COURT

FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
SACKVILLE J

CWDS

  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.

  Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321   Chan v Minister
for Immigration and Ethnic Affairs  (1990) 169 CLR 379   Gunaleela v Minister
for Immigration and Ethnic Affairs (1987) 15 FCR 543   Minister for
Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189
Prevato v Governor, Metropolitan Remand Centre (1986) 8 FCR 358   Regina v
Secretary 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

HRNG

SYDNEY, 28 October and 15 December, 1994
#DATE 22:12:1994

  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.

ORDER

THE COURT ORDERS THAT:   1. The appeal be dismissed.

  2. The applicant pay the respondent's costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.

JUDGE1

The Proceedings
SACKVILLE J  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:
      "Where:
      (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;
      (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."

2.  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.

3.  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.

The Errors of Law Identified by the Applicant
4.  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)     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.
    (ii)    The Tribunal had erred in its construction of Article 1C(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 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.
    (iii)   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.
    (iv)    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 where the Minister made a
            decision to deport under s.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
5.  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 an army hospital for a week and for a further three months he
was kept in cells for political prisoners.

6.  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.

7.  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.

8.  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.

9.  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.

10.  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
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.

11.  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.

12.  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 attached to the notification.

13.  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.

14.  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
15.  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 delegate 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.

16.  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.

17.  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.

18.  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
19.  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.

20.  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) 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

21.  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.

22.  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.  This Convention shall cease to apply to any person
      falling under the terms of Section A if:
      (1)   He has voluntarily re-availed himself of the
            protection of the country of his nationality; or
      (2)   Having lost his nationality he has voluntarily
            reacquired it; or
      (3)   He has acquired a new nationality, and enjoys the
            protection of the country of his new nationality; or
      (4)   He has voluntarily re-established himself in the
            country which he left or outside which he remained
            owing to fear of persecution; or
      (5)   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;
      (6)   ...."
Article 1F excludes the operation of the Convention in certain circumstances:
      "1F.  The provisions of this Convention shall not apply to
      any person with respect to whom there are serious reasons
      for considering that:
      (a)   he has committed a crime against peace, a war crime,
            or a crime against humanity...;
      (b)   he has committed a serious non-political crime outside
            the country of refuge prior to his admission to that
            country as a refugee;
      (c)   he has been guilty of acts contrary to the purposes
            and principles of the United Nations."
Articles 32 and 33 limit the circumstances in which a refugee may be expelled
from a Contracting State or returned to his country 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
23.  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 1C(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.

24.  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 CJ in
      Chan v 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 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 in
      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 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 s.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 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."

25.  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
26.  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 v
      Minister for Immigration, Local Government and Ethnic
      Affairs (1991) 31 FCR 123 at 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."

27.  In Heshmati v Minister for Immigration, Local Government 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):
      "(Counsel) 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.  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."

28.  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."

29.  In Minister for Immigration, Local Government and Ethnic Affairs v 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 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."

30.  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
31.  In order to determine whether the Tribunal undertook unauthorised
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."

32.  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?
33.  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.

34.  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.

35.  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.

36.  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)
37.  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 refugee.  In his submission, Article 1C(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.

38.  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)
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.

39.  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), 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.

The Proviso to Article 1C(5)
40.  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).

41.  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 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.

42.  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.

43.  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 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 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)
44.  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 having regard to the observation of
Mason CJ in Chan (at 392) that the Handbook was more a practical guide for
decision-makers than a document purporting to interpret the Convention.

45.  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.

Article 32
46.  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 Article 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.

47.  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".

48.  This, in my view, is a clear reference to the particular 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 s.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.

49.  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
50.  It is clear that the Tribunal was aware of Article 33 of the 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
51.  Mr Craddock attacked several findings of the Tribunal as unreasonable. In
particular, he attacked the findings that
    . 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;
    . Article 1F(b) applied to the applicant because he had committed a
      serious non-political crime in Romania and, in particular, that
      the theft was not committed for political motives.

52.  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.

53.  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 delegate of the Minister that the
appellant did not have a well-founded fear of being persecuted for reasons of
political opinion.  Members of the Court applied the test formulated in
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 41,
and adopted in the Administrative Decisions (Judicial Review) Act 1977,
s.5(1)(e), s.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 CJ; 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 implicitly, 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 persecution or that his exile was not for
reasons of political opinion.  Mr Craddock submitted that the present case was
similar.

54.  Despite the reliance by the High Court on the unreasonableness ground in
Chan v 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 CJ 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": Reg 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.

55.  Mr Craddock did attack the findings to which I have referred as
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.

56.  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).

57.  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 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.

58.  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.

59.  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.

60.  A similar approach should be taken, in my view, to the findings 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."

61.  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.

62.  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 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.

63.  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.

64.  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
C.A. Ford Pty Ltd v Comptroller-General of Customs.

Conclusion
65.  In my opinion the challenge to the Tribunal's decision fails.  The appeal
should be dismissed.  The applicant should pay the respondent's costs.