Administrative Appeals Tribunal of Australia|1977-08-24

The applicant has been before Courts of Petty Sessions on three occasions since arriving in Australia. The first occasion was in October 1974 when he was convicted of possession of LSD arising from the incident in the Bondi flat. He was discharged on a 3 year good behaviour bond, and was required to accept supervision and guidance from the Adult Probation Service.

In August 1976, he was fined $25 for being an unlicensed driver of a friend's motor cycle and $40 for having driven it negligently in cutting a corner. He pleaded guilty to these charges.

In December 1976, the police came into his flat -with his consent - and found a small quantity of Indian hemp and a pipe which he used when he smoked the drug. He was prosecuted and fined $50 for smoking Indian hemp, $25 for possessing the Indian hemp and $25 for possessing the pipe. After these convictions, he decided to discontinue using Indian hemp.

The Magistrate recommended that no action be taken with respect to the good behaviour bond. Notice of the Indian hemp convictions was furnished by the police to the

Immigration authorities and the deportation order resulted. The smoking of Indian hemp is an offence punishable by imprisonment for one year or longer, and thus Becker became liable to deportation under s.13(a).

The question is whether the order should be affirmed by this Tribunal or whether the Tribunal should "remit the matter for reconsideration in accordance with any recommendation of the Tribunal" (Administrative Appeals Tribunal Act 1975, Schedule Part XXII, Cl. 22(3)). The jurisdiction of the Tribunal under Part XXII is more restricted than its jurisdiction under other heads, where its power extends to setting aside a decision under review and making a decision in substitution for the decision so set aside (see s.43(l)(c)(i)). The restriction is not relevant to the factors which the Tribunal should take into account in arriving at its decision. The Legislature clearly intends that the Tribunal, though exercising administrative power, should be constituted upon the judicial model, separate from, and independent of, the Executive (see Part II of the Act). Its function is to decide appeals, not to advise the Executive. The remedies which it awards may be limited or large, but the remedies are incidental to the decision at which it arrives. The decision of the Tribunal in the particular circumstances of each case is therefore to be resolved according to its opinion as to the merits of that case. It forms that opinion after considering the views of the decision-maker, but it is not bound by those views. Whenever the Tribunal is constrained or elects to remit a matter for reconsideration in accordance With its recommendations (see s.43(l)(c)(ii)) its function is discharged when the decision to remit is made. It is not concerned to ensure that its recommendation is carried into effect. The Legislature, in creating a right of appeal to the Tribunal, no doubt intended that the successful exercise of the right should not be unjustifiably frustrated by subsequent administrative action but the remedy, if any, is reserved for the Courts or the Parliament - not this Tribunal. The Tribunal decides the appeal: it is left to the Executive to implement the decision.

There are four related but distinct issues which may arise in any application to review a decision to order deportation under s.13(a) of the Migration Act, 1958. First, is it a case where the Minister may order deportation under s.13(a)? Second, if the Minister has a policy which governs or affects his exercise of the power, is that policy consistent with the Act? Third, if the Minister has such a policy, is any cause shown why the Tribunal ought not to apply that policy, either generally or in the particular case? And finally, on the facts of the case and having regard to any policy considerations which ought to be applied, is the Minister's decision the right or preferable decision?

The first issue will seldom present difficulty. The immigrant status of the applicant, his conviction, the maximum punishment prescribed for the relevant offence and the time which elapsed between his entry into Australia and his conviction will not usually be in dispute.

The second question arises because_,_ although the statutory discretion is conferred in general terms, such a discretion may lawfully be exercised only "according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself" (per Kitto J. in The Queen v. Anderson; Ex parte Ipec-Air Pty. Ltd. [1965] HCA 27; (1965) 113 C.L.R. 177 at p. 189). Though the language of Kitto J. is expressed as confining the considerations which may legitimately govern the exercise of discretion, the concepts reveal the width and variety of factors which might legitimately be taken into account. The subject matter, scope and purpose of the statute conferring the discretion may mark the boundary of relevance (cf. Murphyores Inc. Pty. Ltd. v. The Commonwealth [1976] HCA 20; (1976) 50 A.L.J.R. 570 at p. 579), but within the boundary the honest decision-maker may legitimately fashion his views and determine the exercise of his powers without constraint. Where the decision-maker

orms a policy to govern or affect the exercise of his statutory discretion, the policy must conform to law. Otherwise decisions taken pursuant to the unlawful policy may be set aside' on grounds which correspond to those set out in s.5, and especially subs.(2) of s.5 of the Administrative Decisions (Judicial Review) Act, 1977. The Tribunal which reviews a decision taken pursuant to an unlawful policy could not affirm the decision - at all events, not for the reasons which led to the making of the decision.

The third question arises because this Tribunal is empowered, as a Court is not empowered, to review a decision on the merits (see sections 25 and 43), and the merits of a decision include not only the facts of the case but also any policy which has been applied or which ought to be applied to the facts in reaching the decision. Jurisdiction is thus conferred upon the Tribunal to review ''policy considerations which govern or affect certain discretionary powers. This is a novel jurisdiction, and the occasions for its exercise will require definition. But it is neither necessary nor desirable here to define exhaustively the circumstances in which the Tribunal will review or will refuse to review a decision on policy grounds. The working out of those criteria should await the accumulating wisdom of future experience. The importance of departmental assistance in the review of policy is not easily overstated. Whenever the review of a decision involves consideration of policy, it is essential that the Tribunal be fully informed as to the policy and the reasons for it. Otherwise the decisions of the Tribunal may, instead of providing a rational analysis of policy and assisting to develop principled yet flexible decision-making, intervene incongruously to disrupt the due course of administration.

A distinction will necessarily be drawn between policies of different kinds. Some policies are clearly made or settled at the political level, others at the departmental level. In the Ipec-Air Case [1965] HCA 27; (113 C.L.R. 177 at p. 202) Menzies J., with reference to the factors which might properly affect the exercise of discretionary power, observed that -

"There are ... sound grounds for treating a decision to be made at departmental level as something substantially different from a decision to be made at the political level."

The difference between the factors to be taken into account in the two kinds of policy provides one ground of distinction between them; the difference in Parliamentary opportunity to review the two kinds of policy provides another. Some policies are basic, and are intended to provide the guideline for the general exercise of the power, other policies or procedural practices are intended to implement a basic policy. Different considerations may apply to the review of each kind of policy, and more substantial reasons may have to be shown why basic policies - which might frequently be forged at the political level - should be reviewed. There may, of course, be particular cases where the indefinable yet cogent demands of justice require a review of basic or even political policies, but those should be exceptional cases and this is not one of them.

Fourthly, the Tribunal must ascertain the relevant facts of the case. This examination may frequently throw a new light on the case, for the Tribunal may compel the production of evidence and expose it to cross-examination and comment, an advantage which the Minister does not have. It is an advantage which is important in the assessment of an applicant as a member of an Australian community.

In this case, the Tribunal has been furnished with the facts which were placed before the Minister and the policies which were thought to be applicable. In addition it has had evidence from the applicant which was tested by cross-examination, and submissions from the legal representatives of the parties. The material throws up two questions for consideration: the criteria which ought to be applied in determining the application, and the nature and seriousness of the applicant's conduct.

The statements of policy which led to the making of the deportation order were tendered. In the "Notes for Guidance of Officers", the basic policy is spelt out:

"18.2 The basic policy relative to deportation for crime is given in the following public statements made by the Minister for Immigration at the time -

' I can only act on the basis of recorded convictions and of sentences severe enough to indicate that the courts of law which heard all the evidence, regarded the offences as really serious; it is also necessary that before deciding as to deportation should wait until the convicted person has served the gaol sentence imposed upon him ...

When consideration of deportation of an offender does become possible, I am obliged to consider every aspect of the case ... have to consider . the man's age and previous record, the . judge's comments, and all the other relevant circumstances of the case ...'

'Note: The reference to 'until the convicted person has served his sentence' is to be read in relation to actual deportation and not consideration of the case with a view to making an order for deportation -see Paragraph 20.21'.

'Migrant offenders who render themselves liable will certainly be considered for deportation.

It should be borne in mind that the general criminal laws of the State are expected to prescribe punishment adequate to the crime. The deportation provisions of the Migration Act represent virtually a last resort to deal with the very serious cases where reform cannot be expected of the individual.'"

These are statements of an appropriate basic policy. The policy conforms to the terms of the Migration Act, 1958. It is a policy which requires the Minister to consider the seriousness of conduct (evaluated by the Courts in imposing punishment), the prospects of reform, the desirability of leaving an immigrant stay where he is unless the interests of the community require his deportation, and "every aspect of the case". These are appropriate policy considerations. The policy has been publicly announced and Parliament has had opportunity to consider it if it wished to do so. The policy statement reflects the need to evaluate the offender's conduct and to consider whether it has been so heinous, or whether his recidivism is or is likely to be so persistent that, by the broadly-accepted standards of the Australian community, it is fair to require him to go. The policy statement acknowledges that when deportation is contemplated, a mass of human relationships (which defy categorization) must be considered.

The opening words of this statement of policy suggest that it is not so much the fact of conviction as the conduct of the immigrant which is material. The Minister, for practical reasons, will rely upon the best evidence he can obtain as to the seriousness of the conduct - the sentence of the court that heard the case, the Judge's comments and the immigrant's previous history.

There appears to be no reason why that information should not be supplemented by further evidence, and in this case the further evidence supports the estimate of the applicant's conduct which the Courts had made.

According to this policy, the interests of the Commonwealth are best served by deportation of a migrant who has engaged in conduct which was seriously criminal unless other counterbalancing factors (including the prospect of reform) warrant allowing the immigrant offender to remain. This appeared to be the approach of the Minister, whose views were said to be those expressed in a letter dated 4 August 1977 written by the Commonwealth Crown Solicitor, as solicitor for the respondent. The letter said:

"His view is that, generally speaking, the best interests of the Commonwealth require the removal from it of immigrants who have committed offences regarded seriously by the Australian community but that those interests may be displaced by considerations arising from the situation of an immigrant and of persons who by reason of their relationship with him would be affected by his deportation, and the circumstances of the offence under consideration."

In the course of argument, the respondent's legal representative was asked whether the phrase "offences regarded seriously by the Australian community" was a phrase intended to describe the offence, or the conduct of the accused in committing the offence. At one stage of the submissions, I understood it to be said that the Minister's view was that prima facie any person who, being an immigrant, is convicted of an offence for which the maximum punishment is 12 months or upwards should be deported, but he will take into account all the circumstances of the case. If this construction of the Minister's view were accurate, it would represent a significant change of policy. The policy which "gave consideration" to a case falling under s.13(a) would be changed to one which prima facie leads to the deportation of an offending immigrant; the policy which regarded deportation as "virtually a last resort" would have become one which regards deportation as the ordinary result of an offence under s.13(a) unless cause is shown to the contrary. I do not propose to act upon the suggested change in policy for two reasons: if there had been a change in policy, no doubt the change would have been proved by a Ministerial statement of some kind, and if there had been such a change, the absence of public announcement and subsequent opportunity for debate would minimise the weight which this Tribunal might otherwise accord to it.

There is, however, in the Minister's reasons for decision an important observation which suggests that the Minister in truth attempted to estimate the seriousness of

the applicant's conduct as the foundation for his decision. He concluded that the applicant's record "reflects a serious and continuing deficiency in his attitude to the law". If that conclusion were valid, the order was properly made for there were no counterbalancing considerations which warranted the retention of the applicant in Australia. An attitude to the law is an aspect of the immigrant's conduct. The question which really determines this appeal is whether one can properly infer that attitude from the list of his convictions. I do not think that one ought to draw that inference. If one looks at the bare list of convictions, one may total up the number of occasions when the applicant has been before a Court either in New Zealand or in Australia and conclude, rightly, that he has been before the Court far too often for a young man. But his last conviction for an offence involving any violence was 5 years ago in New Zealand when the applicant was aged 20. Since he came to Australia, leaving aside the minor driving offences, he has been convicted of two drug offences in the circumstances set out. Clearly, if one has regard to the judgment of the Court on those occasions the offences were not regarded as serious. And on the last occasion, when a "continuing deficiency in his attitude to the law" would have required the Court to deal with the applicant under his good behaviour bond, the Magistrate expressly declined to do so. I do not wish to suggest that drug offences are of no significance or that an immigrant who has been convicted of a drug offence is immune from deportation. But the circumstances of the applicant's conviction show that he had not engaged in conduct of which the Court took a serious view. The applicant's own explanation accords with the view taken by the Courts.

It is significant that the applicant has not, since he came to Australia, had any contact with the Immigration authorities until after his last conviction. He received no warning, for the authorities had no knowledge of his first offence. He has now had a most solemn warning, and if his offence were to be repeated the case for his deportation would be strong. But far from impressing as one who has a continuing deficiency in his attitude to the law, he impressed me, as he impressed the officer who interviewed him as "having a genuine desire to avoid trouble". I agree with that officer's assessment:

In this case, I have had the advantage, which was denied to the Minister, of seeing the applicant and of forming an opinion as to his likelihood again to transgress. I think that on balance there is little risk of damage to the Australian community by allowing him to remain on the understanding that further offences would be seriously treated. In my judgment deportation at the present time is not warranted.

I therefore recommend that the deportation order be revoked and I remit the matter to the Minister for reconsideration in accordance with that recommendation.

Tribunal" (Administrative Appeals Tribunal Act 1975

Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12 (24 August 1977)

Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12 (24 August 1977)

At a glance

Court

Decision date

Source

Judgment (34 paragraphs)

Legislation Cited (1)

Cases Cited (1)

Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12 (24 August 1977)