Nguyen v Minister for Immigration & Multicultural Affairs

the legislation 5 Section 200 of the Migration Act provides that the "Minister may order the deportation of a non-citizen to whom this Division applies". Section 200 applies, inter alia, to a non-citizen who is convicted of an offence and is sentenced to imprisonment for a period of not less than one year, provided that the non-citizen has been in Australia as a permanent resident for less than ten years: s 201. Section 500(1)(a) of the Migration Act permits applications to be made to the AAT for review of decisions of the Minister made under s 200 by reason of the circumstances specified in s 201. 6 Section 41(1) of the Administrative Appeals Tribunal Act 1975 ("AAT Act")provides that, subject to the section, the making of an application to the AAT for review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision. Section 41(2) is as follows: "(2) The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the 'relevant proceeding'), if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review." 7 Section 69(1) of the AAT Act permits a person who has made or proposes to make an application to the AAT for review of a decision to apply to the Attorney-General "for the provision of assistance…in respect of the proceeding". Section 69(2) provides that, where an application is made under s 69(1): "the Attorney-General may, if he or she is satisfied that it would involve hardship to that person to refuse the application and that, in all the circumstances, it is reasonable that the application should be granted, authorise the provision by the Commonwealth to that person, either unconditionally or subject to such conditions as the Attorney-General determines, of such legal or financial assistance in relation to the proceeding as the Attorney-General determines." 8 An "appeal" lies to the Federal Court from a decision of the AAT on a question of law: AAT Act, s 44(1). The Judge determining the so-called "appeal" exercises the original jurisdiction of the Court.

the AAT's Decision 9 On 3 August 1998, the appellant lodged an application with the AAT seeking review of the delegate's decision. The hearing before the AAT took three days, from 16 to 18 March 1999. The appellant was not legally represented at the hearing but was assisted by interpreters. He made no complaint at the hearing about the absence of legal representation. 10 On 13 August 1999, the AAT affirmed the delegate's decision. The AAT noted that the appellant had engaged in a "significant commercial dealing in heroin", and that his principal motive for the criminal activity was to finance his gambling debts. It found that the risk of recidivism by the appellant was moderate rather than high, but that the risk was unacceptable. The AAT acknowledged that deportation would cause significant hardship to the appellant and that his life had been "filled…with hardship and tragedy". Nonetheless, it took the view that the Australian community should not have to endure the danger that the appellant would reoffend. 11 The AAT concluded with the following observations: "In affirming the decision under review the Tribunal hopes that some element of deterrence may also be achieved by this outcome. The message to non-citizens who seek to prosper in Australia through the commission of criminal acts like those revealed in [the appellant's] case is that they can expect scant sympathy from the Tribunal, or acceptance of a plea that they should be given a further chance to demonstrate their commitment to a law abiding style of life. What they can anticipate is their enforced and prompt repatriation to the country from which they originated."

the "appeal" to the primary judge 12 The appellant, who was represented by counsel in the proceedings before the primary Judge, relied on a number of errors of law said to have been committed by the AAT. It is necessary, however, to refer only to one of the submissions put to the primary Judge. 13 The appellant argued that the AAT had denied him natural justice by failing to ensure that he was afforded legal assistance for the presentation of his case. This failure, so it was contended, was contrary to the requirements laid down by the High Court in Dietrich v The Queen (1992) 177 CLR 292. Her Honour rejected the submission, for the following reasons (at [7]): "The same argument was advanced before Wilcox J in Vo Tuan Kiet v Minister for Immigration and Multicultural Affairs (Wilcox J, 5 June 1998, unreported). His Honour concluded that the principle espoused in Dietrich's case did not have any application to civil litigation or to administrative appeals. It would not be appropriate for me to depart from his Honour's conclusion unless I were satisfied that it was plainly wrong…. I am not so satisfied. On the contrary, I regard his Honour's view as correct. The contention that Mr Nguyen was denied natural justice in the presentation of his case is rejected."

the appellant's contentions 14 The only ground of appeal pressed by the appellant before this Court was that the primary Judge had erred in concluding that the principle espoused in Dietrich did not apply to the hearing of an application to the AAT to review a deportation order made by a delegate of the Minister. Mr Coombs, who appeared for the appellant, submitted that, although Dietrich involved a prosecution for a criminal offence, the reasoning of the High Court applied equally to other kinds of proceedings which exposed individuals to the risk of severe punishment. 15 Mr Coombs acknowledged that the AAT proceedings could not be classified as "criminal per se". Nonetheless, he submitted that "what attracts [the proceedings] is the commission of a crime" and that the consequence for the non-citizen may be (and in this case was) the "punishment of deportation". In these circumstances, natural justice or procedural fairness required the appellant to be afforded a lawyer. The absence of legal representation meant that the appellant, whose knowledge of English was very limited, had been denied the opportunity to make out an effective case against deportation. Had a competent legal representative presented the appellant's case, "there was a chance fairly open to him" (Dietrich, at 311, per Mason CJ and McHugh J) that he would have avoided a deportation order.

reasoning 16 The appellant's argument conflates two propositions. The first is that the principle in Dietrich applies to deportation proceedings determined by the AAT. The second is that the principles of natural justice or procedural fairness, so far as they apply to proceedings in the AAT for review of a deportation order made by the Minister's delegate, require that legal representation be provided to the person at risk of having the deportation order confirmed.

the dietrich principle 17 The principle for which Dietrich stands was stated concisely in that case by Mason CJ and McHugh J (at 297-298): "In our opinion, and in the opinion of the majority of this Court, the common law of Australia does not recognise the right of an accused to be provided with counsel at public expense. However, the courts possess undoubted power to stay criminal proceedings which will result in an unfair trial, the right to a fair trial being a central pillar of our criminal justice system. The power to grant a stay necessarily extends to a case in which representation of the accused by counsel is essential to a fair trial, as it is in most cases in which an accused is charged with a serious offence. The applicant is entitled to succeed because his trial miscarried by virtue of the trial judge's failure to stay or adjourn the trial until arrangements were made for counsel to appear at public expense for the applicant at the trial with the consequence that, in all the circumstances of this case, he was deprived of his right to a fair trial and of a real chance of acquittal." The other members of the majority agreed that, while a court cannot insist on the appointment of counsel to represent an accused, it can stay proceedings as an incident of the general power of court to ensure a fair trial of serious criminal offences: Dietrich, at 330-331, 335, per Deane J; 357-358, 361, per Toohey J; at 374-375, per Gaudron J. 18 There are formidable difficulties in applying the Dietrich principle to the hearing by the AAT of an application to review a deportation decision. The reasoning in Dietrich was based on two propositions. The first is that an accused person has a right to receive a fair trial according to law; the second is that the courts have the power to stay criminal proceedings which will result in an unfair trial. A criminal trial, of course, involves an adjudication of the guilt of the accused and, if guilt is established, the imposition of punishment. An administrative review of a deportation decision, even one based on criminal convictions, involves different considerations. 19 The power to exclude or expel non-citizens is an incident of sovereignty over territory: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, at 29, per Brennan, Deane and Dawson JJ. As was said in Attorney-General (Canada) v Cain and Gilhula [1906] AC 542, at 546: "One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests." (This passage was quoted with approval in Lim, at 30; see also Robtelmes v Brenan (1906) 4 CLR 395, at 400-401, per Griffith CJ; at 411-412, per Barton J.) 20 It has long been accepted that deportation of a non-citizen is not to be regarded as punishment for a criminal offence. In O'Keefe v Calwell (1949) 77 CLR 261, Latham CJ said this (at 278): "It was also argued that the order for deportation amounted to the imposition of a penalty without any judicial proceeding. Deportation is not necessarily punishment for an offence. The Government of a country may prevent aliens entering, or may deport aliens: Mulgrave v Chun Teeong Toy [1891] AC 272. Exclusion in such a case is not a punishment for any offence. Neither is deportation: see Attorney-General for Canada v Cain and Gilhula [1906] AC 542, at 547: 'The power of expulsion is in truth but the complement of the power of exclusion.' The deportation of an unwanted immigrant (who could have been excluded altogether without any infringement of right) is an act of the same character: it is a measure of protection of the community from undesired infiltration and is not punishment for any offence. This view of the nature of deportation was adopted by this Court in Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36." More recently, in Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666, Deane J (with whom Evatt J agreed) summarised the course of authority in the following terms (at 685): "If the slate were clean, I should have thought that there was a great deal to be said for the view that the banishment, consequent upon his conviction of a criminal offence, of one who has become an accepted member of the Australian community was an interference with personal liberty by way of punishment. (See eg the dissenting judgment of Field J in Fong Yue Ting v United States (1892) 149 US 689 at 748-9). If that view were correct, a question would arise as to whether a provision purporting to confer upon an executive officer of the Commonwealth a power as close to the heart of judicial power as the subjection of the individual to interference with personal liberty by way of punishment was consistent with the provisions of Chapter III of the Constitution. It has however been said, in many cases, that deportation cannot properly be regarded as punishment of an offence (see, for example, Koon Wing Lau v Calwell (1949) 80 CLR 533 at 555; Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 61; O'Keefe v Calwell (1949) 77 CLR 261 at 278.) The validity of legislation entrusting to executive officers and organs, decisions as to the deportation of established residents has long been accepted (see, for example, Walsh and Johnson, supra, at 68-69, 96; Koon Wing Lau v Calwell, supra, at 555)." Thus, even though a particular deportation decision may involve some overlap with sentencing considerations (for example the emphasis by the AAT in the present case on deterrence of non-citizens contemplating criminal conduct), a deportation decision is not regarded in Australia as having the same characteristics as a conviction for a criminal offence. 21 It is also well established that the power of Parliament, conferred by s 51(xix) of the Constitution, to make laws with respect to aliens authorises laws providing for the deportation of aliens by the Executive. Parliament also has power to authorise the Executive to restrain a non-citizen in custody to the extent necessary to make the deportation effective: Lim, at 30-31. The authority to detain a non-citizen in custody pending deportation is "neither punitive in nature nor part of the judicial power of the Commonwealth": Lim, at 32. Similarly, the power of deportation pursuant to statutory authority is executive in character: ibid. By contrast, the function of determining guilt and imposing punishment is exclusively judicial in character. It is for this reason that determinations of guilt in prosecutions for offences against laws of the Commonwealth cannot be made by the Executive: Lim, at 27. 22 The limited scope of the principle in Dietrich was recognised by the High Court in New South Wales v Canellis (1994) 181 CLR 309. In that case, the issue was whether a stay should be granted of an inquiry under s 475 of the Crimes Act 1900 (NSW) because of doubts concerning the guilt of a convicted person. The question arose because the State had refused to pay the costs of legal representation for certain witnesses required to appear before the inquiry. 23 The joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ observed (at 328) that the principle established by Dietrich "is that a court has jurisdiction to grant an adjournment or order a permanent stay of proceedings at a trial until such time as an indigent person charged with a serious criminal offence is provided with legal representation necessary for a fair trial or resources for such representation. As the majority judgments made clear, that principle is based on, and derives from, the accused's right to a fair trial." (Emphasis added.) Their Honours continued (at 328): "There is no suggestion in the majority judgments that a court could exercise a similar jurisdiction in civil proceedings or in committal proceedings; nor do they suggest that such a jurisdiction could be exercised in favour of an indigent person charged with a criminal offence which is other than serious. Furthermore, and this is of decisive importance in the present case, the principle in Dietrich is concerned with the right to a fair trial of a party to criminal proceedings; the principle has nothing at all to say about the protection of the interests of a witness, let alone the protection of the interests of a witness at an inquiry. Finally, Dietrich enunciated a principle governing the exercise of inherent jurisdiction by a court with respect to proceedings in that court; Dietrich did not consider the power of a tribunal with respect to the adjournment or stay of proceedings for the purpose of securing legal representation for a witness." (Emphasis added.) 24 As these passages show, there is nothing in the reasoning in Dietrich to suggest that the decision applies otherwise than to a court hearing a prosecution for a serious criminal offence under Commonwealth, State or Territory law. In particular, there is nothing to suggest that the reasoning applies to administrative hearings, including a hearing by the AAT in the course of reviewing a deportation order made by the Minister's delegate. On the contrary, the rationale underlying Dietrich, namely the power of a court to stay proceedings in order to prevent an unfair criminal trial taking place, does not apply to an administrative review conducted by a tribunal no matter how serious the consequences for the individual concerned. 25 There are other difficulties confronting the appellant. In a criminal trial, it is the prosecuting authority which initiates and conducts the criminal proceedings against the accused. A stay of proceedings until adequate legal representation is provided is doubtless an effective means of preventing the unfairness inherent in a trial for a serious criminal offence where an indigent accused is forced to represent himself or herself. In the present case, however, it was the appellant who sought review by the AAT of the decision to deport him. A stay of the AAT proceedings, of itself, would have achieved very little from the appellant's point of view, since the deportation order would have remained in force and he would have remained in detention pending deportation: Migration Act, s 253; see also Migration Act, ss 501-502; Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400. The appellant's submissions did not address these difficulties. 26 We should add that the appellant did not apply to the Attorney-General for assistance under s 69 of the AAT Act in connection with the proceedings determined by the AAT. Nor did the appellant make any request to the AAT to stay the operation or implementation of the deportation decision under s 41(2) of the AAT Act. Indeed, the issue of legal representation was not raised before the AAT. The failure to raise these issues may create other difficulties for the appellant. In any event, it is unnecessary to comment on the scope of the powers conferred by those provisions. 27 In our view, the principle established by Dietrich did not require the AAT to ensure that the appellant was provided with legal representation before deciding to affirm the delegate's decision that he should be deported.

procedural fairness 28 The High Court in Canellis separately addressed the contention of the respondents in that case (the witnesses before the inquiry) that procedural fairness required that the inquiry should be stayed until they had been provided with legal representation. The joint judgment said this (at 329-330): "The principles of procedural fairness apply to administrative tribunals as well as to the exercise of judicial power. But it is well accepted that the content of the requirements of procedural fairness and natural justice depend upon the circumstances of the particular case or proceeding and that what is required in an administrative inquiry is not to be equated to the requirements as they apply to the exercise of judicial power. And, so far, the Dietrich principle excepted, there is no authority for the proposition that the rules of procedural fairness extend to a requirement that legal representation be provided to a party at a trial, let alone a witness at an inquiry.… The question is not whether it is unfair, in some colloquial sense, for the inquiry to proceed with the respondents unrepresented. The question is whether procedural fairness dictates that the inquiry may not proceed unless the respondents are represented by counsel." 29 It can be seen from this passage that the Court rejected the contention in terms which "make it clear that the High Court did not favour the extension of this principle [that procedural fairness might require legal representation to be provided] into the field of administrative decision making": M Aronson and B Dyer, Judicial Review of Administrative Action (2nd ed., 2000), at 434. 30 The joint judgment in Canellis pointed out that there were additional considerations in that case militating against concluding that the inquiry had to be stayed unless legal representation was provided to the witness required to appear before the inquiry. These considerations included the absence of power in the Commissioner to order that a witness be provided with legal representation or to grant a stay to ensure that representation was granted. The Court also referred to the likelihood that Dietrich would apply in any subsequent criminal trial of the witnesses (should any such trial take place). Finally, the judgment identified the cost of providing legal assistance as a material consideration (at 331): "Indeed, despite the Court of Appeal's attempt to place this case in an exceptional category, it is difficult to see how the grant of a stay in the present case could be distinguished in a principled way from other cases in which indigent witnesses at an inquiry are exposed to adverse findings, recommendations, conclusions or comments, whether leading to the institution of criminal proceedings or not.… The absence of any principled distinction leads to the comment that the cost to public funds of the provision of legal representation of witnesses exposed to adverse findings, recommendations, conclusions or comments could be very considerable." 31 Not all these additional considerations necessarily apply to the present case. For example, although the issue was not addressed in argument and we express no view on it, s 41(2) of the AAT Act might empower the AAT to stay the implementation of a deportation decision until representation is provided to an applicant seeking merits review of that decision. (The resolution of this issue may depend on the meaning of the expression "for the purpose of securing the effectiveness of the review" in s 41(2). The construction of that expression may be affected by s 69(2) of the AAT Act, which gives the Attorney-General power to provide legal or financial assistance to a party in proceedings in the AAT.) 32 Nonetheless, some of the additional considerations referred to by the High Court do apply in the circumstances of the present case, reinforcing the view that procedural fairness does not require an applicant in the AAT seeking review of a deportation decision to be provided with legal representation. First, the AAT does not itself have power to order that legal representation be provided to an applicant. Secondly, an applicant who seeks review of a deportation order based on criminal convictions, usually will have been convicted of a serious criminal offence (see Migration Act, s 201). Accordingly, the applicant usually will have had the advantage of the Dietrich principle in the proceedings in which he or she was convicted (subject to the operation of any legislation excluding the Dietrich principle). Thirdly, it is difficult to distinguish deportation decisions (whether at first instance or on review) from other administrative decisions having a serious impact on the liberty or safety of persons in Australia. 33 There can be no doubt that deportation of a non-citizen who has lived in Australia for a considerable period is a very serious matter and is likely to inflict considerable hardship on the individual concerned. There is also no doubt that the absence of legal representation can effectively deprive an individual of the chance of rebutting the case in favour of his or her deportation. But there are other examples of administrative decisions potentially having a severe, if not catastrophic impact on individuals. These include such decisions as those surrendering Australian residents to face trial in a foreign country or rejecting applications for refugee status by persons within Australia. (As to the administrative character of these decisions, see Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528, at 538, per Brennan CJ, Dawson and McHugh JJ; Papazoglou v Republic of the Philippines (1997) 74 FCR 108 (FC), at 125, per curiam (extradition); SZ v Minister for Immigration and Multicultural Affairs [2000] FCA 836 (FC) (determination on protection visa application).) These decisions can have a profound impact on the people concerned and, indeed, in the case of applications for refugee status, often involve claims that a person's very life is at stake. There is also little doubt that many persons facing extradition or denial of refugee status would benefit greatly from legal representation at the decision-making stage. 34 If the requirements of procedural fairness extend to the provision of legal representation in those deportation cases where a person has already been convicted of a serious criminal offence, it is difficult to see why the same requirements do not apply to other administrative decisions having a serious impact on the liberty or safety of individuals. For example, it may be difficult to draw a line between deportation orders founded on criminal convictions and criminal deportation orders founded on bad character (see Migration Act, s 501(2); cf s 501(3)-(5) providing that the rules of natural justice do not apply where the Minister makes the decision personally). It may also be difficult to distinguish between deportation orders and orders surrendering a person for extradition or decisions rejecting claims to refugee status. 35 If this is so, it raises the same public funding concerns that troubled the High Court in Canellis. It is true that in Dietrich some members of the High Court were prepared to assume that the decision would not impose a substantial financial burden on governments: see Dietrich, at 312, per Mason CJ and McHugh J; cf R Sackville, "Continuity and Judicial Creativity - Some Observations" (1997) 20 UNSWLJ 145, at 160-161. A similar assumption cannot, however, be made in the present case. It must be borne in mind that applications for review by the AAT or other tribunals are usually made by the individuals adversely affected by the initial administrative decision. Moreover, while criminal cases may involve special considerations so far as the provision of legal assistance is concerned, courts might be thought to be ill-equipped to determine spending priorities for scarce legal aid resources. 36 It follows that although the AAT was bound by the requirements of procedural fairness, it was not obliged to ensure that the appellant was legally represented in the proceedings for review of the delegate's deportation order. The AAT therefore did not fail to comply with its duty to afford the appellant procedural fairness.

authorities 37 We have addressed the appellant's arguments independently of the post-Canellis authorities in this Court. The authorities are, however, consistent with the views we have expressed: Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38, at 60-61, per Sackville J (not challenged on the appeal to the High Court: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, at 590, per Kirby J); Barzideh v Minister for Immigration and Ethnic Affairs (1996) 69 FCR 417, at 422, per Hill J; Vo Tuan Kiet v Minister for Immigration and Multicultural Affairs (unreported, Wilcox J, 5 June 1998); see also Stuart v Federal Commissioner of Taxation (1996) 96 ATC 4960, at 4964, per Northrop, Lee and Finn JJ.

CONCLUSION 38 The appeal must be dismissed. The appellant should pay the Minister's costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices SACKVILLE, MARSHALL & LEHANE.

Associate: Dated: 8 September 2000 Counsel for the Applicant: Mr J Coombs

Solicitor for the Respondent: Mr A Markus appeared on behalf of the Australian Government Solicitor