts 1A(2) and 33 respectively.

And that view is also the view of Lord Goff in the House of Lords.  Now, that ‑ ‑ ‑

KIRBY J:   Could you just help me on this.  Your client was deemed a refugee and given the protective visa.

MR NASH:   He was deemed to be a refugee.  He was given ‑ ‑ ‑

KIRBY J:   And then subsequently these disturbances occurred with the interpreter and he was found in the cupboard with the knives and then after that the Minister determined that he should be deported following the hearing by the RRT.  Now, my understanding of the Convention brought into domestic law is that that is an exception.  In other words, if a person fulfils the two requirements:  very serious crime, danger to the Australian community, notwithstanding the determination that the person is entitled to refugee status, they can still be deported.  Are you contesting that, are you?

MR NASH:   No, we do not contest that, but what we do contest, if one looks at what the Full Court decided, the Full Court held that it was open that the question whether Article 33(1) applied was a question of fact.  They did not say it in those terms.  They said whether he is a person who fulfils the requirements of Article 33(1) is a question of fact.  It was open to the Tribunal to reach that conclusion, therefore, Article 33(1) does not apply. 

The Full Court of the Federal Court dealt in passing – they said it is not necessary, I think, to decide the rest, but they went on to say in relation to Article 33(2) once again that it was open to the Tribunal to find that this was a particularly serious crime, but because they had already dealt with the question of Article 33(1), which we say was not properly before the Tribunal – and I will come to that in a moment – because they had dealt with the operation of Article 33(1) contrary to the interests of the applicant, they did not deal with the second limb of Article 33(2), namely the question of whether the applicant constituted a danger to the community, Article 33(2), your Honour, requiring particularly serious crime and constitutes - present tense ‑ ‑ ‑

KIRBY J:   Yes, present tense.

MR NASH:   ‑ ‑ ‑ a danger to the community.

KIRBY J:   Are you contending that the use of the present tense “constitutes” forbids looking into the future?  Surely for its purpose the Tribunal must have regard to the present as it touches upon the future.

MR NASH:   Yes, your Honour.

KIRBY J:   That is the whole purpose of it, to see whether the person is going to be a danger to the Australian community.

MR NASH:   No.  In relation to that, your Honour, we do not in any way differ from what your Honour is putting to me, but it is a question of how one looks to the future.  The AAT looked to the future as a matter of conjecture.  There is novus actus, if one can try to grasp an analogy.  The Tribunal said, “If he does not constitute a danger, if he does not take his pills, then his delusional state is likely to recur.”  There is a possibility ‑ and I do not think the Tribunal put it any higher than this – there is a possibility which they said was a real risk that he would cease to take his medication.  If he ceases to take his medication, then it is likely that he will be a danger to the community.

Now, if we could stop there, your Honour.  Our contention is that the word “constitutes” entitles one to look at the present facts with a view to the future.  It does not entitle one to conjecture as to a change in those facts which ‑ ‑ ‑

KIRBY J:   What, that it does not entitle a tribunal to conjecture that the person may not take his pills?  It happens all the time.  People forget to take their pills or do not take them.  I mean, that surely is within the bound of reasonable fact finding.

MR NASH:   Well, we contend, your Honour, that there are two steps.  The Tribunal is not being asked to say whether there is a danger that he will not take his pills and the question is, “How many steps of conjecture can one have?”

KIRBY J:   Just one, that a person on medication may not take the medication.  I mean, it is common knowledge that people sometimes do not like their medication.

MR NASH:   But we then go to the second step, your Honour.  The next step of conjecture is, if he does not take his pills, then his delusional state is likely to recur.

KIRBY J:   Well, they were pretty frightening examples, were they not?

MR NASH:   Yes, your Honour.

KIRBY J:   Hidden in a cupboard with knives.  I mean, that is a very frightening experience for somebody who is just an interpreter.

MR NASH:   Now, with respect, your Honour is falling into what we would say is part of the trap that the Tribunal fell into.  We do not say that danger to a particular person does not constitute a danger to the community.  Your Honour ‑ ‑ ‑

KIRBY J:   But surely you can look to what he did to this particular person because he was not on medication and then draw from that at least that it was open to the Tribunal to determine that it was a very serious offence and that he constitutes a danger to the Australian community.  I mean, I think it is a very sad case.  His mother is here.  His brother is here.  His other brother is in Canada.  His father is dead.  He has got no connection.  He is a member of a minority Christian sect in Iran.  It is a very sad case and if one were deciding it, one would perhaps take a different view of the whole thing, but you have got to say that it was not open to the decision maker, the factual determination was not open.

MR NASH:   Well, of course, your Honour, the situation at the moment is one has a decision of the Full Court of the Federal Court which has ruled, in fact, only in relation to Article 33(1).

KIRBY J:   Remind me what sub‑Article (2) is.

MR NASH:   Article 33(1) contains the words “The Contracting States” – I am sorry, I am looking at 32:

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.

Now, it is our contention that a person who has refugee status, who has a protection visa, who has been held to fall within Article 1A by reason of the decision in Thiyagarajah, by reason of the reasoning of the House of Lords, by reason of the interpretation placed by the US Department of State on Article 33, a person who falls within Article 1A is a person who thereby falls within Article 33(1).  If one looks at the history, then one has a – and I assuming for the moment that the Court will go along with that.  If the Court accepts that, then it follows that we have a person who is a refugee, who falls within Article 33(1).

The Full Court of the Federal Court said, without considering this question because it was not raised, that it was open to the Tribunal as a matter of fact – we say it becomes a matter of law because of the interrelationship of Article 1A and 33(1).

McHUGH J:   Well, how can that be, Mr Nash?  The question is – it is a question of fact that:

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 –

They are pure questions of fact.

MR NASH:   Well, I apologise, your Honour.  I was talking of Article 33(1) specifically at this stage.

McHUGH J:   But, again, they are questions of fact surely.

MR NASH:   Well, we say, no, your Honour, because if they are questions of fact, as questions of fact, if Thiyagarajah is right, if Lord Goff is right, it turns on a question of whether the person is a refugee within Article 1A.  It has been held that despite the precise words of Article 33(1), when one looks at the policy of the covenant, a person who falls within Article 1A thereby falls within Article 33(1).  That is what Lord Goff said, that is what Thiyagarajah accepted and that is what the US State Department has accepted.

Now, if that is the case, it may be a question of fact but it is a very difficult question of fact, in our submission, and it is not a simple question of fact and it is not a question of fact that was open to the Tribunal to find at the stage when the applicant was still accorded the status of refugee.  Our case, our substantial case turns, if I may say so, simply on a fairly simple proposition.  The decision of the Full Court of the Federal Court was inconsistent with Thiyagarajah in relation to Article 33(1) and it was also the question of ‑ ‑ ‑

McHUGH J:   I do not follow this, I am sorry, Mr Nash.  I thought that the Full Court proceeded on the basis that he was prima facie within Article 33(1) and the question was whether he was taken out of it by sub‑Article (2).

MR NASH:   With respect, your Honour, that is not my understanding of the reasoning.  The Full Court went on to say that it was open to find that he had committed a particularly serious offence and did not deal in any way with the second limb.

KIRBY J:   Yes, but, as I read it, that was because they took as a “given” – they set out the history.  The “given” was he gained refugee status, he had the protection visa and, therefore, they were focussing their attention on what, as it were, authorised his deportation, what took him out, and, therefore, they were looking at sub‑Article (2) and, therefore, they were concentrating on let it be a mixed question of law and fact:  finding the statutory norm and then applying it to the facts.

MR NASH:   Well, they dealt with both, your Honours, but they did not deal with the second limb of Article 33(2) at all, although they did find that it was open ‑ ‑ ‑

KIRBY J:   What constitutes ‑ ‑ ‑

MR NASH:   ‑ ‑ ‑ to the Tribunal to find that he was not a refugee.

KIRBY J:   Well, if they find it was open, why is that not dealing with it?

MR NASH:   I am sorry, your Honour.

KIRBY J:   Because that is the proper relationship between the Federal Court and the decision maker.  The decision maker has to evaluated the facts.  You cannot turn these cases either before the Federal Court or this Court into a re‑evaluation of the facts.

MR NASH:   I accept that, your Honour.

KIRBY J:   So they were looking at whether or not it constitutes a serious offence, it constitutes a danger to the Australian community, and they were factual matters and it just seems unarguable that it was open to a factual decision maker to answer “yes” to both limbs.

MR NASH:   The Full Court did not say whether it was or was not open to the decision maker, the question of the second limb, your Honour.  The question of danger to the community was just not canvassed by the Full Court.  There is no finding that it was open to the Tribunal to reach that conclusion.

KIRBY J:   But does anything turn on this?  Would one not say, if one examined it, that it is undoubtedly open to the Tribunal to find that a person who has a psychological disability and may sometimes not take his medication, was found in the cupboard with knives in the home of a person who had acted as interpreter in the case, that it was open to find that such a person, because of the peril of not taking the medication, constitutes a danger to the Australian community?  I mean, it just seems to follow from the very nature of the crime, the condition that caused the crime and the peril that a person may not take their medication.

MR NASH:   With respect, your Honour, what was found was that he was not within 33(1) and ‑ ‑ ‑

KIRBY J:   Where is that?

MR NASH:   I am sorry, that it was open to the Tribunal to find that he was not within 33(1).  Page 195.

KIRBY J:   Yes.  What line?

MR NASH:   Line 16:

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.

KIRBY J:   Well, is that not saying that we are prepared to accept that it comes through the gateway of 33(1) but we have got to focus on 33(2), which is an exception to 33(1), and, therefore, we have got to look to the two considerations which 33(2) impose?

MR NASH:   And the only thing we can say in relation to that, your Honour, is that there is no mention in the reasoning of the Full Court of the second limb of Article 33(2).

KIRBY J:   Was there an arguable point on 33(2), given the facts that were not in contest, namely that it was open to the decision maker of fact to

determine not only that it was a serious, a very serious, offence, but that such a person constitutes a danger to the Australian community?

MR NASH:   Well, it is one of our contentions, of course ‑ ‑ ‑

KIRBY J:   How can you say that was not open?

MR NASH:   One of our contentions, your Honour, is that if one looks at the primary facts found by the – I am sorry, I see the light is on.  If I may just answer your Honour’s question.  The primary facts are found by the Deputy President set out in paragraph 35 of our outline, the conclusion does not follow.  If the Court pleases.

McHUGH J:   Yes, Mr Tracey.

MR TRACEY:   If the Court pleases ‑ ‑ ‑

KIRBY J:   Just on that last point.  Did the Full Court fail to deal with the second limb of 33(2)?

MR TRACEY:   No, it did not, your Honour.  The passage that our friend just read makes it plain that the court considered such argument as were raised below in relation to 33(2) and said that they were not persuaded there was any error, but the point that our friend just raised as one that the court might have considered was not raised below.  It was not put to the Full Court that there was a problem with 33(2) on the basis that it has just been raised in this Court.

KIRBY J:   Now, this passage at 218 is the passage in the reasons of the Full Court, is that correct, or is this in the ‑ ‑ ‑

MR TRACEY:   The passage I had in mind, your Honour, was the one that was just read.

KIRBY J:   No, that is in the argument.  Which is the passage?

McHUGH J:   It is at 195.

MR TRACEY:   It is at 195 of the book, your Honour, immediately above the subheading “CONCLUSION”.

KIRBY J:   Well, she refers to the protection visa, the fact that it was determined in his favour, so she obviously had 33(1) or they had 33(1) in mind and the Tribunal had 33(1) in mind.

MR TRACEY:   Yes, it did, your Honour.

KIRBY J:   And then they went on to the illness.  It is a rather short treatment of the ‑ ‑ ‑

McHUGH J:   But that was because I suppose to a large extent the issues that were thrown up having regard to the primary judge’s reasoning.  The primary judge held that it was unreasonable to hold that he was not within Article 33(1).

MR TRACEY:   Yes, that is right, your Honour.

McHUGH J:   So that seemed to be the main thrust of the argument in front of the Full Court.

MR TRACEY:   It was.

KIRBY J:   They said that is just going into the merits of the matter as distinct from respecting the prerogative of the fact finder and the Tribunal to determine those merits for itself.

MR TRACEY:   Exactly, your Honour.

McHUGH J:   I had the impression that the real argument in the Full Court was about Article 33(1) rather than 33(2).

MR TRACEY:   Yes, but on the unreasonableness basis.

McHUGH J:   On the unreasonableness.

MR TRACEY:   Yes, your Honour, that is correct.

McHUGH J:   Yes.

MR TRACEY:   And, your Honour, as to the point that has just been raised as to the construction of 33(2), there really is not anything in it because the Court will bear in mind that when the Tribunal was making its judgment Mr Betkhoshabeh was in gaol, so it had to look forward and had to make projections as to what might occur if he were released and not deported and remained in the Australian community and we submit that if that point had been run in the Full Court it must have failed because what the Tribunal did was to look at his past history.

He had a history of being prescribed medication and not taking medication.  When he was not taking his medication, he did some fairly horrendous things in the community and the medical evidence accepted by the Tribunal was that he did not have an insight as to the fact that he did have a problem that required him to take that medication.

KIRBY J:   Is it a consideration that his psychological disturbances appear to have postdated his arrival and the fact that he was in immigration detention?  I mean, is that a matter that is taken into consideration in such determination?

MR TRACEY:   Yes, and the Tribunal did.  The Tribunal looked at that and the Tribunal made a finding that the likelihood was that the mental condition arose out of him being held in immigration detention for a period after his arrival here because he considered that he was being held illegally and was resentful of it and that that gave rise to the mental condition.  The Tribunal considered all that and, indeed, put into the balance in his favour the fact that the condition that led him to commit these crimes was one that might have arisen from his incarceration here.

KIRBY J:   So, he is deemed by our law to be a refugee.  He gets from the Minister a protective visa.  His family are in Australia or in Canada.  He has no connection with Iran.  He is a member of a minority Christian sect in which the evidence suggested is persecuted and his psychological condition is brought about at a time after he arrives in Australia because he is put in immigration detention and now, because he reacts to his psychological pressures, he is going to be thrown out of Australia.  There seems to be a flaw in the logic somewhere but it is a flaw to be detected at the Tribunal level, not here.

MR TRACEY:   Your Honour makes a compelling case on the merits but there are some errors, if I may respectfully say so, along the way.  He came here not claiming to be a refugee, he came here - - -

KIRBY J:   No, I know that.

MR TRACEY:   He came here with a one-way ticket and he told - - -

KIRBY J:   That was probably because his mum was here.

MR TRACEY:   Yes, but he told them that his mother was in Iran.  That was one of a number of false statements he made in order to get the visa.

McHUGH J:   Yes.  Well, I do not think we need to hear you further, Mr Tracey.

MR TRACEY:   As your Honour pleases.

McHUGH J:   Yes, Mr Nash?

MR NASH:   There is no reply, your Honour.

McHUGH J:   We are of the view that the decision of the Full Court is not attended by sufficient doubt to warrant the grant of special leave.  Accordingly, the application for special leave to appeal is dismissed. 

There is nothing you can say about costs, is there, Mr Nash?

MR TRACEY:   We do seek costs.

McHUGH J:   The application is dismissed with costs.

AT 10.50 AM THE MATTER WAS CONCLUDED