Betkoshabeh v Minister for Immigration and Multicultural Affairs
[1998] FCA 934
•29 JULY 1998
FEDERAL COURT OF AUSTRALIA
MIGRATION – deportation – deportation of refugee – whether refugee had committed a “particularly serious crime” within Article 33 of the Refugees Convention – whether refugee’s psychological condition a factor that should have been considered in determining whether he had committed a particularly serious crime – whether misconstruction of Convention is an error of law
Migration Act 1958 (Cth) s 200
Applicant A v Minister for Immigration and Ethnic Affairs (1996-1997) 142 ALR 331 applied Beltran-Zavala v Immigration and Naturalisation Service (1990) 912 F 2d 1027 applied
In the matter of Frentescu (1982) 18 I & N Dec 244 followed
Jong v Minister for Immigration and Multicultural Affairs (1996) 143 ALR 695 applied
Merchandise Transport Ltd v British Transport Commission [1962] 2 QB 173 mentioned
Minister for Aboriginal Affairs v Peko-Wallsend (1985-1986) 162 CLR 24 mentioned
Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 considered
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 mentioned
Ramirez-Ramos v Immigration and Naturalisation Service (1987) 814 F 2d 1194 mentioned
Re Drake No. 2 [1979] 2 ALD 634 mentioned
R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 mentioned
R v Port of London Authority; Ex parte Kynoch Ltd [1919] 1 KB 176 mentioned
R v Scott (unreported, Court of Appeal, Victoria 19 February 1996) mentioned
R v Tsiaras [1996] 1 VR 398 mentioned
Vabaza v The Minister for Immigration and Multicultural Affairs, (unreported, Federal Court, Goldberg J, 27 February 1997) not followed in part
VILPERIT BETKOSHABEH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
VG 597 of 1997
FINKELSTEIN J
29 JULY 1988
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VG 597 OF 1997
VICTORIA DISTRICT REGISTRY
On appeal from the Administrative Appeals Tribunal
BETWEEN: VILPERIT BETKOSHABEH
Appellant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL
AFFAIRS
Respondent
JUDGE:
FINKELSTEIN J
DATE OF ORDER:
29 JULY 1998
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The appeal be allowed.
The matter be remitted to the Administrative Appeals Tribunal, if possible as constituted by the same member, to be heard and determined according to law.
On the rehearing the parties may lead further evidence concerning the appellant’s medical condition but not otherwise.
The parties reserve liberty to apply for further directions as to the conduct of the proceeding before the Administrative Appeals Tribunal.
The respondent to pay the appellant’s costs of and incidental to the appeal.
Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 597 of 1997
On appeal from the Administrative Appeals Tribunal
BETWEEN:
VILPERIT BETKOSHABEH
AppellantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL
AFFAIRS
Respondent
JUDGE:
FINKELSTEIN J
DATE:
29 JULY 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
In 1979 Iran became a theocratic Islamic republic. On the evidence, its government has been intolerant of religious and political dissent. It has a long history of human rights abuses including the systematic use of violence and torture, lack of fair trials, summary executions and the repression of the freedoms of speech, press and association.
The appellant is an Assyrian christian who arrived in Australia from Iran in 1992 to visit his family. He was placed in detention on 22 July 1992 pending the determination of his application for an entry permit under the Migration Act 1958 (Cth). The appellant sought the permit on the basis that he had the status of refugee within the meaning of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (collectively “the Convention”). The appellant claimed that he had a well founded fear of being persecuted on account of his religion if required to return to Iran.
The appellant was held in detention for a little over two years while his application was being processed. On 10 August 1994 he was released into the custody of his brother, an Australian citizen. On 8 February 1995 the then Minister for Immigration and Ethnic Affairs recognised the appellant as a refugee and granted to him a protection visa which entitled the appellant to remain in Australia.
While the appellant was in detention and apparently as a consequence of that detention he began to experience severe paranoid delusions. He believed he was under surveillance by the Australian government and by the Federal police. He thought his telephone conversations were being taped. He believed his cell was “bugged”. He became convinced that he was the subject of comment on radio and television. Although the appellant was treated for these symptoms by a variety of medical practitioners that treatment was only marginally effective.
During his period of detention the appellant met Valentine Aghajani, an interpreter. Ms Aghajani is the first cousin of the spouse of the appellant’s brother. From time to time Ms Aghajani acted as an interpreter for the appellant. She also visited him regularly and it seems that they developed some kind of friendship.
However, the appellant came to believe that Ms Aghajani had informed the Federal police of his conversations with her and that the police had broadcast details of those conversations on radio and television. He formed the view that Ms Aghajani was responsible for his detention and was involved in a conspiracy to have the appellant deported to Iran. Of course, none of this was true.
On 20 May 1995 the appellant, armed with two knives, broke into Ms Aghajani’s home (she lived with her parents but was not at home at the time) and hid in a cupboard in her bedroom. Ms Aghajani’s father discovered the appellant and called the police. The appellant was arrested and charged with unlawfully being on premises and intentionally damaging property. On 17 August 1995 the appellant pleaded guilty to those charges and received a community- based order (see s 36 of the Sentencing Act 1991 (Vic)) and was directed to undergo psychiatric treatment.
On 1 November 1995 the appellant again went to Ms Aghajani’s home. Her father answered the door and would not let the appellant into the house. The appellant then produced a knife and threatened to kill Ms Aghajani who was by then standing behind her father. The appellant also caused some damage to the property. Some time later the police attended at the premises and arrested the appellant.
On 19 January 1996 the appellant telephoned Ms Aghajani’s home and spoke to her brother. During the course of their conversation the appellant made a number of threats to kill Ms Aghajani. Later that evening the appellant was arrested and detained in custody.
As a result of the incidents on 1 November 1995 and 19 January 1996 the appellant was charged with one count of aggravated burglary and five counts of threats to kill. On 10 May 1996 the appellant was convicted of those offences in the County Court of Victoria. He was sentenced to a term of 3 years 6 months imprisonment and was ordered to serve a minimum term of 18 months imprisonment before becoming eligible for parole.
Section 200 of the Migration Act 1958 (Cth) empowers the Minister for Immigration and Ethnic Affairs to order the deportation of a non-citizen. Section 201 provides that the power of deportation may be exercised where a non-citizen who has been in Australia for less than 10 years commits an offence for which the person is sentenced to a term of imprisonment of not less than one year.
By reason of the convictions and sentence imposed by the County Court the appellant was liable to be deported. On 8 April 1997 a delegate of the Minister made an order that the appellant be deported to Iran.
The appellant applied to the Administrative Appeals Tribunal to review the decision to make the deportation order: see s 500 of the Migration Act. The Tribunal affirmed the decision of the delegate and the appellant now appeals to this Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) to set aside the decision of the Tribunal. Such an appeal is confined to a question of law arising from the decision of the Tribunal.
To understand the issue raised by this appeal it is necessary to say something about the proceedings before the Tribunal. In December 1992 the then Minister for Immigration, Local Government and Ethnic Affairs published a statement of the government's policy concerning the deportation of non-citizens who had been convicted of criminal offences. The statement contains guidelines to be followed in determining whether a deportation order should be made. Those guidelines are applied when decisions are made under s 200 of the Migration Act.
It is quite permissible for a government to provide guidelines for an administrative decision-maker to follow in the exercise of his or her discretion. Necessarily, the guidelines must contain matters that might properly be taken into account in arriving at the decision to which the guidelines relate. The adoption of such a procedure will promote consistency of decision-making which is a desirable result. However, a decision-maker must not “pursue consistency at the expense of the merits of individual cases”: Merchandise Transport Ltd v British Transport Commission [1962] 2 QB 173 at 193; see also The Queen v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177. The relevant principle was stated by Bankes LJ in R v Port of London Authority; Ex parte Kynoch Ltd [1919] 1 KB 176 at 184:
“There are on the one hand cases where a Tribunal in the honest exercise of its discretion has adopted a policy, and, without refusing to hear an applicant, intimates to him what its policy is, and that after hearing him it will in accordance with its policy decide against him, unless there is something exceptional in his case … [If] the policy has been adopted for reasons which the tribunal may legitimately entertain, no objection could be taken to such a course. On the other hand there are cases where a tribunal has passed a rule, or come to a determination, not to hear any application of a particular character by whomsoever made. There is a wide distinction to be drawn between these two classes.”
It has been held that when the Tribunal is reviewing the exercise of a statutory discretion the Tribunal is also entitled to apply the guidelines adopted by the original decision-maker: see Re Drake No. 2 [1979] 2 ALD 634 at 645.
Conformably with the decision in Drake the Tribunal considered the appellant’s case having regard to the guidelines set out in the deportation policy statement. One matter to which the guidelines direct attention is whether the person who is liable to be deported is a refugee in respect of whom Australia has protection obligations under the Convention. The guidelines state that where issues of protection are raised those obligations are to be taken into account.
I should mention that if the guidelines had not directed the decision-maker’s attention to the Convention in cases where it was applicable in my view a failure to take the Convention into account would be an abuse of the discretion conferred by s 200 of the Migration Act. It is true that the discretion would only be abused if the decision-maker fails to take into account a matter that he or she is bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend (1985-1986) 162 CLR 24 at 39. However, it is difficult to see how the power to deport a person who is a refugee within the meaning of the Convention and has been granted a visa under the Migration Act by reason of that status could properly be exercised without the decision-maker taking into account the obligations that Australia owes to such a person under the Convention.
At all events, the Tribunal did take into account the provisions of the Convention. In so far as is presently relevant the Convention provides:
“Article 33
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 relation to the application of Article 33 to the facts of the appellant’s case, the Tribunal found that the offences in respect of which the appellant was convicted on 10 May 1996 were particularly serious crimes within the meaning of Article 33(2) and that the appellant was a danger to the Australian community with the consequence that the appellant could not claim the benefit of Article 33(1).
In arriving at the conclusion that the appellant had been convicted of particularly serious crimes the Tribunal only had regard to the following facts, namely “that the applicant, on 1 November 1995 went to the home of the victim [Ms Aghajani] armed with two knives and threatened her life and on 18 January 1996, telephoned the victim’s home, spoke to her brother and threatened the victim’s life.” The Tribunal referred to the decision of Vabaza v The Minister for Immigration and Multicultural Affairs, (unreported, Federal Court, Goldberg J, 27 February 1997) where Goldberg J discussed what constitutes a particularly serious crime. In the course of that discussion Goldberg J said that the offence of threat to kill for which a sentence of one year had been imposed should be regarded as a particularly serious crime for the purposes of Article 33(2).
The expression “particularly serious crime” in Article 33(2) is not defined in the Convention. The expression shows that it is not enough for the crime committed to be a serious crime. It must be “particularly serious” as well as a crime that shows that the refugee is a danger to the community.
On its proper construction, Article 33(2) does not contemplate that a crime will be characterised as particularly serious or not particularly serious merely by reference to the nature of the crime that has been committed although this may suffice in some cases. The reason is that there are very many crimes where it is just not possible to determine whether they are particularly serious without regard to the circumstances surrounding their commission.
Consider the crimes that the appellant had committed. The crime of threat to kill is an indictable offence carrying a maximum penalty of 10 years imprisonment: see s 20 of the Crimes Act 1958 (Vic). The crime of aggravated burglary is also an indictable offence and carries a maximum penalty of 25 years imprisonment: see s 77 of the Crimes Act. However, each crime can be tried summarily before a magistrate in the Magistrates Court if the magistrate is of the opinion that the charge is appropriate to be determined summarily and the accused consents to a summary hearing: see s 53 of the Magistrates’ Court Act 1989 (Vic). In the event that the charge is heard summarily, the maximum penalty that may be imposed is 2 years imprisonment: see s 113 of the Sentencing Act 1991 (Vic). The fact that the legislature has seen fit to allow these charges to be tried summarily is itself a recognition that the seriousness of the offence is dependent upon the circumstances of the case.
In Vabaza, supra, Goldberg J appears to have accepted that in order to determine whether a crime is a particularly serious crime for the purposes of Article 33(2) would in some cases require an examination of the facts surrounding the commission of the crime. There the putative deportee had been convicted of a number of offences. They included attempted arson, arson and threatening to destroy or damage property. They involved attempting to damage a motor vehicle and damaging a motor vehicle by dousing the vehicles with petrol and then setting one vehicle on fire in a residential area. Goldberg J said in relation to those offences (at 26):
“It seems to me, having regard to the manner in which the offences occurred, that there can properly be described as particularly serious offences. I pay particular attention to the fact that the appellant deliberately started a fire in a residential area which had the potential to cause serious harm to persons and property.”
The putative deportee had also been convicted of attempt to kill and rape. As to these offences Goldberg J said (at 26):
“It seems to me that in this day and age a threat to kill and commission of rape, having regard to the nature of the offences, being offences against the person fall fairly and squarely within the category of offences that would be called particularly serious offences. A threat to kill, of course, is a threat to terminate life. To terminate life, in my view, is the most serious of all offences and the offence of rape is one which involves a gross violation of the rights and security of a woman to the protection of which she is entitled under the law.”
Here is does seem that Goldberg J is saying that the offence of a threat to kill and the offence of rape are per se particularly serious crimes. If this is what his Honour meant then I regret to say that I am unable to agree with him. There will be occasions when a threat to kill cannot be treated as a particularly serious crime. It all depends upon the circumstances. While it is true that rape is a serious crime there will be occasions, rare though they may be, when a rape could not be treated as a particularly serious crime. Again, it all depends upon the circumstances.
The view that I have formed concerning the proper approach to be adopted in determining whether a crime is particularly serious for the purposes of Article 33(2) is one that has been applied in the United States of America. For example, in In the matter of Frentescu, (1982) 18 I & N Dec 244 a refugee had been convicted of burglary and sentenced to a term of imprisonment of three months. The question arose whether this was a conviction for a “particularly serious crime” within the meaning of s 243(h)(2)(B) of the Immigration and Nationality Act 1952 (US) thus enabling the refugee to be deported from the United States. Section 243(h)(2)(B) was in substantially the same terms as Article 33(2) of the Convention. The Board of Immigration Appeals held that while there are crimes which on their face are particularly serious crimes, in most cases it is necessary to analyse each crime on a case by case basis to decide whether it is particularly serious. The Board said (at 247):
“In judging the seriousness of a crime, we look to such factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstance of the crime indicate that the alien will be a danger to the community. Crimes against persons are more likely to be characterised as “particularly serious crimes”. Nevertheless we recognise that there may be instances where crimes (or a crime) against property will be considered as such crimes”.
This formulation of principle was approved by two decisions of the Court of Appeals for the 9th Circuit, namely Ramirez-Ramos v Immigration and Naturalisation Service (1987) 814 F (2d) 1194 and Beltran-Zavala v Immigration and Naturalisation Service (1990) 912 F (2d) 1027.
In Beltran-Zavala the Court of Appeals was concerned with a refugee who had been convicted of selling marijuana to an undercover police officer. The refugee, Beltran, pleaded guilty to a violation of the Californian Health and Safety Code and was sentenced to two years probation. Shortly thereafter Beltran was arrested for an alleged theft from an automobile. As a consequence he had his probation revoked. While imprisoned Beltran received from the Immigration and Naturalisation Service an order to show cause why he should not be deported. An immigration judge held that Beltran did not qualify for the withholding of deportation because he had been convicted of a “particularly serious crime”. An appeal from this decision to the Board of Immigration Appeals was dismissed and that decision was the subject of review by the Court of Appeals. The court reversed the decision of the Board. It said (at 1421):
“In the case at hand, however, the BIA did not examine the type of sentence or the underlying facts. It simply leapt directly from the fact of conviction to the determination that it could not withhold deportation. In fairness, it may not have given as much consideration to this factor as it should have, because of its error regarding asylum. Had it been correct about Beltran’s eligibility for asylum, the BIA could have concluded that Beltran was not entitled to withholding of deportation in any event. The BIA was not correct.”
In this case the Tribunal fell into the same error. It failed to have regard to the facts and circumstances underlying the commission of the various offences of which the appellant had been convicted. It simply decided that those offences were “particularly serious offences” because of the nature of those offences. The Tribunal should have taken into account the fact that it was the appellant’s psychological illness that led to the commission of the offences. It should have taken into account that the appellant’s conduct was directed to a person whom he believed, as a consequence of his psychological illness, had been conspiring to cause him harm. The Tribunal should have considered the extent to which that psychological illness reduced the moral culpability of the appellant in much the same way as his psychological illness was taken into account in sentencing the appellant for having committed those offences: as to the relevance of a psychological illness in sentencing see R v Tsiaras [1996] 1 VR 398; R v Scott (unreported, Court of Appeal, Victoria 19 February 1996); for the position in the United States see 21 American Jurisprudence (2nd) para 41.
By proceeding as it did the Tribunal acted on a misconstruction of Article 33(2) of the Convention. However, it remains to consider whether a misconstruction of the Convention is an error of law permitting this Court to set aside the decision of the Tribunal.
In Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 304 Gummow J said:
“… difficult questions of administrative law and of judicial review arise where, whilst the international obligation or agreement in question in not in terms imported into municipal law and the municipal law is not ambiguous, nevertheless, upon the proper construction of the municipal law, regard may be had by a decision-maker exercising a discretion under that law to the international agreement or obligation. If that agreement or obligation is misconstrued by the decision-maker is there reviewable error of law? Or is the ‘error’ to be classified as factual in nature? If the latter is correct the scope for judicial review will be narrowed. The question is unresolved.
In Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 a Full Court considered whether a misconstruction of the deportation policy gave rise to a reviewable error of law. In a joint judgment French and Drummond JJ said at 208:
“[W]here the existence and content of such a policy is to be regarded as a relevant fact which the Tribunal is bound to consider, a serious misconstruction of its terms or misunderstanding of its purposes in the course of decision-making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power. If a decision-maker, not bound to apply policy, purports to apply it as a proper basis of a disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error. In a limiting case a policy may be so broadly stated as to cover all considerations properly brought to bear on the exercise of the discretion. In such a case misconstruction of the policy may reduce to misconstruction of the statute or misunderstanding of its purpose.”
Since these cases were decided both the High Court in Applicant A v Minister for Immigration and Ethnic Affairs (1996-1997) 142 ALR 331 and the Full Court in Jong v Minister for Immigration and Multicultural Affairs (1996) 143 ALR 695 considered a case concerning a decision made under the Migration Act that required the decision-maker to apply the Convention. In each case the court proceeded on the assumption that if the decision-maker misconstrued the Convention the decision involved an error of law.
In this case I have expressed the view that the relevant decision-makers (the Minister and the Tribunal) were required to take into account the provisions of the Convention before making or confirming a deportation order under s 200. Accordingly, a failure by either the Minister or the Tribunal to properly apply the Convention, that is to say apply the Convention in accordance with its proper construction, is a reviewable error of law.
It is still necessary to deal with one other aspect of the Tribunal’s decision. After the Tribunal decided that the appellant’s “behaviour in Australia had taken him outside the benefit of the Convention” the Tribunal turned to consider whether he should be deported taking into account the broad criteria contained in the deportation policy statement. The Tribunal summarized those criteria as “the nature of the crime, the possibility of recidivism, the contribution the person has made to the community or may reasonably be expected to make in future and the family and/or social ties that already exist”. It then considered each criterion.
The first of them required the Tribunal to look again at the offences that had been committed by the appellant and determine whether they were sufficiently serious to warrant the making of a deportation order. The deportation policy provides examples of offences which may render a person liable to deportation. They include the production, importation, distribution or trafficking in heroin or other “hard” addictive drugs, organised criminal activity, serious sexual assaults whether or not accompanied by other violence, armed robbery, violence against the person, terrorist activity and assassination, kidnapping, blackmail and extortion. Crimes against children are said to be especially significant. Most of these crimes seem to be crimes that, on their face, are serious crimes.
The Tribunal found that the offences that the appellant had committed “not random offending but focussing on one person over a considerable period of time involving threats to life, are of grave concern and fall within the category of serious offences expressed in … the deportation policy.”
It may be thought that this is a somewhat harsh description of the offences that the appellant committed. The fact is that the Tribunal was only able to describe the offences in this way because it did not have regard to the circumstances in which those offences were committed including the fact that the appellant was suffering a serious illness that led to those offences being committed.
It seems to me that once the Tribunal had embarked upon an enquiry as to the seriousness of the offences, an inquiry which the Tribunal was bound to undertake in order to determine whether the deportation order was properly made, it was obliged to consider all of the circumstances that led to the commission of those offences including those circumstances that would diminish the appellant’s moral culpability for having committed them. Its failure to do so is, at the least, a failure to take into account considerations which the Tribunal was required to take into account before it arrived at its decision.
For these reasons the decision of the Tribunal should be set aside and the matter should be remitted to the Tribunal for further consideration in accordance with law. The respondent should pay the appellant’s costs.
I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein
Associate:
Dated: 29 July 1998
Counsel for the Applicant: P Rose Solicitor for the Applicant: Phillips Fox Counsel for the Respondent: W Mosley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 20 April 1998 Date of Judgment: 29 July 1998
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