It is perhaps not altogether surprising that the association has come to an end. The intellectual gap between Miss Hough and the applicant was rather wide. The cause of Miss Hough's decision to end it was, so she said, "money, independence and sex", not unusual causes of conjugal discord. It appears that although the applicant and Miss Hough had had some recent quarrels the applicant did hot expect a termination of the association until he heard of it on 24 April when attending the conclusion of the hearing before this Tribunal. Miss Hough said she had not told him because she did not wish him to have unhappy feelings when he was coming before the Tribunal. This development opens the way for an association by the applicant with a woman of his own culture

In relation to the Mildura venture the applicant had contributed some $20,000. On the sale he did not recover this outlay losing some thousands of dollars. The most relevant aspect in relation to what is left of the $30,000 received in October 1974,is that the applicant has in his possession some $1000 or thereabouts and his brother Hassan has some $5000 to which the applicant is entitled and which he could have if he really required or demanded it. But due to the family custom relating to the control of money, the precise financial position of the applicant is not clear.

In the middle of 1976 the applicant conceived the idea of going into partnership with a fellow Turk in conducting a Turkish Coffee lounge. The parents of his wife objected to this claiming that this was a venture into an "abandoned kind of life". They forbad their daughter to co-operate or even to continue to live with the applicant if he went ahead with this proposal. Mrs Gungor announced that her first duty was to her parents and to God and as a result she left the applicant and returned to her parents' home. In the event, although the applicant did not go into the coffee lounge business, the separation between him and his wife continued. It appears, however, that the wife's parents have nothing against the applicant and look forward to the day when he and their daughter will live together again. This would seem to be a vain hope. Both parties are against it and divorce is practically certain. There never was any love and each is glad to bring the marriage to an end.

At first Mrs Gungor was opposed to the applicant being deported. She urged the difficulty he would have in obtaining employment in Turkey because of his injured hand, that she and the applicant had a mutual interest in their living child and the memory of their deceased child whose grave they often visited together and that the applicant and Hassan planned to purchase a family home with their combined funds. Finally she said that the applicant had told her of the details of his offence and had assured her he would not offend again. She said she was convinced that the applicant was genuine in this. However by March 1979 Mrs Gungor had developed an antipathy towards the applicant. At that stage she did not mind if he was deported. She attributed her attitude to the fact that when they lived together they did not get on and that "he was never at home" and that she believed "he used drugs".

There is evidence from the applicant that he had smoked marihuana from time to time during some four years prior to his arrest. He stated that he had never purchased any marihuana or hashish except once, when in company with others he had contributed $6 to a joint purchase of a small amount. Nevertheless by 1977 he had been smoking on and off at irregular intervals, for four years. He had equipped himself with three pipes for sharing a smoke with a friend or friends. He said that friends of his gave him small quantities of marihuana because he was a musician and he asked them for it. He said that he had given up smoking a month before his arrest. However, I do not accept this, but I am satisfied that he has not smoked it since May 1977.

Arising out of the offence of "supplying" mentioned below the applicant's flat was searched. The pipes and a small quantity of cannabis were found. The cannabis was a contribution to the applicant cut of a quantity intended to be sold to one Barry Raff as discussed below. In October 1978 a charge was brought against the applicant in respect of the drug found at his flat. He was convicted and ordered to be imprisoned until the rising of the Court,

The offence giving rise to the deportation order was committed in May 1977.The applicant was arrested on 12 May 1977. He was on bail awaiting trial until May 1978. The charge was that the applicant did "supply" Indian hemp to one Barry Raff. The evidence at the trial indicated that no Indian hemp was actually supplied by the applicant or his associates to anybody. This was because police intervention at the critical moment prevented the completion of the intended transaction. Nevertheless the charge of "supplying" was appropriate because of the extended definition of that term in the relevant New South Wales statute. The conviction, with a sentence of 12 months, although subject to a non-parole period of six months, was of the minimum length to satisfy the condition upon which the Minister's discretion to make a deportation order pursuant to s12 of the Migration Act 1958 depends.

According to the applicant his involvement in the offence for which he was convicted was an isolated event. He said that he had not been involved in any way on any other occasion with selling or otherwise trafficking in any drugs. He said also that on this occasion he came into the transaction fortuitously as a result of hearing one Hussein say, in the coffee lounge that he had some cannabis and wished to sell it to get enough money to bring his wife from Cyprus. Thereafter in a conversation with one Sedat, a milk bar proprietor, the applicant learned that one Parry Raff was a potential buyer. He brought Hussein and Sedat together. In his presence it was said that the price of Hussein's drug was $1000. An arrangement was made for an evening meeting at the applicant's residence. Hussein, Sedat and another man, one Yulmaz, attended and later Barry Raff arrived. Shortly afterwards Barry Raff left. Thereafter the four men, Hussein, Sedat, Yulmaz and the applicant left in a car presumably belonging to Sedat and driven by him. The car was driven to a place in the street near Barry Raff's home where Barry Raff was waiting for it. The drugs, the subject of the offence, were in the car. They were not handed to Raff because the police intervened. It appears that the police had followed Barry Raff from his home to the applicant's home and back to his own home and later observed him walking from his home to a place in the street where he waited for the car. When it came Barry Raff spoke with the occumpants of the car and the police then came on the scene. No drugs were delivered to Barry Raff and the proposed sale did not take place.

The applicant says, and I believe, that his reward for the part played by him in the transaction was never fixed or received and he does not know what he was to be paid.

As a result of these events the applicant, Hussein and Raff were convicted. It seems that neither Sedat nor Yulmaz were charged. The reason why does not appear.

The case against the applicant at the trial was based on an admission said to have been made by him to the police that certain information, which the police told him they had obtained, was true. The police evidence was that it was put to the applicant' that they had been told that the applicant and Hussein were going to sell the drugs to Raff for $1000 and split the proceeds equally between them and that the applicant had said "You right". There were no written admissions and the police had made no record- of the conversation. The applicant agrees that the police stated that they had been informed that the price of the drug was to be $1000 and that they had been told that that sum was to be shared between him and Hussein. The applicant's suggestion is that the information as to the price must have come from Sedat or Yulmaz. Where the notion came from that he and Hussein were to share the $1000 dees not appear. On the probabilities however it is not likely to have been true. It no doubt contributed to the conviction. The distinction was unimportant at the trial and would not have been investigated because of the nature of the defence adopted. That was, by unsworn statement, that the proposed transaction with Barry Raff was to buy the drug and not to sell. This was a contrived defence with little hope of success, adopted according to the applicant on legal advice. It may well have seemed like that to the applicant after the kind of conference which sometimes occurs where parties are inarticulate, there are language difficulties, and all sorts of probabilities are discussed. It is a mark against the applicant that he told an untrue story to the Court, although not on oath. But rightly or wrongly, according to the criminal law such a procedure is available and often, unfortunately, wrongly used by accused persons in difficulty. So far as wider implications are concerned, however, its significance is limited. Returning to the alleged admission by the applicant that he was to share the $1000 with Hussein, it would have been quite reasonable, because of language difficulties for a misunderstanding to arise and for the police to infer that what was said by the applicant in answer to the statement to him by the police was "You right" and that that applied to each part of the statement. The applicant could well have said "You right" to the statement that the' drugs were to be sold to Raff for $1000. That was the fact. But it seems probable that it was not the fact that the applicant and Hussein were to share the $1000 equally between them.

After giving the evidence much consideration I do not doubt that the drugs in question were Hussein's drugs. He would have had to grow or pay for them. Accordingly he would not have shared the whole $l000 equally with anybody. In addition if Hussein was to share with anybody Sedat had a claim for his part in the affair. This follows not only from the applicant's evidence as to that part but from the fact that it was Sedat who drove the car to the place where the sale was actually to take place, and had otherwise played a vital part in the proposed transaction. And there was the fourth man who could scarcely have been an innocent bystander. I think it unlikely that the applicant would have made the admission alleged save so far as it related to the price to be paid by Barry Raff being $1000. This does not affect the conviction at all because as an aider and abettor the applicant was necessarily guilty of the offence. But it is important as background.

Before this Tribunal the applicant acknowledged that the proposed transaction with Barry Raff was one of sale and not purchase. He admitted that he had decided to help Hussein dispose of his drugs and that he was the active agent in bringing Hussein as owner and vendor of the Drugs into communication with Raff through the intermediary Sedat. He claimed to be innocent of the charge brought against him, but on the unsound basis that he was not the person selling the drug but only a go-between. But at the same time he conceded that what he had done was seriously wrong and, as I gathered, that his punishment was earned. In evidence before this Tribunal the applicant said,

"When I met Hussein he told me that he got his wife in Cyprus and he wanted to bring his wife over to Australia and that he did not have money ... and I was silly, I made a mistake to suggest to him ..."

In the result, therefore, I am satisfied that the applicant came into the transaction because of what he heard Hussein say, that that caused him to discuss the matter with Sedat and the rest followed.

It seems to me therefore that the question of deportation should be decided on the basis that the applicant was a person who had been a sporadic smoker of cannabis and did on one occasion act as go-between to promote a sale of drugs by a person having the same for sale and that he did this in the hope of reward unspecified but not received.

As to the offence of "supplying" the Court regarded it as serious but clearly in the lesser order of such offences. In sentencing the prisoners His Honour Judge Robson said:-

"There is no doubt that the amount involved had certainly a street value of about a thousand dollars. The fact they were in the car with that quantity in the circumstances in my view indicates a scheme on their part to supply in the sense of dealing in this particular drug.

Obviously a custodial sentence must be imposed, in my view. The incidence of dealing in drugs and the use of drugs in our society is becoming a matter of increasing worry. Cannabis resin, which is the subject matter of this charge, is, one knows, more concentrated than Indian hemp known in the form generally as marihuana, which is one of the matters one looks at. I am also concerned, of course, with the quantity involved. The maximum penalty for this offence when the matter is dealt with on indictment is ten years. The maximum punishment is designed to deal with varying situations and in particular where the amount and value of the drug of addiction is very large. There have been instances, for example, where, under the Customs Act, quantities of cannabis resin worth millions of dollars have been the subject of the charges. Here the quantity was 298 grammes which is greatly in excess of the prescribed Quantity, which is 25 grammes. At the same time, in relation to many other matters which come before the courts, the quantity is relatively small."

The applicant's offence was one that did nothing to increase the quantity of drugs available to the Australian community. Although he sought to share in the proceeds of the sale there is little doubt that the drugs concerned were inevitably destined for sale "in the street" whether the applicant participated in it or not.

In connection with his possession of the pipes and a small quantity of marihuana it is to be noted that the Court in October 1978 imposed only a nominal punishment. It is clear that this aspect of unlawful conduct on the part of the applicant was not regarded as a serious offence.

Accordingly what is proved against the applicant in the way of an attack on the Australian community in relation to drugs, is one of a relatively minor degree. He has been punished for it and unless there is in his conduct or character a threat of future conduct of a harmful nature then to deport him would be but to inflict further punishment for an offence for which he has already been punished according to law. I am satisfied from the evidence, corroborated as it is by Miss Hough, that since May 1977 the applicant has not smoked marihuana. During that time he suffered twelve months anxiety awaiting trial, six months imprisonment and six months parole and lengthy anxiety or the Question of deportation. His conduct during this period is not attacked except on the basis that he was slow in finding work and exhibited insufficient effort in trying to find it. Yet it is clear that the applicant can work well. His conduct in this respect before the injury to his hand was that of an enthusiastic worker. His work record since last March when he joined Union Carbide (Australia) Ltd. is very satisfactory. He is earning there about $200 net per week, with good future prospects. The company is eager to keep him and promote him.

In relation to the applicant's conduct as a seeker of employment I think it has to be taken into account that he had suffered a shocking injury to his left hand. It involved nine operations, and was painful over a lengthy period. It was and is ugly and its performance has been, to say the least, greatly diminished. For a long time it must have been quite useless. The years 1973, 1974 and 1976 were years of high and growing unemployment. It is only fair to the applicant to recognise that in all probability he would be the last to be employed. When he did obtain employment with one of his previous employers he was put off after three weeks because of his hand. His morale inevitably suffered. As well as reducing his chances of employment the injury to his hand affected his capacity to play the guitar professionally as he haddone before his injury and precluded wrestling. In addition the social welfare department's acceptance of him as unemployed for the purpose of sickness payments could well have affected his resolve to find work.

It is put that the applicant has not been frank in his evidence, was evasive and that in certain respects he has actually lied to the Tribunal. It is said that the applicant has unjustifiably battened upon the Australian community, is a worthless person and that no reliance can be placed on anything he says. Accordingly it is said that his statement to the Tribunal that he will not offend again is without value. It is said that from his general lack of credibility it ought to be inferred that he is a real risk to Australia in relation to drugs.

Certain items were particularly relied on to show that the applicant lied on oath. One was his statement that his father had been a butcher. Whether his father was a butcher or not is not relevant to the likelihood of the applicant committing another drug offence. But it is said that his evidence on the point was untrue and that he gave it merely to help his father in an application for admission to Australia as an immigrant. The situation is that in his evidence in chief the applicant was asked what was his father's occupation. He answered that "initially his father was a butcher" but was now a clerk in the government and this year will be a pensioner, In cross-examination he said his father was working in a factory checking the trucks going in and out for the government. It was a security job. It was put to him that the father worked in a factory until he became a butcher and the answer was "No, he used to do the butcher job". Asked when was that he said "When we were kids". It is correct that the butchering aspect of the father's occupation was brought out by the applicant by way of a non-responsive answer to the question, what was his father's occupation. I draw the inference that the applicant knew that his brother was trying to obtain permission for his father to migrate to Australia on the basis of his skill as a butcher. The incident indicates that the applicant was not lying about his father's occupation but rather that he was ready to help his father's case. From the brother's evidence it would seem that the father did have butchering skills, but of a general kind that some farmers have, and that he had recently taken up employment as a butcher in Turkey. I do not regard the applicant's evidence about his father's butchering activities as of any significance in relation to the issues before the Tribunal.

It was then said that the applicant had told the Tribunal that the story he told to it about the drug transaction with Sedat, Hussein and Raff was the story he had told all along to his lawyers, to the police, and to the Court at his trial. Of course it was not the same story as told at the trial. It was said that this particular statement by the applicant to the Tribunal was a lie and that the applicant had told it believing that the respondent was not able to prove that he had told a different story at the trial and that he made the statement thinking that it would put him in a mere favourable light than if he admitted he had lied in his statement to the jury at his trial. However, I think it would be most unlikely that he would think that what he said to the jury at the trial would not be known to the respondent or could not be proved. Also, after considering the evidence again I am not satisfied that the particular statement attributed to the applicant had the meaning which was attached to it. The applicant's English is not good and much ox the evidence was given through an interpreter, who also appeared to have difficulty, and the relevant passage occurred in the course of a swift and aggressive cross-examination.

I think that the assumptions made both by counsel for the respondent and myself on this matter, during cross-examination of the applicant, may well have been erroneous. I had an uneasy feeling at the time that this might be so and after reference to the transcript and further consideration I think that unease was well founded. Accordingly I do not conclude that the applicant misled the Tribunal in this matter.

It was then said that the applicant misled the Tribunal as to moneys said to have been made available by the applicant through his brother to his wife. He said that since March this year he had made available to his wife through his brother about $300. The bulk of the applicant's money is still in his brother's control, and the brother is in close contact with the applicant's wife and her mother and father. The brother said that there was $5000 due by him to the applicant. This is the balance of the applicant's $20,000. There is a suggestion that another factor of the applicant's money to the extent of about $5000 was lent to the wife's father through the applicant's brother to assist in the purchase of a house. If it were it could be recovered in due course. The financial arrangements between members of a Turkish family proceed on trust and are difficult for Australians to unravel. They lend money to each other without interest and very freely. The applicant did say that he had paid to his wife through his brother the sum of about $300 this year and the brother said he "did not know" if the applicant had given any money to his wife since they separated. I do not believe that the applicant did pay this money through his brother or otherwise although' of course it is possible that between the brothers there was some misunderstanding in the matter. But it is of little importance to the real issue in this appeal.

Another matter arose out of an incident in January 1977. It appears that late one night in January 1977 when the applicant and Miss Plough were asleep, men, saying truly as it turned out, that they were police, knocked at the door demanding entry saying they were looking for drugs. They searched the home but found nothing. They asked the applicant and Miss Hough their names. Miss Hough stated her correct name but the applicant said his name was Michael Feranjo. Michael was a first name the applicant frequently used, as for example between himself and Miss Hough. Michael Feranjo was a name he had sometimes used with his friends. When one's home is invaded late at night by men claiming to be police in search of drugs any person might panic and the applicant of course at that stage / was a sporadic smoker. I do not underestimate the effect that fear may have on a person in such circumstances. There were apparently no drugs on the premises. In the circumstances it is difficult to see what advantage was to be gained by the applicant failing to give his correct name. It would have been a futile ploy if drugs had been disclosed. His instinct in the circumstances was to avoid using his correct name. Miss Hough considered that the applicant's action reflected the kind of feelings that would be engendered by similar police activity if it occurred in his own country. I accept this view.

On the whole, the applicant's testimony appeared to me to be of a kind with which one is not unfamiliar in the case of witnesses who are essentially ignorant, have poor language, little education and much fear and not indicative of a basic criminality. On the question of the applicant's general conduct and character there was a range of evidence favourable to him. Evidence of members of the Turkish community indicates that the applicant's general reputation in the Turkish community is that of quiet man who played a helpful role in the Turkish community in relation to music groups and wrestling. Evidence along those lines came from Mr. Ivan Judd, a Sydney Solicitor, Mr. Candemir of the Turkish Welfare Association, Mr. Musaffin Guner and Mr. Vardar. Mr. Vardar is the President of the Turkish Islamic Culture and Mosque Association. He has known the applicant for seven years, not intimately but in a general way as a member of the Turkish community attending the Mosque. These Turkish citizens regard the applicant as a law abiding person taking his part in the social and cultural life of the Turkish community whose adventure into crime was out of line with his general character and his family ties and commitments.

There was also evidence from non-Turkish sources. Thus Mr. Dartnell, a personnel officer of Union Carbide and also the personnel manager of that company spoke highly of the applicant as an employee. Mr. De Sousa the parole officer at Newtown found the applicant satisfactory as a parolee and that he responded to counselling. It was Mr. De Sousa's counselling which created the motivation in the applicant to seek employment vigorously early in 1979. The applicant's extra effort to obtain employment resulted in employment being obtained on the strength of the good reputation of Hassan, the applicant's brother, who had been employed by Union Carbide some years earlier. Mr. Brown the prison officer spoke highly of the applicant particularly of his diligence and efficiency in his work in the laundry, his general conduct and the fact that he kept away from the "criminal" section of the prison inmates.

This evidence provides general support for the view that fundamentally and but for the effect upon his life of the injury to his hand and the subsequent unemployment, the applicant is an ordinary hard working Turkish type, active in the turkish community, and with ambition to be a respected member of the family headed by his brother and capable of good work.

The offence of trafficking actually committed was in the lower range of criminality and not of itself of a nature to merit or sustain an order for deportation. If however there were reason to think that there is a serious risk that the applicant will offend again the situation would be different. It would be appropriate to consider him a real risk if it ought to be inferred that he had committed any trafficking offence other than that of May 1977 or if from the total circumstances it might otherwise be inferred that there is a real danger that he will offend again.

However, one could certainly not draw an inference from the evidence that the applicant was ever associated with any other incident of drug trafficking. Nor do I think there is cause to suspect that he had. If there were a suspicion sufficiently strong of conduct sufficiently bad, such suspicion could certainly be taken into account. In this case it is said that the suspicion arises from a number of notions namely, his previous smoking activity and his admission that such smoking had brought him into contact with people of bad character. But mostly, emphasis was placed on what was said to be the applicant's evasive, contradictory and untrue evidence on various matters. I have considered the alleged and actual defects of his evidence and taken into account the evidence about his smoking but it is impossible to infer that before his crime of May 1977 he was involved in any drug trafficking. And there is no sound ground for any relevant suspicion. There is no pointer such as there might be, if for instance, there were unexplained sums of money or any similar circumstance or suggestive of clandestine transactions.

With respect to the future it is my view that the applicant is unlikely to offend again. As indicated above I do not think that the evidence indicates a basic criminality in his character. I attribute his crime to the upset in his life caused by the injury to his hand, the supervening unemployment and loss of morale, his drug smoking and the fortuitous overhearing of Hussein's words in the coffee lounge. Recidivism is the exception rather than the rule. And in this case, all things considered, I believe the probability is that the applicant will not offend again. It is not a question of relying on his word but rather judging by the broad considerations. These are, that things have changed since May 1977. At that stage he was living on the State, had a serious disability, no work and no prospects and inevitably, low morale. Now he has work and prospects and subject to the fear of deportation his morale is revived. In May 1977 he had no experience of the capacity of the law to punish an offender. At that stage he was associated with some people who were smokers. At that stage he might think to commit the offence and escape punishment and his brother's and his family's condemnation. At that stage the spectre of deportation had not arisen. All these things are now changed. It appears that he really has given up smoking marihuana and association with persons who smoke it. There is now no smoking, no State pension, no drug using companions, but a good income and prospects based on honest work which he performs well. He has been punished and knows what to expect in that respect if he offends again. Also he knows that deportation would be a certainty if there were another offence. The most important changes are his successful re-absorption into the work force, that he understands and has undergone punishment and the nearness of deportation and that he has the prospect of a good life in this country with the respect of his brother and relations here.

On the question of recidivism it is instructive to look at the statistics concerning recidivism in relation to drug offences as shown in Technical Report No. 10 of October 1978 published by the Australian Government Publishing Service concerning 1976 and 1977 which was put in evidence by the respondent. It appears that of the total offenders for 1976 only 7.08 per centum had offended previously and for 1977 the figure is 7.19%. Accordingly apart from the considerations above there is a strong inherent statistical improbability that he will offend again. Taking everything into consideration the risk that the applicant will offend again is very small.

In these circumstances deportation of the applicant would constitute further punishment administered, either for its own sake, or as a deterrent to other persons. But punishment according to law is intended to be the factor appropriate for punishment and for deterrence of the offender from repitition of his offence. It is intended also to deter other persons from like offences. Such are the functions of the criminal law. That is the law applicable equally to aliens, immigrants and to Australians. The criminal law; is the expression of Parliament as to v/hat, in its view, is requisite for those purposes with respect to all citizens. These functions are not, primarily at any rate, the functions of s.12 of the Migration Act. That section is designed primarily to protect the Australian community from the presence of particular offending aliens and not for imposing extra punishment on an offender or by so doing deterring other unnaturalized aliens from particular offences.

To use the powers conferred by the Migration Act for the purposes of punishment and deterrence is in substance to discriminate against immigrants and aliens by subjecting them to an additional sanction not applicable to other persons for breaches of the criminal law. Even if there were grounds for thinking that particular classes of persons were particularly disposed to trafficking in drugs such discrimination would call for justification as it inevitably must, operate unjustly on certain individuals. But there are no such grounds. According to the publication No. 10 mentioned above the ratio between Australian and foreign drug offenders during the years 1974-1977 was substantially constant at 78% rising to 82% Australian, to 21% decreasing to 17.50% ,foreign. In the year 1976 the foreign born proportion of the total Australian population was approximately 22.4%. See Report, Migrant Services and Programs, May 1978, Australian Government Publishing Service, Page 21 Table 4. It is one thing to deport a person because he is a danger to Australian citizens but it is quite another to do so as an additional punishment or as a deterrence to others. Obviously such a procedure even if technically lawful, will inevitably inflict injustice to or at least operate oppressively in the case of persons who are themselves not a danger to Australia. Both for the reputation of Australia and as a matter of good government based on justice and a reasonable respect for the individual such a procedure has unfortunate aspects. Of course, in the area of drug trafficking, severe penalties on guilty persons and severe action against persons who are real risks is justified. But it is a serious matter bo take action against an individual based, not on the necessity for further action against that person, but on a policy decision thought to be justified by a long range social policy. And these considerations become more important if degrees of guilt are ignored. What may be done with persistent traffickers and producers of large quantities of a drug particularly for example, heroin, will surely differ from what ought to be done with a one time meddler in the sale by another of a relatively small parcel of Indian Hemp.

Having regard to the fact that of foreign offenders only a very small proportion are recidivists it is clear that such deterrent benefits as may be achieved by deportation of persons who are not of a danger to Australia must, in the totality of the Australian drug scene be quite minor. To subject a minority of persons to injustice in the name of deterrence to achieve major results might be tolerable. But to do so in respect of little people to achieve little, is, in my opinion, not compatible with good government or the best interests of Australia considered as a nation sensitive to principles of fairness.

It is a valid view that punishment for crime and deterrence being the concern of the criminal law should apply equally to all citizens lawfully living in Australia. Recent pronouncements indicate that there is a case for the strengthening of the laws and the penalties there under, but that is another matter. Deportation of persons thought to be a real danger to Australians is also another matter.

In the statement of the Minister of ministerial policy current at the date of the deportation order it is said in substance, and no doubt rightly, that for deportation considerations, much greater importance must be attached to crimes involving drugs than to many other crimes. It would not normally be that an offence for which a term of imprisonment of six months with six months probation would, of itself, merit an order for deportation. But according to circumstances it night in relation to a drug offence. Nevertheless it appears clear that despite the risks attending the supplying of marihuana there is a wide gulf in heinousness between supplying Indian hemp and supplying heroin.

I do not interpret the remarks of the Minister in para. 30 of the reasons submitted pursuant to s 37 of the Administrative Appeals Tribunal Act (1975)(the AAT Act) indicating that whatever the circumstances of the offence relating to the supplying of marihuana an offender technically liable to a deportation order will definitely be deported. I take the remarks to be related to para 32 of those reasons to the effect that the community cannot be expected to run the risk that the person concerned will offend again. But even this, in terms, overstates the position, because necessarily in every case some risk is involved.

I think the Australian people would make great distinction in general, between the supply of Indian hemp and the supplying of heroin. I believe it would regard the latter as in a class of its own. In this case the relevant circumstances include how the offence came to be committed, what was the inherent degree of heinousness, whether the offence increased the quantity of drugs, if any, imported or produced, the likelihood or otherwise of there being a repeated offence, the chances of the persons concerned being useful citizens in the future and the factor that the applicant is rehabilitiated and well spoken of. To my mind the dominating consideration is that in respect of a crime in the lower range of drug criminality and for which punishment has been imposed and undergone it would be oppressive to add deportation to that punishment unless it be thought necessary and appropriate to impose it for the protection of the Australian community against a particular individual. In my judgment, the additional step is not necessary or appropriate for that protection in this case. It therefore is not in the best interests of Australia or in accordance with good government to impose that additional punishment.

It is a relevant consideration that the applicant is for practical purposes a single man, is not without money and has relatives in Turkey. These considerations would be weighty ones were the applicant's crime more heinous and there was a real risk of recidivism. In the absence of such factors I think it has to be remembered that banishment from Australia to Turkey for what is practically a life sentence is inevitably and inherently a sanction of grievous painful proportions. Life in Australia and life in Turkey is not to be compared from the point of view of freedom, opportunity or living standards.

The quality of such banishment as a punishment may be measured by asking how much further imprisonment an ordinary person would choose to endure rather than be returned from Australia to Turkey. There is in the nature of deportation an element of lasting and final condemnation not present in most other punishments.

After the close of evidence in this case there was submitted to the Tribunal a "statement of Government policy" dated 30 January 1980. It was also sought to intimate to me that that policy would be applied by the respondent in this case. Beyond recognising that the statement expresses current ministerial policy, and is in that sense applicable, I did not accept the intimation in the terms in which it was expressed. I stated that I would assume, what is undoubtedly the position, that, however policy may be affected, the Minister would act according to law and in the case of a recommendation by the Tribunal, reconsider the decision of 19 May 1979 in accordance with that recommendation pursuant to Part XXII of the Administrative Appeals Tribunal Act 1975. (the AAT Act).

It was submitted to me on behalf of the respondent that the Tribunal should itself apply the statement of policy of 30 January 1980 on the simple ground that it was a statement of Ministerial policy and on the ground that the statement expressed a sound policy.

It was urged that the remarks of Brennan J. in Drake v. The Minister for Immigration and Ethnic Affairs No 2 (unreported) 21 November 1979 support this view. It was pointed out that the learned Judge placed great emphasis on consistency which might be achieved by adherence to a policy. Consistency is undoubtedly a virtue. Ultimately however, it must be related to principle and is safely sought by reference to policy only when the policy has passed the test of compatability with good government and the best interests of Australia. But it was not the policy of 30 January 1980 which was under consideration by the learned Judge and of which he spoke in the case last mentioned. The policy under consideration was that enunciated by the Minister in provided scope for a previous statement of the then current Minister. That policy decisions in each case based upon a balance of considerations. It emphasised the weight to be accorded to offences against children and of drug trafficking, but did not contain provisions such as those in clauses 8 and 9 of the policy of 30 January 1980. Of that earlier statement of policy it was said in Drake v The Minister for Immigration and Ethnic ftffairs (1979) 24 ALR 577, 601 that no substantial fault could be found. Paras. 8 and 9 of the policy of 30 January 1980 are in the following terms:-

"Offences Related to the Production. Importation, Distribution or Trafficking of Illicit Drugs

8. Where a person was convicted of an offence which indicated that the person had been involved in the production, importation, distribution or trafficking of illicit drugs, it is considered that the interests of the Australian community in their deportation are such that in almost all cases they heavily outweigh the considerations arising from the circumstances of the offender and the circumstances of people whose interests are affected by deportation.

9. Because of the cost to the Australian community in human terms, of illicit drug abuse, it is considered that the interests of the community in removing persons who are involved in the drug problem in the ways referred to in this statement, and in deterring other persons who might be minded to commit similar offences, must almost always outweigh the compassionate considerations which might otherwise have prevailed".

These paragraphs introduce a new element of inflexibility in declaring a rule applicable "in almost all cases". That, in almost all cases concerning the production, importation, distribution or trafficking of illicit drugs, considerations arising from circumstances are to be outweighed, is certainly a distinct change from the policy as previously expressed. There is a Draconian tone in both those paragraphs not to be found in the policy discussed by Brennan J. in Drake v. the Minister for Immigration and Ethnic Affairs No. 2 (supra). The remarks made by the same learned Judge concerning earlier policy, when it first had to be considered, are appropriate to this present situation. Speaking of the relationship of Ministerial policy to a deportation order under s. 13(a) of the Migration Act 1958 he said In Re Becker v. The Minister for Immigration and Ethnic Affairs:-

There are four related but distinct issues which may arise in any application to review a decision to order deportation under s13(a) of the Migration Act 1953- 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 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 ...

Where the decision-maker forms 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 sub-s (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 ss.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."

(1977 15 A.L.R. 699 at pps. 699 - 700)

These views no doubt reflect the situation that Parliament having conferred on the Minister the powers contained in ss 12 and 13 of the Migration Act 1958 considered it desirable to provide for a review by this Tribunal of decisions made under those sections. It is to be observed that for the purpose of such review Parliament decided that the Tribunal should be constituted by a Presidential Member, namely a Judge. It is clear also that it was the intention of Parliament that a review undertaken by the Tribunal should be a review by reference to the Tribunal's own view of whether decisions taken under s.12 and 13 of the Migration Act were the implementation of good government or in the best interests of Australia in the broad sense. (see Drake v The Minister for Immigration and Ethnic Affairs 1979 24 ALR 577). That objective can only be attained if amongst the matters to be considered by the Tribunal is policy pursuant to which the decision under review has been made and any other policy in evidence as possibly relating to that decision.

Having regard to the constitution of the Tribunal and its general purpose it is not unlikely that the views taken by the Tribunal and those taken by the Minister as a member of the Australian Executive in particular cases may diverge. It was no doubt the intention of Parliament that it was desirable were they to diverge, that the Tribunal should express its views and, as required by the AAT Act, state those views in writing together with the reasons on which they are based. The result of those procedures is that Parliament and the public generally are fully informed as to the reasons supporting the Minister's decision, which will always be set forth in the Ministerial statement pursuant to s.37 of the A.A.T. Act, and the Tribunal's reasons which will always be set out as the basis for any recommendation it may make.

In this case of course the policy set forth as at 30 January 1980 is not the policy which was explained to the Tribunal in the Ministerial Statement submitted to it pursuant to s.37 of the A.A.T. Act and is not the policy by reference to which the deportation order in this case was made. There is much to be said for the view that it is that policy which ought to be applied in this case.

It will be seen that I have thought it necessary, in this case, to consider whether it would be right for me to apply the policy of 30 January 1980. For reasons which appear above where I discuss deportation for policy reasons, of persons not themselves a danger to Australia, it is clear that I consider that there is a danger of inflicting injustice and hardship in cases of various individuals if that policy is applied according to its terms. It is clear also that I consider that deportation in this case would inflict injustice on the applicant and be oppressive.

Once it appears that the basic reason for the deportation of a particular person is deterrence of others from crime and not that the individual himself is a threat to the Australian community, then, deportation is but double punishment in an area of criminal law. Double punishment is in direct and basic conflict with justice. Particularly is it so when it is inflicted according to a general rule which, in almost all cases, ignores degrees of criminality and the circumstances of particular cases and applies only in relation to a particular and limited class of offenders.

In relation to the considerations of policy reference may also be made to the judgment of Bowen C.J. and Deane J. in Drake v The Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at p 590-591:-

"It is not desirable to attempt to frame any general statement of the precise part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for compromise, in the interests of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case."

In support of the contention that it would be appropriate to apply the policy statement of 30 January 1980 in, as I understand it, the full severity of its terms, I was referred to various extracts from the report of the Royal Commission by Mr. Justice Williams published in 1980 and to various extracts from Hansard relating to the subject of the control of drugs. It was apparent from all these extracts that there is much valid concern in the Australian community concerning trafficking in drugs. It is apparent that there is much support for increased penalties. Also there is a recognition of the wide gap between the heinousness of trafficking in cannabis and trafficking in heroin. It is a recommendation of Mr. Justice Williams that in the light of his other recommendations the situation in relation to the use of cannabis be reviewed at the end of 10 years with a view to its possible decriminalisation. It is to be observed, however, that in the extracts referred to, in which questions of penalty were widely discussed, and in the recommendations of Mr. Justice Williams there was no discussion on the policy of deporting persons. I was certainly referred to none. It is important however that nowhere in these extracts did I find any support for using the Migration Act for the punishment of migrants and aliens additional to that received by them at the hands of the criminal law, where such persons are themselves not a danger to Australia .

In the result it is my conclusion that to apply further punishment in the form of deportation to the applicant would be an exercise in harshness not appropriate in the conduct of good government or in the best interests of Australia.

Accordingly the Tribunal decides that the decision of the Minister dated 19 May 1979 be reviewed and recommends to the Minister that the order for deportation of the applicant of that date be revoked and it remits the matter to the Minister for reconsideration in accordance with this recommendation.