Guisepie Spagnolo v The Minister for Immigraton & Ethnic Affairs [1980] FCA 162

THE COURT ORDERS THAT: 1, The appeal be dismissed, 2. The decision of the Administrative Appeals Tribunal of 19 August 1980 be affirmed, 3, The applicant pay to the respondent the costs of the

) SOUTH AUSTRALIA DISTRICT REGISTRY } S.A. No, G19 of 1980

ON_APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent

NORTHROP, DEANE, McGREGOR JJ. FX_TEMPORE JUDGMENT 16 OCTOBFR 1980.

On 20 February 1979 officers of the drug squad entered upon land near Murray Bridge, then being purchased by Guiseppe Spagnolo, hereinafter called the applicant, and being used by him for market garden purposes. They discovered 1500 Indian hemp plants growing in glass houses erected on that land. They found also a .22 calibre rifle and several Indian hemp plants lying on a bed inside a storage shed erected on that land. Later that day an officer of the drug squad arrested the applicant outside a house at Mile End and thereafter on searching the applicant's car found an automatic Pistol wrapped in a rug in the boot of the car and a tan containing @ried Indian hemp and cigarette papers on the dashboard of the car. Later the officer searched the applicant's house where he found a fully automatic pistol, a magazine and a box of bullets all wrapped in a rag and hidden in a lounge chair.

The applicant was charged with offences under section 5 of the Narcotic and Psychotropic Drugs Act 1974-78, South Australia, firstly that between the lst day of June 1979 and the 20th day of February 1979 at Murray Bridge he cultivated Indian hemp, the maximum penalty for which was a fine of $4000 or 10 years imprisonment or both and, secondly, that on the 20th day of February 1979 at Murray Bridge he knowingly had in his possession Indian hemp, the maximum penalty for which was a fine of $2000 or two years imprisonment or both. He was charged also with being 1n possession of an unlicensed pistol.

The applicant pleaded guilty to each of the three charges and was convicted. He was sentenced to 12 months imprisonment on the charge of cultivating Indian hemp and one months imprisonment on the charge of cultivating Indian hemp and one months imprisonment on the charge of possessing Indian hemp, the sentences to be served concurrently. He was fined $45 on the charge of being mm possession of an unlicensed pistol.

The applicant is an alien under the Migration Act 1958. He was born on 24 September 1949 1n Plati in Italy where he lived 'until he migrated to Australia in May 1969. Since then he has resided in Australia continuously. He 1S single and has not applied for, nor been granted, Australian citizenship.

By order dated 11 November 1979 the Minister of State for Immigration and Ethnic Affairs, in pursuance of the power conferred by section 12 Migration Act 1958, ordered that the applicant be deported from Australia. The applicant applied to have that order, being a decision subject to review under the Administrative Appeals Tribunal Act 1975 (Schedule part XXII), reviewed by the Administrative

Appeals Tribunal. By a decision dated 19 August 1980 the tribunal affirmed the decision of the Minister of State for Immigration and Ethnic Affairs that the applicant be deported from Australia.

The applicant appeals to this court under section 44(1) of the Administrative Appeals Tribunal Act, which 1s as follows:

A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

Section 44(3) vests jurisdiction in the Federal Court of Australia to hear and determine the appeal. Since the tribunal is constituted by a presidential member, the jurisdiction to hear and determine the appeal must be exercised by a full court of the Federal Court. Although the proceedings are referred to as an appeal, the Federal Court 1S exercising original jurisdiction under section 19 Federal Court of Australia Act 1976, See also section 20 of that act. For this reason under order 53, rule 3, of the rules of court the party who commenced these proceedings in the Federal Court is

Under order 53, rule 4, of the rules of court the notice of appeal should state the question or questions of law to be raised on the appeal and the orders sought. The notice of appeal in the present proceedings did not state the question or questions of law raised on the appeal. It stated the orders sought as being:

1. That the affirmation by the Learned Justice of the Minister's order should be set aside.

2. That this Tribunal should recommend to the Minister that the deportation order be revoked.

At the hearing the applicant was granted leave to amend the notice of appeal by adding questions of law which it was claimed were raised on the appeal. In allowing the amendment I am not to be taken as accepting that the matters so formulated are questions of law under section 44(1) Administrative Appeals Tribunal Act or the rules of court. The questions so formulated are as follows:

himself as to the cnus of proof ta be applied in making findings of fact.

Whether the fact of the appellant lying and initially stating an inherently unacceptable account of how he came to be involved in the cultivation of Indian Hemp was a significant factor in considering (a) hardship, (b) rehabilitation and (c) recidivism.

Whether the learned Judge misdirected himself in considering the following aspects of the evidence; (a) fire arms; (b) method of the purchase of property at Murray Bridge; (c)whether or not

he grew cucumbers on the said property; and (d) failing to work the said property upon his release from prison, as being matters relevant for his consideration.

Whether the learned Judge misdirected himself in all the circumstances in taking into account the fa1zlure of

the appellant to disclose the identity of his accomplices.

Whether the learned Judge erred in failing to take into account in assessing hardship that the appellant was the first Italian migrant convicted in South Australia of a drug offence to be served with a deportation order.

Whether the learned Judge erred in not taking into account that the appellant was a lesser cultivator and was not involved with an 'organization' and was not an entrepreneur, organizer or a marketer.

Whether the learned Judge misdirected himself - at page 5 of the judgment - when he stated, 'I am not satisfied that in all the circumstances 1t 1s in the best interests of Australia that the applicant be permitted to remain', and whether the correct test 1s whether it 18s in the best interests of Australia to deport.

Whether the learned Judge misdirected himself on the onus of proof when he sald, at pages 5 and 6 of his reasons, 'which have in no way been explained to my satisfaction'.

There were no grounds justifying the Tribunal's findings.

The substance of the matters argued on behalf of the applicant were directed to the propositions that there were no reasonable grounds upon which the tribunal could make the findings it did to support its decision and that the tribunal must have misdirected itself in order to have come to a conclusion adverse to the applicant. Submissions were then directed in Support of those propositions and based upon a detailed reference to parts of the material before the tribunal and to parts of the reasons for decision published by the tribunal. In truth all those submissions were directed to the weight that the trabunal gave, or should have given, cr did not give, to that material. I am unable to see on the facts of this case how those submissions give rise toa question or questions of law under section 44(1) Administrative Appeals Tribunal Act. They are directed to the weight given to the material before the tribunal.

the tribunal and the reasons for its decision discloses that the tribunal gave careful and detailed consideration to all relevant matters. In my opinion it did not take into account matters which 1t should not have taken into account. It did not fail to take into account matters which it should have taken into account. It did not act upon any wrong principle nor is the decision so Plainly wrong or unjust as to lead to a conclusion

• that the tribunal failed to exercise its discretion according to law. In my opinion the tribunal exercised the discretion conferred upon it according to law. It was for 1t to decide, in the exercise of that discretion, what weight it should give to the various Matters before 1t. It was for it to decide, in the exercise of that discretion, what order it should make. It did this.

In my opinion the applicant fails in his appeal to this court. Under section 44(5) Administrative Appeals Tibunal Act I would dismiss the appeal and affirm the decision of the tribunal. I will hear argument after we have heard the order of the court on the question of costs.

DEANE J: The applicant, Guiseppe Spaegnolo, appeals to this court from a decision of the Administrative Appeals Tribunal, constituted by Fisher J, affirming a decision of the Minister for Immigration and Ethnic Affairs that the applicant be deported. The minister's decision was made pursuant to the provisions of section 12 of the Migration Act, 1958. While the proceedings lie in the original jurisdiction of this court, it 1s convenient to follow the language of the Administrative Appeals Tribunal Act, 1975 (the act) and to refer to them as "an appeal".

The appeal to this court lies pursuant to the provisions of section 44 of the act. By the express provisions of that section, the appeal is limited to an appeal "on a question of law". This court does not possess jurisdiction gmerally to review the fandings of fact made by the Administrative Appcals Tribunal.

Section 12 of the Migration Act, 1958 provides, for present purposes, that where an alien has been convicted in Australia of any offence for which he has been sentenced to imprisonment for one year or longer the minister may, upon the expiration of, or during, any term of imprisonment served or being served by that alien in respect of the crime, order the deportation of that alien. There is no dispute between the parties that the applicant is an alien for the purposes of the section or that the condition precedent to the existence of the power, namely, conviction with the specified consequences, has been fulfilled. The main issue between the parties before the tribunal was the general assue on the merits, namely, whether 1n all the circumstances of the case the minister's order that the applicant be deported should be affirmed or, alternatively, whether a recommendation should be made that it be revoked. Before this court, the issue, being restricted to a question of law, needs to be defined with much greater precision.

The notice of appeal filed in this court did not comply with order 53, rule 4, and specifically identify the question or questions of law raised on the appeal. At the conclusion of the argument of counsel for the applicant, leave was given to the applicant to amend the notice of appeal so as to set out nine questions or grounds of law which it was claimed were involved in the appeal. These consisted of a general question, ground 9, whether the decision of the tribunal was open on the evidence before it and eight particular questions or grounds. These grounds have been set out in the judgment of Mr Justice Northrop.

The general attack made by the applicant upon the tribunal's decision was, in effect, that the tribunai's decision to affirm the deportation order was one which was simply not open on the evidence before at. What was submitted was that, on the material before the tribunal, there was one, and only one, true and reasonable conclusion which the tribunal could have reached, namely, that the tribunal should recommend to the minister that the deportation or@er be revoked,

I have carefully considered the material which was before the tribunal. In my view, the conclusion which the tribunal reached, namely, that the deportation order should be affirmed, was clearly open to it on that material. That conclusion being open on the evidence, the question whether it was or was not the correct conclusion 1n all the circumstances was a matter entrusted to the tribunal and not to this court. The applicant's general attack on the tribunal's decision fails.

In so far as the various particular criticisms which have been made of the tribunal's decision are concerned, I am quite unconvinced that any of them has been made good. The tribunal did not, in my view, adopt a mistaken approach on the question of onus of proof. It has not been shown that Mr Justice Fisher paid regard to any fact to which he was not entitled to pay regard or that his Honour failed to take into account any fact or consideration which he was bound to take into account. Nor does it appear to me that, as a matter of law, his Honour misdirected himself in considering any of the particular aspects of the evidence to which reference 1s made in the particular questions or grounds of law raised by the applicant, or in the overall approach which he adopted in reviewing the minister's decision.

Much of the argument before this court was to the effect that his Honour placed undue emphasis on various matters. I am unpersuaded that the various submissions made on behalf of the applicant on the question of the emphasis which his Honour placed on particular matters properly involve any question of law in respect of which an appeal lies to this court. In my view none of the matters to which the tribunal is claimed to have given undue emphasis were matters which the tribunal was, as a matter of law, precluded from taking into account. The importance which the trabunal attached to these various matters was essentially a question of fact for the tribunal.

In the result the applicant's attack on the decasion of the tribunal has failed at every point. There is no basis upon which this court could properly interfere with that decision. I agree with the order proposed by Northrop J.

McGREGOR J: I agree with the summary of evidence just given by the learned presiding judge, to which I do not seek to add, and to what he and my brother Deane have said otherwise. I have noted that no attack has been made in the form of the deportation order nor on the entitlement of the minister, having regard to the conviction recorded and sentence imposed on the appellant to make such an order.

It may be noted that as part of his appeal the applicant submitted his own affidavit and one of Domenic Spagnolo. The probable or admissible value of such evidence at a hearing deciding factual issues 1s at least open to question, not only because of the competence of a person with the enplcoyment of Domenic Spagnolo to give an acceptable estimate of the number of unemployed in the region of Plati in Italy; but also because of the failure in some instances to reveal the source of information to which the affidavits addressed themselves. However, they do no more than to seek to add support to propositions of fact, and if for no other reason this court could not have regard to them.

The appeal as initiated disregarded the requirements of the Administrative Appeal Tribunal Act 1975, section 44, and then logically enough the grounds of appeal, 2, 3, 4, 9 and 10, are directed to matters of weight. Counsel an argument, referring to portions of his Honour's judgment, used the expression "undue emphasis" which he agreed was another method of expression of matters of weight. Ground of appeal number 8, as originally constituted, which consists of two parts, was not as to the first part the subject of submission or argument, and as to the second did not specify any question of law. Ground 11 1s really no more than an assertion that the effect of deportation was not appreciated by his Honour.

It followed that as presented in the grounds of appeal the provisions of order 53, rule 4, were not observed.

As to the difference between a question of law and one of fact, see for example Sullivan v Director of Transport, 20 ALR 323, at pages 351 and 352; Judicial Review of Administrative Action (third edition) de Smith, page 111; W.A. Wilson "Questions of Degree" (1969) 32 MLR 361, and in particular Wigmore on Evidence, third edition, paragraph 2551.

When these matters were pointed out on the opening of this appeal counsel acknowledged the deficiencies but said that being aware of them he would submit that there were errors of law observable in the judgment which entitled the appellant to succeed.

He conceded however that the proper order, different to what had been soughtwould then be, in effect, to remit the matter for further or different consideration. He sought to rely on the speech of Lord Radcliffe 1n Edwards v Bairstow (1956) AC 14 at page 30, as propounding the test to ke employed by a court in considering whether there has been an error in law 1n a court from which an appeal 1s brought. I need not quote that passage.

Counsel criticised what he described as an illogical approach by the learned deputy president in that, as I understooa the argument, it was not reasonable to infer from untruths told on oath that the chance of recidivism was higher or that rehabilitation of the appellant was less likely.

In my view the argument does not do justice to the judgment. In a factual area where the testimony of the appellant can be of great assistance and probative value, the learned deputy president may not be able to accept the viva voce evidence offered, He may form the view, as he did there, and 1f I may say so with good reason, that the evidence of the appellant, or for that matter of others, was not reliable. If he does so then other evidence stands unqualified, or 1f you will, uncontradicted. This is more correctly a matter of credibility than does it raise a question of onus.

I do not accept that the learned deputy president failed to appreciate the significance of deportation or its effect on the appellant. Whether it 1S to be categorised as a last resort or as an administrative action may be a matter of words in a particular context; nor does the judgment reveal any hint that the learned judge Placed too much weight on the question of deterrence.

We have allowed amendments by additions to the grounds of appeal. Already I have commented on the argument as to onus and so do not refer to it further in relation to grounds 1 to 8. Grounds 2, 5 and 6 seem to me to refer to questions of weight Or emphasis and thus of fact. I do not agree that

the judgment traced a connection between an unacceptable

account and hardship. A man's evidence as to his own hardship may be less acceptable if he is not a credible witness. The subjects mentioned in ground 3 were plainly matters for the consideration of the learned deputy president.

The failure to disclose an identity referred to in ground 4 was relevant to credibility, and, for example, to the "choice principle" referred to in, for example, Instander v Minister for lmmigration and Ethnic Affazrs, 1979, 2 Administration Law Notes number 56. The refusal to assist law enforcement officers engaged in combating the social evil of allicit drug use can only harm the community, and those who so refuse are less acceptable as memrers of that community. I see no indication of misdirection in this matter. Ground 7 does not purport to express an ironclad proposition of law. The decision in my view, looked at in total, was one open to the learned deputy president and does net in my view disclose any error of law. I concur with the order proposed.

2. The decision of the Administrative Appeals Tribunal of 19 August 1980 be affirmed,

3. The applicant pay to the respondent the costs of the appeal,

T cers tbat this and the awe rrocecing peges are a true copy of the

e.cons for Judgment herein of the Honourable Mr. Justice Her4irop the Hew ube | Mr pstre Deane arch the Henet rable

Mr fostre Me Grego:" Associa Ze a aan DN dene Dated: IG OC7@ B#R 260.