FEDERAL COURT OF AUSTRALIA Betkhoshabeh v Minister for Immigration & Multicultural Affairs [1999] FCA 16 ADMINISTRATIVE LAW – deportation – deportation of a refugee – whether the Administrative Appeals Tribunal erred in law in holding that Article 33(1) of the Convention relating to the Status of Refugees 1951 did not apply to the applicant – whether entitlement to Article 33 of the Convention remains irrespective of whether the persecution likely to be suffered is prompted by a matter extraneous to a Convention based reason – whether the Administrative Appeals Tribunal erred in law in its approach to Article 33(2) of the Convention – what constitutes "particularly serious crime" WORDS AND PHRASES – "particularly serious crime" Migration Act 1958 (Cth) ss 200, 201 Betkoshabeh v Minister for Immigration & Multicultural Affairs (1998)157 ALR 95 followed Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 considered Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 cited Luu v Minister for Immigration & Multicultural Affairs (1998) 157 ALR 213 cited Omar v Department of Immigration & Multicultural Affairs (1997) 48 ALD 607 followed VILPERIT BETKHOSHABEH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS VG 640 OF 1998 MARSHALL J 15 JANUARY 1999 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 640 OF 1998 BETWEEN: VILPERIT BETKHOSHABEH Applicant AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent JUDGE: MARSHALL J DATE OF ORDER: 15 JANUARY 1999 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The applicant's notice of motion dated 17 December 1998 be dismissed. 2. The appeal be allowed. 3. The matter be remitted to a differently constituted Administrative Appeals Tribunal to be heard and determined according to law. 4. The respondent pay the applicant's costs of the appeal. 5. Each party bear his own costs of the notice of motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 640 OF 1998 BETWEEN: VILPERIT BETKHOSHABEH Applicant AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent JUDGE: MARSHALL J DATE: 15 JANUARY 1999 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 There are two matters before the Court which are the subject of these reasons for judgment. The first matter, which is the substantive matter before the Court, is an appeal by the applicant from the decision of the Administrative Appeals Tribunal ("AAT") made on 26 October 1998. That decision affirmed the decision of a delegate of the respondent that the applicant be deported from Australia. The second matter is a notice of motion dated 17 December 1998 in which the applicant seeks release from detention pending the final determination of the substantive matter. The Court heard the appeal and the notice of motion on 31 December 1998. The ability of the Court to expeditiously determine the substantive matter has rendered the notice of motion otiose. Consequently these reasons deal primarily with the appeal. Factual Background 2 The applicant, Mr Betkhoshabeh, is a citizen of the Republic of Iran and was born in Iran on 5 January 1961. He follows the Christian faith and is of Assyrian ethnicity. He has no family ties in Iran. His father is deceased. The applicant's mother resides in Australia, as does his younger brother. His older brother resides in Canada. 3 In July 1992 the applicant arrived in Australia. Officers of the respondent's department detained him at Melbourne Airport after it came to their attention that he did not have a return air ticket. He remained in migration detention until his application for an entry permit as a refugee was determined. It was not until August 1994 that the applicant was released from detention into the custody of his younger brother. The applicant was granted a protection visa in March 1995 after a decision to grant him refugee status was made by a delegate of the respondent in February 1995. 4 During the course of his detention the applicant developed a psychiatric illness wherein he experienced severe paranoid delusions. It is not in dispute that the cause of his condition relates to the lengthy period he has spent in detention. Unfortunately Ms Aghajani, an interpreter, became the focus of those delusions. In a judgment dealing with an appeal from an earlier AAT decision of 26 September 1997 to deport the applicant, that is, Betkoshabeh v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 95 at 97-8, ("Betkoshabeh"), Finkelstein J described the applicant's focus on Ms Aghajani and its consequences in the following way: "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 three years six months imprisonment and was ordered to serve a minimum term of 18 months imprisonment before becoming eligible for parole." 5 On 8 April 1997, a delegate of the respondent ordered that the applicant be deported to Iran pursuant to the respondent's power to deport a non-citizen who has been in Australia for less than ten years and who has committed an offence which leads to a sentence of imprisonment of not less than one year. See ss 200 and 201 of the Migration Act 1958 (Cth)("the Act"). The applicant sought review of the deportation order before the AAT. The AAT affirmed the deportation order. The applicant then filed a notice of appeal from the decision of the AAT. In Betkoshabeh, Finkelstein J allowed the appeal and remitted the matter to the AAT for rehearing in a judgment dated 29 July 1998. The matter was heard by a differently constituted AAT on 21 September 1998. On 26 October 1998 the AAT affirmed the decision of the respondent of 8 April 1997 to deport the applicant to Iran. A further appeal to this Court was filed on 23 November 1998. At the hearing of the appeal, on 31 December 1998, Mr Rose and Mr Moloney both of counsel, appeared for the applicant. Mr Gunst QC appeared for the respondent. Finkelstein J's Reasons 6 Central to the resolution of the issues on this appeal is the reasoning of Finkelstein J in Betkoshabeh. At 99 his Honour set out the text of Article 33 of the Convention Relating to the Status of Refugees ("the Convention"). Art 33 provides as follows: "1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country." 7 At 99-102, his Honour observed as follows: "In relation to the application of Art 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 Art 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 Art 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 Minister for Immigration and Multicultural Affairs, (Fed C of A, Goldberg J, 27 February 1997, unreported) 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 Art 33(2). The expression "particularly serious crime" in Art 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, Art 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 two 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, Goldberg J appears to have accepted that in order to determine whether a crime is a particularly serious crime for the purposes of Art 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 these 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 26-7): "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 it 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 Art 33(2) is one that has been applied in the United States of America. For example, in Re 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 Art 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) 814F(2d) 1194 and Beltran-Zavala v Immigration and Naturalisation Service (1990) 912F(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 (C A (Vic), 19 February 1996, unreported); for the position in the United States see 21 "American Jurisprudence (2)" para 41. By proceeding as it did the tribunal acted on a misconstruction of Art 33(2) of the Convention." 8 There was no issue, in the current appeal, as to the correctness of his Honour's reasons apart from one matter that is not germane to a resolution of the present issues before the Court. I agree with the parties that his Honour correctly states the effect of Art 33 of the Convention in the excerpt of his reasons quoted above. 9 The following propositions may be distilled from the reasons of Finkelstein J: · Whether a crime is a particularly serious one does not depend on the nature of the crime alone. · The facts and circumstances of a particular case may be such that what would ordinarily, by the nature of the crime concerned, be a particularly serious crime may not be so given mitigating circumstances. · The fact that an offence may have been committed as a result of a psychological illness may be such a mitigating circumstance. · A further mitigating factor may be that the conduct, which constituted the offence, was directed against a person whom the offender believed had intended to cause him harm. · The extent to which psychological illness has lessened the moral culpability of the offender is a matter to be taken into account when determining whether an offence is a particularly serious one in the context of Art 33(2) of the Convention. 10 No issue arose in the appeal before Finklestein J as to whether Art 33(1) applied to the applicant. That question appears not have been considered in the AAT decision of 26 September 1997. It was dealt with, however, in the decision of 26 October 1998, the subject of this appeal. The AAT's Reasons 11 At par 90 of its reasons the AAT said that: "The first step is to determine whether or not the country to which he or she is to be expelled or returned is a country where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion. If expulsion or return is not to such a country, the protection afforded by Article 33(1) does not apply." 12 In considering whether the applicant was entitled to the protection afforded by Art 33(1) of the Convention the AAT made the following points: · One may lose the protection afforded by Art 33(1) of the Convention if conditions relevantly change in the country from which a refugee came. · There was evidence that returnees to Iran did not face serious discrimination on the basis of ethnicity alone and that there was no evidence of reprisals or persecution directed at returnees to Iran. · The applicant could suffer "a recurrence of his delusional behaviour" if he was returned to Iran and consequently he may come to the attention of the authorities which, given his ethnicity and religion, could lead to a loss of his freedom. · On the evidence before the AAT, the applicant's life or freedom would not be threatened, if he was returned to Iran, on account of his race or religion. 13 Consequently the AAT considered that the applicant was not entitled to avail himself of the protection afforded by Art 33(1) of the Convention. This conclusion was sufficient for the AAT to affirm the order of deportation. Nevertheless the AAT considered whether Art 33(2) of the Convention applied to the applicant, such that the protection afforded by Art 33(1) would not be available to the applicant if the AAT was in error in its earlier conclusion that such protection was not available in any event. 14 In considering Art 33(2) of the Convention the AAT first observed that there was no contention by the respondent that the applicant was a danger to the security of Australia. The AAT then proceeded to consider whether the applicant was a person, "who, having been convicted by a final judgment of a particularly serious crime constitutes a danger to the community of (Australia)". In so doing the AAT made the following points: · The AAT was unable to go behind a conviction upon which a deportation order is based. · The relevant convictions carry with them an assumption that the applicant had the necessary mental intent to commit the crimes. · In determining whether the relevant crimes were "particularly serious" regard is to be had to the circumstances of the offence and the applicant's psychiatric condition, all of which the AAT stated that it had taken into account. · The seriousness of the crimes is not reduced by the applicant's psychiatric state at the time the crimes were committed. In so determining regard was had to the length of the relevant sentences. · The seriousness of the crimes is diminished by the applicant's illness "but not to the point at which they can no longer be regarded as particularly serious". In so determining regard was had to the course of conduct constituted by the three crimes. 15 Having found that the relevant crimes were "particularly serious" ones within the meaning of Art 33(2) of the Convention the AAT then turned to consider whether the applicant constituted a danger to the community of Australia. In this regard the AAT made the following points: · At the time the crimes were committed the applicant constituted a danger to the community. · The danger was not limited to one person but also to certain relatives of that person who he believed were also acting in the conspiracy against him. · On the basis of the psychiatric evidence before the AAT the crimes would not have been committed "but for his delusional thinking". · The applicant had no understanding of what he did at the time he committed the crimes. · The applicant "now harbours no thoughts of violence against Ms Aghajani or her family". · The applicant's delusions are under control and he is no longer psychotic as a result of his adherence to his current regime of medication. · The applicant's likelihood of re-offending is "so small as to be negligible while he remains on Clozaril…because Clozaril controls his delusional thoughts which have led to his criminal behaviour in the past". · The applicant has no insight into his illness – "he has no understanding that he has been ill and that he would be ill and suffering psychotic episodes but for his taking Clozaril". Although this is not determinative of whether he would continue to take his medication it is a relevant factor in any consideration of that issue. Also relevant to that question is the applicant's unwillingness to take medication previously. · The applicant continues to take Clozaril despite the fact that a side effect is hyper-salivation. · Confinement in prison is a factor encouraging the applicant to take his medication. · The applicant respects his medical advisers and has followed their advice. · It remains a matter of speculation as to whether the applicant would continue to take his medication if released from "the structured society of prison". · The applicant believes that he is not ill and that there is no reason to take Clozaril and that consequently there is a real chance that the applicant would cease taking Clozaril. · The applicant is likely, on release, to live with his elderly mother and not with his brother in circumstances where the first signs of return to a psychotic state may not be observed. · There is "a very real risk that his symptoms could have re-appeared well before he was due for a monthly blood test". 16 Consequently the AAT concluded at par 121 of its reasons that "the risk of Mr Bet Khoshabeh's failing to take Clozaril and so of re-offending as a consequence of delusional behaviour is not a negligible risk". The risk was also described as "a real risk" and "something more than a minimal risk". It followed that the AAT was of the view that the applicant was "a danger to the Australian community". 17 The AAT then observed that such considerations as discussed above are not determinative of the question of whether the applicant should be deported. It then turned to consider "whether the benefit occurring to the community as a result of a person's removal from Australia outweighs the harm to the person concerned and his or her family". 18 Such a consideration was necessary in accordance with a policy statement issued by the then responsible Minister in December 1992. See Betkoshabeh at 98-99. In considering the issues relevant to that policy the AAT made the following observations: · The applicant had not made and was unlikely to make any particular positive contribution to Australian society. · The applicant would have no family support if he returned to Iran. · If returned to Iran the applicant would be "at grave risk of not seeking out either treatment generally or Clozaril, which has been the only effective treatment, in particular. The consequences to him could be very grave indeed for the medical evidence is clear that his psychotic state would return without treatment". 19 The AAT concluded that the danger to the community that would exist if the applicant failed to take his medication outweighed the "grave risk to him as an individual should he return to Iran". The degree of risk of the applicant not taking Clozaril was described as a real risk that was unacceptable. Did the AAT err in law in holding that Art 33(1) did not apply to the applicant? 20 In Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 ("Thiyagarajah") a Full Court of this Court determined that "the standards for the threat of harm" to be applied to determine if a person has refugee status are the same standards which should apply in determining whether Art 33(1) of the convention has application. At 564 in Thiyagarajah, von Doussa J (with whom Moore and Sackville JJ agreed), said as follows: "In R v Secretary of State for the Home Department, Ex parte Sivakumaran [1988] AC 958, the House of Lords considered the relationship between refugee status and non-refoulement. Lord Goff of Chieveley, with whom the other members of the House agreed on the interpretation of the Refugees Convention, considered that the same standard should be applied under both Art 1A(2) and Art 33. In so holding the House of Lords disagreed with the Master of the Rolls, Sir John Donaldson MR in the Court of Appeal who had suggested that even if the Secretary of State were to decide that the applicant was a refugee within the definition in Art 1A(2), he nevertheless had to decide whether Art 33, which he considered involved an objective test, prohibited the deportation of the applicant. Lord Goff said, (at 1001): "I am unable to accept this approach. It is, I consider, plain as indeed was reinforced in argument by [counsel for the United Nations High Commissioner for Refugees] with reference to the travaux préparatoires, that the non-refoulement provision in article 33 was intended to apply to all persons determined to be refugees under article 1 of the Convention." Echoing the same interpretation of Art 33(1), in T v Home Secretary Lord Mustill at 754 said that the United Kingdom is under an international as well as municipal duty not to return a fugitive to a place where he is liable "to be persecuted". The prohibition imposed by Art 33 is against returning a refugee "to the frontiers of territories where ...". The territory may be to a country other than the refugee's country of nationality (for example, Mr Musisi's case reported in R v Secretary of State, Ex parte Bugdaycay) but the prohibition extends also to a return to the frontiers of the country of nationality. Having regard to this possibility, it would be a very strange result if different standards for the threat of harm were to be applied under Arts 1A(2) and 33 respectively. This Court should follow the decision of the House of Lords in Sivakumaran, and hold that the same standard should apply under each Article." 21 Mr Rose submitted that the AAT applied a higher test in interpreting Art 33(1) than the test of whether there was a real chance of persecution for a Convention reason if the applicant was returned to Iran. Alternatively it was submitted that the AAT failed to consider "the real chance test". 22 Mr Gunst accepted that one should apply the same test for protection under Art 33(1) as should be applied in determining refugee status. However, he submitted that because of changes in conditions in the country to which a person is liable to be returned "the real chance test" may result in the provisions of Art 33(1) not being satisfied. Mr Gunst submitted that whether the applicant's life would be threatened for a Convention reason if returned to Iran was a question of fact for the AAT to determine and did not mean an error of law had been made. 23 As referred to earlier in these reasons the AAT took into account evidence that returnees to Iran did not experience serious discrimination based only on their ethnicity. Significantly the AAT found that a recurrence of the applicant's delusional behaviour may result in him coming to the attention of the authorities in Iran. It noted that given the applicant's ethnicity and religion a loss of freedom might ensue. 24 Later in its reasons, when considering the 1992 policy considerations raised by the then Minister, the AAT found that there would be a grave risk that the applicant would not seek out treatment in Iran (assuming it to be available). 25 Critically, the AAT found that the consequences for the applicant would be "very grave" as "his psychotic state would return without treatment". 26 Given the findings of the AAT concerning what would be likely to happen to the applicant on return to Iran and its finding that a return to a psychotic state would be likely to bring him to the attention of the authorities and further, given that because of his ethnicity and religion he may lose his freedom, I find that the AAT's conclusion that the applicant does not have the protection of Art 33(1) of the Convention so unreasonable that no reasonable tribunal would so conclude. The AAT outlined circumstances where the applicant, if returned to Iran, may, as a result of being ill, bring himself to the attention of the authorities and be incarcerated, at least in part as a result of those authorities discovering that he is an Assyrian Christian. It is absurd for the AAT to contend that the applicant's freedom would not thereby be threatened on account of his race and religion. Of course the trigger for the persecution may be his mental state, but once there exists the likelihood of persecution which is in part on account of a Convention based reason it matters little that the triggering of the persecution was a matter which is extraneous to a Convention based reason. 27 The AAT erred in law in determining that Art 33(1) was not applicable to the applicant. Consequently it is not necessary to determine whether Mr Rose was correct in submitting that the applicant was denied natural justice by the AAT's determination of this aspect of the matter before it. The Court finds that the applicant is a refugee whose freedom would be threatened on account of his race and religion if he returned to Iran. As indicated above, in holding to the contrary the Court is of the view that the AAT erred in law by reaching a conclusion that no reasonable tribunal on the facts before it could possibly have reached. It is tantamount to finding that someone who dresses flamboyantly would face persecution on return to their country of origin and that if they come to the attention of the authorities because of their dress but the authorities imprison them because of their religion they would not be persecuted on account of their religion but on account of their dress. It was a decision which was an improper exercise of the power conferred by the Act and the Convention and "devoid of any plausible justification": see Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 168 per Wilcox J. Particularly Serious Crime 28 The AAT considered the application of the exceptions to Art 33(1) that are set out in Art 33(2) of the Convention. It did so on the assumption that it may have erred as to its approach to Art 33(1) of the Convention. As the Court has found it did so err the Court must now consider whether the AAT erred in law in its approach to Art 33(2) of the Convention. The first matter for examination is the issue of what constitutes a "particularly serious crime". 29 It is not in dispute that in respect of each crime committed by the applicant "no challenge can be made to the fact of the conviction or to the essential facts on which it is based". See Luu v Minister for Immigration & Multicultural Affairs (1998) 157 ALR 213, 218 per Weinberg J. 30 The AAT stated that it had regard to the circumstances of the offence and the applicant's psychiatric condition in deciding whether or not the relevant crimes were "particularly serious" ones. It also found that the seriousness of these crimes was not reduced by the applicant's psychiatric state. Then somewhat inconsistently with its earlier finding the AAT found that the seriousness of the crimes was "diminished" by the applicant's illness but not to such an extent so that they were not regarded as "particularly serious". 31 This somewhat confused analysis is even more confounding when one considers the following later findings made by the AAT: · The crimes would not have been committed but for the applicant's delusional thinking. · The applicant had no understanding of what he did at the time he committed the crimes. 32 In my opinion the AAT merely paid lip service to the relevant principles identified by Finkelstein J in Betkoshabeh. It failed to properly consider the mitigating circumstances constituted by the applicant's state of mind at the time the offences were committed. It failed specifically to consider whether the moral culpability, as distinct from the legal culpability, of the applicant is a matter to take into account in determining whether an offence is a "particularly serious" one. In so doing the AAT erred in law by acting on a misconstruction of Art 33(2) of the Convention. Policy Considerations 33 It is unnecessary for the Court to consider whether the AAT misapplied the 1992 policy considerations that it dealt with to determine whether the danger to the applicant of returning to Iran is outweighed by the danger the applicant poses to the community. The assessment of the degree of such risk will always be a balancing exercise for the AAT to perform based on the evidence before it. As this matter will be remitted to the AAT it may reconsider the issues raised by the policy should it find it necessary to do so. Consequently it would be unhelpful for the Court to now consider those issues. Conclusion 34 For the reasons expressed above it is the Court's view that the decision of the AAT should be set aside and that the matter be remitted to a differently constituted AAT in accordance with law. Notice of Motion 35 Having regard to the urgent hearing and reasonably prompt judgment provided by the Court it would to be futile for the notice of motion to be considered. This is especially so given that upon the making of the orders in the substantive matter the Court will be functus officio: see Omar v Department of Immigration & Multicultural Affairs (1997) 48 ALD 607 at 608 per Sundberg J. 36 As no substantial additional costs were incurred as a result of the notice of motion and given that the notice of motion has been overtaken by events the Court considers it to be just that each party bear his own costs of the notice of motion. Orders 1. The applicant's notice of motion dated 17 December 1998 be dismissed. 2. The appeal be allowed. 3. The matter be remitted to a differently constituted Administrative Appeals Tribunal to be heard and determined according to law. 4. The respondent pay the applicant's costs of the appeal. 5. Each party bear his own costs of the notice of motion. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 15 January 1999 Counsel for the Applicant: Mr P Rose with Mr G Moloney Solicitor for the Applicant: Phillips Fox Counsel for the Respondent: Mr C Gunst QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 31 December 1998 Date of Judgment: 15 January 1999