The Minister for Immigration & Ethnic Affairs v. Pochi, L. [1980] FCA 106

Federal Court of Australia|1980-07-01|Before: Deane JJ, Deane J, Brennan J, Evatt J

DATE OF ORDER. 3} duly, 1980 WHERE MADE: Melbourne haan 60. THE COURT ORDERS THST &

THE appeal be dismissed.
THE plaintarf pay to the respondent his costs ef this appeal to be taxed.

ON_APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL GENERAL ADMINISTRATIVE DIVISION

BETWEEN: THE MINISTER FOR IMMTGRATIC AND ETHNIC AFFAIRS

for judgment prepared in this appeal by Deane J,, I agree entirely with those reasons and with the conclusion that the appeal should be dismissed. I find no need to add

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL GENERAL ADMINISTRATIVE DIVISION

. BETWEEN: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Plaintiff AND: LUIGI POCHI Defendant CORAM: Smithers, Phillip Evatt and Deane JJ. 1980.REASONS FOR JUDGMENT DEANE J: The plaintiff, the Minister fer Immigration and

Ethnic Affairs ("the Minister"), appeals from a decision of the Administrative Appeals Tribunal ("the Tribunal") recommending the revocation of a decision of the Minister under s.12 of the Migration Act 1958 that the defendant, Luigi Pochi ("Pochi"), be deported. In accordance with the provisions of paragraph 4 of Part XXII of the Schedule to the

Administrative Appeals Tribunal Act, 1975 (on occasion

referred to as "the Act"), the Tribunal was constituted by

The appeal to this Court is brought pursuant to s.44 of the Act. By the express provisions of that section, the appeal is limited to an appeal on a question of law. Strictly speaking, the proceedings are not "an appeal" since they lie within the original jurisdiction of the Court. It

1s, however, convenient to adopt the nomenclature of the Act

Section 12 of the Migration Act, 1958 provides, for present purposes, that where an alien has been convicted un Australia of any offence for which 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 that alien, in respect of the crime, order the deportation of that alien. There 1s no dispute between the parties that Pochi is an alien for the purposes of the section or that the condation precedent to the existence of the power, namely convaction with the specified consequences, has been fulfilled. The issue between the parties before the Tribunal was the general issue on the merits, namely, whether in all the circumstances of the case the Minister's order that the Defendant be deported

Pochi came to Australia from Italy in 1959 when he was 20 years old. In May, 1962, he married his present wife who had come to Australia from Italy some ten years previously. They have three infant children all of whom were born in Australia. On 11 September, 1974 Pochi applied for Australian citizenship. On 25 February, 1975, the Minister's delegate approved a grant of citizenship. Apparently, the decision to grant citizenship was never communicated to Pochi. In the result, he did not take the necessary step of swearing allegiance. The position would, therefore, seem to be that, were it not for bureaucratic bungling, Pochz would already be an Australian citizen and not liable to deportation.

On 17 March, 1977, Pochi was convicted at Quarter Sessions in Griffith, N.S.W., of the supply of indian hemp and was sentenced to imprisonment for two years with a non-parole period of one year. He served one year in penal institutions between March, 1977 and March, 1978. The order for his deportation was made on 7 August, 1978. The conviction involved acceptance by the jury of Pochi's participation, at least in a labouring capacity, in the cultivation on a massive scale (some 30 acres) of indian hemp

on a property at Colleambally in southern New South Wales.

On the' hearing before the Tr2bunal, evidence was led from a member of the New South Wales Police Force (Detective Senior Constable R.A. Jenkins) which was relied upon by the Minister as tending to implicate Pochi in the growling of indian hemp at places other than Colleambally and to assign to him a more important role than that of farm labourer in both the activities at Colleambally and the other 1llegal operations. The evidence so led was vague. It consisted, in essence, of suspicion, opinion and hearsay. It was led in confidentizal session of the Tribunal in the presence of Pochi's legal advisers. Pochi was however himself excluded from the Tribunal while the evidence was led an@ his legal advisers were not permitted to acquaint him with it. In the result, it is lakely that counsel appearing for Pochi were at a disadvantage both in cross-examining the

Detective Senior Constable and in the general conduct of

Evidence was also led on behalf of the Minister showing that Mr. and Mrs. Pochi, who had few apparent liquid assets, had, in 1975, apparently contributed in excess of $117,000 to the capital of a partnership known as Vignali Wines on account of the purchase of premises in the Australian Cap2rtal Territory. It was suggested that these moneys represented the proceeds of Pochi's involvement in

lllegal drug activities. Pochi led evidence before the

Tribunal aimed at establishing that the major source of these moneys was successful gambling and borrowing from relations and friends. It 1s apparent from the Tribunal's reasons for decision that Brennan J. disbelieved this evidence. The result was that the availability to Pochi and his wife of some $80,000 of this money remazrned without acceptable

Brennan J. was of the view that Pochi's conviction, standing alone, did not, in the circumstances, "establish conduct of such gravity as to demonstrate" that it was in the best interests of Australia that he be deported. His Honour's conclusion in that regard was not attacked on the appeal. The only other matters relied upon to support deportation were those arising from the alleged additional anvolvement in drug activities in the context of the unexplained funds. In detailed reasons for decision, his Honour considered the overall circumstances of the case. In the result, he declined to accept the evidence led an confidence to which reference has been made as constituting a proper or adequate basis for a finding of any involvement of Pochi, beyond the facts implicit in has conviction, in illegal drug activities. The basis of his overall conclusion that the Tribunal recommend that the deportation order be

revoked appears from the following extract from the reasons

In these reasons, it must suffice to say that the confidential information, 2n conjunction with the other circumstances of the case including my findang as to the applicant's access to clandestine funds, does not warrant a positive finding that he was involved in commerce in marihuana. There are ample grounds' for suspecting that the applicant was so involved, but the evidence does not prove it. 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."

Tribunal's decision was that the Tribunal wrongly regarded itself as being restricted in reaching its decision by misconceived principles of law. It was sought to identify,

in the Tribunal's reasons, three such mistaken principles of

(2) that, "(w)hen an alien who is an established resident becomes liable to deportation under s.12, the general rule must be that the conduct which 1s relied on to show that a deportation order 1s in the best interests of Australia must be proved not merely suspected"; *

(12) that when an applicant for review before the Tribunal 1s depraved of a full opportunity to deal with material adverse to his interests placed before the Tribunal by the Minister in confidential session from which the applicant himself is excluded, "the probatave force of the information must be of particular cogency 1f that information 1s to be acted upon"; and

(111) that evidence which is hearsay "invariably lacks the cogency inherent in evidence

given by a person who has_ personal knowledge of the facts to which he

(The quotations are from the fTribunal's reasons for

In proceedings before the Tribunal, the question for 1ts determination is whether, on the material before the Tribunal, the decision which the administrative

decisicn maker made was the correct or preferable one (Drake

v. Minister for Immigration (1979) 24 A.L.R. 577 at p. 589). The Act offers little specific guidance on the criteria and rules which the Tribunal is to apply in the performance of ats task of reviewing administrative decisions which are subjected to its surveillance. It is, however, plainly desirable that, conformably with the ideal of justice in the individual case, there be consistency in the treatment of the individual from one case to the other. It is inevitable that the desirability of such consistency will lead to the emergence of general principles of administrative practice and to the Tribunal's being conscious of the fact that subsequent administrative decision makers and Tribunals are likely to look to what 1s said in one case for guidance as to general principles of administrartive practice to be applied in subsequent cases. In these circumstances, this Court, being entrusted only with authority to hear appeals on questions of law from decisions of the Tribunal, should be vigilant against the danger of treating such statements of general administrative practice which are properly a matter for the Tribunal as if they were statements of over-riding principles of law which can properly be challenged by appcal

If the' Tribunal had purported to lay down, as over-riding principles of law bindang upon it in all circumstance, the second and third of the three propositions which it is alleged so to have laid down, it would, in my view, have been mistaken. There 1s no general principle of law binding the Tribunal either to the effect that "the probative force" of anformation heard 1n confidential session from which the applicant for review as excluded "must be of particular cogency af that information is to be acted upon" or to the effect that hearsay evidence "invariably lacks the cogency inherent in evidence given by a person who has personal knowledge of the facts to which he deposes". The first of these statements has much to recommend it on the grounds of ordinary fairness and decency. The second has much to recommend it on the grounds of common sense. Neither statement amounts however to an over-riding principle of law binding, in all carcumstances, on the Tribunal in the sense

that departure from 1t would necessarily involve error of law

Careful reading of the fTribunal's reasons for decision has, however, quite failed to persuade me that his Honour was, in truth, purporting to lay down, as a general principle of law binding on the Tribunal, either of these two propositions. The overall reasons for decision, as I read

them, make ut clear that his Honour was laying down not

principles of law but what he saw as general principles of fairness and common sense which he thought appropriate to the case before the Tribunal and which, as President of the Tribunal, he stated in general terms for the guidance of members of the Trabunal ain the future performance of their functions. So understood, the question whether either or both of the two propositions are too widely stated is something to be determined by the Tribunal from case to case and does not involve an issue of law. upon which an appeal lies to this Court. It 1s unnecessary to consider whether, in any event, the principles of natural justice would require the adoption of the approach embodied in both or either of

It is not quite so clear that the Tribunal intended so to confine the scope of the first of the three above-mentioned propositions. That proposition was, as has been mentioned, that "(w)hen an alien who 2s an established resident becomes liable to deportation under s.12, the general rule must be that conduct which is relied upon to show that a deportation order 1s in the best interests of Australia must be proved not merely suspected". Ultimately, the content and context of statements of that proposition in the Tribunal's reasons have led me to conclude that his

Honour was not purporting to state a principle of law binding

upon the Tribunal which the Tribunal was constrained to

observe at the risk of excess of jurisdaction but that, as with the other two propositions, he was doing no more than making explicit, in the course of his reasoning process, a relevant proposition which, in his view, should be accepted and acted upon. In particular, that part of the Trabunal's reasons which deals with the "special cases to which the general rule requiring proof need not apply" clearly indicates that the "general rule" was applied, by his Honour, as a general rule of administrative practice rather than as an over-riding principle of law. It follows that the question whether the statement of the general rule was

appropriate is, likewise, not a question of law upon which an

Lest I be mistaken in my reading of the Tribunal's reasonS in relation to the last-mentioned of the three challenged propositions, I feel that I should indicate that I am, in any event, of the view that, 'as a matter of law, the Tribunal was required, in the circumstances of the present matter, to observe the principle which his Honour enunciated.

In my view, 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 ats satisfaction by some rationally probative evidence and eee : are

not merely raised before 1t as a matter of suspicion or

speculation or left, on the material before i1t, in the

situation where the Tribunal considered that, while the conduct may have occurred, 1t was unable to conclude that 1t was more likely than not that it had. It seems to me that this conclusion follows, as a matter of law, from the authorities referred to and the reasoning advanced by the Tribunal to establish the proposition as a general principle to be observed by it as a matter of administrative practice. The importance of the question leads me to state, for myself, the reasons which lead me to the conclusion which I have

expressed. In so doing, I am conscious of my indebtedness to

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, e.g., the dissenting

judgment of Field J. 1n Fong Yue Ting v. United States (1892)

149 U.S. 689 at pp. 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

requirements of natural justice, that as to say, in

accordance with the essential standards of fairness of the

There 18 no universally applicable definition of the requirements of the rules of natural justice which must, in the absence of legislative provision to the contrary, be observed by a statutory tribunal empowered to make or to review decisions affecting the rights, property or legitimate expectations of a person. (See, as to the appropriateness of the reference to "legitimate expectations", per Stephen J,

Salemi v. Minister for Immigration and Ethmic Affairs (1977)

14 A.L.R. 1 at pp. 32~35 and cf. per Barwick C.J., ibid, at p-.- 7). The reason for this 1s that the precise content of those rules will vary according to the statutory framework of the particular proceedings and the particular circumstances of the andividual case. "Natural justice requires that the procedure before any tribunal which is acting judicially

shall be fair in all the circumstances, and I would be sorry

to see this fundamental general principle degenerate into a

series of hard~and-fast rules" (per Lord Reid, Wiseman v. Borneman [1971] A.C. 297 at p. 308). "The requirements of

natural justice must depend on the circumstances of the case,

the nature of the inquiry, the rules under which the tribunal

1s acting, the subject matter that 1s being dealt with, and

so forth" (per Tucker L.J., Russell v. Duke of Norfolk

[1949] 1 A.E.R. 109 at p. 118 adopted by Lord Donovan in

Waseman v. Borneman, supra, at p.314 and by Mason J. in R. v.

Minister for Immigration and Ethnic Affairs, ex parte Ratu

(1977) 14 A.L.R. 317 at p. 329). "What the law requires in the discharge of a quasi-judicial function 1s judicial fairness. That 1s not a label for any fixed body of rules.

circumstances" (per Kitto J., Mobil 011] Australia Pty.

Limited v. Federal Commissioner of Taxation (1963) 113 C.L.R.

475 at p. 504). In the forefront of the relevant circumstances lie the nature of the decision which the statutory tribunal 1s authorized to make or review and the effect that that decision may have on the person affected by at (see Durayappah v. Fernando [1967] 2 A.C. 337 at p.349). It 1s in this regard that the affinity between banishment of an established resident consequent upon a criminal conviction t

and punishment of an offence is relevant. As Douglas J., speaking for the majority of the U.S. Supreme Court in Bridges v. Wixon ((1945) 326 U.S. 135), said:

"...Though deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of his right to stay and live and work in this land of freedom. That deportation is a penalty - at times a most serious one - cannot be doubted. Meticulous care must be exercised lest the

procedure by which he is deprived of that liberty not meet the essential standards of fairness".

The United States Supreme Court has recognized that the requirements of a fair hearing to which an established alien is entitled will not be satisfied if a deportation order is based on no more than suspicion and

speculation. In Woodby v. Immigration Service ((1966) 385

U.S. 276) Stewart J., speaking for the majority, said:

. To be sure, a deportation proceeding is not a criminal prosecution. Harisiades v. Shaughnessy, 342 U.S. 580. But it does not Syllogistically follow that a person may be banished from this country upon no higher degree of proof than applies in a negligence case. This Court has not closed its eyes to the drastic deprivations that may follow when a resident of this country is compelled by our Government to forsake all the bonds formed here and go to a foreign land where he often has no contemporary identification. In words apposite to the question before us, we have spoken of "the solidity of proof that is required for a judgment entailing the consequences of deportation, ..."

Bridges v. W1ixon (supra) and Woodby v., Immagration Service

(Supra) related to fulfilment of a condition precedent to the

power to deport. The comments quoted are however, in my view, equally applicable to a case such as the present where, as was held by the Tribunal in a finding which has not been challenged or questioned, the facts involving fulfilment of the condition precedent to the power would not themselves warrant a deportation order and where the deportation order was sought to be upheld by reference to other conduct of

which it was said the respondent had been, or might have

been, guilty. The comments quoted from Woodby v. Immigration

Service (supra) support the view that, in an appropriate case, the requirements of United States principles of Procedural due process are not restricted to purely procedural steps which are preliminary to decision but extend to control the material upon which the decision itself can

In my view, judgments of the Courts of the United States in relation to procedural due process, whether as embodied in the constitutional guarantees contained in the 5th and 14th Amendments or as a fundamental concept of the inherited law, can be of assistance in determining the rights of a party at the hands of a statutory tribunal which is bound to act in accordance with the rules of natural justice. The "essential standards of fairness" or "basic fairness" which have been recognized as forming the basis of United States principles of procedural due progess lie likewise at the heart of the common law concept of natural justice or

acting judicially (See Edwards v. Society of Graphical and Allied Trades {1971} 1 Ch. 354 at p. 382 ("fair play in

action"); Wiseman v. Borneman, Supra, at p. 320; Furnell v.

Whangarei High Schools Board [1973] A.C. 660 at p. 679; and,

generally, per Murphy J., R. v. Minister for Immigration and

Ethnic Affairs Ex parte Ratu & Anor., Supra, at p. 335). In Particular, I consider that the approach adopted by the United States Supreme Court that the fundamental standards of

fairness which are inherent in the concept of procedural due

process extend, at least when issues of the gravity of deportation of an established resident are concerned, to exclude decision on the basis of suspicion and speculation, 1s of relevance and assistance in the determination of what are the requirements of natural justice when a decision involving issues of such gravity 1s under review before the Tribunal. Assistance in the resolution of that question is also to be derived from the judgments of Willmer and Diplock

L.JJ. an Reg. v. Deputy Industrial Injuries Commissioner Ex parte Moore [1965] 1 Q.B. 456).

The last-mentiloned case concerned proceedings before the Deputy Industrial Injuries Commissioner under the National Insurance (Industrial Injuries) Act 1946 (U.K.) upon an appeal by the claimant against a refusal to award her andustrial injury benefit. The Deputy Commissioner was not, on the hearing of the appeal, bound by the rules of evidence or procedure applicable in a court." He was free to obtain anformation from any source available to him. He was however bound to observe the principles of natural justice. Each of Willmer L.d. and Daplock L.d. made clear, in the course of his judgment, that he was of the view that the principles of natural justice operated not only in respect of the procedure adopted by the tribunal but also in respect of the material

upon which a decision was based. In the course of his

"Where so much is left to the discretion of the commissioner, the only real limitation, as I see it, is that the procedure must be in accordance with natural justice. This involves that any information on which the commissioner acts, whatever its source, must be at least of some probative value",

Diplock L.J., dealt with the matter in somewhat more detail.

Where, as in the present case, a personal bias or mala fides on the part of the deputy commissioner 1s not in question, the rules of natural justice which he must observe can, in my view, be reduced to two. First, he must base his decision on evidence, whether a hearing is requested or not. Secondly, if a hearing is requested, he must fairly listen to the contentions of all persons who are entitled to be represented at the hearing.

In the context of the first rule, "evidence" is not restricted to evidence which would be admissible in a court of law. For historical reasons, based on the fear that juries

who might be illiterate would be incapable of differentiating between the probative values of

different methods of proof, the practice of the common law courts has been to admit only what the judges then regarded as the best evidence of any disputed fact, and thereby to exclude much material which, as a matter of common sense, would assist a fact-finding tribunal to reach a correct conclusion: cf. Myers v. Darector of Public Prosecutions ([1964] 3 W.L.R. 145).

These technical: rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a

matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue".

It would be both surprising and illogical if, in proceedings before a statutory tribunal involving an issue of the gravity of deportation of an established resident, the rules of natural justice were restricted to the procedural steps leading up to the making of a decision and were completely silent as to the basis upon which the decision itself might be made. There would be little point ain the requirements of natural justice aimed at ensuring a fair hearing by such a tribunal if, in the outcome, the decision maker remained free to make an arbitrary decision. If decision, in such a case, were to be based on mere suspicion or speculation, the rules of procedure aimed at governing the process of making findings of material fact would involve no more than a futale illusion of fairness. I respectfully agree with the conclusion of Diplock L.J. that it is an ordinary requirement of natural justice that a person bound to act judicially "base his decision" upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined. As has been mentioned, the requirements" of natural justice may vary according to the nature of the inquiry (see, e.g., Russell v.

Duke of Norfolk, supra, at p- 118) and that conclusion may

not be of universal validity in that it may not, for example,

apply in respect of some domestic forums. It 1s however of general validity in the case of a statutory tribunal which is bound to act judicially. Indeed, that conclusion, upon analysis and for present purposes, does little more than place in a proper context of the essential duty of fairness of a statutory tribunal bound to act judicially, the well-established principle of law that a decision of such a statutory tribunal must ordinarily be based on evidence which

2S reasonably capable of sustaining it (Allinson v. General

Council of Medical Education and Registration [1894] 1 Q.B.D. 750 at pp. 760, 763, 766; Astridge Investments Limited v.

Minister of Housing and Local Government [1965] 1 W.L.R. 1320 at p. 1326; and see per Stephen J., Ex parte Jordan (1898) XIX N.S.W.L.R. 25 at p. 29). Implicit both in Diplock L.J.'s conclusion and in that well-established principle are both the requirement that findings of material fact of a statutory tribunal must ordinarily be based on logically probative material and the requirement that the actual decision of such a tribunal must, when relevant questions of fact are in issue, ordinarily be based upon such findings of material fact and not on mere suspicion or _ speculation. Those requirements, like all the ordinarily applicable rules of natural justice, may be modified or abolished by the express

words or aintendment of the legislation establishing the

Commissioner of Police v. Tanos (1958) 98 C.L.R. 383 at p. 396 cited with approval by Lord Wilberforce in Wiseman v.

Borneman, supra, at p. 318; Twist v. Randwick Municipal

Council (1976) 12 A.L.R. 379 at pp. 382-3; Salemi v.

Minister for Immigration and Ethnic Affairs, supra, at pp. 5, 19, 45, 51).

Administrative Appeals Tribunal Act, 1975 discloses nothing

which could be construed as suggesting that it was the legislative intent that the Tribunal should be free to disregard the requirements of natural justice in a case such as the present. In particular, there is nothing to suggest that at was the legrslative intent that the Tribunal should, an a case such as the present, be free either of the requirement that its decision must, when relevant questions of fact are in issue, be based upon findings of material fact or the requirement that such findings of material fact be based on logically probative material? To the contrary, s.43(2) of the Act which requires the Trabunal to give its reasons in writing expressly provides that "those reasons shall anclude its findings on material questions of fact and a reference to the evidence or other material on which those findings were based". In reviewing the deportation order made against Pochi, the Tribunal was, as a matter of law,

As I have said, I am of the view that the Tribunal propounded the first of the three challenged principles as a principle of administrative practice which it thought appropriate to the circumstances of the application for review which it was hearing. If, however, I be in error in that regard and his Honour was propounding the principle as a principle of law binding upon the Tribunal, he was stating what was, in the particular circumstances of the particular case, a requirement of natural justice which he was, as a

In the course of its reasons, the Tribunal expressed the view that there "are some special cases in which the general rule requiring proof need not apply". Examples given were where "considerations of national security or an urgent need to eliminate a threat to human life may require deportation of a convicted alien without awaiting upon proof of conduct other tkan for which he was convicted". It was argued on behalf of the Minister that the exceptions which his Honour recognized to the "general rule" were too narrow. In particular, it was submitted that that "general rule" should be inapplicable in a case such as the present where the alien, who is an established member of the Australian community, is suspected of involvement in illegal

It is unnecessary, for the purposes of the present appeal, to express any view on the question whether there are, in truth, special cases involving deportation of an established resident in which the "general rule" need not be observed. If there be such cases, the explanation of them lies in the fact that the precise content of the requirements of natural justice varies according to the circumstances of the particular case and that it may, for example, be necessary "to balance the need for expedition with the safeguards which the common law has erected" (per Jacobs, J.A., Re Smith; Ex parte Russo [1971] 1 N.S.W.L.R. 184 at pp. 187-188). It suffices, for present purposes, to say that neither the gravity of the conduct suspected in the present case nor the potentially damaging consecuences to the Australian community of such conduct would have justified the Tribunal in departing from the ordinary requirements of natural justice and affirming the deportation order in respect of Pochi on the basis that, while the material before it did not, in the Tribunal's view, warrant a finding that he

waS guilty of such conduct, a real suspicion of such guilt

The Minister also failed to make good an attack on the reasons of the Tribunal on the ground that the Tribunal had failed to give consideration to relevant factors.

Reference was made to the possibility of recidivism, to an

argument that, if Pochi was engaged in illegal drug

activities in Australia, it would be in the interests of himself and his family that he be deported, and to certain considerations which, it was said, gave added weight to the hearsay evidence to which reference has already been made. It has not, in my view, been shown that his Honour paid no regard to any matter to which he was required to pay regard. The question of what, 1f any, weight should be gaven to the matters and arguments to which specific reference has been made was a matter for the Tribunal.

Finally, an argument was advanded based on a reference in the Tribunal's reasons to Pochi's "right" to remain in Australia. It was suggested that the Tribunal had overlooked the fact that, as an alien, Pochi had no independent right, as against the Commonwealth, to remain in

Australia (cf. Schmidt v. Secretary of State for Home Affairs

[1969] 2 ch. 149). It 1S apparent from the fTribunal's reasons for decision that there 1s no basis whatever for this argument. Those reasons make express reference to the existence of the national power to deport for as long as the alien status 1s retained and the fact that an alien has no andefeasible right to remain in Australia. The reference in the reasons of the Tribunal to Pochi's "right" to remain in Australia was plainly to the fact that, 1n the absence of a deportation order and while he remains lawfully within

Australia, Pochi can, under the law of the Commonwealth, be

neither arbitrarily deprived of his liberty nor forceably

removed from the country. "Aliens, including aliens who are immigrants, are, while in Australia, entitled to the protection of our laws, and the common law would not deny to them, 1n appropriate cases, the application of the principles

of natural justice" (per Gabbs J., Salemi v. Manister for

Immigration and Ethnic Affairs, supra at pp. 19-20).

been levelled against the decision of the Trabunal has failed

at every point'. It has not been shown that the Tribunal's

decision was effected by any error of law. In so far as this

Minister should be ordered to pay the respondent's costs.

I certify that this and the preceding pages are & truc copy of the reasons for Judgment herein of His Honour Mr. Justice Deane. , .

At a glance

Court

Decision date

Before

Source

Judgment (146 paragraphs)

Cited By (1)