Minister for Immigration & Ethnic Affairs v Gungor, Nizam [1982] FCA 93

Administrative Appeals Tribunal Act s.44, Part XXII of Schedule,

Clauses 22(3) and (4); Poisons Act 1966 (N.S.W.) s.21 and s.45A; Crimes Act 1900 (N.S.W.) s.351.

Constitutional law ~- gudicial power - deportation order - Administrative Appeals Tribunal conferred with power to remit matter to Minister for reconsideration in accordance with Tribunal's retommendation - appeal to Court on question of law - whether Court conferred with part of judicial power

of Commonwealth - Administrative Appeals Tribunal Act ss. 25, 26, 43 and 44, Part XXII of Schedule Clauses 22(3) and (4);

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS v. NIZAM GUNGOR

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY ; No. G 51 of 1980 GENERAL DIVISION )

JUDGES MAKING ORDERS: Fox, Fisher and Sheppard JJ. WHERE MADE: Sydney DATE OF ORDERS: 9 June, 1982

2... The decision of the Administrative Appeals Tribunal be set aside and the matter remitted to the Tribunal to be heard and decided again.

3D. Leave be reserved to the parties to apply within 14 days

This is an appeal by the Minister for Immigration and Ethnic Affairs from a decision of the Administrative Appeals Tribunal (constituted by Smithers J, as Deputy President) remitting for reconsideration by the Minister an order made by him for the deportation of the respondent, Nizam Gungor. The deportation order was made pursuant to s.12 of the Migration Act, 1958, on the footing that the respondent was an alien who had been convicted of an offence for which he was sentenced to

imprisonment for one year or longer (in fact one ycar in

Two principal questions have been raised. One constitutes the basis of the appeal and concerns the extent to which the Tribunal was entitled to form con- clusions of fact on material placed before it which ran counter to what 1t was submitted must be taken as con- clusions reached by the jury on the trial of the respondent. The other question arose after we had heard argument on the appeal, and while we were considering our decision. It arose out of the withdrawal by the High Court of special leave to appeal granted by it to the Minister in the case

Minister for Immigration and Ethnic Affairs v Pochi (1981)

36 ALR S61. The constitutional question was then raised

and argued by counsel for the respondent whether this

Court had jurisdiction to consider the case at all.

Notices were given under s.78B of the Judiciary Act, 1903

to the Attorney-General of the Commonwealth and the Attorney- General of New South Wales. Both appeared, and argument was

I shall deal first with this constitutional - question. It was submitted on behalf of the respondent that the power which the Administrative Appeals Tribunal Act,

1975 gave to the Court to hear an appeal on a question of law did not involve an exercise of the judicial power of the Commonwealth within Chapter III of the Constitution. The basis of the submission was that 1n a case where the Tribunal refers a matter tc the Minister for re-consider- ation, the Minister is not bound by a conclusion reached by

the Tribunal and can notwithstanding the Tribunal's recom-

mendation maintain the order for deportation. Moreover, his decision, after the referral back, was and is expressly made free from any further appeal to the Tribunal (cl. 22(5) of the Schedule, now repealed, to the

Administrative Appeals Act; s.66E(1) of the Migration

Act, 1958 replaces this clause). The High Court, in

Pochi's case, referred to this aspect, as follows (564):

"The effect of a decision of the Tribunal remitting a matter for reconsideration in accordance with its recommendations is only that the Minister is bound to recon- sider the matter in the light of the recommendations. There are obvious reasons why the Parliament may have con- sidered that the Tribunal, in making a review of decisions under the Migration Act, should have less extensive powers than are granted in the case of other administrative decisions."

Even an affirmation of his decision is not made binding on the Minister; he is Free to change his mind and revoke an order already made (cf. s.43(6) of the Act).

The function of the Tribunal is to review a decision, to

affirm or remit, and, in the latter case, to make a recom-

mendation or recommendations if and as it sees Fit.

The High Court in Pochi's case did not hold that 1t was not competent for 1t to grant special leave to appeal or to hear an appeal, but it exercised a discretion not to, or, to be more precise, to withdraw the special leave already given. Although their Honours mentioned the Federal Court, no suggestion was made that 1t may be with-

position of the present appcal involves an cxercise of judicial power. In any event, for reasons which appear in the course of the discussion which follows, I am of the view that the function is judicial. The question is whether it was competent for the Parliament to vest juris- diction in the Federal Court to decide the appeal. The particular feature relied upon is the inconclusive nature of the Triabunal's decision, at least in a case where it remits a case for reconsideration. The issue of law raised is whether what is involved is a 'matter' arising under a law made by the Parliament within s.76 of the Constitution, such that power to deal with it can be vested in the Federaj] Court under s.77. There 1s no doubt that the relevant Jaw is Commonwealth law, and its validity is not challenged, except in the present respect. In re Judiciarv

and Navigation Acts (1921) 29 CLR 257, the High Court held

that an advisory opinion "at large" was not such a matter. It is not necessary to cite the well known passages in the joint judgment in that case, which dealt with whether there was power to give the High Court a function of giving purely advisory opinions. As has been pointed out on a number of occasions, the cffect of the decision has been somewhat

modified by the width of the power since exercised to make

It is I believe an error to treat the powers of the Minister upon receipt of the Tribunal's decision as determinative of the function of the Court under the

legislation here in question. In Rv Macfarlane; ex parte

O'Flanagan and O'Kelly (1925) 32 CLR 518, in which the

powers of a Migration Board which advised the Minister were in question, the decision was that the Board was not a judicial tribunal, or acting judicially, and prerogative writs should not issue against it. The decision does not assist in the present case. Here, it is sufficient to know that a review by the Tribunal is a statutory procedure and that it requires the decision of the Tribunal on a dispute between the parties, the resolution of which is of impor- tance to both. The function of this Court, sitting as a Full Court, but in its original jurisdiction, is to decide

In the present "appeal", (to use the term of the Act) the principal question of law raised involves a close consideration of the facts, and what is sought is a refer- ence back to the Tribunal (see s.44(4) of the Administrative Appeals Act}. In other cases the question of law which 1s posed will be directly definitive of the rights of the individual, or the powers of the Minister. There are real parties, and there is a real and existing dispute. The order of the Court 1s final, subject only to appeal, and has legal consequences. These consequences extend at least as far as the proceedings before the Tribunal, but may also finally determine a question, such as one whether a

person ordered to be deported is liable to deportation.

I am of the opinion that there is a "matter" and that the Court is exercising the judicial power of the

appeal. Sheppard J has stated the facts in detail, and I shaJ1l not attempt to traverse the same ground. I respect-

fully agree with the conclusion he expresses in the follow-

"In my opinion the analysis of the evidence before the Tribunal and its findings thereon which I have under- taken mekes it abundantly clear that the Tribunal did, at the invitation of the respondent and quite con- sciously, depart from the view of the facts necessarily adopted by the jury in reaching its verdict."

At the same time, it is to be noted that the Tribunal accepted the conviction, and the guilt of the respondent. The Tribunal simply put the conviction on a different factual footing, different indeed from the way the trial

judge found the facts for the purpose of sentencing.

In point of broad policy it can be suggested that onc or other of two opposed approaches can be adopted. One is that, there having been a criminal trial in which the respondent was found guilty and sentenced, and that conviction still standing, and being the basis of the power to deport, it should not be open to the Tribunal ta reconsider for itself the facts upon which the conviction was based (or question the soundness of the trial proced- ure), and thus, in effect, contravert the conviction. The other is that an order of deportation 1s or can be scriously prejudicial to the person concerned (and his family), and a Tribunal charged with considering whether or not to support it should be free to consider the conduct of

that person, including conduct referable to the charge made

against him, and should be free also to see that the con- viction can be supported. Advocates of each

approach would probably concede some validity in the

The conviction, including the sentence of a ycar or more, is of course a necessary basis for the Minister's order. If it can be shown that there is absent any of the necessary ingredients (more fully and precisely stated in s.12), any order made by the Minister or affirmation there- of by the Tribunal will be quashed or sct aside. What does seem to mc to be highly improbable 1s that the legislature intended that an administrative tribunal with wide investi- gatorial powers, not bound by the rules of evidence and free to inform itself from any source (albeit one func- tioning in a number of respects like a court, and compris- ing a judge) should review the conviction on its essential factual basis. The policy must be that the conviction is a matter for the criminal law and its procedures. Appeals are there available. If new or fresh evidence comes to hand, the criminal procedures can be availed of. There can in rare cases be an application for a pardon, perhaps preceded by a special judicial inquiry. While it stands, the conviction must be conclusive so far at least as con- cerns a Tribunal reviewing a decision which takes the con- viction and the Minister's decision as its starting point. When I say conclusive, I mean conclusive as to the guilt of the accused in relation to the offence charged, and of the sentence imposed. This is my understanding of the

statutory intention. Quite obviously, scrious" practical

but the convicted person would have the same rights and remedies as an Australian citizen not Jiable to depor- tation. In the circumstances suggested, the Tribunal would not, despite the later evidence, be obliged (if the facts otherwise warranted it) to affirm the decision. In accordance with the terms of cl.22(3) of the Schedule to the Administrative Appeals Act (now s.66E(3) of the Migration Act) the matter could be remitted for reconsider-~ ation by the Minister with or without a recommendation arising From or related to the evidence of the self-con- fessed perjurer. There could be a recommendation that the order for deportation be revoked until the position was clarified, on the basis that, if appropriate, the Minister could issuc another. There is considerable flexibility. What would be wrong, in my view, would be to recommend revocation influenced by a conclusion that the person con-

My view as to the construction of the legislation finds support in dicta of members of the House of Lords in

General Medical Council v_ Spackman (1943) AC 627, and of

Singleton J in the Divisional Court in the same case

(R v General Medical Council (1942) 2 KB 261, 271). In

that case, the question was whether the Gencral Medical Council had made "due inquiry" as to professional misconduct of a medical practitioner as required by s.29 of the

Medical Act, 1858. An alternative limb under the same section related to a doctor having been convicted of a felony or misdemeanour. I believe it to have been on the

construction of 5.29 that Viscount Simon L.C. based his

observation (634-5) that, on the second ground just mentioned, "the decision of the council is properly based on the fact of convaction, and the practitioner cannot go behind 1t and endeavour to show that he was innocent of

the charge and should have been acquitted". Lord MacMillan and Lord Romer agreed with the Lord Chancellor's opinion.

"The condition is defined precisely and nothing more than the conviction is required to found the discretion, though how the discretion is to be exercised 1s left to the council."

The judgment of Singleton J in the Divisional Court was concurred in by members of the Court of Appeal, whose decision was upheld unanimously in the House of Lords, and

also specifically by Lord Wright in that House. Singleton

"The answer to the problem with which we are confronted can be expressed in a few words. The legislature has made proof of a conviction conclusive. It has not done so in the case of a decree or order of a judge sitting in divorce."

Their lordships obviously regarded the conviction as intended to be proof of guilt, and that scems to me to be

The application of Spackman's case in relation to proceedings under the Administrative Appeals Tribunal

Act has been considered by Brennan J in Pochi v Minister

for Immigration and Ethnic Affairs (1979) 2 ALD 33, 38-9

and by Davies J in Re Habchi and Minister for Immigration

and Fthnic Affairs (1979) 2 ALD 623. They arrived at

different conclusions. With respect, I prefer the reason-

should be referred to Ilollington v Hewthorn and Co. Ltd.

(1943) KB 587, which has long been accepted as authority for the proposition that a finding of guilt is not evidence in a civil proceeding involving the same factual issue. What principle of law was invoked to reach this result has been the subject of much debate. All I need say about the case is that it had relation to the rules of evidence in a civil proceeding before a court, and that recently, in

Hunter v Chief Constable of West Midlands (1981) 5 All ER

727, the House of Lords was agreed (734) that "it is

generally considered to have been wrongly decided ..."

Hunter's case provides further guidance. It was held that convictions for murder could not be challenged in subsequent civil proceedings in which the persons con- victed sued for assault police officers involved in their arrest and questioning. The question whether there had been the assaults alleged had been the subject of investi- gation by the trial judge on the voir dire, as related to the admissibility of confessions, and had also been a critical question for the jury to decide. The trial judge and the jury had found against the accused, now the plain- tiffs. Jt was held that 1t was an abuse of the process of

the court to entertain the act1ron, which was struck out.

After the present appeal had been argued, two relevant deportation cases were decided by the Full Court

of this Court: - Minister for Immigration and Ethnic

Affairs v Daniele (17 December 1981) and Halil Degerli v

Minister for Immigration and Ethnic Affairs (23 December

1981). Counsel were referred to these cases when argument on the constitutional matter took place, and invited to make submissions with regard thereto. Counsel for the applicant has sought to distinguish the cases, and to treat relevant passages as dicta only. I believe both cases support the conclusion I have expressed. I am respectfully in agreement with leading statements therein. For example, I respectfully agree with the following passages in the

joint judgment of Fisher and Lockhart JJ in Daniele'

"The conviction is the genesis of the Minister's power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set 1t at nought. That is not to say that the circumstances surrounding

the commission of the offence or matters relating to the trial itself cannot he examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propricty of the con- viction or the Fairness of the trial. Whether these circumstances and matters are susceptible of examination and the extent of that cnyuiry will vary From case to case. The matters which the Tribunal is called upon to detcrmine are wider than and different from the questions which a trial Judge and jury must determine." ...

"The fact of the conviction stands con- clusively as the source of the jurisdic- tion of the Minister to make a deport- ation order and as affecting the stand- ing or credit in the community of the applicant as a convicted person. More- over, the correctness of the conviction and the Fairness of the trial procedures which resulted in the verdict of the jury are not the concern of the Tribunal. They are the concern of the Criminal Appeal Courts and of the prerogative of the Crown."

The present case goes further, or, at least, is somewhat different. As Hunter's case indicates, if there cannot be a direct challenge to a conviction, there cannot be an attack on the findings which support it. If a Deputy President of the Tribunal finds and recommends on facts inconsistent with facts upon which a jury must have based its verdict there is in my view a challenge to the con- viction. On occasion the border line of proper inquiry or of legitimate consideration may be difficult to determine. If the problem arises in practice, 1t will have to be met. However, the case is probably a rare one where the line between what can be taken into account and what cannot becomes too refined without there having been a sustained attack on the conviction, or a determincd presentation of evidence running counter to 1t. Jn either case the Tribunal is put on notice, and can control proccedings in

It is in my view an error of law for the Tribunal to proceed to its conclusion on the basis of facts incon-

sistent with the conviction and that, as it seems to me, is

what has happened in the present case. I believe it would be wrong for the present matter to be remitted to the Minister with the recommendation made by the Tribunal that the deportation order be revoked. It would also be wrong

for us to interfere with the decision to the extent only of

What does concern me is the prolonged history of the matter. The offence was committed in 1977, the depor- tation order was made 1n May 1979, and the application For review was made in June 1979. The appeal to this Court was filed in June 1980. The long delays are regrettable. The respondent has been out of custody for over 3 years. If

the matter is to proceed, further delay should be minimised.

The appeal should be allowed, and the decision of Smithers J set aside. Unfortunately, it 1s necessary to

remit the matter to the Tribunal for hearing and decision.

stice Fox Ass |: Dated: 4 4 yes ge PHlnencle weelutenho . SSSIRIINTNS mune

) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 51 of 1980

AFFAIRS Applicant NIZAM GUNGOR Respondent CORAM: Fox, Fisher and Sheppard JJ. REASONS FOR JUDGMENT Fisher J. I have had the advantage of reading the separate

reasons for judgment of Fox and Sheppard J.J. I agree with the conclusion of each of them that this appeal should be allowed and the matter remitted to the Tribunal for hearing

and decision. I also agree generally with their reasons.

cerning I certify that this and the pre pages are a true copy of the Reasons for Judgment of Mr Justice Fisher

) NEW SOUTH WALES DISTRICT REGISTRY No. G 31 of 1980 GENBRAL DIVISION )

Applicant AND NIZAM GUNGOR Respondent CORAM: Fox, Fisher and Sheppard JJ. SHEPPARD J. 9 June, 1982

This is an appeal by the Minister against a decision of the Administrative Appeals Tribunal given on 30 May, 1980. The appeal is brought pursuant to the provisions of s.44 of the Administrative Appeals Tribunal Act 1975, which provides for an appeal from the Tribunal upon questions of law,

By its decision the Tribunal reviewed the decision of

the Minister dated 19 May, 1979, and recommended to the

Minister that an order for deportation of the respondent made that day be revoked. The matter was remitted to

the Minister for reconsideration in accordance with the Tribunal's recommendation. The Tribunal's orders were made pursuant to Part XXII of the Schedule to the Act - see particularly clause 22 (3) and (4). These have since been replaced by s.66E of the Migration Act 1958 (inserted by Act No.61 of 1981, s.60).

The Minister's decision had been made pursuant to s.12 of that Act. The section provides, inter alia, that where an alien has been convicted in Australia of an offence for whicn 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 the alien in respect of the crime, order his deportation. There was no issue that the respondent was an alien for the purposes of the Act.

On 30 May, 1978, the respondent was convicted of an offence under the Poisons Act 1966 (N.S.W.) of supplying Indian hemp. On 1 Jume, 1978, the respondent was sentenced by his Honour Judge Robson of the New South Wales District Court to be imprisoned with hard labour for a period of 12 months. A non-parole period of six months was specified.

The offence in respect of which the respondent was convicted was committed on 12 May, 1977. The provision of the Poisons Act which was in question was s.21(1)(a).

It provides that any person who, inter alia, supplies

Indian hemp is guilty of an offence. Section 45A(1)(a) and (2) operate together to enable a prosecution for the offence of supplying Indian hemp to be by way of indict- ment. If a person is convicted upon indictment of such an offence he 1S liable to a fine not exceeding $200,000 or to imprisonment for e term not exceeding 10 years or to botn such fine and imprisonment - see s.45A(3)(b). Section 4 of the Poisons Act defines the term "suoply" as follows:

The general circumstances under which the offence was committed are described in the Tribunal's decision and in remarks meade by Judge Robson when passing sentence. They also appear from depositions taken at the committal proceedings, the respondent's statement at his trial and evidence given by the respondent before the Tribunal.

The Manister relied upon a number of grounds of appeal but many of these were withdrawn at the commencement of the hearing with the result that the appeal eventually

involved only two questions. One of them was whether

the Tribunal's findings of fact were aseinst the evidence

and the weight of the evidence. That is not a matter

with which this Court can be concerned because it is not a question of law; see Clark v. Flanagan (1934) 52 C.L.R. 416 at p.428 and Neil v. Department of Transvort (1980) 29 A.L.R. 350 at p.364.

The remaining question was formulated upon the assumption that the Tribunal had adopted a version of the facts concerning the offence which was necessarily contrary to the version which, so it was submitted, must have been accepted by the gury in convicting the respondent. It was tne Minister's submission that it was not open to the Tribunal to take that course; it was said to have been contrary to law to have done so. In the respondent's submission 1t was lawful for the Tribunal to take that course if it thought it appropriate to do so. But the respondent also submitted that the Tribunal had not in fact departed from any version of the facts which must necessarily have been found by the jury. In his counsel's submission the question of law propounded by the Minister

Before proceeding to deal with the questions raised by these submissions, it should be mentioned that the hearing of this appeal originally concluded on 18 June, 1981. On 29 July, 1981, the High Court commenced the hearing of the appeal by the Minister against the decision of this Court in Minister for Immigration and Ethnic Affairs v. Pochi (1980) 31 AVL.R. 666. Special leave to appeal had previously been granted to the Minister on 10 October, 1980. After argument the High Court decided that it would rescind the grant of special leave. The Chief Justice said that the Court's reasons for taking that course would be published at a later time. A perusal of the transcript of the argument discloses that the broad reason why leave was refused was that the decision of the High Court, if the appeal were determined, might not be decisive of the outcome of the dispute. The power of the Tribunal, if it allowed an appeal, was to make a recommendation which the Minister was free to reject. The decision of the High Court on an appeal from the Federal Court, which had dismissed the Minister's appeal from the Tribunal, would, 1f 1t too were against the Minister, have force and effect only as a recommendation. However, in the course of

the argument before the High Court a question was raised as

to whether, because of this circumstance, the jurisdiction invested in the Federal Court of reviewing the Tribunal's decision to recommend against deportation was an exercise of judicial power. This led us to ask counsel in the present case whether it was desired to submit that this Court had no power to deal with such an appeal because no exercise of gudiczral power was involved. In the result counsel for the respondent said that it was desired to rely upon such an argument, Accordingly, the matter was re- listed for further hearing on 22 December last. In the meantime the High Court delivered reasons for its decision to rescind special leave; Minister for Immigration and Ethnic Affairs v. Pochi (1981) 36 A.L.R. 561.

The judgment then published disclosed that the reasons for the withdrawal of leave were based upon discretionary grounds and not at all upon a view that no exercise of judicial power was involved. The goint judgment of Gibbs C.J. and Mason, Aickin and Wilson JJ. includes the following sentence (p.564):

"However, there were a number of reasons why this Court, which, unlike the Federal Court, is not bound to hear an appeal from the Tribunal,

should not entertain an appeal in the present case",

A number of matters are then stated. It 1s not material to

Although the matter had not been the subgect of argument in the High Court, it was thus the tentative view of the judges to whom I have referred that this Court was validly invested with judicial power and was thus able to deal with an appeal such as this.

Nevertheless the submission that it was not validly empowered to do so was pressed. Notices pursuant to s.78B of the Judiciary Act 1903 were served upon the Attorneys-General for the Commonwealth and the State of New South Wales. The latter did not seek to intervene. The former did so by counsel who were retained by the Minister,

I have reached the conclusion that the respondent's submission should be rejected. I do so for the following reasons.

The essential feature of the contention put on behalf of the respondent was that the powers of this Court on appeal under s.44 of the Administrative Appeals Tribunal Act ("the A.A.T. Act") required or empowered 1t to go well beyond the exersise of judicial power. As s.44 can at first glance be said to raise some difficulty, 1t may be helpful to consider this contention at the outset and prior to reviewing the nature of the power exercised by this

To this end it is appropriate to note certain matters that are self-evident, the first being that the jurisdiction of the Court is limited to appeals on questions of law arising in the Tribunal'ts decision and to the determining of such questions of law. Such jurisdiction contrasts sharply with the jurisdiction of the Supreme Courts under s.196(1) of the Income Tax Assessment Act 1936 where, provided the decision of the Board of Review involves a question of law, the Supreme Court "may make such order as it thinks fit, and may by such order confirm, reduce, increase or vary the assessment", It 1s also axiomatic that, although styled "an appeal" in the A.A.T. Act, this Court is acting in its original gurisdiction under s.19 of the Federal Court of Australia Act 1976 and not pursuant to its appellate jurisdiction conferred by s.24 of that Act. Such is the case notwithstanding the fact that this Court 1s, by virtue of s.44(3) of the A.A.T. Act, of necessity constituted in this matter as a Full Court because only a presidential member of the Tribunal can exercise its jurisdiction in matters of deportation.

The contention of counsel for the respondent can be fairly summarised as follows. This Court is not on this appeal exer- cising the gudicial power of the Commonwealth. It is acting administratively or is giving merely an advisory opinion in cir- cumstances where under the A.A.T. Act it 1S given wide powers to make such order as 1t sees fit which order is inconclusive and does not resolve the rights of the parties because the Tribun: can at most only recommend. For my part I cannot accept that any

of the three circumstances correctly states the position in law.

Dealing with the powers of this Court on this appeal, it is not correct to see our powers as unlimited, The powers as stated are subject to restrictions, which restrictions are readily apparent if compared with the powers on review of the Tribunal, admitwedly acting administratively, and the powers of this Court in other jurisdictions, both original and appellate.

The relevant portions of s.44 of the A.A.T. Act are as follows:

"(1) 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.

(4) The Federal Court of Australia shall hear and determine the appeal and make such order as it

thinks appropriate by reason of its decision. (5) Without limiting by implication the generality of

sub-section (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the nearin of further evidence by the Tribunal in accordance with the directions of the Court."

It is 1n my opinion not correct to say that this Court

is by these provisions given wide powers to make such order

as 1t thinks fit, Implicit in 1ts powers are a number of

restrictions. The appeal is expressly limited to error of

law, which alleged error 1s the sole matter before this Court

and is the only subject matter of any order made consequent

on the appeal. The order which this Court can make after

hearing the appeal is alse similarly restricted to an

order which 1s appropriate by reason of its decision, It

made 1s one the propriety of which is circumscribed by and necessary to reflect this Court's view on the alleged or found error of law. To go further I would see as amounting to exceeding the jurisdiction of this Court under this section.

A power to make "such ordex as it thinks appropriate by reason

of ats decision" is much more restrictive than a power "to make such order as it sees fit" or a power "to make a decision in substitution for the decision" the subject of the appeal.

Section 44(5) confarms, though it states that it does not purport to limit, thzs as an appropriate reading of the power in s.44(4) when 1t limits its statement of the express power of the Court when setting aside a decision to the making of an order remitting the case to be heard again. Having set aside a decision, it

has no express power to substitute what 1t sees as the correct decision unless such is the appropriate order by reason of its decision on the point of law in the context of the particular

The powers of this Tourt on appeal under s.44 of the A.A.T. Act are limited to consideration of alleged errors of law by the Tribunal and go no further. There is certainly no power to supervise the Tribunal in any other way and in particular to deal with the merits of the review. The error of law alleged has to be 2Solated out, a decision made on this question of law, and such order made and directions given as are appropriate ,

only to the decision of this question of law, and not to the

decision under review by the Tribunal. However, this former

decision must be seen in context, and in this instance an the light of the fact that the question of law arises in proceedings which can only result in a recommendation by the Tribunal.

The respondent also contended that the power of this Court does not conclude the matter and does not resolve the rights of the parties. This contention is based on the fact that the Tribunal, in reviewing the decision of tne Minister under the relevant sections of the Migration Act, 1s empowered only to affirm the decision or recommend that the decision be reconsidered by the Minister, At the relevant time this situation, peculiar only toa review of a decision under the Migration Act, existed by reason of the combined effect of s.25(4) and s.26 of the Act and Part XXII of the Schedule thereto. Those provisions are in the following words,

decision in respect of which application 1s made to it under any enactment."

"26(1) The provisions of tne Schedule have effect according to their tenor notwithstending anything contained in any other provision of this Act (other than sub-section 25(2)) or in any provision of any otner enactment in force at the commencement of this Act,

(2) A reference in sub-section 25(4) to an enact- ment includes a reference to the Schedule."

22(1) Applications may be made to the Tribunal for review of decisions made under section 12, 13 or 48 of the Migration Act 1958-1973 other than a decision made on a matter remitted by the Tribunal for reconsideration in accordance with sub-

(2) A person is not entitled to make an applic- ation under sub-clause (6) in relation to a decision under section 12 or 13 of the

(o) the continued presence in Australia is not subject to any limitation as to time imposed by law.

(3) After reviewing a decision referred to in sub-clause (1) tne Tribunal shall either affirm the decision or remit the matter for

reconsideration in accordance wath any recommenaation of the tribunal.

(4) For the purpose of reviewing a decision referred to in sub-clause (1), the Tribunal

shall be constituted by a Presidential member alone,

(5) ... " At the time of the hearing before us this part of the Schedule, as I have mentioned, had been repealed and like vrovisions

re-enacted in s.66E of the Migration Act. Nothing however

Because the Minister is not obliged to accept any recommendation made by the Tribunal, and in particular a recommendation that his decision to deport be revoked, counsel contended that any order this Court might make on appeal would be inconclusive and would not resolve the respective rights of the parties. However such a contention is not in my opinion acceptable, because it misunderstands what are the rights and obligations at law of the parties. It seems to proceed on the assumption that the right of the deportee to review by the Tribunal and appeal to this Court are a brutum fulmen and con- fer no rights of substance because the Minister can ignore the recommendations of the Tribunal.

But, as a matter of law this is not the correct view.

A person ordered to be deported has a number of enforceable rights and remedies. He has the right to have the decision of the Minister reviewed by an independent Tribunal in accordance with the procedures of the A.A.T. Act. Such a review follows upon the provision by the Minister of reasons for his decision which reasons are subject to the scrutiny of the Tribunal. Whereas the Minister is subject to no constraints other than bona fides in respect of the manner in which he makes his decisior the Tribunal although an Administrative Tribunal, is required to proceed gudicially, in accordance with law and the principles

of natural gustice; Minister for Immigration and Ethnic Affairs v. Pochi 36 A.L.R. at p.563, The deportee has the

further right, 1f the Tribunal remits the matter to the Minister

for reconsideration, to have the decision of the Minister

re-considered in accordance with the recommendations of the Tribunal,

As has been stated, the parties to a review are entitled to have tnis administrative review conducted in accordance with law. Should a party desire to challenge the decision of the Tribunal on the ground that it made errors of law, that party can appeal pursuant to s.44 of the 4.A.T. Act. A ruling of this Court may not necessarily have any conclusive effect on the question of deportation, but it is binding on the parties, and also on the Tribunal in the conduct of its furtner review, if any. It 1s conclusive on whether tne parties (and the applicant un particular) have had a review by the Tribunal of the decision in accordance with law, and a finding on this point, either way, is binding on the parties. It is wrong to consider the conclusive nature or binding effect of an order under s.44(4) in the context of whether or not the deportation order should stand. Sometimes it may have that effect 1f it bears upon auestions of gurisdiction. More often 1t will be conclusive and binding in relation to the rights of the parties to a review on the merits in accord- ance with the aeportee's rights under the A.A.T. Act.

Thus the rights of the applicent for a review are that

such a review must be conducted by the Tribunal in accordance

with law. The Federal Court pursuant to an appeal under s.44 exercises a supervisory gurisdiction to ensure the enjoyment of such a right. Snould the review produce recommendations favourable to the applicant, he has the further right that the Minister 1s required to reconsider his earlier decision and make a fresh decision in the light of the recommendation.

It follows that the powers which the Federal Court is exercising to supervise the Administrative Appeals Tribunal and to correct any errors of law in its decisions are not non-judicial functions. In particular the orders which, pursuant to s.44 of the A.A.T. Act, this Court is empowerea to make does not involve this Court in performing a non-judicial function, The Court's power to detect and correct any error of law in the vorkings of the Administrative Appeals Tribunal and to make appropriate orders consequent upon such correction is a judicial function

and an exercise of the gudicial power of the Commonwealth.

THE EVIDENCE BEFORz THE TRIBUNAL AND ITS FINDINGS THEREON

I can now return to the principal matters in question between the parties. I propose to proceed by considering first of all the question of whether the Tribunal did depart from a version of the facts different from that necessarily found by

the gury. If I am against the Minister on this question, the

appeal would, in my opinion, fail. If I am not, the necessary factual background will have been laid for the consideration of the question of law which in that event will need to be determined.

An initial difficulty in dealing with the factual question arises by reason of the nature of the material which was before the Tribunal. As earlier mentioned the depositions taken at the committal proceedings were before it. But the transcript of the evidence taken at the trial was not available. The respondent's statement was tendered. His Honour's remarks made on passing sentence were also available but not his summing up to the jury. The reason why the transcript and the summing up were not available was said to be because they had not been transcribed by the New South Wales Court Reporting service, I would have thought myself that it would have been possible in 1979 when the metter first came before the Tribunal to have obtained a complete copy of the transcript of evidence and summing up. It seems most undesiratle that a vroceeding of this kind should be heard without the benefit of those documents. However, the documents were not available end we must, like the Tribunal, do the best we can without them.

of alleged admissions made to police officers was the same at the trial as it was during the committal proceedings. Ordinarily I would have had sub- stantial hesitation in making that assumotion, particularly as the course proposed was opposed by counsel for tne respvondert. But the transcript of the evidence taken at the committal proceedings was tendered before the Tribunal by the respondent who was represented by counsel. At the time of the tender counsel said, in relation to the transcript of the committal proceedings, "If I could tender that also, as a separate exhibit because we do not have available to us the transcript, but the evidence would have been the same", Because of that statement I think, with some nesitation, that it 1s sefe enough to rely upon the transcript of the conmittal proceedings as an

indication of wnat evidence was given in relation to

the essential matters at the trial. I propose to proceed

It 1s clear, as counsel for the Minister submitted,

that the evidence of tne responcent's guilt upon which

the Crown relied at nis rrial was evidence given by police officers of wnat he saic during their interview with him. The evidence in question was that of Detective Senior Constable Lowe wko said that on 12 Mey, 1977, he and other police officers took up a position in Consett Avenue, Bondi, about 50 yards from the intersection of that street with Lamrock :.venue, He saw e motor cycle leave the front of Ne.40 Lemrock Avenue, Bondi. Shortly afterwards 1% returned, The rider was ae man named Reff. ne azsmounted

rom tae cycle ena stood on the north-western corner of tne

intersection, Shortly afterwards a small car arrived and stopped near the men Raft, Raff walked over to the vehicle ana spoke to the occupants. All were then approached by

tne police. The occunants of the car incluaec the respondent. All tne men were taker: to the Bondi police station. Detective Lowe, witn other volice officers, then went to tne respondent's home in Ramsgate Avenue, Bondi. The pvrerises were searched,

Detective Lowe returned to the police station and anterviewed the respondent. fe wes then taken to the Drug

Syuad office at the Criminal Investigation Bureau in Sydney.

A further anterview took place in the presence of Detective Constable Jenkins. Detective Lowe's evidence was that he said to the resoondent, "Earlier tonight you were arrested

in Consett Avenue in a vehicle that contained a large quantity of hashish", The respondent was given the usual warning and Detective Lowe continued, "Can you tell me how the hashish came to be in the car that you were arrested in", The res- ponaent said, "Must be other men, not me",

Detective Lowe then left the room end went to where another police officer was interviewing anotner of the occupants of tae motor car. Detective Lowe was nanded a brown paper bag which he said contained a large quantity of hashish wafers similar to ones of whicn he had taken possession earlier in the evening. Detective Lowe returned to Detective Jenxins and the respondent. He said, speaking to the respondent, "I have teen informed that you and tne man Huseyin intended to sell these wafers for tne sum of $1,000 tonight". He showed nim the wafers and continued, "hat do you say about that", According to Detective Lowe tne respondent paused for a while and then said, "Yes, you rignt". Detective Lowe said, "who were you going to sell tae wafers to", The respondent said, "Barry" and indicated tne man rkaff who was standing at the far end of the office

with another police officer. Detective Love said to the

respondent, "What arrangements had you made with the man Barry to sell these wafers". The respondent said, ""Earry ne come and ask for more, but this ail we have". Detective Lowe said, "Who else other than the man Huseyin was involvea in the sale of these wafers", Tae respondent said "You ask other men", Detective Lowe said, "How much money were you to receive for the sale of this hasish", The respondent said, "$1,000",

Detective Jenkin's evidence was to the same effect 4s that of Detective Lowe.

Althouzn, because no copy of the summing up was ava2rlable, it 1s not possible to see exactly how the learned trial judge left the case to the gury, it 1S possible to draw fairly firm conclusions about that matter by reason of what his donour said in his remarks made on passing sentence, Amongst other things his Hcneur said:

"Fach of these accused persons waS convicted by a gjgury after a trial which lasted for more than two cays on a charge that each of them on 12th May 1977 at Bondi did supply indian hemp.

In my view the verdict of tne jury in eacn case was abundantly justified on the evidence which wes placed before them, The facts in my view are quite clear that on the night in question after a conver- sation with a man Raff who had come to the home of one of them, there was a plan whereby these two persons would supply <= quantity of hashish to Rarf at a place chosen in the street close to Raff's home,

There 1s no doubt that the amount involved had certainly a street velue of about a thousand aollars, The fact they were in the car with that quantity in tne circumstances 1n my view indicates ea scheme on their part to supply in the sense of dealing in this particular drug.

I am quite convinced, in bringing in a verdict of guilty, that the members of the gury accepted the

"evidence given by Detectives Love and Jenkins as to admissions mace by Lhe accused person Gungor and the evidence of Detective Hall as tne prisoner Huseyin. Witnout accepting that evidence 1t 1s difficult to see how a verdict of guilty could have been cetermined. Having accepted that evidence 1t 1S impossible to see how the verdict could not be one of guilty."

It 1s plain from what his Honour said that he was using

the word "supply" as meaning supoly in the sense of selling the drug. In other words, his Honour concluded that the gury had found that the respondent had been a party to the sale of the drug to Raff.

As mentioned earlier the respondent had made a state- ment after the close of the Crown case; Crimes Act 1900 (N.S.W.) ss.405, 407. The statement wags in evidence before tne Tribunal. In the statement the respondent

"T went to the living room, After two minutes or so Sedat (the man who drove the car) came inside and we were watching the television. When I ask him what happened Sedat Polat told me that - while we were all sitting together Barry Raff told him that he had some good hashish for resale and he asked us 1f we would like to buy some for smoking and I said to him, "Ask everybody." And in revly everybody said that, "How much?" and in reply he said that we could have bought this hashish at a reasonable price of $30 a piece because he is a friend of mine, and we all talked together and everybody accepted to go and buy some."

The respondent went on to describe how he and Huseyin left the house and were subsequently arrested by the police. The essent-al difference petween what he said in his statement

and what he wes alleged to have said to the police officers

was that in his statement he saic that he and Huseyin were to be purchasers whereas in the alleged admissions he made to the police officers the two were to be vendors. In his statement the respondent made reference to the difficulty ..nich he has in speaking English. His statement at the trial was apparently made without the aid of any interpreter, Nevertheless the transcript orf it reveals that he spoke fluently and provided a cohesive account of wnat ne then said had transpired on the evening in question. The transcript also reveals that he did not need prompting or assisting in any other way during the course of the state- ment. I have no hesitation in saying tnat the experienced trial gucge wno dealt with the matter would nave seen to it that an interpreter was available to assist the respondent had this been at all necessary.

Notwithstanding the width of tne definition of "supply" in the Poisons Act to which reference has been made, 1t 18 clear that the offence provided for in s.21(1)(a) of the act of supplying Incian hemp is not committed unless the eccusec is shown to nave participated in the sale, agreement to supply, offering to suyply or keeping or having in possessicn for supply or sending, forwaraing, delivering or receiving for supply. Tnus, although the conduct

aescribed in the respondent's statement may have involved

Wie Re ain Sth fe te Te ee o- oe wort at . eI oN NRE a ert na ee er es tint SY

him in some other criminal liability, it could not involve him in the commission of tne offence charged vecause his story was that tne two men were asked if they would like to buy the drug for smoking. It is true that included arongst the acts whicn can constitute "supply" for the purposes of the Act is the act of receiving for supply. What the respondent said in nis statement, nowever, would nowt involve hin in acquiring the drug for the purposes of having 1t available for supply to other persons. It was no doubt considerations of this kind which lead tne learned trial gucge tc say, in thet part of his remerxs made on passing sentence whicn I have already quoted, thet he was convinced that che members of the gury accepted the police evicence of admissions made to chem by the respondent. Unless the gury did accept thcse admissions it is not possible to verceive how a verdict of auilty could have been justified. That 1s in effect what his Honour said, After the trial tne respondent gave three further accounts of the events which transpirea on the evening of 12 hoy, 1977. Each of these was in evidence befcre the Tribunal. The first of these subsequent accounts was given in an interview conducted by Hr. Dickie who 1s a clerk in the Criminal Deportation Section of the Department of Immigration.

The interview took place on 19 July, 1978. According to

Mr. Dickie tne respondent said tnat he was innocent. He claimed that he ana Huseyin decidea to go for a drive. They were stopped by police, who,upon searching their car, located the Ind2zan hemp. Mr. Dickie continued:

the car without their knowledge", The second account was given to a Mr. de Sousa of the New Soutn Wales Probation and Parole Service whose undated report was 1n evidence before tne Tribunal. Mr. de Sousa said thet the respondent maintained his innocence of the orfence, He claimed that he and Huseyin "nappened to become associated ».ith persons who had connections in the drug subd-culture and became fortuitously involved when the drugs were teing passed."

It 1s to be observed tnat these two accounts are themselves different and that each differs from the competing accounts given in evidence at the trial, one to the police officers and the other in tne respondent's statement.

What the respondent said to xr. de Sousa is in line with his final version given in his evidence at the hearing before the Tribunal. A reading of that evidence makes 1t dirficult, from what 1s contained in tne transcript, to

understand precisely whet tre respondent was endeavouring

to say. That is the case, notwithstanding tnat he had

available an interpreter to assist him in giving evidence and was represented by experienced counsel. However,

the purport of nis evidence was that he was not implicated an tne supply but facilitated the supply of the drug by others, including Huseyin, to Raff.

The Tribunal analysed the evidence given by the respondent, the statement made by him at his trial and the evidence of the interview given by the police officers.

It did not nave the benefit of any orel evidence from the police officers nor was Mr. Dickie called. Mr. de Sousa was celled tut his evidence was mainly concerned witn the behaviour of the respondent after his release from gaol on parole. In any event there is consistency, as I have mentioned, vetween the account given by the respondent in evidence tefore the Tribunal. The Tribunal concluded that the respondent's evidence should be accented. It said that his admissions to the police officers were to be explained upon the basis that there was a misunderstanding.

It was the Tribunal's acceptance of the respondent's evidence which led to the attempt to rely on a ground of appeal that the findings of the Tribunal were agairst the evidence and tne weight of the evidence. Such a grouna Goes not, as I have earlier said, raise a question of law.

"after giving the evidence much consideration I do not doubt that the drugs in question were Huseyin's drugs. He would neve had to grow or pay for tnem. Accordingly ne would not have shared he wnole '10CO equally with anybody. In addition if Huseyin was to share witn anyboay Sedat had a claim for his part in the affair. This follows not only from the applicant's evidence as to that part but frem the fact that 1t was Sedet who drove the car tc the place wnere the sale was actually to take place, and had otherwise played a vital part in the proposed transaction. And there was the fourth man wno could scarcely have been an innocent bystander, I thank 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 tecause as an aider and abettor the applicant was necessar-

rly guilty of the offence. But 1t 1s important as background."

It 1s to be observed that the Poisons Act itself dces not provide for an offence by an alder ard abettor, but the position is covered by s.351 of the Crimes Act 1900 (N.S.w.) which provides that any person who aids, abets, counsels, or procures the commzssion of any misdemeanour, whether the same 1S a misdemeanour at common law or by any statute, may be indicted, convicted, anc punished as a principal offender. Accordingly, given the acceptance of the respondent's evidence by Lhe Tribunal, its conclusion was open to it uvon the material whicn 1t had before it.

The Tribunal went on to weigh the various considerations necessary to be taken into account in order to determine whether the deczsion tnat the respondent be deported

that tne respondent was a person wno had been a sporadic smoker of cannabis "and aid on one occasion act as gco~-between to pronote a sale of drugs by a person having the same for sale ana that he did this in the hove of reward unspecified but

not received". Later tne Tribunal said that it attributed

tne crime to, amongst other things, "the fortuitous over- hearing of Huseyin's words in the coffee lounge", Later

still the Tribunal referred to the responaent as "a one time

meddler in the séie by another of a relatively smell parcel

The passages cited from the Trzbumal's decision make it clear tnat, by reason of its acceptance of the respondent's evidence, he was treated, not as a person who had actually part2cipatea in tne supply of the drug, using that expression in its ordinary sense, but rather one who had been on the sidelzneyor the transaction and was zuilty of the offence, not by reason of eny alternative application of the definition of "supply" in the Poisons Act, but because he was an accessory before the fact within the meaning of s.351 of the Crimes Act. I conclude therefore that tne Tribunal took a different view of the offence from that taken by tne trial judge of what was necessarily tnvolved in the gury's findings.

We were referred to the difficulty that often arises when a triai gudge comes to sentence a person who has been convicted,

whether as the result of a verdict after a plea of not guilty

or as the result of a plee of guilty, of determining

what facts should be adopted for the purpose of deciding upon an appropriate punishment. I would not wish to under-estimate that darficulty. At the same time I would not wish to te included amongst those who see the problem as so difficult that sentencing judges are rarely able

to determine the particular facts relating to a charge

of which an accused person has been convicted. In other words, I am sure that one can over-emphasise and give undue weight to the difficuity which is said to exist.

In the present case the evidence suvports the view of the matter taken by the trial judge. He did not consider that there was anything ambiguous in vh2t the respondent was claimed to nave conceded to the police officers, There was a straight out issue of whether the respondent had agreed to supply the drug or was a person to whom the drug was to te supplied. That issue was determined adversely to the respondent with the necessary consequence that the gury 'nsust have accepted the police evidence, The respondent was represented by counsel at a trial the fairness of which has not been challenged. No

appeal from the conviction or sentence was brought.

implicated in the proposal actually to supply the drug to Raff, using the word "supply" in its ordinary sense.

In its decision the Tribunal has taken an entirely different view of the offence, It should be clear that that view was based upon evidence given by the respondent to it. That evidence was not available to the gury or the trial judge, any more than were the differing versions of what had occurred given by the respondent to Mr. Dickie and Mr. de Sousa after his conviction end sentence.

There is nothing in the Tribunal's decision which would

lead one to the conclusion that the Tribunal differed from the conclusions of the learned trial judge which were based entirely on the evidence given at the trial. That is subject to the Tribunal's construction of what is to be taken from the respondent's statement to the police officers, "Yes, you be right". But the Tribunal was only able to reach 1ts conclusion about the effect of those words because of the respondent's evidence given during the hearing before it. It follows thet the different conclusion about the facts came as the result of the new evidence led before

the Tribunal. It is safe enough to assume that without that evidence the Tribunal would have reached tne same view of the facts as did the learned trial judge. In my opinion

the trial gudgets view of the facts, based as it was on the

material before him, was the only one which was reasonably

DID THE TRIBUNAL DEPART FROM THE Virw OF THE FACTS NECESSARILY FOUND BY THE JURY?

I have now referred to sufficient of the evidence before the Tribunal and its findings thereon to come to the initial question of whether it is established that tne Tribunal did depart from a view of the facts relating to the crime which must necessarily have been the view of them adopted by the gury in determining to find the respondent guilty of the crime with which he was charged.

In my opinion the analysis of the evidence before the Tribunal and its findings thereon which I have undertaken makes it abundantly clear that the Tribunal did, at the invitation of the respondent and quite consciously, depart from the view of the facts necessarily adopted by the gury in reaching its verdict, No doubt the Tribunal, in taking this course, thought it lawful to do so, What was done was in line with dicta of other presidential members of the Trabunal to which I shall in due course refer. In the result, however, the respondent's preliminary submission must be rejected. The assumption underlying the question of law which the Minister wishes determined 1s established. The Tribunal did not accept the view of the facts of the matter which must necessarily have been adopted by the jury in

reacning its verdict of guilty. Was 1t an error of law for

Sance the argument on the principal questions which took place last year, the matter of the effect of the con- viction upon which the Minister has acted for the purposes of s.12 of tne Act has been the subject of two decisions of other Full Courts of this Court. They are Minister for Immigration v. Daniele (17 December 1981) and Degerli v. Minister for Immigration (23 December 1981) both as yet unreported. Of the two cases the former is the more relevant. It was a case where the Tribunal had allowed an appeal principally because of a supposed misdirection by the learned trial judge and the view of the Tribunal that, in consequence, the applicant might not have been convicted of tne crime of manslaughter had the proper direction been given. It seems clear from the gudgments of the Court that the judges there thought it improper for the Tribunal to inquire into a matter of that kind. In any event they con- cluded that there had been no misdirection so that the applicant was properly convicted. The contrary conclusion of the Tribunal was erroneous in point of law. As well the Court thought that the Tribunal had allowed itself to become over concerned with the course of the trial, thereby taking an irrelevant consider- ation anto account. It had also overlooked the need to consider a number of other significant matters. For those reasons the decision of the Tribunal was set aside.

In the course of their gudgment Fisher and Lockhart JJ. said (pp.7-9):

power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set 1t at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to

"the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its

own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the convic- tion or the fairness of the trial. Whether these circumstances and matters are susceptible of exam- ination and the extent of that enquiry will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial judge and jury must determine.

The Tribunal's task includes assessing the deportee's character and personality, his criminal behaviour, the risk of repetation of criminal acts, the likelihood of his rehabilitation, the future risk to the Australian community if he remains here and the likelihood of harm to him if he is deported.

Counsel for the applicant contended that the Tribunal in performance of this task was bound to accept the conviction and the facts necessarily found by the gury in reaching its verdict. We agree that the Tribunal is bound to accept the fact of the con- viction as the source of gurisdiction and as a stigma affecting the applicant's standing and credit in the community. However we cannot accept that the Tribunal is not entitled to examine for itself all facts 1uncluding those necessarily found by the gury. To conclude otherwise would be to attempt to intro- duce into proceedings of the Tribunal a doctrine equivalent to that of issue estoppel. Such a doctrine has not found a sure place in respect of issues aris- ing out of criminal proceedings either in this country or the United Kingdom and is even less at home in the proceedings of a Tribunal composed in part of laymen and directed to follow informal procedures."

For present purposes the most significant statement in the gudgment of Fasher and Lockhart JJ. is that in which they say that they cannot accept that the Tribunal is not entitled to examine for itself all facts ancluding those necessarily found by the jury. That statement may suggest to some that the Tribunal is entitled to examine facts necessarily found by the jury even where such examination will lead the Tribunal to the conclusion that such facts ought to be regarded as erroneously found and be put aside because other evidence - called before the Tribunal but not at the trial - would lead one to the conclusion that the jury or trial judge acted, albeit understandably, on a wrong or mistaken view of the evidence. But, 1n the light of what their Honours have elsewhere said, I do not take them to be going so far. The decision in Degerli and earlier cases relied upon by counsel for the applicant in the present proceedings are against such a view of the law.

The two recent judgments avoid the necessity for this Court to embark upon a detailed analysis of earlier decisions of the Tribunal and of a number of authorities discussed in argument before us. Nevertheless some mention of these decisions and autnorities should be made. The

earlier decisions of the Tribunal were In Re Kannan and

Minister for Immigration (1978) 1 A.L.D. 489, In Re Frith and

the Minister (1978) 1 A.L.D. 590, In Re Pochi and the Minister (1979) 2 A.L.D. 33 and In Re Habchi and the Minister (1980) 2 A.L.D. 623, The authorities to which

I have referred were General Medical Council v. Spackman

(1943) A.C. 627, Ong Bak Hin v. General Medical Council

(1956) 1 wW.L.R. 515 and Ziems v. The Prothonotary of the Supreme Court of New South Wales (1957) 97 C.L.R. 271.

Of the three authorities I consider that Svackman's case and the case of Ong Bak Hin, which followed it, more

relevant tnan Ziems' case. The High Court was there con-

cerned with the inherent power which the Supreme Court of New South Wales has to deal with barristers who are alleged to have been guilty of misbehaviour warranting disbarment or suspension from practice. The Tribunal in the two General Medical Council cases, although a domestic one, was given by parliament statutory responsibility for the register of medical practitioners. The powers of the Tribunal were thus exhaustively provided for in the relevant statute as are the powers of the Administrative Appeals Tribunal in the Administrative Appeals Tribunal Act.

No question exists of there being any inherent power. State-

Ments in the two cases as to the significance of a finding

of adultery or a conviction for a crime have, to my mind, more relevance in relation to a tribunal which owes its existence and powers entirely to the statute which constitutes it. Spackman's case was analysed and

relied upon both by Brennan J. in Pochi (2 A.L.D. at

pp.38-39) and Davies J. in Habchi (2 A.L.D. at p.625). The conclusions reached by the two Presidential members of the Tribunal as the result of this analysis were not,

The relevant passage in Spackman's case is in the speech of Viscount Simon L.C. His Lordship said ((1943) A.C. at pp.634-635):

"It is not disputed that the General Medical Council, in exercising this jurisdiction, is not a gudicial body in the ordinary sense. It 1s master of its own procedure snd 1s not bound by strict rules of evidence. It 1s not subgect to correction by the courts as long as it com- plies with s.29 of tne Act of 1858. That section draws a significant distinction between

a case in which the impeached practitioner has been convicted of felony or misdemeanour and a case in which the allegation of infamous conduct 1s not connected with a criminal conviction. In the former case, the decision of the council 1s properly based on the fact of the conviction, and the practitioner cannot go behind 1t and endeavour to show that he was innocent of the charge and should have been acquitted. In the latter case, the decision of the council, if adverse to the practitioner, must be arrived at 'after due inquiry' and this of course means after due inquiry by the council."

It is true that his Lordship was not there concerned

to say anything about facts necessarily found by a jury or

trial gudge which facts formed the essential basis for the conviction which was recorded. But in substance there can, except perhaps in a very rare case, be no valid distinction between a course which has the effect of going behind a conviction and one which has the effect of setting that conviction at nought. To draw such a distinction could well lead to a situation where lip service only was paid to the conviction. It could be treated as no more than a formality, the applicant being permitted to demonstrate that he was not guilty of criminal conduct which must have been the basis of the trial court's decision to convict him.

I should mention at this point that Davies J. in Re Habchi (supra) seems to have regarded cases under the Migration Act as falling within Viscount Simon's second category. In my respectful opinion the terms of ss.12 and 13 of the Act are such as to make it clear that cases arising under those sections fall within Viscount Simon's first category. Once that is understood a great deal of the difficulty which surrounds this problem disappears.

I have earlier referred to the difficulty which often confronts a court or tribunal which has to determine

whether a particular issue must necessarily have been

resolved by a trial court before which an accused person has been convicted. Often it will not be possible to say whether such an issue was resolved

or not, But I do think, as I previously said, that the difficulty can be over emphasised, careful though one must be in drawing a conclusion. And, with respect, I do not think that the fact that there can be no issue estoppel arising out of a criminal trial of itself prevents the exercise being embarked upon.

In the present case there can be no doubt, having regard to the earlier analysis of the evidence, that the respondent was convicted of actual supply of the drug by reason of the gury's acceptance of what the police officers claimed he had admitted to them. Otherwise, as tne learned trial judge said, there could have been no conviction. The jury would have been bound to acquit. Nevertheless the Tribunal has concluded that, whilst the applicant was rightly convicted, that was the case only because the evidence led before it established that he was not himself a supplier but rather a person who had aided and abetted another person who had supplied the drug. He was a principal in the second degree - not in the first degree, as the gury must have found.

The taking of such a course by the Tribunal has, in

my respectful opinion, the effect both of going behind the

it was not open to the respondent to lead evidence for the purpose of showing that he was a principal in the second degree rather than in the first. Certainly it was not open to the Tribunal to treat him as convicted

on the basis of that conduct rather than upon the basis of conduct which made him a principal in the first degree. To proceed as it did invoived it in an error of law.

I do not believe that such a conclusion is greatly restrictive of the Tribunal's difficult and important function in deportaticn cases. If the view I have proposed prevails, the Tribunal remains entitled, indeed bound, to examine for itself what was involved in the entirety of the conduct of the applicant before it.

This examination will include the receiving of evidence to put the Tribunal in a position to weigh and to make its own assessment of the seriousness of the conduct which has led to the conviction. Nevertheless, I con- cede that the view I favour may in some cases have an inhibiting effect on the Tribunal. It may also create a degree of difficulty for 1t because it will need to determine whether particular evidence sheds light on the

way conduct on the part of an applicant for review should

properly be viewed or whether its real effect, if accepted, would be to go behind the conviction. It will be necessary for the Tribunal to be aware at

has received) the evidence and for which it uses the evidence. If the evidence in question is in truth evidence which involves the applicant in seeking to

go behind the conviction or to have the conviction set at nought, it ought to be put aside; otherwise it will need to be weighed along with all other evidence for the purpose of deciding whether to remit the matter to the Minister for reconsideration in accordance with the Triounal's recommendation.

I would add that a compensating benefit which results from the adoption of the view which I have proposed is that apparent unevenness between the decisions of the criminal courts of this country and those of the Tribunal will be greatly reduced, if not eliminated. I am satisfied that that would be in accordance with the intention of the legislature.

that this appeal should be allowed. The matter should

. - a ree oS Th peenl. ra? tr re I Tee one 2 ot tate ee TN id o* Ma en TEN Se rn I Sy eee

be sent back to the Tribunal for redetermination. I would leave it to the Tribunal to determine

whether further evidence may be led by the parties.