Godfrey Luvuyo Vabaza v Minister for Immigration & Multicultural Affairs [1997] FCA 148 (27 February 1997)

CATCHWORDS

MIGRATION - deportation - decision of minister to deport - appeal from AAT decision affirming that decision - whether appellant a refugee - whether appellant had been convicted of a "particularly serious crime".

Administrative Appeals Tribunal Act 1975 s 44

Migration Act 1958 s 55, s 200, s 201

Victorian Crimes Act 1958 s 197

Chan Yee Kin v Minister for Immigration and Ethnic Affairs

[1989] HCA 62; (1989) 169 CLR 379

Re Salazar Arbelaez v Minister for Immigration and Ethnic

Affairs (1977) 1 ALD 98

Waterford v The Commonwealth, [1987] HCA 25; (1987) 163 CLR 54

Devries v The Australian National Railways Commission

[1992] HCA 41; (1993) 177 CLR 472

Minister for Immigration and Ethnic Affairs v Wu Shan Liang

[1996] HCA 6; (1996) 185 CLR 259

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Todea v Minister for Immigration [1994] 35 ALD 735

Tamayo v Department of Immigration [1994] 37 ALD 788

Ceskovic v Minister for Immigration and Ethnic Affairs

(1979) 2 ALD 453

No VG 600/96

GODFREY LUVUYO VABAZA v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

GOLDBERG J

MELBOURNE

27 FEBRUARY 1997

FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY )

GENERAL DIVISION ) No VG 600 of 1996

ON APPEAL FROM THE GENERAL DIVISION OF THE

ADMINISTRATIVE APPEALS TRIBUNAL V95/1239

CONSTITUTED BY DEPUTY PRESIDENT G L McDONALD

B E T W E E N:

GODFREY LUVUYO VABAZA

Appellant

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

CORAM: GOLDBERG J

PLACE: MELBOURNE

DATE: 27 FEBRUARY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal, by notice dated 23 September 1996 be dismissed.

2. The appellant pay the respondent's taxed costs of the appeal.

NOTE: Settlement and entry of orders is dealt within in Order 36 of the Federal Court Rules

FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY )

GENERAL DIVISION ) No VG 600 of 1996

ON APPEAL FROM THE GENERAL DIVISION OF THE

ADMINISTRATIVE APPEALS TRIBUNAL V95/1239

CONSTITUTED BY DEPUTY PRESIDENT G L McDONALD

B E T W E E N:

GODFREY LUVUYO VABAZA

Appellant

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

CORAM: GOLDBERG J

PLACE: MELBOURNE

DATE: 27 FEBRUARY 1997

JUDGMENT

The appellant, Godfrey Luvuyo Vabaza, appeals to the Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1958 , against the decision of the Administrative Appeals Tribunal on 14 August 1996, whereby the Tribunal affirmed the decision of the delegate of the Minister to order, pursuant to s 200 of the Migration Act that the appellant be deported from Australia. The deportation order read as follows:

Whereas Godfrey Luvuyo Vabaza is a non-citizen who arrived in Australia on 24 June 1988 and whereas the said Godfrey Luvuyo Vabaza was convicted at the Melbourne County Court on 9 July 1990 of an offence, namely arson and threatening to destroy property, for which he was sentenced to a total effective sentence of two years imprisonment, and whereas at the time of the commission of the said offence the said Godfrey Luvuyo Vabaza was not an Australian citizen and had been present in Australia as a permanent resident of Australia, now I, Mark Anthony Sullivan, a delegate of the Minister responsible for administering the Migration Act 1958 , do hereby order in pursuance of the power conferred upon me by section 200 of the Migration Act 1958 that the said Godfrey Luvuyo Vabaza be deported from Australia.

The appellant had arrived in Australia as a refugee from a Zambian United Nations refugee camp on 24 June 1988. The appellant is a South African citizen and at the time of the Tribunal decision was aged 39 years. A short summary of the relevant facts relating to his life leading up to his entry in to Australia are as follows, and I take these facts from the findings of facts of the Tribunal.

After he left school in South Africa he commenced working and his last job in South Africa was as a quality control inspector in the car industry. He had become a professional boxer, well known in South Africa, and in the late 1970s or early 1980s had joined the Pan Africanist Congress, which at that time was a banned South African liberation movement. He joined the Congress in Azania (South Africa) and worked underground for it. It had amongst its objectives the overthrow of the then white government regime.

The appellant had told the Tribunal that his high profile as a boxer had resulted in him gaining some notoriety and his association with the Pan-Africanist Congress was suspected by the South African Government which rendered him liable to apprehension. As a result, in 1982 to avoid apprehension by the internal security forces he escaped from South Africa to Lesotho and subsequently went to a Pan Africanist Congress camp in Tanzania. Whilst at that camp he said he was expected to accept the ideology of the Congress which advocated the use of violence in the overthrow of the South African apartheid regime and he left the Congress because he believed that change in the government of South Africa should be achieved by peaceful rather than violent means.

From Tanzania he went to Zambia where he was arrested for illegal entry and imprisoned until 1987. As a result of contact with the United Nations High Commissioner for Refugees arrangements were made for his resettlement in Australia where he arrived as a refugee on 24 June 1988. He was able to obtain employment as a rectifier with the Nissen car manufacturing company and his work involved identifying and correcting faults in finished products. He remained working at Nissen until his detention on certain criminal charges in 1989.

However, the criminal charges which become particularly relevant for the application before me are those which resulted in his conviction and sentencing on 9 July 1990 when he was convicted and sentenced in respect of three offences. The first offence was attempted arson for which he received a sentence of six months. The second offence was arson for which he received a sentence of twelve months. The third offence was threatening to destroy or damage property for which he received a sentence of twelve months. All sentences were ordered to be served concurrently.

The nature of the offences are set out in the reasons of the Tribunal and I do not need to go into them in any detail other than to note that the appellant pleaded guilty to those charges which involved cars and property belonging to a Mrs Noeleen Lurje, a woman with whom, according to the Tribunal, the appellant had been romantically associated.

The material before me, and the material before the Tribunal, included the sentencing by Judge Ross in which he identified the offences and the relevant circumstances which involved elements of violence, the fact the appellant had doused some vehicles with petrol, the Fire Brigade having to be called, and the fact that at the time the appellant was affected by alcohol. In the course of submissions before me the appellant denied that he had been convicted of the offence of arson because he contended that arson related to burning down a house. However, it seems to me that s 197 of the Victorian Crimes Act 1958 provides that setting fire to any sort of property is to be charged as arson. However I do not think anything turns on the point raised by the appellant because the relevant offences which have to be taken into account are the offences of damaging a motor vehicle, attempting to damage another motor vehicle and threatening to destroy a residential property.

In the course of sentencing the appellant, Judge Ross expressed the view that the crimes were particularly serious and disturbing, and he was concerned that fires were caused in a quite densely populated suburb of Melbourne. Although the judge's findings of fact are binding on me, his expression of his views as to the nature of the crimes is not. I will consider later whether or not any of those crimes fall into the category of particularly serious crimes for the purposes of the Refugee Convention.

The appellant was imprisoned on 9 July 1990 and on 20 March 1991 he was visited by a representative of the State Director of the Department of Immigration and was given an oral warning that the convictions which were recorded on 9 July 1990 rendered him liable to deportation from Australia pursuant to what was then s 55 of the Migration Act 1958 . On the same day he was given a written confirmation of that warning and he acknowledged receipt of that written warning by his signature. The document read:

This letter is to confirm the oral warning administered to you today in relation to your convictions for arson, threatening to destroy or damage property at the Melbourne County Court on 9 July 1990 which rendered you liable to deportation from Australia pursuant to section 55 of the Migration Act 1958 .

The Minister for Immigration, Local Government and Ethnic Affairs has decided on this occasion not to order your deportation from Australia on the basis of this conviction. Nevertheless you are warned that any further conviction will lead to the question of your deportation being reconsidered by the Minister. Disregard of this warning will weigh heavily against you if the Minister considers your case. You should already have in your possession relevant extracts from the Migration Act on deportation liability and a copy of the Government's Criminal Deportation Policy and I enclose a notice concerning your liability under section 20 of the Migration Act 1975 . I suggest that in your own interest you study these papers carefully.

The appellant served his sentence in respect of the offences for which he had been convicted on 9 July 1990. On 12 November 1991 he was convicted and sentenced in respect of further offences, namely, damaging property for which he received a sentence of three months, common assault for which he received a sentence of nine months and two counts of assaulting police officers in the execution of their duty for which he received sentences of three months each. All of these sentences were ordered to be served concurrently.

The circumstances of those offences are set out in the reasons of the Tribunal and it is not necessary for me to rehearse them in any detail. The sentencing and the reasons for sentencing of Judge Kimm were included in the material before the Tribunal and are in the material before me. One of the factors which is relevant to note in relation to that proceeding was that the offences which occurred involved the appellant seeking by the use of a tomahawk to gain access to a house where he was seeking to visit a woman with whom he had, prior to that time, a defacto relationship.

In the findings of fact of the sentencing judge he found that the appellant used a tomahawk to gain entry and later when he entered the house he pushed one of the women against a door jamb and pushed "the axe" against her throat just under her chin. I have referred to the words used by the sentencing judge and which were referred to by the Tribunal.

In his submissions to me the appellant denied that he had used an axe but said that he had used a tomahawk. It seems to me that in the circumstances he was drawing a distinction without a difference because he identified the distinction between a tomahawk and an axe as being that the tomahawk has two blades whereas an axe has only one. He also denied, and said quite vehemently, that he had not pushed against the throat of the woman whether it be with an axe or a tomahawk.

The difficulty I have with that submission is that it was a finding of fact of the sentencing judge and not a comment and according to accepted principles both the Tribunal and this Court are bound by that finding of fact. The Tribunal so found in its reasons for decision.

The appellant served his sentence in prison and made a further appearance before the County Court on 28 January 1993. On that occasion he pleaded guilty to three charges, one of a threat to kill, for which he received a sentence of one year, one a count of rape, for which he received a sentence of six years, and the third a count of theft, for which he received a sentence of one month. It was ordered that he serve a minimum sentence of three and a half years.

On 12 September 1995 the delegate of the Minister made the deportation order to which I have already referred. On 25 October 1995 the appellant applied to the Administrative Appeals Tribunal for a review of that decision, and on 14 August 1995 the Tribunal published its reasons for decision. The decision of the Tribunal constituted by Deputy President McDonald, was that the decision to deport by the delegate of the Minister was affirmed.

It is from that decision of the Administrative Appeals Tribunal that the appellant appeals to this Court pursuant to s 44 of the Administrative Appeals Tribunal Act and it is that appeal which came before me for hearing today. I note at the outset that pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 the appellant can only appeal to the Court on a question of law. It is the agitation of the issue whether or not the Tribunal erred in law which is before the Court. What is not before the Court is a hearing de novo or a review of the facts, and I say more about that shortly.

The appellant had claimed before the Tribunal, and claims before this Court, that he was a refugee and is a refugee now within the meaning of that expression as identified in the Convention relating to the status of refugees, and accordingly is entitled to the protection that that Convention gives to refugees. It is clear on the material before me, and I did not understand it to be contested by the Minister, that the appellant had entered Australia as a refugee. However, he contended before the Tribunal and contends before this Court that he has had, and continues to have, a well-founded fear of being persecuted for the reason of his political opinion within Article 1A(1) and (2) of the Convention.

He then says that by virtue of having that well-founded fear he is entitled to the protection of Articles 32 and 33 of the Convention. It was noted in the Tribunal's reasons, and is, I think, a notorious fact now, that since the appellant left South Africa there has been a change in the political regime in South Africa as a result of the 1994 election of the Government of National Unity and the Presidency of Mr Nelson Mandela.

However, the appellant submitted to the Tribunal, and submits to this Court, that if he is returned to Africa, elements in the Pan Africanist Congress would seek retribution against him because he deserted their cause in the mid 1980s. I should point out that as a result of the change of government in South Africa, the office of the United Nations High Commissioner for Refugees issued in May 1995 what is called a cessation notice in respect, inter alia, of South Africa which notice was in evidence before the Tribunal and the Court.

Clause 8 of the memorandum which contains that notice noted that offices of the United Nations High Commission for Refugees should apply the cessation clause on a group basis. But it then went on to state:

Individual members of the group may request reconsideration on the basis of special circumstances, justifying maintenance of their refugee status.

Two different bases for reconsideration are then set out as able to be presented. I need not go into the details in that memorandum relating to South Africa which led the Commissioner to issue the notice of cessation.

It was contended before the Tribunal by the Minister, and also contended before me, that because of that cessation notice the Convention was not now relevant in order to identify the status that should be given to the appellant. Nevertheless the Tribunal found and determined as the relevant memorandum pointed out that it was still open for the appellant to lead evidence before the Tribunal that he feared for his safety as an individual, for example, from members of the Pan Africanist Congress should be returned to South Africa.

In order to consider whether any ground has arisen to vitiate the decision of the Tribunal it is necessary to understand briefly how the Tribunal went about its task. It identified the relevant history of the appellant, to which I have already referred, both in South Africa and when he left South Africa and ultimately came to Australia, and also set out in some detail the circumstances as found by the sentencing judges in relation to the convictions to which I have referred.

The appellant appeared before the Tribunal and was represented by counsel instructed by solicitors. Evidence was presented to the Tribunal on the appellant's behalf and a number of submissions were made. The nature of that evidence is identified in the reasons for decision of the Tribunal. A significant part of the reasons for decision so far as this appeal is concerned, is found in paragraph 11 of the Tribunal's decision where it concluded that it was not prepared to accept that the appellant had a genuine fear for his safety should he be returned to South Africa.

The Tribunal accepted that the circumstances which led to the appellant leaving South Africa no longer existed and then noted:

While there is evidence of some in-fighting within the PAC, there is no substantive evidence that the applicant's personal safety would be threatened either by the PAC or from members of the APLA, whether or not those members will be or have been incorporated into the national defence forces, civil service or diplomatic corps of South Africa.

The Tribunal then expressed the view that there was:

No objective evidence to sustain a finding that there was a "real chance" as distinct from a "far-fetched possibility" upon which the applicant could form a reasonably held view that his safety would be endangered if he was to be returned to South Africa.

In expressing that conclusion the Tribunal relied upon the decision of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, and referred in particular to the judgment of Mason CJ at page 398 and McHugh J at 429. The Tribunal went on to find that there was no evidence of likely persecution of the appellant of the sort that was presented to the Tribunal on behalf of the appellant in the cases to which it referred, and then finished up by noting that:

The fact that the applicant continued to commit offences after he had been warned by the respondent Minister tended to negate his claim that he feared for his safety should he be returned to South Africa.

And the Tribunal continued:

If he had a genuine fear surely he would have taken action to moderate his conduct. Instead he continued to commit further and more serious offences.

The Tribunal's conclusion, which I hasten to say the appellant has now challenged, was that the Tribunal was not prepared to accept that the appellant had a genuine fear for his safety should he be returned to South Africa. Having made those findings, their relevance being as to the characterisation of the status of the appellant, that is was he or was he not a refugee, the Tribunal went on to consider the personal situation that related to the appellant. It identified what had been a situation of over-consumption of alcohol and noted the appellant's evidence as to how he had sought to overcome his alcohol problem and the Tribunal then considered evidence that was led on behalf of the appellant from Mr Healey who was accepted by the Tribunal as a very experienced clinical psychologist.

The Tribunal set out in some detail and gave careful analysis to the report and evidence of Mr Healey and noted the opinion of Mr Healey that there was a very high chance of the appellant not offending again and that, as far as Mr Healey could see, the appellant had as good a prospect as others in keeping away from alcohol in the future and had access to prison support. Overall the Tribunal concluded that the substance of Mr Healey's evidence was that he was optimistic with respect to the appellant's chances of rehabilitation. The Tribunal then noted that currently the appellant had no-one with whom he was in a close personal relationship in Australia, nor did he seem to have any close personal friends, although there was a reference to the fact that he had some penfriends, one of whom had recently visited him from Queensland.

Having regard to that analysis, the Tribunal then went on to give consideration to the relevant principles by reference to which it should make its determination and it noted that it was to be guided by the ministerial policy statement which was identified. The Tribunal noted in particular paragraphs 9, 12 and 19 of the policy statement. Paragraph 9 provided that deportation is to be considered in order to protect the safety and welfare of the Australian community in circumstances where the benefit accruing to the community as a whole by the removal of a non-Australian citizen from Australia outweighs the hardship to that person and/or his family.

Paragraph 12 nominated serious sexual assaults and violence against a person as examples of serious offences rendering a person liable to deportation. Paragraph 19 nominated the matters which are to be taken into account in reaching a decision on deportation which included the nature of the offence, the person's general record of conduct, taking into account the total criminal history, whether a person has received a warning with respect to deportation and committed another deportable offence and the risk of the person committing further offences. I should also point out, as the Tribunal did, that paragraph 19 also nominated the extent of rehabilitation achieved by the person liable for deportation, the length of lawful residence and the strength of the person's ties to the community as being relevant for consideration, as was the degree of hardship which would be caused to the offender or any residents of Australia if the offender were to be deported and his ties with other countries.

The Tribunal concluded standing in the shoes of the delegate, that it was bound to reach a balanced view by weighing up all these factors which it then did. The Tribunal undertook the balancing task, noted that the major factor in favour of the appellant was the strong evidence of Mr Healey and the appellant's stated convictions to the Tribunal that the length of his prison term had permitted him an extended period of time to start rehabilitation and that he had embarked on that course to the extent that it was unlikely he would consume alcohol to the extent which led to the previous offences.

The Tribunal noted that it was impressed by the evidence but noted that that factor which was personal to the appellant did not outweigh what the Tribunal also had to take into account namely the seriousness with which it must regard the offences of the appellant on behalf of the community. The Tribunal noted the number of offences committed, the rapidity with which they had been committed and the escalating seriousness of their nature, took into account the warning which had been given in 1991 and noted in particular the statement by Brennan J, (as he then was) as President of the Tribunal, in Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98, where at 100 the learned President had said:

The duty of the Tribunal is to apprehend what is the acceptable level of risk, and to assess whether a particular applicant in the particular circumstances of his case, is at an unacceptable level of risk.

The Tribunal then concluded that:

Despite Mr Healey's evidence and the aspirations of the applicant there was an unacceptably high risk that the applicant may commit further offences of a serious nature -

The Tribunal balanced everything it had taken into account and concluded that the decision under review should be affirmed.

In his notice of appeal challenging the decision of the Tribunal the appellant raised as the question of law for decision on the appeal "Refugee Status under International Law. The United Nations 1951 Protocol/Convention". I take this ground to mean, and this was amplified in submissions by the appellant, that because of his refugee status he was entitled to protection from deportation under the provisions of the Convention and that in the circumstances he should not be deported. It is not immediately clear as to the precise nature of the question of law identified in the notice of appeal but I took it to mean that when one analyses how the Tribunal approached its task, one determines whether it made a mistake in relation to how it interpreted the Convention and how it applied the Convention to the facts before it and whether it incorrectly applied the principles in relation to the identification of refugee status.

In support of the question of law raised in his notice of appeal the appellant set out the following grounds:

Article 32(1) and 33(1) of the 1951 Convention.

Article 1A(1) "Statutory Refugee". "Well founded fear" of being persecuted - International Institute of Humanitarian Law (1989), p141 at p145. "Travaux Preparatorires" Art 32 of the vienna Convention of 1969. Rehabilitation conformed by four professional psychologists/psychiatrists, viz Dr B Ilbiley, Dr Ian Joblin, Dr Vine and Dr Walton. My political enemies are in power in South Africa, going there means persecution. Double penalty prison and death sentence.

Some of these grounds do not raise questions of law but rather go to the issue of the evidence which the Tribunal accepted and rejected and I come back to that issue shortly.

The appellant amplified his grounds in oral submissions which were very articulate and I should identify very briefly what those submissions were. Having referred to the relevant articles of the Convention the appellant submitted that he had a well founded fear of being persecuted and said it was necessary to look at the decision of Chan Yee Kin v Minister for Immigration and Ethnic Affairs (supra) to which I have already made reference. He referred to the judgment of McHugh J (referred to in the Tribunal's reasons together with the judgment of Mason CJ). He said he would be singled out for harm or oppression for his political views. He said the Court should look at his rehabilitation and the evidence of the psychologists and the psychiatrists. He said his political enemies, the Pan Africanist Congress, were in power in South Africa and were undergoing integration with the African National Congress and the Mandela Government. He submitted that the prospect of persecution was high.

He said he had served his time and had been punished for his crime so that deportation was a double penalty. He said that the deportation would deny him the reformative effects he had undergone in prison. He submitted that he had not been convicted of arson. I have already dealt with that issue having regard to the relevant provisions of s 197 of the Victorian Crimes Act 1958 . For present purposes it is sufficient to note that the offences of which he had been convicted involved setting fire to objects. He submitted he was being punished for an offence he did not commit, but it seems to me on a fair reading of the Tribunal's reasons the Tribunal considered the offences in respect of which the sentences were given.

In relation to the later offences he denied that he had pushed an axe against the throat of the woman, this being a submission identified by, and given before, the Tribunal, and he made a submission in relation to the distinction between an axe and a tomahawk. He also submitted that there was still political turmoil in South Africa today. He said that so far as Article 33(2) of the Convention is concerned the crimes in respect of which he pleaded guilty were not particularly serious crimes and he likened particularly serious crimes to crimes such as where a considerable number of people are killed and he drew my attention to the Port Arthur incident last year.

He also contended, in my view incorrectly, that the Tribunal could not overturn a decision of the Minister, and he referred me to an internal departmental document. It is clear on the legislation that the Tribunal has the power to overturn a decision of the Minister in the sense that it has a specific power to set aside the Minister's decision. The appellant submitted that the deportation, if effected, would discriminate against him and if he returned to South Africa there would be a high probability that he would be persecuted and he drew my attention to a recent edition of the English Guardian newspaper that noted that people were still being killed in South Africa.

He submitted that the Convention still applied to him. He said it would be thought that he had betrayed the Pan Africanist Congress cause and accordingly in his language, "I'm gone". He said he still held the fear that if he was exposed to the Pan Africanist Congress his life was in danger. He submitted in the course of his reply as he had done earlier that he had undergone rehabilitation and that he was now a changed man. Towards the end of his submissions he asked how he could get evidence before the Tribunal while he was still locked in prison and so far as that submission was concerned to which I will come I note that he was at that stage legally represented before the Tribunal.

The submissions of the respondent Minister, in short, were that the Convention did not apply to the appellant, that the particular circumstances of the appellant were such that by virtue of Articles 32 and 33 of the Convention, because of the convictions, it was not a breach of the Convention for a deportation to be made. The Minister submitted that the matters of which complaint was made by the appellant were matters that dealt with findings of fact rather than errors of law.

When dealing with questions of errors of law, a critical distinction needs to be identified between errors of law and errors of fact. There is much learning as to what is involved in an error of law. It is not necessary to rehearse all the relevant cases. What should be identified is that in order to establish an error of law one needs to find, and this is not an exhaustive list, for example that the Tribunal failed to apply relevant legal principles, that it misconceived the relevant legislation, that there were no facts before the Tribunal which could support the findings it made, and that it misinterpreted relevant principles of law and legislation. This is not intended to be a comprehensive list but what is important to identify is that an error of law does not involve a review of the facts, a contention that the Tribunal gave too much weight or insufficient weight to some evidence or that it rejected evidence or did not accept other evidence.

I refer to the decision of Waterford v The Commonwealth, [1987] HCA 25; (1987) 163 CLR 54, where at 77 Brennan J, as he then was, said:

A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the AAT Act confers on a party to a proceeding before the AAT a right of appeal to the Federal Court of Australia from any decision of the Tribunal in that proceeding but only on a question of law. The error of law which an applicant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact, therefore an applicant cannot supplement the record by adducing fresh evidence merely to demonstrate an error of fact.

One finds similar observations in Devries v The Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472, where at 479 Brennan, Gaudron and McHugh JJ said:

More than once in recent years this court has pointed out that a finding of fact by a trial judge based on the credibility of a witness is not to be set aside because an appellate court thinks that the probabilities of the case are against, even strongly against that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness the finding must stand unless it can be shown that the trial judge has failed to use or has palpably misused his advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.

Similar statements are to be found last year in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, where at page 272 the majority of the Court said:

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court.

(See also Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35 to 36).

Having regard to those principles I turn to the issues of which the appellant has made complaint. As I noted earlier his ground of appeal on a question of law was refugee status under International law, the Convention, which I take to mean, that the Tribunal incorrectly interpreted the Convention, incorrectly applied the Convention to the facts before it and incorrectly applied the principles in relation to the identification of refugee status.

A number of the issues which the appellant raised before me are basically contentions that the Tribunal made the wrong finding of fact. The Tribunal's findings of fact, which I paraphrase, were that there was no substantive evidence that the appellant's personal safety would be threatened, there was no objective evidence to sustain a finding that there was a real chance as distinct from a far fetched possibility upon which the appellant could form a reasonably held view that his safety would be endangered and that there was no evidence of likely persecution of the appellant of the type identified.

Having regard to the evidence before the Tribunal, it seems to me that what the appellant is really saying is - there was evidence before the Tribunal in relation to the situation in relation to the Pan Africanist Congress and what the Tribunal should have done was to accept the evidence. As I noted earlier, the appellant submitted before me that he had, and still has, a well-founded fear of being persecuted, that he will be singled out for harm or apprehension and that there is a prospect of persecution which is high. He said his fear of persecution was from members of the Pan Africanist Congress.

However, that submission goes no further than saying that the Tribunal should have reached a different conclusion on the facts. The authorities to which I have referred identify that such a proposition is not a sufficient or adequate ground of review and certainly does not raise a question of law. Of course, that is not the end of the matter as I will demonstrate shortly. A number of the other grounds to which I have already referred again raise issues of fact and, insofar as they do, it is not for this Court to draw a conclusion from them different to the conclusion reached by the Tribunal.

There was evidence before the Tribunal as to the change in activities of the Pan Africanist Congress, the Congress' change from an armed party to a political party and the integration of its armed forces into the national defence force. It was therefore open to the Tribunal, on the evidence, to reach the conclusion it reached.

The effect of the finding that there is not a real chance, as distinct from a far-fetched possibility on which he could form a reasonably held view that his safety would be endangered, has the consequence that the appellant is not entitled to call himself a refugee and gain the protection of the Convention. However, assuming for the moment that that finding was incorrect and it was an error of law not to find that he was a refugee, it is then necessary to consider Articles 32 and 33 of the Convention. Article 32 refers to expulsion and provides that:

The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.

Article 33 provides:

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.

But sub-paragraph (2) of that article provides that:

The benefit of the present provision may not however be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

The respondent submitted that those provisions apply only to persons who are refugees, a submission which I think is quite correct. The Tribunal found that the appellant was not a refugee or entitled to refugee status and that is a finding which I cannot over-turn because it involves basically a question of fact reached after a consideration of the evidence and the weight of evidence before the Tribunal.

The respondent submitted that even if the appellant continued to enjoy refugee status his conduct took him outside the protection of Articles 32 and 33. It seems to me that the grounds established as the basis for the deportation of the appellant fall within the subject matter of public order, having regard to the offences in respect of which he has pleaded guilty and has been convicted. These offences involved not only property offences but also serious offences to the person and they were such, when taken in conjunction with the evidence relating to the appellant's present circumstances, that they entitled the Tribunal to find that there remained an unacceptably high risk that the appellant might commit further offences of a serious nature.

The question then arises as to whether or not the crimes in respect of which he was convicted are properly described as particularly serious crimes. As I have noted, Judge Ross in relation to the offences in respect of which the appellant was sentenced on 9 July 1990 found that they were particularly serious crimes. That does not bind me and I have to form a view as to whether or not those crimes and the subsequent crimes, in particular, the crimes for which he was sentenced on 28 January 1993 were particularly serious crimes. I then have to determine whether it was open to the Tribunal to find that the appellant constituted a danger to the Australian community. It will be remembered that the Tribunal had found that there remained an unacceptably high risk that the appellant might commit further offences of a serious nature.

There have been a number of decisions which have considered the question what is a particularly serious crime. Of course they are only illustrative and I refer to two of them. In Todea v Minister for Immigration [1994] 35 ALD 735, the Court held that a conviction on one charge of supplying heroin with a sentence of four years was particularly serious. There is no offence of that nature in respect of which the appellant has pleaded guilty. In Tamayo v Department of Immigration [1994] 37 ALD 788 the Administrative Appeals Tribunal constituted by Presidential Member Purvis concluded that:

Offences of assaults, sexual intercourse without consent, malicious wounding with a knife were particularly serious within the meaning of the convention.

I have before me a number of crimes in respect of which the appellant has pleaded guilty. The 1990 offences were attempted arson, arson and threatening to destroy or damage property and I take into account in describing them as arson that they involved attempting to damage a motor vehicle and damaging a motor vehicle by dousing the vehicles with petrol and then setting one of the cars alight in a residential area.

It seems to me, having regard to the manner in which the offences occurred, that they 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 offences in respect of which the convictions were recorded and sentences given on 28 January 1993 are, in my view, more particularly serious offences. One offence was a threat to kill for which a sentence of one year was given and the other was rape for which a sentence of six years was given. It seems to me that in this day and age a threat to kill and the 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.

It seems to me therefore that even if the appellant is a refugee, Articles 32 and 33 of the Convention do not preclude a contracting state, such as Australia from expelling or returning the appellant.

I then have to consider the policy under which the deportation order was made because even though, according to my findings and conclusions, the Convention does not assist the appellant in saying he should not be deported, it is still necessary to give consideration to the decision of the Delegate and the decision of the Tribunal that deals with the issue of that policy. The jurisdiction to make the deportation order arises under s 200 of the Migration Act 1958 which provides:

The Minister may order the deportation of a non-citizen to whom the division applies.

And s 201 provides:

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) when the offence was committed the person was a non-citizen who:

(i) had been in Australia as a permanent resident:

(A) for a period of less than 10 years; or

(B) for periods that, when added together, total less than 10 years; or

(ii) as a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder:

(A) for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or

(B) for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; 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;

section 200 applies to the person.

When the offences were committed the appellant had been in Australia as a permanent resident for less than ten years and the offences for which he was sentenced were for imprisonment for a period of not less than one year. On the facts before me the jurisdiction to order deportation is established. The ministerial policy on criminal deportation was before the Tribunal and a number of the passages in it were referred to.

Counsel for the respondent drew my attention to a number of the paragraphs in the policy which the delegate and the Tribunal were entitled, and indeed obliged, to take into account. I note in particular that paragraph 2 refers to the discretion vested in the Minister.

Paragraph 2 states:

The Minister, in exercising the discretion committed to him to determine whether people should be removed from Australia, is exercising the right of the Australian community to be protected and to choose who will be permitted to remain as a permanent resident.

As the appellant rightly pointed out, where the right of appeal to the Tribunal exists, the Tribunal is invested with the administrative powers of review and is therefore able to overturn a decision of the Minister. Paragraph 7 provides:

Consistent with Government policy, most weight should be given to the need to protect Australian society.

Paragraph 8 of the policy, which was identified again by the appellant, notes that:

The Government recognises Australia's obligations under international law, particularly to the International Covenant on Civil and Political Rights. However, the Government is mindful of the need to balance a number of very important factors, especially the need for community protection against criminal behaviour, the requirement to take into consideration the legitimate human rights of an individual, the need to protect the rights of other persons including the family of the person concerned and a need to avoid discrimination when making deportation decisions.

Paragraph 9 provides:

The purpose of deporting a person who has been convicted of a criminal offence in Australia is to protect the safety and welfare of the Australian community.

Paragraph 10 provides:

The greater the potential effect on the community or the greater the potential damage to the community, the lower is the acceptable level of risk that the person concerned will commit further offences.

Paragraph 11 provides:

Deportation of a person convicted of crime may be appropriate when a person constitutes a threat because there is a risk that he or she will commit further offences if allowed to remain or has committed a crime so offensive to Australian community standards that the community rebels against having within it a person who has committed such an offence or has not established sufficient ties with Australia to have become a full member of the community and, by reason of his or her conduct, is unsuitable for permanent residence in Australia.

As I noted earlier, paragraph 12 includes as an example of serious offences which may render non-Australian citizens liable to deportation serious sexual assault, whether or not accompanied by other violence and violence against the person. Paragraph 19 sums up the issue this way:

The most important broad criteria on which judgments will be based are the nature of the crime, the possibility of recidivism, the contributions the person has made to the community or may reasonably expected to make in the future and the family and/or social ties that already exist. A person who has been previously warned about the liability for deportation and notwithstanding that warning commits a further deportable offence shall expect that the warning will be given serious weight in consideration of his case.

The respondent submitted that the appellant was liable to deportation in accordance with the Ministerial policy. Having found that the appellant is not a refugee, a finding which was open on the evidence to the Tribunal and on the basis that Articles 32 and 33 enable the deportation of the appellant, even if he was properly characterised as a refugee, the question then arises as to whether in the way the Tribunal approached the ministerial policy it can be the subject of criticism as having fallen into an error of law.

I must bear in mind, the statements in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (supra) at 272 to which I have already referred and the statement in Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36 to which the Court in Wu made reference:

The duty and jurisdiction of the Court to review administrative action do not go beyond a declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If in so doing, the Court avoids administrative injustice or error, so be it, but the Court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action to the extent that they can be distinguished from legality are for the repository of the relevant power and subject to political control for the repository alone.

In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (supra) Kirby J at 291, set out a number of propositions which guide me in determining how I approach the decision of the Tribunal. He said:

1. The reasons under challenge must be read as a whole; they must be considered fairly. It is erroneous to adopt a narrow approach combing through the words of the decision maker with a fine appellate tooth comb against the prospect that a verbal slip will be found warranting the inference of an error of law.

2. This admonition has particular application to the review of decisions which by law are committed to law decision makers, that is, tribunals, administrators and others ...

3. Specifically, the reviewing judge must be careful to avoid turning an examination of the reasons of the decision maker into a reconsideration of the merits of the decision where the judge is limited to the usual grounds of judicial review, including error of law.

4. Nevertheless, the reasons of a decision maker will usually provide the only insight into the considerations which were not taken into account in reaching a decision which is impugned. It is therefore legitimate for the person affected who challenges those reasons to analyse both their language and structure to derive from them the suggestion that a legally erroneous approach has been adopted or erroneous considerations taken into account or a conclusion reached which is wholly unreasonable in a requisite sense.

5. The weight to be given to the material before the decision maker is, in a case submitted to judicial review, reserved to the decision maker so long as he or she applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review.

When I analyse the reasons of the Tribunal it is apparent that the Tribunal had before it all the matters which the appellant has put before me. It was clear that the submissions before me were made to the Tribunal indeed, the contention was advanced that he had a well- founded fear of persecution and that he would be singled out for harm. Those submissions were, on the evidence, rejected by the Tribunal.

The Tribunal had all the material before it and, in short, the appellant is saying to this Court the Tribunal reached the wrong decision. I have carefully analysed the reasoning of the Tribunal and I am unable to discern an error of law by the application of relevant principles. When I then turn to the way the Tribunal approached the Ministerial deportation policy, it seems to me that the Tribunal had before it again all the submissions that were made by the appellant.

One of the strong points advanced by the appellant before me today was that he was in a process and state of rehabilitation. Indeed, the Tribunal gave substantial consideration to that issue. I have already referred to those passages in the reasons of the Tribunal which dealt with the evidence of the psychologist, Mr Healey and his optimism as to the appellant's chances of rehabilitation.

At the end of the day, what the Tribunal did was to look at the chances of rehabilitation as the major factor in favour of the appellant being permitted to stay. The Tribunal noted that it was impressed by the evidence, indeed hopeful that the rehabilitative process could continue but then formed the view that that factor did not, in the Tribunal's opinion, outweigh the seriousness of the offences.

In dealing with the seriousness of the offences, the Tribunal noted the number committed, the rapidity with which they had been committed, their escalating seriousness and what the Tribunal had noted on at least two occasions the specific warning before the commission of two further sets of offences. The Tribunal formed the view that there was an unacceptably high risk that the appellant might commit further offences of a serious nature. In reaching that conclusion, the Tribunal had regard to the dictum of Brennan J, as he then was, in Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98, where he said at page 100 that:

Rehabilitation is never certain. One cannot predicate of an offender that he will not fall again, whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk and to assess whether a particular applicant in the particular circumstances of his case is at an unacceptable level of risk.

The Tribunal so concluded. There was evidence before the Tribunal in respect of which it was entitled so to conclude. I cannot discern an error of law in that conclusion or in the process of reasoning by which the Tribunal reached it. I also note the observation of Davies J in Ceskovic v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 453 at 455. That was a case where, as Deputy President of Tribunal, he affirmed the decision of the Minister that the appellant in that case be deported. He said:

Immigrants who fear for their life or liberty in their homeland cannot expect to remain in this country of their adoption if they so conduct themselves as to be a danger to the community.

It seems to me that on all the material before the Tribunal, the Tribunal was faced with a very difficult task. There was no doubt that the appellant came to this country as a refugee. The Tribunal on the evidence was not prepared to accept that the appellant had a genuine fear for his safety should he be returned to South Africa. There was evidence from which the Tribunal could find to the contrary and submissions were made contrary to that view before the Tribunal. It was open to the Tribunal to reach that conclusion. That was a matter for the Tribunal and in my opinion there was no error of law identified in the conclusion it reached. The complaint, in short, against the Tribunal is that it should not have accepted the facts which it did, it should have accepted the submissions made by the appellant. That does not constitute a ground for appeal pursuant to s 44.

Nevertheless the Tribunal still had to consider whether the appellant in the particular circumstances of this case was at an unacceptable level of risk (Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1997) 1 ALD 98, 100). In my view the Tribunal correctly identified the relevant considerations in answering that question and discharging that duty. It took into account the material that was placed before it by the appellant; it took into account the material placed before it by the respondent minister, and I am unable to discern any error of law in the conclusion which it reached.

It is not for me to look at the matter afresh and say would I or would I have not reached the same conclusion, that is not the task on appeal from a decision of the Tribunal. In all those circumstances I find that the error of law identified by the appellant is not made out and that the grounds in his application do not support a finding of any error of law. I hasten to say that I have not limited myself in a formal or pedantic way to the words used by the appellant in his application in identifying the error of law, or to the grounds which he advanced. I am very conscious of the fact that the appellant appears before me as a litigant in person, denied the opportunity for legal assistance, and being incarcerated in a way which he said limited his opportunity to prepare his case. On this latter point however I note that he was represented by counsel before the Tribunal, such counsel having been retained by a solicitor on behalf of the appellant.

He said nevertheless at the start of the proceeding that he wanted to continue with the proceeding and to continue with the appeal because of his present state of incarceration. Accordingly, I have approached the matter in a non-technical way conscious of the restraints upon me in relation to grounds of appeal; that is I have to determine whether I can find an error of law. I have looked anxiously at the reasons of the Tribunal and the material before it to see if I could determine an error of law, perhaps not completely articulated by the appellant and I was unable to do so.

Similarly in relation to the grounds which he advanced I sought to determine from the material whether there were any grounds which would support an error of law, albeit grounds not identified by the appellant. Again I was unable to do so. It is a regrettable situation for the appellant to find himself in this position. He submitted before me today that he is remorseful and that he is, in his language, "a changed man". However, the basis upon which I have to approach this matter is not for me to consider whether he is a changed man but to consider whether the Tribunal in approaching the matter on the evidence before it made an error of law in the way it reached its conclusion.

As I have already said I do not believe that it did commit such an error of law and in all those circumstances I must reach the conclusion that the notice of appeal dated 15 October against the decision of the Administrative Appeals Tribunal dated 14 August 1996, be dismissed.

Mr Gunst, on behalf of the respondent seeks an order as to costs. I have found that the appeal should fail on the merits of the appeal and the usual order in circumstances such as this is that the unsuccessful appellant pays the respondent's costs. The appellant has submitted that, due to his current situation of incarceration, he does not have the ability to pay the costs. I understand his position but that is not a relevant consideration which enters into the decision whether or not to order costs having regard to the manner in which the appeal is resolved. Accordingly, I will order, in addition to the dismissal of the appeal that the appellant pay to the respondent his costs of the appeal.

Solicitors for the appellant: Appellant in person

Counsel for the respondent: Mr C Gunst

Solicitors for the respondent: Australian Government

Solicitor

Date of Hearing: 27 February 1997

Date of Judgment: 27 February 1997

I certify that this and the preceding thirty-seven (37) pages are a true copy of the Reasons for Judgment of the Honourable Justice Goldberg

Associate:

Date: 7 March 1997