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

Federal Court of Australia|1982-07-01|Before: Sheppard JJ, Fox J

Immigration and aliens - conviction for supplying Indian hemp - deportation order - role of the Administrative Appeals

Tribunal - whether the Tribunal's decision had the effect of going behind the conviction or setting it at nought - error

of law on this ground - Migration Act 1958, s.12 and s.66E;

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

At a glance

Court

Decision date

Before

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Source

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Judgment (322 paragraphs)

Cases Cited (2)