Solicitor for the respondent: Australian Government Solicitor

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

The respondent pay the applicant's costs of the application.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

This is an appeal from a decision of the Administrative Appeals Tribunal which affirmed a decision of the delegate of the respondent, the Minister for Immigration, Local Government and Ethnic Affairs, that the applicant, Mr Derek Beckner, should be deported from Australia.

2. Mr Beckner, a citizen of the United States of America, who had no family in Australia, became involved in the importation of 1.19 tonnes of cannabis leaf, having a wholesale value of $8m and a street value of much more than that. Mr Beckner was convicted on two charges and sentenced to 13 years imprisonment with a non-parole period of 7 years. Apart from a greater length of time spent in Australia, his circumstances were generally less favourable, for example, than were those of Mr D.D. Drake, a citizen of the United States, who had been convicted in relation to the growing of cannabis and sentenced to 12 months imprisonment to be released after 3 months on entering into a recognisance of $200 to be of good behaviour. In Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179; (1979) 2 ALD 634, Brennan J. decided that the Minister's decision that Mr Drake should be deported from Australia should be affirmed. The Tribunal's decision in the present case thus accorded with the pattern of decisions of the Administrative Appeals Tribunal in such cases.

3. Nevertheless, it appears to me that the Tribunal was in error in two important associated respects.

4. In the first place, the Tribunal misunderstood the effect of the principle enunciated in Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 39 ALR 649, Degerli v Minister for Immigration and Ethnic Affairs (1981) 4 ALN N39 and Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 42 ALR 209. These cases, which were not concerned with questions of estoppel, admissibility of evidence or abuse of process, applied the first category specified by Viscount Simon L.C. in General Medical Council v Spackman (1943) AC 627, in respect of which his Lordship said at 634-5:-

"In the former case, the decision of the council is properly based

on the fact of the conviction, and the practitioner cannot go behind

it and endeavour to show that he was innocent of the charge and

should have been acquitted."

In the cases I have mentioned, it was held that as the relevant power to deport was founded on the conviction, the person seeking review by the Administrative Appeals Tribunal could not go behind the conviction and allege his innocence.

5. The Tribunal gave effect to that principle but took the principle beyond its proper bounds, holding on several occasions that he must take the remarks of the sentencing Judge as he found them and that he was bound by what the sentencing Judge said. The Tribunal said, for example, during the course of the hearing:-

"You may wish to invite me to make some inferences when it comes to

addresses from these observations of his Honour but I am not going

to allow any other evidence in to supplement or contradict or

indicate a different view than that taken by the judge."

As can be seen from these remarks, the Tribunal considered that no evidence could be called to deal with matters in respect of which the sentencing Judge made comment, but that counsel would be permitted to address the Tribunal with respect to inferences that might be drawn from facts established by the findings of the sentencing Judge.

6. The cases I have mentioned did not enunciate so strict a rule but merely that, in a case where the conviction was the foundation for the exercise of the discretionary power, no challenge could be made to the fact of the conviction or to the essential facts on which it was based.

7. The Administrative Appeals Tribunal, when it is reviewing a decision to deport, is not bound by or limited to all the findings of fact made by a sentencing judge in the course of giving his reasons for sentence. The function of sentencing a person convicted of a crime is a different function from that of deciding whether or not the convicted person should be deported. Matters which may be of great significance to a decision to deport, because for example they go to the risk of recidivism, may be of little significance to a sentencing judge. In the present case, for example, where a long term of imprisonment was imposed because of the nature and seriousness of the crime, it was not necessary for the sentencing Judge to determine whether Mr Beckner's crime was an isolated event or formed part of a pattern of drug-related activity on his part. From the point of view of deportation, however, such a matter was important. The Tribunal had to form a view as to whether Mr Beckner was such a person as should be allowed to remain in Australia.

8. Counsel for Mr Beckner was entitled to call evidence before the Tribunal explaining how Mr Beckner had become involved in the crime and to prove, if he could, that the crime was an isolated one. Counsel for the Minister was entitled to put questions in cross-examination tending to show that there was a risk to the community should Mr Beckner remain in Australia. Both counsel were entitled to adduce evidence respecting, eg., the three bags of cannabis which Mr Beckner had set aside for his own purposes, as "danger money", and from which an inference could be drawn, if the matter were unexplained, that Mr Beckner intended to deal in the drug and had experience or know-how as to its disposal. These are but examples of matters which could properly have been the subject of further evidence without there being any challenge to the conviction or to the essential facts on which the conviction was based.

9. In Daniele, Fisher and Lockhart JJ. said at 653:-

"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 it 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 conviction or the fairness of the

trial. ... The Tribunal's task includes assessing the deportee's

character and personality, his criminal behaviour, the risk of

repetition 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."

In Degerli, Keely, Fisher and Davies JJ. said at N40:-

"The Tribunal's assessment of the nature and gravity of the conduct

of the appellant both in relation to the particular offence and

generally is of vital importance. This conduct must be evaluated to

determine whether it is so serious that it should be required, in

the interests of this country, to deport. Furthermore, such conduct

will assist in determining the likelihood of recidivism and whether

the appellant, if permitted to remain, will be a satisfactory

citizen of this country. Thus the Tribunal must investigate, inter

alia, the facts concerning the appellant's criminal behaviour, not

for the purpose of reviewing the conviction but to evaluate his conduct."

In Gungor at 233, Sheppard J., after enunciating this principle, went on to say:-

"I do not believe that such a conclusion is greatly restrictive of

the Tribunal's difficult and important function in deportation

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 concede 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 it, 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 all times of

the purpose for which it receives (or has received) the evidence and

for which it uses the evidence."

10. In any particular case, the task of the Tribunal in determining what evidence it can receive and what evidence it should reject may be a difficult one. As Fox J. said in Gungor at 216:-

"On occasion the border line of proper inquiry or of legitimate

consideration may be difficult to determine."

"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 emphasized, careful

though one must be in drawing a conclusion."

However, whatever the difficulty, the task must be undertaken, and, in practice, it should usually not prove to be onerous. While rejecting evidence challenging the crime of which the applicant was convicted, the Tribunal should receive relevant evidence going to the issue of deportation.

11. In the present case, therefore, the Tribunal unduly restricted counsel both in adducing evidence in chief and in cross-examination.

12. I would not, however, allow an appeal by Mr Beckner if that were the only aspect of the case. The Tribunal said to counsel for Mr Beckner:-

"I don't want to go behind Mr Justice Woods remarks.

His sentencing remarks, I think, are binding on me."

"I certainly don't wish to invite the Tribunal to depart in any way

from the remarks of Mr Justice Wood on sentence"

"I take the Tribunal's indication. I will take the matter no

further."

Had the Tribunal simply adopted and followed the remarks of the sentencing Judge, there would have been no ground for criticising that course, at least so far as Mr Beckner was concerned. His counsel was content the matter should proceed in that way.

13. However, the Tribunal did not simply adopt the remarks of the sentencing Judge but went on to draw inferences adverse to Mr Beckner from matters mentioned by the sentencing Judge, and did so in the context that Mr Beckner's counsel and counsel for the Minister were precluded from adducing evidence as to the matters the subject of the inferences.

14. The Tribunal said in the course of its reasons:-

"14. Not only was the crime a most serious one, it was one that had

about it elements that makes one uneasy as to whether it might not

have been preceded or followed by other crimes. The fact that 3

valuable packets of the drug were retained by the applicant as

`danger money' must indicate an intention on his part to deal with

those drugs in order to realise their value. Although the

conviction in California was some 20 years prior to this incident,

it was for an offence involving the sale of marijuana. His Honour

noted that police surveillance commenced on 23 October 1986 on the

applicant's return from a short visit to the United States. The

intelligence or other events which led to the mounting of the police

operation and the surveillance of the applicant remained

undisclosed. His Honour therefore took no account of these matters

in sentencing. In assessing the possibility of further offences, as

I must however, I feel some disquiet that these events remain

unexplained. I do not feel as sanguine as His Honour or the parole

officer about the possibilities of recidivism."

I read this paragraph as dealing with the question of recidivism and not as going to the nature of the crime itself.

15. In this paragraph, the Tribunal referred to "elements that make one uneasy as to whether it was a crime in isolation". The Tribunal referred to the three bags of cannabis retained as "danger money" and drew the inference that there had been an intention to deal with the drugs. The Tribunal drew an adverse inference from the fact that there had been police surveillance and referred to "a short visit to the United States". I should interpose to say that the fact that there was police surveillance as from 23 October 1986 seems to add nothing to the matter as that may well have been surveillance in relation to the particular crime. Nor, without more information, should any adverse inference have been drawn from Mr Beckner's short visit to the United States. However, we are not concerned with that aspect of the decision.

16. The Tribunal treated these matters as significant and specifically said:-

"I feel some disquiet that these events remain unexplained."

Yet, it was the Tribunal itself which precluded the parties from calling evidence about them. The process which the Tribunal adopted in inhibiting the parties in their attempts to adduce evidence and then in formulating in the reasons for decision inferences adverse to Mr Beckner, which Mr Beckner had not had an opportunity to answer, infringed the rules of procedural fairness. Mr Beckner was entitled to know the case sought to be made against him and to be given a fair opportunity of replying to it. See e.g. Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 582 per Mason J. In the present case, Mr Beckner neither knew in advance what inferences the Tribunal might seek to draw nor was given any opportunity to deal with them.

17. It was precisely on matters of this nature that counsel for Mr Beckner was adducing evidence when stopped by the Tribunal. The question which led to the Tribunal's interruption was "Can you tell me how you became involved in that offence?" If Mr Beckner had been allowed to explain and been cross-examined about this, the matters referred to in paragraph 14 of the Tribunal's reasons would have been the subject of evidence, not of mere inference from the remarks of the sentencing Judge.

18. In this appeal, Mr David Catterns, counsel for the Minister, submitted that paragraph 14 was of no significance for the Tribunal referred, in paragraph 20, to "the possibility of re-offending", which seems little different from the remark of the sentencing Judge that "the prisoner seems unlikely to offend again". However, the matters set out in paragraph 14 went beyond the question of recidivism to the nature of Mr Beckner's lifestyle and his conduct in Australia. Moreover, the Tribunal specifically took into account a greater risk of recidivism than that expressed by the sentencing Judge or the parole officer.

19. It follows, in my opinion, that there was a breach of the rules of procedural fairness, founded on a misunderstanding of the principle enunciated in Daniele, Degerli and Gungor. Because of this, the decision under review should be set aside and the matter remitted for rehearing.

20. A number of other grounds of appeal were raised. It was submitted that, when the Tribunal said that Mr Beckner with others was "involved in the acquisition and fitting out of a trawler and associated runabout" and that the crime "involved considerable planning and execution of purpose to obtain a large commercial quantity of an illicit substance", the Tribunal did not adopt the findings of the sentencing Judge. However, I am satisfied that the Tribunal gave effect to the findings of the sentencing Judge in this respect and simply set out, somewhat loosely, in the passages I have mentioned, what those findings were. I reject also the contention that paragraph 14, which I have set out above, dealt with and took a more serious view of the crime itself.

21. Challenge was also made to paragraph 17 of the reasons which read:-

"The applicant said that I should take into account that he has

lived in Australia for almost 20 years and that he regards Australia

as his home. The fact is however that he has never sought

citizenship. He said in evidence that his reason for this was so

that he could visit his dying mother at short notice without the

necessity of obtaining a visa. If he regarded Australia as his

home, it is a little difficult to understand this reason

particularly as United States visas with comparatively long lives

authorising multiple entry are available. Until he achieved

permanent residency in 1979, he remained in this county only because

he would not accept the conditions of his entry or departmental

directives to depart. It was not until he married an Australian

citizen that he achieved his residency. In my view, the legal

beginning point of his residence in Australia is appropriate in

calculating the length of the applicant's attachment to this country."

It was submitted that the Tribunal failed to have regard to the length and circumstances of Mr Beckner's residence in Australia, that the Tribunal applied a policy of the Minister without regard to the facts of Mr Beckner's case and that the finding as to United States visas was made without evidence.

22. I do not accept these grounds of challenge. It is perhaps difficult to understand paragraph 17 or why the Tribunal did not simply accept that Mr Beckner had arrived in Australia on 15 February 1972 on a visa, had sought residency status on a number of occasions thereafter, had achieved residency status on 30 January 1979 and had had his home and business activities in Australia since 1972. The fact that he did not apply for citizenship and that more than one application for permanent resident status was refused seem to be minor matters in the overall context. However, I am satisfied that the Tribunal did have regard to all the circumstances of Mr Beckner's stay in Australia. What use the Tribunal made of those circumstances was a matter for the Tribunal. There was no error of law in this regard. Nor was there any error of law in regard to the finding as to the availability of United States visas. It was not suggested that the Tribunal's finding was wrong or that its finding was not a matter within the knowledge of a Tribunal which regularly undertook the review of decisions made under the Migration Act 1958 (Cth).

23. For the reasons I have given, I am of the view that the decision of the Tribunal should be set aside and that the matter should be remitted to the Tribunal to be heard and decided again. The respondent should pay the costs of this application.