The following written reasons for judgment were published: -

GIBBS C.J., MASON, AICKIN AND WILSON JJ. On 10 October 1980 this Court Australia dismissing an appeal brought by the Minister for Immigration and Ethnic Affairs from a decision of the Administrative Appeals Tribunal recommending that a deportation order made by the Minister against the present respondent Luigi Pochi (the applicant to the Tribunal) be revoked. When the appeal came on for hearing we decided, after hearing argument on matters not raised on the application for special leave, that we would rescind the grant of special leave. We now proceed to give our reasons for taking that course. (at p140)

2. The respondent, who was born in Italy in 1939, migrated to Australia in 1959 and has since lived in Australia. In 1962 he married a naturalized Australian citizen and there are three children of the marriage, all of whom were born in Australia. He remains an alien, although a grant of Australian citizenship to him was approved - he did not proceed to take up citizenship. On 17 March 1977 he was convicted at Quarter Sessions at Griffith of the supply of Indian hemp and was sentenced to imprisonment for two years with a nonparole period of one year. He served one year in penal institutions. On 7 August 1978 the Minister exercised his power under s. 12 of the Migration Act 1958 (Cth), as amended, to order his deportation. The evidence given at Quarter Sessions indicated that the respondent had played some part, at least in a labouring capacity, in the cultivation on a massive scale (some thirty acres) of Indian hemp on a property at Colleambally in New South Wales. On the hearing before the Tribunal evidence was given which was relied on by the Minister as tending to implicate the respondent in the growing of Indian hemp at places other than Colleambally and to indicate that he played a much more important role than that of farm labourer in the activities at Colleambally and other illegal operations. In the opinion of Brennan J., who constituted the Tribunal, the evidence provided ample grounds for suspecting that the respondent was involved in illegal commerce in marihuana, but it did not warrant a positive finding to that effect. His Honour held that when an alien who is an established resident becomes liable to deportation under s. 12, the general rule must be that the conduct which is relied on to show that a deportation order is in the best interests of Australia must be proved, not merely suspected. A majority of the Full Court of the Federal Court took a similar view [1980] FCA 85; (1980) 44 FLR 41; 31 ALR 666 . Deane J., who delivered the judgment of the majority, said that in his opinion "the Tribunal was bound, as a matter of law, to act on the basis that any conduct alleged against Pochi which was relied upon as a basis for sustaining the deportation order should be established, on the balance of probability, to its satisfaction by some rationally probative evidence and not merely raised before it as a matter of suspicion or speculation or left, on the material before it, in the situation where the Tribunal considered that, while the conduct may have occurred, it was unable to conclude that it was more likely than not that it had." An examination of the reasons of Deane J. shows that he considered that the Tribunal was bound to act in accordance with natural justice whether or not the person whose decision was reviewed was bound to do so. The conclusion that the Tribunal was bound to act judicially, and to base its findings only on logically probative material, does not carry with it the consequence that the Minister, when acting under s. 12, has a similar obligation. (at p141)

3. The power of the Tribunal to review the Minister's decision was conferred by the Administrative Appeals Tribunal Act 1975 (Cth), as amended. By s. 43(1) of that Act the Tribunal is empowered to make a decision affirming, varying or setting aside a decision under review, and if it sets the decision aside either to make a decision in substitution for the decision so set aside or to remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. By s. 43(6) a decision as varied by the Tribunal, or a decision made by the Tribunal in substitution for a decision set aside, is deemed to be a decision of the person whose decision was varied or set aside. However, where the review which is sought is of a decision made under s. 12 of the Migration Act, the powers of the Tribunal are conferred by the provisions of Pt XXII of the Schedule to the Administrative Appeals Tribunal Act, which by s. 26(1) of that Act have effect notwithstanding anything contained in any other provision of that Act (with an immaterial exception). (The provisions of Pt XXII have been omitted from the Schedule and re-enacted as s. 66E of the Migration Act, by ss. 4 and 60 of the Statute Law Revision Act 1981, but by s. 4(2) of that Act the amendment made to the Schedule of the Administrative Appeals Tribunal Act does not affect any application made to the Administrative Appeals Tribunal before the commencement of that section, or any matter or thing arising out of, or any proceeding incidental to or connected with, any such application. Part XXII is still the governing provision for the purposes of this appeal. In any case it is not suggested that this change in the form of the law has been accompanied by a change of substance.) By par. 3 of cl. 22 (in Pt XXII) of the Schedule it was provided as follows:

"After reviewing a decision referred to in sub-clause (1) (which includes a decision under s. 12), the Tribunal shall either affirm the decision or remit the matter for reconsideration in accordance with any recommendations of the Tribunal."

It will be observed that Pt XXII of the Schedule does not empower the Tribunal, for the purpose of reviewing a decision under s. 12 of the Migration Act, to vary or set aside the decision under review, or to make a decision in substitution therefor, or to give directions in accordance with which the Minister must reconsider the matter. Its only powers are to affirm the decision or to remit the matter for reconsideration in accordance with any recommendations of the Tribunal. Clause 22(3) does not mean that if the Tribunal makes recommendations the Minister must, on reconsideration, give effect to them. If it had that meaning a recommendation would be equivalent to a direction, and a remitter for reconsideration in accordance with the recommendations of the Tribunal would be tantamount to the making of a decision in substitution for that under review. The contrast between the provisions of Pt XXII and those of s. 43 makes it clear that Pt XXII does not have such an effect. 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 reconsider the matter in the light of the recommendations. There are obvious reasons why the Parliament may have considered 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. (at p143)

4. By s. 44(1) of the Administrative Appeals Tribunal Act, 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. On such an appeal the Federal Court may, inter alia, affirm or set aside the decision of the Tribunal and may remit the case to be heard and decided again by the Tribunal: s. 44(5). (at p143)

5. In the present case the Minister seeks to have the matter remitted to the Tribunal for a re-hearing. It is contended on his behalf that the Tribunal and the Federal Court were wrong in law in holding that they should not take into account the fact that there were grounds of suspicion that the respondent had been engaged in criminal activities additional to those for which he was convicted, and that by reason of this error of law the Minister has been denied an affirmation by the Tribunal of his decision, to which he was entitled. 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. In the first place there is the fact that a decision of the Tribunal binds the Minister only to the extent that it may require him to reconsider his decision. If this Court were to affirm the dismissal by the Federal Court of the appeal from the Tribunal's decision, the Minister would remain free, on reconsideration, to decide that the deportation should proceed. In other words, a decision of this Court dismissing the appeal would not bind the Minister to adopt the recommendation of the Tribunal. Although the Minister would be obliged to reconsider the matter, he would not be bound to exclude from his consideration evidence which the Tribunal or this Court considered was of insufficient probative value, or to give weight to material which the Tribunal or this Court considered to be of decisive importance. He would not be required to accept as correct any views as to the facts, or as to the weight of the evidentiary material, expressed by the Tribunal or the Court; he would merely be required to have regard to the Tribunal's recommendation. This Court should not be placed in a position where the substance of a decision which it has affirmed can be overridden by ministerial fiat and the reasons for its judgment may be treated by the Minister as no more than advice which he is at liberty to disregard. Further, a Minister who is not bound to do more than consider a recommendation has no strong ground on which to seek special leave to appeal from a judgment affirming the decision of the Tribunal by which the recommendation was made. (at p144)

6. But even if the Court were to allow the Minister's appeal a difficulty might arise. It has been intimated to us by counsel for the respondent that if it becomes necessary it will be contended that the respondent, having settled in Australia and been absorbed into the community, had ceased to be an immigrant and that the power conferred on the Parliament by s. 51(xxvii) of the Constitution to make laws with respect to immigration did not extend to permit the enactment of legislation that would authorize his deportation from Australia. This question has not previously been canvassed in this case and, since we are informed that further evidence would be given in relation to it, it could not be decided on the present appeal even if that were otherwise desirable. We of course express no view as to the answer when we say that the question is plainly an arguable one. It would not be desirable for the Court to hear an appeal which might result in the Court remitting to the Tribunal for review, and possible affirmation, a ministerial decision which the Court might later be required to quash on constitutional grounds. (at p144)

7. The considerations which make it undesirable to hear the present appeal would not exist in other cases in which an appeal is brought from a decision of the Tribunal in a matter to which s. 43 applied, and which would consequently be completely binding on all parties. However, for the reasons given it appeared to us that the present case is not one in which it is appropriate for this Court to proceed to hear the appeal, and the order granting special leave to appeal was therefore revoked. (at p144)

MURPHY J. I agree that special leave should be rescinded. The respondent gave notice that if the appeal were to proceed the question would be raised of whether the applicant were liable to be deported under the Migration Act 1958 (Cth), as amended, because he had become absorbed into the Australian community. It would be undesirable that this important question should be dealt with on appeal, without investigation and decision at least by the Federal Court. (at p144)

2. Part XXII, cl.22(3) of the Schedule to the Administrative Appeals Tribunal Act 1975 (Cth) as amended provides that:

"After reviewing a decision referred to in sub-clause (1), the Tribunal shall either affirm the decision or remit the matter for reconsideration in accordance with any recommendations of the Tribunal." (at p145)

3. This paragraph extends to an order for deportation of an alien under s. 12 of the Migration Act and plainly provides that the Minister's reconsideration must be in accordance with any recommendation by the Administrative Appeals Tribunal. Other decisions are dealt with differently in that the Review Tribunal may substitute its decision for that of the Minister. Only a decision of this type must be either affirmed or the matter remitted for reconsideration in accordance with any recommendation of the Tribunal. I see no reason why a recommendation mentioned in par. (3) should not include a recommendation to exclude from such reconsideration allegations, for example, which had been investigated by the Tribunal and found to be unsubstantiated or false, or a recommendation to reconsider on the basis that the facts were as found by the Tribunal. There is no restriction in terms on the number or nature of recommendations of the Tribunal in accordance with which the Minister is to reconsider. It would appear that recommendations may be of law or fact. However, because it is open to the Minister on reconsideration to decide whether or not to deport (providing this reconsideration is otherwise according to law) any recommendation by the Tribunal that he should not order deportation cannot be binding, but advisory only. Subject to that, par.(3) requires that the reconsideration be in accordance with the recommendations; it should not be construed as authorizing a reconsideration which ignores or departs from or is otherwise not in accordance with any recommendation. Whatever the nature of the recommendations which can lawfully be made, the Minister must reconsider in accordance with them. An interpretation that he can ignore the recommendations, that is, reconsider otherwise than in accordance with the recommendations would be a negation of the statute. (at p145)

4. The general intention of the legislation supports the view that the review by the Tribunal is meant to be meaningful. It is analogous to a reconsideration in accordance with a mandamus to rehear; the second decision must be in accordance with the judgment of the court which issued the order to rehear. However, if the order commands the exercise of a discretion it does not compel its exercise one way or the other (R. v. Arndel; Ex parte Freeman [1906] HCA 7; (1906) 3 CLR 557 ; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [1949] HCA 33; (1949) 78 CLR 389 ; Ex parte Sheil; Re Milk Board (1932) 50 WN (NSW) 11 ). The same pattern was intended to apply here. (at p146)

5. It may be accepted that in this legislative scheme, the Minister's original decision is uncontrolled, except that it must be according to law, and be subject to the conditions usually applicable to the exercise of statutory powers (that is, be bona fide, for the purpose for which it was conferred and with due regard to those affected). Reconsideration, however, must be in accordance with any recommendations of the Review Tribunal (as affected by any decision of the Federal Court in accordance with the statutory scheme). (at p146)