- JUDGMENT No. olO2S./ clot. CATCHWORDS IMMIGRATION LAW - appeal from the Administrative Appeals Tribunal on matters of law - confirmation of deportation order relating to person previously granted refugee status - applicant convicted of criminal offences in Australia - whether Tribunal misconstrued Convention Relating to Status of Refugees as to when a refugee may be deported - whether findings of Tribunal unreasonable - whether applicant feared persecution for a Convention reason. Convention Relating to the Status of Refugees 1951, Art 1A, Art 1c, Art 1F, Art 32, Art 33. australion Broadcasting Tribunal v_ Bond (1990) 170 CLR 321 nister fo igration and Ethnic Af (1990) 169 a 379 Gunaleela v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 543 nister for ation, Local vernment and Et Affairs v Gray (1994) 50 FCR 189 Prevato v Governor, Metropolitan Remand Centre (1986) 8 FCR 358 egina v Secreta of State for the Home Department: Ex parte Brind [1991] 1 AC 696 Teoh _v Minister for Immigration, Local Government and Ethnic Affairs (1994) 121 ALR 436 EQORGHE TODEA v NI R_F I GRATI' AND ETHNIC AFFAIRS No. NG 346 of 1994 Sackville J. 22 December, 1994 Sydney. 22 DEC 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 346 of 1994 GENERAL DIVISION ) — BETWEEN: GEORGHE TODEA Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent CORAM: SACKVILLE J. PLACE: SYDNEY DATE: 22 DECEMBER 1994 , MINUTES OF ORDER THE rT E THAT : 1. The appeal be dismissed. 2. The applicant pay the respondent's costs. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. mary IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 346 of 1994 GENERAL DIVISION ) BETWEEN: GEORGHE TODEA Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent CORAM: SACKVILLE J. PLACE: - - SYDNEY DATE : 22 DECEMBER, 1994 REASONS _FOR_ JUDGMENT The Proceedings . The applicant, a Romanian citizen, has appealed to the Court, pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975, against a decision of the Administrative Appeals Tribunal ("the Tribunal") made on 17 May 1994. The Tribunal, constituted by Deputy President McMahon, affirmed a decision made on 23 April 1993 by the delegate of the Minister that the applicant should be deported from Australia. The delegate's decision was made pursuant to s.55 of the Migration Act 1958, which reads as follows: "Wheres (a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence; -2- (b) at the time of the commission of the offence the person: (i) was not an Australian citizen; and (ii) had been present in Australia as a permanent resident for a period of less than 10 years or for periods that, in the aggregate, do not amount to a period of 10 years; and (c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year; the Minister may order the deportation of the person." Section 44(1) of the Administrative Appeals Act 1975 permits a party to a proceeding before the Tribunal to appeal on a question '~ of law from any decision of the Tribunal in that proceeding. '- The applicant was admitted to Australia as a refugee in June 1987, following his escape from Romania in 1986 to Austria via (the then) Yugoslavia. At about the time he was admitted to Australia, the applicant was convicted in absentia in Romania of theft and sentenced to six years imprisonment. The circumstances of the theft will be referred to later, but the term of imprisonment has never been served by the applicant. However, at the time of the Tribunal's decision and indeed the hearing of the appeal, the applicant was serving a term of imprisonment in New South Wales. This period of imprisonment, which is not scheduled to expire until at least December 1995, resulted from convictions in Australia for supplying heroin and for escaping from lawful custody. These convictions provided the basis for the deportation order. -3- The Errors of Law Identified by the Applicant Mr Craddock, who appeared for the applicant, identified a number of errors of law that he contended the Tribunal had made in affirming the delegate's decision. These were the following: (i) (ii) The Tribunal made a finding that the Convention Relating to the Status of Refugees (Geneva, 21 July 1951) as modified by the Protocol, Relating to the Status of Refugees (New York, 31 January 1967) ("the Convention"), had never applied to the applicant. The question of the applicant's status as a refugee was a matter for the Executive Government and neither party before the Tribunal had challenged the proposition that the applicant had been accorded refugee status prior to his arrival in Australia in June 1987. Thus it was erroneous for the Tribunal to make such a finding. The Tribunal had erred in its construction of Article 1¢(5) of the Convention (which specifies circumstances in which the Convention ceases to apply to a person previously recognised as a refugee). The error of construction was demonstrated by the fact that the Tribunal had failed to undertake the inquiries required by Article 1C(5). Alternatively, the Tribunal had erred in interpreting the proviso to Article 1C(5) (which exempts a refugee from Article 1c(5) if there are "compelling reasons arising out of (iv) -4- persecution for refusing to avail himself of the protection of the country of nationality"). The error was said to be that the Tribunal drew an impermissible distinction between ill-treatment and persecution and overlooked the decision of the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, that persecution for political opinion, in the sense used in the Convention, can occur where a person is persecuted for his or her imputed political beliefs. The Tribunal had erred in-finding that the Convention was excduded from applying to the applicant by reason of Article 1F(b) of the Convention (which refers to a person who has committed a serious "non-political crime" outside the country of refuge prior to his or her admission to that country). The error of law was said to be that the Tribunal failed to apply the terms of Article 1F(b); rather, it slavishly followed the Handbook _on Procedures_and Criteria for Determining Refugee Status (1979) ("the Handbook"), published by the Office of the United Nations High Commissioner for Refugees. The Tribunal had erroneously found that the non- expulsion provisions of the Convention (which, inter alia prevent a Contracting State expelling a refugee Save on grounds of "public order") could not apply -5 - where the Minister made a decision to deport under 8.55 of the Migration Act 1958. (v) The Tribunal had failed to consider Article 33 of the Convention, which prevents a refugee being retained if his freedom would be threatened on account (inter alia) of political opinion. (vi) In any event, a number of findings made by the Tribunal were so unreasonable that no reasonable decision-maker could have-made them. In particular, it was unreasonable for -the Tribunal to conclude that the applicant had not suffered and did not have a fear of persecution for a Convention reason, namely, political opinion. On this basis, the Tribunal's decision was unreasonable. Factual Background The applicant was born in Romania on 7 August 1967 and remains a citizen of that country. At the age of 14 he was sent to a navy school. While at the school he attempted to escape from Romania by swimming across a river to Yugoslavia. He was apprehended by a navy patrol and accused of being a spy. He was subsequently interrogated and physically ill-treated. In the course of his interrogation he was accused of trying to take documents out of the country. The ill-treatment included having his stomach opened with a surgical knife (presumably to look for documents) and being tortured while in prison. He was kept in he -6- an army hospital for a week and for a further three months he was kept in cells for political prisoners. Ultimately, the applicant's father secured his release. The applicant was told that his treatment was not to be discussed with anyone. The applicant then undertook a mechanic's course and secured employment as an auto mechanic. Moneys were deducted from his salary, apparently to make payments to the government, in accordance with an arrangement made by the applicant's father with the authorities. In 1986, at the age of 19, the applicant returned to his village. The applicant, in affidavit evidence before the Tribunal, said that upon his return to the village he met his cousin and told him about being short of money and that he had been in trouble with the government. He became afraid that if the authorities discovered that he had been talking about his experiences he would again be arrested and tortured. At that time he decided to escape a second time, in company with his cousin. According to the applicant, he realised that money would be needed in order to obtain information about where and how to cross the border. The applicant's mother managed a government-owned store in the village. The applicant's account was that he gained entry to the store by fabricating a false key and stole 51,000 Lei in cash - equivalent to about two years' salary in Romania. The applicant claimed that he and his cousin paid someone in Timisora 40,000 Lei to help them cross the border. -7J- In early October 1986 the applicant and his cousin succeeded in entering Yugoslavia. Fearing forced repatriation, they attempted to cross the border into Italy, but changed their plans and headed for Austria. They reached Austria on 9 October 1986 and sought political asylum. They were then taken to a refugee camp. The applicant's cousin told the authorities that he had an uncle in Australia. The applicant and his cousin applied under the refugee program and, after waiting for nine months for sponsorship and clearance, they travelled to Australia in June 1987. At about the time the applicant was travelling to Australia, a court in Romania convicted him, in his absence, of offences against the criminal code relating to the theft of the 51,000 Lei. The record of the court's decision, which was in evidence before the Tribunal, stated that the applicant's mother had repaid the money. Notwithstanding this, the applicant was sentenced by the Romanian court to six years' imprisonment. There was evidence that the sentence is still regarded as on foot in Romania and that the applicant, if he returned, would have to serve the sentence. Upon arrival in Australia, the applicant and his cousin were met by the cousin's uncle and taken to Wollongong. He found work there, but was laid off after about four and a half months. The applicant then met a friend of the uncle and moved in with the friend's family in Newcastle. Through the friend, the applicant was introduced to drug dealing. In June 1988 the applicant was -g- arrested and charged with supplying prohibited drugs and with possession of firearms. The applicant remained in custody until September 1988 but was then released on bail, possibly because he co-operated with the police. However, the applicant absconded to Queensland and remained in that State until February 1990. Shortly after his return to New South Wales, the applicant was again arrested and found to be in possession of heroin. In September 1990 the applicant pleaded guilty to the 1988 charges. He was sentenced by the District Court at Newcastle to a term of two years' imprisonment from March 1990. In the course of sentencing the trial judge referred to the applicant as a heroin dealer "in a big way". The Crown appealed against the lightness of the sentence. On 7 May 1991 the Court of Criminal Appeal increased the sentence to a term of four years. In June 1992 a delegate of the Minister purported to apply Article 1C(5) of the Convention to determine that the applicant should no longer be recognised as having the status of a refugee under the Convention. The determination was based on a finding that the situation in Romania had changed markedly since the overthrow of the Ceauscescu regime and the establishment of democracy in that country. This was said to render any chance of the applicant facing persecution, in the Convention sense, remote. After considering representations from the applicant on the issue, the delegate advised the applicant in writing on 24 March 1993 that he was "no longer recognised by Australia as having the status of a refugee". Reasons for that decision were -9 - attached to the notification. On 23 April 1993 the Minister's delegate ordered the deportation of the applicant. Shortly thereafter, on 1 June 1993, the applicant escaped from prison in company with another prisoner, but was recaptured after 11 days. During this brief period the applicant was sheltered by a Ms Mitru, whose actions resulted in her being convicted of harbouring known felons. The applicant was sentenced to a further term of 12 months imprisonment by reason of the escape. For most of the time since the escape he -has been confined in a maximum security prison. The applicant's mother died after he had come to Australia. His father has remained in Romania. The evidence before the Tribunal indicated that the applicant had a brother and sister in Romania, but had lost contact with his sister. Ms Mitru gave evidence before the Tribunal and testified that she intended to live with the applicant if he were permitted to remain in Australia after his release from prison. The Tribunal Decision On 1 June 1993 (apparently the very day he escaped from custody) the applicant applied to the Administrative Appeals Tribunal for review of the decision of the Minister's deleqate to deport the applicant. (The Tribunal exercises the power to review such a decision on the merits, pursuant to s.180(1)(a) of the Migration Act 1958.) The Tribunal affirmed the decision under review and gave its reasons for its decision in writing on 17 May 1994. Flee - 10 - The Tribunal, in its reasons, outlined the factual background to which I have referred. The Deputy President noted that there was a continuing relationship between the applicant and Ms Mitru and that they intended to live together after his release, if permitted to do so. There was evidence from two prospective employers (one of whom had a workshop facility in Long Bay Gaol) that they would be prepared to offer the applicant full-time employment on his release. The Tribunal observed that the applicant had been convicted of the serious crime of supplying heroin on'a commercial basis. That had been singled 'out in the Policy Statement by the Minister, Australia's Criminal Deportation Policy, 1992 ed, as a serious offence, rendering non-Australian citizens liable to deportation. The Tribunal found that the applicant's involvement in the offence was as part of "organised criminal activity". Furthermore, the Tribunal found that, despite the applicant's contention that he had good prospects for reform and usefulness in the community, "the possibility of recidivism is high". The applicant's contribution to the Australian community had been negligible. He had no family ties in Australia, although he had some friends in the Australian community. Any hardship to Ms Mitru had to be considered in light of the fact that she was aware of both the Minister's deportation orders and the applicant's criminal record at the time the relationship commenced. The hardship to her was outweighed by other considerations, notably the applicant's criminal convictions. une - 11- The Tribunal stated that in the light of these factors, it would affirm the decision to deport. The only feature that might affect this conclusion was the fact that the applicant had been accorded refugee status in Australia. This required reference to Australia's obligations under the Convention. The Tribunal's Approach to the Convention The Tribunal observed that the terms of the Convention and Protocol do not form part of Australian domestic law until adopted by legislation. No such legislation had been enacted, although some parts Of the Convention had been incorporated by reference. This was the case, for example, with the definition of "refugee" in s.4 of the Migration Act 1958 (which adopts the definition in the Convention). The Tribunal also noted that, although it is necessary to determine whether a person should be accorded the status of a refugee for the purpose of granting visas (see s.22AA of the Migration Act 1958, conferring power on the Minister to determine that a person is a refugee), there is no such power in the executive to determine conclusively that a person has ceased to have that status. Thus the determination by the Minister's delegate that the applicant had ceased to be a refugee had no final and operative effect. It merely indicated the way in which the Australian Government viewed the applicant. While the Convention does not form part of Australian domestic law, the Tribunal considered that due regard should be had to its terms. The Tribunal adopted the words of the Full Court in Gunaleela v_ Minister for Immigration and Ethnic Affairs (1987) We - 12 - 15 FCR 543 (FCA/Full Court), at 560 (in the context of applications for entry permits by persons who had not yet entered Australia), that a decision-maker may properly take into account, in a general way, the existence of Australia's international obligations under the Convention. The Tribunal also pointed out that the Minister's Policy Statement specifically included, among the criteria to be taken into account, relevant obligations of Australia under international treaties ratified by the Australian Government. The Convention Provisions . . Having found that deportation was otherwise appropriate, the Tribunal identified the relevant question as being whether the deportation of the applicant would prima facie be inconsistent with Australia's international obligations under the Convention when viewed as a policy document. It is convenient to reproduce the relevant portions of the Convention here. Article 1A defines a "refugee" as a person who ",..owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it." Article 1C defines the circumstances in which the Convention ceases to apply to a refugee: "1C. -13- This Convention shall cease to apply to any person falling under the terms of Section A if: (4) (2) (3) (4) (5) (6) Article 1F excludes the operation of the Convention in certain He has voluntarily re-availed himself of the protection of the country of his nationality; or Having lost his nationality he has voluntarily reacquired it; or He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or He can no longer, because the circumstances in connexion with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of-~his nationality; Provided that this paragraph shall not apply to a refugee falling under Section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality; circumstances: "1P. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) (b) (c) Articles 32 and 33 limit the circumstances in which a refugee may be expelled from a Contracting State or returned to his country he has committed a crime against peace, a war crime, or a crime against humanity...; he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; he has been guilty of acts contrary to the purposes and principles of the United Nations." of origin: "ARTICLE 32 Expulsion 1. The Contracting States shall not expel a refugee Lawfully in their territory save on grounds of national security or public order. 2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law.... 3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary. ARTICLE 33 - Prohibition of expulsion or return ("refoulement") 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." The Tribunal's Reasons for Finding no Inconsistency The Tribunal gave three reasons for expressing the view that there was no inconsistency between affirming the decision to deport the applicant under s.55 and giving effect to Australia's obligations under the Convention. The Tribunal identified those three reasons as relating "to the application of the cesser and exclusion provisions". The three reasons were, first, that Article 1C(5) applied to the applicant and the proviso to Article ene - 15 - 1€(5) did not; secondly, that Article 1F(b) applied to the applicant; and thirdly, Article 32 did not apply where a deportation order had been made under s.55 of the Migration Act 1958. Because of Mr Craddock's submissions it is useful to extract the relevant paragraphs from the Tribunal's reasons: "60. When Mr Todea entered this country a decision must have been made that owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, he was unable or, owing to such fear, -was unwilling to avail himself of the protection "of Romania. On the evidence before me, there is. nothing to show persecution for Convention reasons, except perhaps for political opinion. The fact that persecution took place by officials is not, in itself, persecution for a Convention reason. Although persecution can take many forms it must, in order to qualify a person as a refugee, be for Convention reasons. [The Tribunal then quoted from the judgment of Mason C.J. in Chan vy Minister for Immigration and Ethnic Affairs (1990) 169 CLR 379, at 388, in which the Chief Justice construed the words "being persecuted" in the definition of "refugee". ] 62. Assuming however that the applicant met the subjective and objective tests of a well-founded fear of persecution for Convention reasons at the time of his entry into this country, I am satisfied that the evidence discloses that any such residual fear is no longer well-founded. Consequently, the provisions of paragraph (5) of section C of Article 1 have application. The evidence from the Australian Embassy is necessarily hearsay, but it is of a kind that is often found in intelligence reports and is certainly of a kind that would often be the basis upon which foreign policy decisions were made. I am prepared to accept the evidence that conditions within Romania have changed to such an extent that any Convention reasons for persecution have ceased to exist generally and, particularly because they appear to have been weak in the first instance, to have ceased to exist in relation to the applicant. The applicant is unable to il ad 1 bee - 16 - invoke compelling reasons arising out of previous persecution, as referred to in the proviso to paragraph (5), because in my view it has not been established (inter alia) that his ill treatment amounted to persecution for a Convention reason. In arriving at th is conclusion, I have taken the general approach to ascertain the facts, referred to by Gaudron J. in Chan at 412/413. As Her Honour pointed out, questions of refugee status will usually fall for executive or administrative decision and in circumstances which will often not permit of precise ascertainment of the facts as they exist in the country of nationality. The fear of the 6 year sentence is dealt with later in these reasons. 63. The 'compelling reason' put forward on behalf of the applicant was a fear of ill treatment rather than persecution. {The Tribunal then quoted from the judgment of McHugh J. ain Chan, at 429-430 on the construction of "persecuted". ] 64. The third (sic) reason, in my view, why the Convention has no application to the applicant lies in Section F(b) of Article 1. The applicant committed a serious crime in Romania by stealing the key to a store managed by his mother, having a duplicate of that key made, effecting an entry and stealing a quantity of money sufficient to purchase a house in that country. The fact that he was sentenced to 6 years imprisonment is itself evidence of the seriousness of the crime. Was it 'non-political'? The Handbook offers some guidance." {The Tribunal then quoted from the Handbook. ] 65. It was submitted on behalf of the applicant that the theft was a political crime because it was carried out with the intention of using the proceeds of the crime to purchase information leading to escape from that country. In my view, the theft is quite remote from the escape from persecution for Convention reasons. It was not committed for political motives. Indeed, the applicant does not seem to have been politically active at all, as was Mr Chan. It was committed for personal reasons or gain. Counsel for the applicant submitted that it was necessary to commit the crime because money was required in order to escape. I do not accept that. It is palpably improbable to say that all escapes were as the result of thefts of money. In any event some of the moneys were not used for this purpose and furthermore it can not be said that the political element of the offence Bye -17 - could outweigh its common law character. {The Tribunal then stated that it had made these observations on the assumption that it was appropriate for the Minister to have regard to the Convention in dealing with s.55 deportation orders. However, the Tribunal concluded that the prohibition of expulsion contained in the Convention "has no application in 8.55 cases". The Convention (according to the Tribunal) had not been referred to in deportation cases, with one irrelevant exception. ] 67. I have come to this conclusion because the very prohibition against expelling a refugee is founded upon the terms of Article 32. That article has no application if the deportation if made on grounds of 'public order'. The power to deport, found in s.55, is based upon a consideration of offences against public order. A pre-requisite to the exercise of the Minister's power is the existence of at least one conviction for:a.serious crime (as defined) coupled with relatively short term residence and lack of Australian citizenship. The stated purpose of making any deportation order is referred to in paragraph 9 of the Minister's guidelines. That purpose is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the community that the benefit accruing to the community as a whole by the offender's removal outweighs the hardship to the person concerned and his or her family. In considering the protection of the safety and welfare of the Australian community, the Minister is entering upon considerations of public order. 68. Article 2 of the Convention affirms the obligation of every refugee to conform to the laws and regulations 'as well as to measures taken for the maintenance of public order' in the host country. It is unthinkable that refugees would be permitted to ignore this obligation extensively, to present a threat of a sufficiently serious order that these obligations would continue to be ignored, and yet claim the benefit of the prohibition in paragraph 1 of Article 32. Public order is put at risk by the continued presence of a refugee under' such circumstances. It is the preservation of that public order that forms the reason and the basis for his expulsion. Deportations may be carried out for a number of reasons. The person concerned may have entered the country illegally or may have overstayed the limits of a visa. In either event, his expulsion would not be to preserve public order. In the case of a convicted criminal with high prospects of recidivism, public order is certainly put at risk by - 18 - his continued presence in the community. Consequently the prohibition against expulsion contain (sic) in Article 32 has no application in those circumstances. Without that prohibition, it is strictly not even necessary to consider the cessation or exclusion clauses in the Convention, even when it is regarded as a policy document." The Tribunal concluded that Australia's policy of having regard to its international obligations did not preclude the decision to deport being the correct and preferable decision in the circumstances of the particular case. Misconstruction of the Convention and Error of Law Mr Craddock acknowledged that, if he were to succeed' in his -submission that the Tribunal had misconstrued the terms of the Convention, a question of law had to be answered in favour of the applicant. The question was whether a Tribunal that misconstrues a Convention to which Australia is a party (but which is not part of Australian domestic law) thereby commits - or at least might commit - an error of law. The issue is explained this way by Gummow J. in Minister for Foreign Affairs and Trade _v_ Magno (1992) 37 FCR 298 (FCA/Full Court), at 304: ",. difficult questions of administrative law and of judicial review arise where, whilst the international obligation or agreement in question is 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: see Heshmati ov Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 123 at - 19 - 133; Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212. Here, the terms of the Convention enter directly into the issues presented by the case, not merely as a relevant matter for a decision-maker to have regard to in exercising a statutory discretion." In Heshmati v Minister for Immigration, Local exnment and Ethnic Affairs (1991) 31 FCR 123 (FCA/Full Court), at 133, Gummow J. had said that in any consideration of the issue it would be necessary to consider the significance of the decision of the House of Lords in Regina v Secretary of State for the Home Department; Ex parte Brind £1991] 1 AC 696. That case involved a challenge by way of judicial review to the decision of the * Secretary of -State to. require the "BBC and" the Independent Broadcasting Authority to refrain from broadcasting the direct statements of certain proscribed organisations. The House of Lords rejected a submission that the discretion conferred by statute in the Secretary of State should be exercised only within limits permitted by the European Convention for the Protection of Human Rights and Fundamental Freedoms. That Convention, which contained provisions protecting "the right to freedom of expression", had not been incorporated into English domestic law. Lord Ackner in his speech said the following (at 761): "{Counselj claims that the Secretary of State before issuing his directives should have considered not only the Convention (it is accepted that he in fact did so) but that he should have properly construed it and correctly taken it into consideration. It was therefore a relevant, indeed a vital, factor to which he was obliged to have proper regard pursuant to the Wednesbury doctrine, with the result that his failure to do so rendered his decision unlawful. The fallacy of this submission is however plain. If the Secretary of State was obliged to have proper regard to the Convention, i.e. to conform with article 10, this inevitably would result in incorporating the Convention into English domestic law by the back door. - 20 - It would oblige the courts to police the operation of the Convention and to ask themselves in each case, where there was a challenge, whether the restrictions were 'necessary in a democratic society...' applying the principles enunciated in the decisions of the European Court of Human Rights. The treaty, not having been incorporated in English law, cannot be a source of rights and obligations and the question "Did the Secretary of State act in breach of article 10?" does not therefore arise." There are other authorities that bear on the question, as yet undecided in Australia. In Gunaleela v Minister for Immigration and Ethnic Affairs it was argued that a decision to refuse the appellants entry permits because they were not entitled to "refugee status" involved an error of law, in that the decision maker did not apply correctly the definition of the term "refugee" in Article 1A of the Convention. The Full Court held that there had been no error in the construction or application of Article 1A. However, the judgment noted that (at 561) "a decision in which Article 1A had been taken into account but misconstrued, might, in a given case, lead to the exercise of a power that was sufficiently unreasonable as to attract s.5(1)(e) and 5(2)(g) of the Judicial Review Act." In Minister for Immigration, Local Government and Ethnic Affairs vy Gray, (1994) 50 FCR 189 (FCA/Full Court), the issue was whether a misconstruction of Ministerial policy by the Tribunal in a deportation case gave rise to a reviewable error of law. The Court (Neaves, French and Drummond JJ.) concluded that such a misconstruction was capable of constituting an error of law (at 208): "(W]here the existence and content of such a policy is - 21 - 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 for 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." While. not a case involving construction of a Convention, the approach of the 'Full Court is suggestive of the approach which _ might be taken in relation to a serious misinterpretation of a treaty provision. See also Teoh v Minister for Immigration Local Government and Ethnic Affairs (1994) 121 ALR 436 (FCA/Full Court) where two members of the Full Court, Lee and Carr JJ., addressed specifically the effect of ratification by Australia of the United Nations Convention on the Rights of the Child. Their Honours held that ratification created a legitimate expectation in parents and children whose interests might be affected by a claim of the Commonwealth concerning children, that such actions would be conducted in accordance with the principles of the Convention (Teoh _v_ Minister for Immigration, at 449, 451-452, 466-467). The High Court has heard an appeal in Teoh v Minister, judgment in which has yet to be delivered. Reading the Tribunal's Reasons In order to determine whether the Tribunal undertook unauthorised a - 22 - inquiries or misconstrued the terms of the Convention (as Mr Craddock submitted) it is necessary to examine the Tribunal's reasons. In this connection, it is appropriate the Court should exercise restraint. As put by the Full Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FLR 280 (FCA/Full Court), at 287: "The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts.... 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." See .also- Repatriation Commission v Bushell (1991) 13 AAR 176 (FCA/Full Court) at 182-183, per Morling and Neaves JJ.; McAuliffe v Secretary, Department of Social Security (1991) 13 AAR 462 (FCA/von Doussa J.), at 472-473, per von Doussa J.; Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 (FCA/Full Court), at 208, per French and Drummond JJ. Did the Tribunal Decide that the Applicant was Never a Refugee? Mr Craddock submitted that the case before the Tribunal had been dealt with on the assumption that the applicant was a refugee, at least prior to the determination by the Minister's delegate that the applicant ceased to have that status. Despite this, so Mr Craddock argued, the Tribunal had purported to determine for itself whether the applicant was in fact entitled to be regarded as a refugee at the time he sought recognition as such. He contended that it was erroneous for the Tribunal to do so. - 23 - In my opinion, the short answer is that the Tribunal made no such determination. Mr Craddock accepted that, in order to decide whether Article 1C(5) of the Convention applied to the applicant, it was necessary for the Tribunal to analyse the circumstances "in connexion with which he has been recognised as a refugee". It then had to determine whether those circumstances had ceased to exist. In my opinion, insofar as the Tribunal considered the circumstances in which the applicant was recognised as a refugee, it was doing so for the purpose of determining whether Article 1C(5) applied to the applicant. The Tribunal was not attempting to-decide an issue not before it - namely, whether the original determination granting the applicant refugee Status was wrong. That this is so is demonstrated by reading paragraphs 60 and 62 together. The Tribunal referred, in paragraph 60, to the earlier decision and noted that there was nothing in the evidence before it to show persecution for a Convention reason, except perhaps for political opinion. The opening words of paragraph 62 make it clear that the Tribunal was proceeding on the assumption that the applicant met the subjective and objective tests of persecution for Convention reasons at the time of entry into Australia. This is quite consistent with the statement in paragraph 59, that the reasons for holding that the decision to deport was not inconsistent with Australia's Convention obligations related to the application of "the cesser and exclusion provisions". Those provisions came into play only if a person has already come within the definition of "refugee" in Article 1A. -~ 24 - In dealing with the application of Article 1C(5), the Tribunal was no doubt covering some of the ground traversed by the original decision-maker. But that is very different from purporting to overturn the original decision. Accordingly, I think that this ground of attack fails. Construction of Article 1C(5) As I understood Mr Craddock, he based his contention that the Tribunal misconstrued Article 1C(5) on what he described as the Tribunal's failure to examine the material on which the original decision-maker relied to conclude that the applicant was a Zefugee.. * I his submission, Article 1¢c(5), on its proper construction, required the Tribunal to consider the "circumstances in connexion with which [the applicant was] recognised as a refugee". The Tribunal had considered only the limited evidence before it on that question. Specifically, the Tribunal had failed to examine or determine fully the circumstances in connection with which the applicant had been granted refugee status, in that it had failed to consider the material actually before the original decision-maker. This indicated, so it was said, that the Tribunal had misconstrued its obligations under the Convention. I do not think that the Tribunal's failure (if that is the correct word) to consider the material before the original decision-maker demonstrates that it erroneously interpreted Article 1C(5) of the Convention. The Tribunal, in my opinion, correctly appreciated that the issue presented by Article 1C(5) - 25 - was whether the circumstances in connection with which the applicant had been recognised as a refugee had ceased to exist. The Tribunal quoted the terms of the Article and, as I have indicated, made the assumption that the applicant had satisfied the tests of a well-founded fear of persecution for Convention reasons. It had before it evidence as to how the applicant came to Leave Romania and the hardship he had endured before doing so. The Tribunal found, on the basis of material supplied by the Australian Embassy, that conditions had changed in Romania to such an extent that any Convention reasons for persecution had ceased to exist generally and in relation to the applicant specifically. In reaching this conclusion the Tribunal took account of material that suggested that Romanian citizens, including those who had departed illegally and returned to the country, were no longer subject to persecution for leaving the country. In any event, Mr Craddock's argument assumed that the Tribunal was bound to make its own inquiries into the circumstances in which it was determined that the applicant met the criteria for refugee status. There are circumstances in which a decision- maker will need to make some inquiry as to the facts in order to ensure that a relevant consideration is addressed: Teoh v Minister for Immigration, Local Government and Ethnic Affairs at 442. However, the general principle is that it is not the duty of the decision-maker to make out an applicant's case or to make inquiries beyond the evidence presented: Singh v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4 (FCA/Forster J.), _ 26 ~ at 9; Bengescu v Minister for Immigration and Ethnic Affairs, 23 November 1994, unreported, Moore J. at 8-9 (a deportation case). In the present case the applicant was represented before the Tribunal and had the opportunity to adduce further material relating to the circumstances in connection with which he was recognised as a refugee. If that opportunity was not taken it does not seem to me that the Tribunal was obliged to make further inquiries. Still less does its "'failure" to do so demonstrate that it misconstrued Article 1C(5) of the Convention. Proviso to Article 1C I must confess to some difficulty in following Mr Craddock's contention that the Tribunal had erred in interpreting the proviso to Article 1C(5) (as distinct from arguing that its findings on this and other issues were so unreasonable as to involve an error of law). Mr Craddock, as I understood him, contended that the Tribunal, in paragraph 62, wrongly characterised the harsh treatment accorded to the applicant to mere ill-treatment, as opposed to persecution in the Convention sense. As Mr Craddock explained his point, it was that the Tribunal, in order to reach such a conclusion, must have misconstrued the word "persecution". Otherwise it could not have concluded that the maltreatment meted out to the applicant in Romania was not persecution within the proviso to Article 1C(5). In my opinion, this contention rests on too narrow a reading of the Tribunal's reasons. The tribunal quoted the terms of the proviso to Article 1C(5) and, in paragraph 62, correctly stated - 27 - that the applicant needed to demonstrate compelling reasons, arising out of previous persecution, for refusing to return to Romania. The Tribunal gave as its reason for holding that the applicant could not invoke the proviso, the fact that he had not established that his earlier ill-treatment had amounted to persecution for a Convention reason. While the reasoning of the Tribunal was somewhat cryptically expressed, the point it made was that, on the evidence, while the applicant had been ill- treated, the ill-treatment was not by reason of his political opinions. Thus any "compelling reasons" the applicant could show for not returning to Romania (such as the fear of imprisonment for six years) did® not arise -out of "persecution" in the Convention sense. It is in this context that the opening sentence of paragraph 63 (which refers to a fear of ill-treatment rather than persecution) should be understood. Issues arise as to whether the factual findings made by the Tribunal produced a decision so unreasonable that it was erroneous in law. But that is a different question from whether the Tribunal's reasons show that it misconstrued the terms of the proviso to Article 1C(5), and in particular that it misinterpreted the word "persecution" as used in that proviso. Mr Craddock also submitted that the finding that the applicant had never been persecuted for a Convention reason must have involved an error of law in interpreting the phrase "political opinion" in the definition in Article 1A. He seized upon the Tribunal's reference, in para. 65, to the applicant not having - 28 - been shown to be "politically active at all". Mr Craddock said that this erroneously assumed that a person can be persecuted for reasons of political opinion only if he or she is politically active. Chan itself, as Mr Craddock pointed out, was a case where a person who was not politically active was held to have been persecuted for reasons of political opinion. But in Chan the appellant was persecuted because of his membership of an anti-revolutionary family; his mistreatment was on the basis of his perceived political belief (at 390, 416). I do not think that the Tribunal in the present case was asserting that a person who was not politically active could never establish that he or ~ ser she had been persecuted by reason of political opinion. The Tribunal was addressing the question of whether this applicant had shown that his persecution had been by reason of political opinion. The comment that he had not been politically active identified a factor to be taken into account in deciding this question. I do not think it demonstrates an erroneous construction of the Convention. Article 1F(b) Mr Craddock submitted that the Tribunal erred in law in deciding that Article 1F(b) excluded the Convention from applying to the applicant because he had committed a "serious non-political crime". When asked to identify the error of law in the Tribunal's approach, Mr Craddock said that the Tribunal had failed to address the meaning of Article 1F(b) and instead had "slavishly" followed the Handbook. In other words , it had given the Handbook a higher status than was warranted, particularly ee + - 29 - having regard to the observation of Mason C.J. in Chan (at 392) that the Handbook was more a practical guide for decision-makers than a document purporting to interpret the Convention. However, the Tribunal merely stated that the Handbook "offer[ed] some guidance" (paragraph 64). There is nothing in Chan that suggests that referring to the Handbook in this way involves an error of law. Mr Craddock nonetheless submitted that the reliance on the Handbook prevented the Tribunal from directing its attention to principles governing, for example, the concept of "offence of a political character" in the law of extradition: compare Prevato v_ Governor, Metropolitan Remand Centre (1986) 8- FCR 358 (FCA/Wilcox J.), at 381-386. But I did not understand Mr Craddock to suggest that had reference been made to those principles, a different result would have been reached on the findings made by the Tribunal. Indeed, Mr Craddock accepted that he had to show (at the very least) that the Tribunal's findings of fact were unreasonable if the Tribunal's decision were to be set aside. In other words, on the Tribunal's findings, the applicant had committed a "serious non-political crime" in Romania, on any view of that phrase. In these circumstances I do not think that it has been shown that the Tribunal erred in law in applying Article 1F(b) to the circumstances of the applicant's conviction and sentence in Romania. Of course, whether the Tribunal's findings of fact were reasonably open raises other issues to which I shall return. - 30 _ Article 32 Mr Craddock submitted that the Tribunal had erred in its determination that Article 32 of the Convention was satisfied in the present case, in that it had assumed that any deportation order founded on s.55 of the Migration Act 1958 necessarily involves "grounds of public order" for the purposes of Article 32. This assumption, on Mr Craddock's argument, had prevented the Tribunal addressing the crucial question - namely, whether this particular applicant had been the subject of a deportation order on grounds of public order. Mr Craddock referred to a case in which Davies J., constituting the Administrative Appeals :, Tribunal,-considered Artitle 32: Re Ceskovic and the Minister for Immigration (1979) 2 ALD 453 (AAT/Davies J.). It is not entirely clear from the report of the case that Davies J. considered it necessary to go behind the deportation order in order to ascertain whether "grounds of public order" existed in relation to the order affecting the applicant. However, I shall assume that his Honour did undertake such an inquiry. If paragraph 67 of the Tribunal's reasons were read in isolation, it is capable of bearing the meaning attributed by Mr Craddock. However, in context, I think the Tribunal was concluding that the deportation order against the applicant was made on grounds of public order. In paragraph 68 the Tribunal stated that in "the case of a convicted criminal with high prospects of recidivism, public order is certainly put at risk by his continued presence in the community". This, in my view, is a clear reference to the particular -31- circumstances of the applicant in respect of whom the Tribunal had previously found (paragraph 39) that the "possibility of recidivism is high". The Tribunal's reasons had also canvassed in some detail the nature of the crimes committed by the applicant and of which he had been convicted in Australia. This indicates, in my opinion, that the Tribunal was not resting its conclusions on "public order" simply on the ground that the Minister had made an order under 8.55 of the Migration Act 1958. Rather, it addressed the nature of the applicant's conduct and of the specific threat he was considered to present to Australian society. In short, I do not think that the Tribunal made the : assumption that underpinned Mr Craddock's 'argument on-this «issue. I should add that, if I am wrong on this question, it would make no difference to the outcome. Mr Craddock, as I understood him, accepted that the Tribunal had given three independent reasons for holding that the Convention did not prevent the deportation of the applicant. The fact that one of the reasons was erroneous as a matter of law would not alter the conclusion that the Convention did not prevent the applicant's deportation, since the other two reasons would remain undisturbed. Mr Craddock acknowledged that he had to show that all three of the reasons given by the Tribunal were erroneous in order to ascertain the conclusion that the Convention did not prevent the deportation of the applicant to Romania. Article 33 It is clear that the Tribunal was aware of Article 33 of the vt -~ 32 - Convention. It quoted the terms of Article 33 (paragraph 48) and referred to it later (paragraphs 57 and 69). The reasoning of the Tribunal, to which I have already referred at some length, necessarily led to the conclusion that the applicant's life or freedom would not be threatened on account of political opinion (the only relevant Convention reason) if he were to be returned to Romania. Clearly, therefore, the Tribunal considered that paragraph 1 of Article 33 did not apply to the applicant. Equally clearly, there was no occasion for the Tribunal to consider whether the applicant was disqualified from the benefit of Article 33 by reason of having been convicted of a _."particularly serious crime" (whether that conviction might 'have been in Romania or Australia). I therefore consider that there was no error of law in the Tribunal's approach to Article 33 of the Convention. Unreasonableness Mr Craddock attacked several findings of the Tribunal as unreasonable. In particular, he attacked the findings that e the proviso to Article 1C(5) did not apply to the applicant because he could not demonstrate compelling reasons for refusing to avail himself of the protection of Romania, arising out of previous persecution, because he had not established that his ill-treatment amounted to persecution for a Convention reason; e Article 1F(b) applied to the applicant because he had committed a serious non-political crime in Romania and, in - 33 - particular, that the theft was not committed for political motives. Mr Craddock also contended that the Tribunal had failed to give consideration, or adequate consideration, to the hardship that would be experienced by the applicant if he were to be returned to Romania. Mr Craddock invoked the reliance by members of the High Court in Chan _v___ Minister for Immigration on the ground of unreasonableness. This ground was employed to overturn a decision by a délegate of the Minister that the appellant did not have a weli-founded fear of being persecuted for reasons of political opinion. Members of the Court applied the test formulated in Minister for Aboriginal Affairs vy Peko-Wallsend Ltd (1986) 162 CLR 24, at 41, and adopted in the Administrative Decisions (Judicial Review) Act 1977, 5.5(1)(e), 8.5(2)(g), that a decision would be set aside if it was "so unreasonable that no reasonable person could have come to it" (at 388, per Mason C.J.; at 408, per Toohey J.; compare at 415-417, per Gaudron J; 433- 434, per McHugh J.) The holding that the delegate's decision in Chan v Minister for Immigration was unreasonable in the required sense, rested on the facts as determined, explicitly or implicitiy, by the delegate. On those facts (which included findings that the appellant had been subjected to internal exile and interrogation, by reason of his family's anti-revolutionary views), the Court determined that it was unreasonable to conclude either that the appellant did not have a well-founded fear of ~ 34 - persecution or that his exile was not for reasons of political opinion. Mr Craddock submitted that the present case was similar. Despite the reliance by the High Court on the unreasonableness ground in Chan y Minister for Immigration, it is important to bear in mind the limits of the scope of the ground. In Australian Broadcasting Tribunal v_ Bond (1990) 170 CLR 321, at 356, Mason C.J. restated the proposition that there is no error of law in making a wrong finding of fact, even "if the reasoning whereby the court reaches its conclusion of fact were demonstrably unsound": Regq-v District Court? Ex parte White (1966) 116 CLR 644, at 654, per Menzies J. Furthermore, findings of fact which are said to be arbitrary or unreasonable may be reviewable under the ADJR Act or the general law if they constitute a decision. But findings that do not constitute a decision, even if made without probative evidence to support them, are not reviewable: Australian Broadcasting Tribunal v Bond, at 359-360. Of course in a given case, it may be necessary to consider the link between the impugned findings and the relevant decision. As Davies J. observed in C.A. Ford Pty Ltd v_Comptroller-General_of Customs (1993) 46 FCR 443 (FCA/Davies J.), at 447, Australian Broadcasting Tribunal __v_Bond is consistent with the proposition that a reviewable decision may be set aside if it is so unsupported by the facts that no reasonable decision maker would have made it. Mr Craddock did attack the findings to which I have referred as ad Sony we - 35 - unreasonable. I leave to one side the difficulty that it is the ultimate decision (in this case the decision to deport the applicant) that must be found to be unreasonable in the sense referred to in Chan v Minister for Immigration. In assessing Mr Craddock's submissions, it is necessary to distinguish between errors in the fact-finding process and findings that are unsupported by probative evidence or that are plainly inconsistent with unchallenged evidence. The conclusion that the applicant was not persecuted in Romania by, reason of political opinion, although cryptically expressed, was- based on an assessment of the evidence adduced Before the Tribunal. I accept Mr Johnson's submission that that evidence did not point unequivocally to the applicant having been persecuted by reason of political opinion (including political opinion imputed to him, in the manner discussed in Chan v Minister for Immigration). There was no evidence before the Tribunal explaining why the applicant had attempted to escape from Romania at the age of 14. He was badly mistreated after being accused of spying and smuggling documents said to have been given to him by his father. This account is consistent with the applicant being persecuted for political reasons; plainly it is an available inference that the applicant was being mistreated because of opinions imputed to him and his family. But as Mr Craddock acknowledged in argument, such a finding by the Tribunal was not inevitable. The applicant's mistreatment might have resulted from the - 36 - authorities' belief that he had committed serious offences under Romanian law. Such a conclusion would not deny the severity of the mistreatment, but would reflect the ambiguity, as far as the evidence was concerned, of the occasion for the infliction of the ill-treatment. There was evidence before the Tribunal that the applicant was released into his father's custody, having been found not guilty of the offences of which he had been accused. The applicant said in evidence before the Tribunal that, after his experience with the authorities, he wanted to get out of the country. There was material to suggest that in 1986 the applicant..was concerned about being arrested again, because he had violated a promise to the authorities not to talk about his experiences. If arrested he feared further torture. On this material, I think that some fact-finders would be prepared to draw an inference that the applicant had been persecuted because of political opinions imputed to him. But I do not think that a refusal to draw that inference is so unreasonable that no reasonable person could have taken that course. Mistakes in the fact-finding process (if there were a mistake in the present case) are not the equivalent of unreasonableness in the so-called Wednesbury sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) in the decision-making process. A similar approach should be taken, in my view, to the findings wr ~ 37 - in paragraph 65 that the theft was a non-political crime. Again, it is a fair comment that the Tribunal's reasons were expressed cryptically and it is probably also fair to suggest that the paragraph contains some overstatement. But the authorities recognise that not all criminal acts committed in connection with political activities are themselves political offences. Thus in the extradition case to which I have referred, Prevato v Governor, Metropolitan Remand Centre at 386, Wilcox J. said this: "Not every offence committed in the course of opposition to government policy is a political offence. There must be, at least, an organised, prolonged campaign-involving a number of people. The-= ~-- - offence must be directed solely to that' purpose; it ~ -must not involve the satisfaction-of private ends. And the offence must be committed in the direct prosecution of that campaign; so an assault upon a political opponent in the course of the campaign may be a political offence but an assault upon a bank teller in the course of a robbery carried out to obtain funds for use in the campaign would not be." In my view, the finding that the theft was remote from the escape from persecution for Convention reasons reflected the Tribunal's view that the applicant had not demonstrated that he had been persecuted, nor that he feared persecution, on a Convention ground. Not all fact-finders would necessarily have reached the same conclusion. But I do not think that the conclusion is unreasonable in the relevant sense. As I have previously observed, the statement that the applicant was "not politically active" was not intended by the Tribunal to assert that political activism is an invariable requirement for someone who claims to have been persecuted for political -~ 38 - opinions. Rather, it described the applicant in Romania and was a factor quite properly taken into account by the Tribunal in determining whether he had been persecuted, or feared persecution, for political reasons. Finally, I do not think there is any substance in Mr Craddock''s contention that the Tribunal had acted unreasonably in concluding that the hardship to the applicant in being returned to Romania was not such as to warrant his being permitted to remain in Australia. The Tribunal specifically addressed this issue in paragraph 69 .and concluded that the prospect of six years imprisonment was. not a-.special 'hardship that ought to outweigh other factors, including the risks posed by the applicant (as the Tribunal found) to the Australian community. It must be remembered that the Tribunal examined in some detail the applicant's background, the circumstances of her connections and the possibility of recidivism, as well as the circumstances in which he was sentenced to imprisonment in Romania. For these reasons, I do not think that the applicant has established that the specific findings made by the Tribunal were unreasonable. A fortiori, I do not think that the decision to affirm the deportation order was unreasonable in the sense referred to in Chan v Minister for Immigration or ¢.A. Ford Pty Ltd _v_ Comptroller-General of Customs. Conclusion In my opinion the challenge to the Tribunal's decision fails. - 39 - The appeal should be dismissed. The applicant should pay the respondent's costs. I certify that this and the preceding 38 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville. Associate: Vg ee , Dated: 22 December, 1994 ~ Heard: 28 October and i5 December, 1994 Place: Sydney Decision: 22 December, 1994 Appearances: Mr G Craddock, instructed by Ron Kessels, Solicitor, appeared for the applicant. Mr G Johnson instructed by the Australian Government Solicitor, appeared for the respondent.