of Iranian health care facilities. However, it
considered that the author was at grave risk of not
seeking out appropriate treatment generally, and in
particular Clorazil, without which his psychotic
delusions would return. It considered that there was
no evidence of back-up treatment in Iran should the
author fail to take his medication, and that the
likelihood of a recurrence of illness was greater in
Iran than Australia. It made no finding on the cause
of the author’s mental illness.
5 February 1999, the Minister appealed the Federal
Court’s decision to the Full Court of the Federal
Court (“the Full Court”). On 20 July 1999, the Full
Court allowed the Minister’s appeal against the
judgement of 15 February 1999, holding that the
AAT’s findings in “an extremely difficult case”,
while “debatable”, had been open to it on the
evidence and had properly balanced the competing
factors.17 The Court noted that “while [his] illness
can be controlled by medication available in
Australia [Clorazil], the medication is probably not
available in Iran”. Accordingly, the effect of the
decision was that the deportation order stood. On
5 August 1999, the author applied to the High Court
for special leave to appeal against the Full Court
decision. On 11 February 2000, the application for
special leave was dismissed.
2.11 On 23 November 1998, the author again
appealed the AAT’s decision to the Federal Court.
On 4 December 1998, the author was granted parole
from his criminal conviction under strict
conditions,15 but remained in immigration detention
pending the appeal against the AAT’s decision. On
15 January 1999, the Federal Court, by expedited
hearing, again allowed the author’s appeal against
the AAT’s decision. It found that the AAT had
improperly construed the protection of article 33 of
the Convention,16 and moreover that it had again
failed to properly consider the mitigating
circumstances constituted by the author’s state of
mind at the time of commission of the offences. The
Court remitted the case to the AAT for urgent
hearing, and accordingly denied the author’s
accompanying motion for interim release. On
(f)
The applications to the
subsequent proceedings
Minister
and
2.12 On 19 January 1999, following the Federal
Court’s second decision in the author’s favour
against the AAT, and later in February and March,
the author applied to the Minister for revocation of
the deportation order and for release from
immigration detention, supplying a substantial body
of medical opinion in support.
2.13 On 11 and 18 March 1999, the Minister
decided that he would not order the author’s release
and that he would remain in detention. On 29 March
1999, the author applied to the Federal Court for
judicial review of the Minister’s decision. On 8 April
1999, the author sought interim relief pending the
decision of the Federal Court on the main 29 March
application. On 20 April 1999, the Federal Court
dismissed the application by the author for review of
the Minister’s decision not to release him. The Court
considered that, while there was a serious question
as to whether the Minister had taken into account an
irrelevant consideration when making his decision,
the balance of convenience favoured refusal of the
order given the imminence of appeal to the Full
Court on the AAT’s decision. On 19 May 1999, the
Minister supplied his reasons for declining the
author’s release. He assessed, relying in part upon
the AAT decisions which had been vacated on
appeal, the possibility of the author’s reoffending as
significantly high and concluded that the author
constituted a continuing danger to the community
and to his victim. On 15 October 1999, the Minister
15
The author had actually become eligible for parole in
July 1997, but the Parole Board deferred its decision due
to the deportation proceedings set in train by the Minister.
The Parole Board had before it a Psychiatric Report, dated
16 March 1998, it had requested from Consultant
Psychiatrist Barrie Kenny stating inter alia “The fact that
he developed this psychotic state, in detention, without a
prior relevant history, strongly suggests that his psychotic
state may well have been precipitated by the experience of
prolonged detention.”
16
On this issue, the Court found: “Given the findings of
the AAT concerning what would be likely to happen to the
applicant on return to Iran and its finding that a return to a
psychotic state would be likely to bring him to the
attention of the authorities and further, given that because
of his ethnicity and religion he may lose his freedom, I
find that the AAT’s conclusion that the [author] does not
have the protection of article 33 (1) of the Convention so
unreasonable that no reasonable tribunal could so
conclude. The AAT outlined circumstances where the
[author], if returned to Iran, may, as a result of being ill,
bring himself to the attention of the authorities and be
incarcerated, at least in part as a result of those authorities
discovering that he is an Assyrian Christian. It is absurd
for the AAT to contend that the [author’s] freedom would
not thereby be threatened on account of his race and
religion. Of course the trigger for the persecution may be
his mental state, but once there exists the likelihood of
persecution which is in part on account of a Convention
based reason it matters little that the triggering of the
persecution was a matter which is extraneous to a
Convention based reason”. [C] v. Minister for
Immigration and Multicultural Affairs [citation deleted].
17
The Court accepted, nonetheless, that the author’s
“illness developed as a result of his detention pending the
determination of his application for a protection visa. That
application was ultimately determined in his favour. The
illness was a significant factor causing [the author] to
commit the crimes which gave rise to his liability to
deportation”. Minister for Immigration and Multicultural
Affairs v. [C] [citation deleted].
144
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