Barbaro v Minister for Immigration and Ethnic Affairs

[1982] FCA 146

Re: SAVERIO BARBARO
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1982) 65 FLR 127
No. ACT G44 of 1980
Administrative Law - Immigration and Aliens

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox(1), Blackburn(1) and Lockhart(1) JJ.

CATCHWORDS

Administrative Law - Appeal from Decision Affirming a Deportation Order - Drug Offence - Whether Findings or Evidence Sufficient - Reliance upon Report of Royal Commission into Drug Trafficking - Natural Justice.

Administrative Appeals Tribunal Act, 1975, ss. 33, 44 Migration Act, 1958, s.12 Poisons Act, 1966 (NSW), s.21

Immigration and Aliens - Administrative law - Deportation order - Appeal from decision of Administrative Appeals Tribunal affirming deportation order - Whether evidence sufficient to justify decision - Reliance upon Royal Commission report - Whether denial of natural justice - Migration Act 1958 (Cth), s. 12 - Administrative Appeals Tribunal Act 1975 (Cth), ss 33, 44.

HEADNOTE

The appellant had been convicted of an offence of having cannabis in his possession for sale and was sentenced to three years' imprisonment with a non-parole period of eighteen months. The respondent ordered that the appellant be deported pursuant to s. 12 of the Migration Act 1958. The Administrative Appeals Tribunal affirmed that decision.

On appeal from the decision of the Administrative Appeals Tribunal,

Held: Per curiam: (1) There was ample evidence to support the finding of the Administrative Appeals Tribunal that there was some risk that the same or another serious offence would be committed in the future.
(2) Although the Administrative Appeals Tribunal had admitted, as part of the material before it, a Royal Commission report into drug trafficking which named the appellant as a member of a criminal organization, it had not thereby denied the appellant natural justice because: (a) The Tribunal had merely found that the appellant was a labourer for the criminal organization and that finding was supported by abundant evidence. (b) The admission of an adverse hearsay report, with an opportunity being provided to cross-examine the author, does not, by itself, amount to a denial of natural justice. T.A. Miller Ltd. v. Minister of Housing and Local Government (1968) 1 WLR 992; Kavanagh v. Chief Constable of Devon and Cornwall (1974) 1 QB 624; R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, referred to. (c) The appellant had been treated fairly.
(3) Appeal dismissed.

HEARING

Canberra, 1982, May 20-21; July 27. #DATE 27:7:1982

APPEAL

The appellant appealed under s. 44 of the Administrative Appeals Tribunal Act 1975 on questions of law from a decision of the Administrative Appeals Tribunal affirming a deportation order made against the appellant by the respondent.

J.R.T. Wood Q.C. and T. Johnstone, for the appellant.

J.C.S. Burchett Q.C., J. Purnell and L. Honcope, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Crossin & Co.

Solicitor for the respondent : B.J. O'Donovan, Commonwealth Crown Solicitor.

T.J. GINNANE

ORDER

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

JUDGE1

This is an appeal under s. 44 of the Administrative Appeals Tribunal Act, 1975, on questions of law, from a decision of the Administrative Appeals Tribunal affirming a deportation order made against the appellant by the respondent. The order was made on 28 September 1979 under s. 12 of the Migration Act, 1958.

The appellant was convicted, after trial by jury, of an offence under s. 21 (1) (a) of the Poisons Act, 1966 (N.S.W.) of having cannabis in his possession for sale. He was sentenced to 3 years' imprisonment, with a non-parole period of 18 months, his imprisonment to commence on 6 March 1978.

The evidence before the Tribunal was extensive, and the reasons given by it were correspondingly lengthy and detailed. There are two questions of law now raised.

Two submissions are put with respect to the first question. One is that there was no evidence upon which the learned Judge comprising the Tribunal could come to a decision adverse to the appellant upon a matter necessary to be proved to support a deportation order. The other is that the Tribunal did not in fact reach an adverse conclusion on that matter, thus an ingredient necessary to support a deportation order was absent. The matter submitted as necessary to be proved was in the language of counsel "that the appellant was a danger to Australia". There is no legal requirement to that effect, although a consideration along those lines is doubtless a major matter in many cases. What we understand counsel to have been emphasising is that a person cannot lawfully be ordered to be deported simply because he has committed a crime for which he has been sentenced to imprisonment for a year or more. It is not necessary or helpful to examine the validity of that proposition in the abstract. In many cases the mere fact of the commission of a serious crime is likely to give rise to a question whether the person concerned may commit the same or another crime in the future, and thus be a "danger to Australia". In our view, the Minister is in law entitled to make an order, and the Tribunal is in law entitled to affirm it, if, a serious offence having been committed, there is a basis for concluding that there is some risk that the same or another serious offence will be committed in the future. In the present case, the Tribunal made a finding to this effect, and there is ample evidence to support that conclusion. Towards the end of the Tribunal's reasons, when it was bringing together its conclusions on a number of matters, it said this:

"If I were satisfied that the crime was an isolated one unconnected with other criminal activity and that the risk of recidivism was low, I would probably decide that the applicant should not be deported. However, I cannot make a firm judgment that there is little risk of recidivism for I do not know what brought about the applicant's involvement in crime or what was the extent of that involvement."

Reading the passage in context, we understand the Tribunal to be conveying its view that there was at least some risk of recidivism. This is a matter which is in its nature largely one of speculation; one can only conjecture about the risk involved. It is not a matter of proof, but of judgment. The reasons why the Tribunal expressed it the way it did is apparent from the rest of its reasons. There was evidence of the appellant's association with a large and widespread criminal organisation, and that he had been acting with or for that enterprise when he committed the crime in question. It was an organisation which had extensive activities in the growing and selling of cannabis. The appellant had given evidence at his trial and before the Tribunal denying a meaningful connection with the organisation, and denying the commission of the crime. On these matters he had been disbelieved. He was not only an unreliable witness, he was found to be a dishonest one. The Tribunal was in the event left in a state of uncertainty as to the degree of the appellant's involvement in crime, and as to what had brought about that involvement.

As the passage we have quoted indicates, the commission of a crime to which s. 12 of the Migration Act refers, combined with a low risk of recidivism is not necessarily, or usually, to be taken as a sufficient basis for a deportation order, but this is a matter for the judgment of the Minister, and, on review, of the Tribunal. A wide range of circumstances will normally be taken into account.

The Tribunal in the present case did not rest its decision merely upon the circumstances we have mentioned. There was, first of all, the fact that the crime related to a dealing in drugs, and on this factor there has been a strong expression of Government policy which could properly influence the Tribunal. The Tribunal took into account other circumstances connected with the commission of the crime, to which the learned Judge who presided at the trial referred when sentencing the accused. The fact that the sentence was one of 3 years was relevant, and was regarded as such by the Tribunal. The Tribunal referred to the fact of the appellant "continuing in his non-disclosure of knowledge which would be useful to the law enforcement authorities and which, in my view, he undoubtedly has". This observation had particular importance, having in mind that a Royal Commission had endeavoured to uncover and report upon the activities of the organisation. It may be that the appellant's position was such that his life or well-being might have been endangered if he did disclose some information, but this would, we inagine, be suggestive of a closer connection with the organisation than he was prepared to admit. These again, are factual considerations, and we mention them only as illustrations to show that the Tribunal took into account a wide range of matters.

The submissions on this question of law fail.

The other submission of law was that in its conduct of the hearing the Tribunal denied natural justice to the appellant. It is clear that it is under a duty to observe the requirements of natural justice (Sullivan v. Department of Transport (1978) 20 A.L.R. 323, 342; Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 A.L.R. 577, 589). The point taken is a limited one. The Tribunal admitted, as part of the material before it, the Report of the New South Wales Royal Commission into Drug Trafficking constituted by Mr. Justice Woodward of the Supreme Court of that State. The Commission reported in October 1979. The submission did not relate to the fact that the Report, in relevant aspects, was taken into account by the Tribunal, but to the fact that the Tribunal had concluded from the Report that the appellant was involved in a criminal organisation, and was involved in its activities to the extent of having a role beyond that of a mere labourer. We think this submission fails as a matter of fact. The more significant passage in the Report appears at pp. 492-3 of Volume 2:

"I have stated elsewhere (see chapter 7) my conclusion that there did exist in Griffith a secret organisation, probably a cell of the 'Societe Onorata', and my reasons for this conclusion. I am satisfied that amongst others and in addition to those persons who have been nominated as the owners of 'grass castles' the following were members: . . ."

The appellant was named as one of the members.

In relation to this statement, the Tribunal said: "I do not understand this finding to suggest that there was any information as to the applicant's involvement in a secret society other than his involvement in the activities of 'Willra' Station."

It was at Willra Station that cannabis was growing, and it was there that the appellant was arrested. The Tribunal accepted that the appellant was at least a mere labourer for the organisation, but on several occasions said, and ultimately found, that it could not determine the extent of the appellant's involvement. As to there being involvement in the role of labourer, at least, there was abundant evidence before the Tribunal.

Although the question is academic, we should doubt whether there would have been a denial of natural justice if the Tribunal had drawn more from the Report. If the Tribunal had taken from the Report a view, supported by the Report, that the appellant had a role beyond that of a mere labourer, or was an active member of the Society, it would not follow that it would have been guilty of a denial of natural justice in this case.

The essence of the objection is that the appellant did not appear, nor was he represented, or asked to appear, before the Royal Commission: he did not have an opportunity to test the evidence given to it. To stop there, we think it is highly unlikely that he was unaware of the Royal Commission or of the nature and extent of its inquiries, so far as the latter might affect him. It is therefore a matter of surmise whether he had the opportunity to seek representation, or to appear in person, before the Commission. However, accepting the submission on this aspect, his complaint is that it was an impossible task for him to overcome, before the Tribunal, the Royal Commissioner's finding. The fact was, however, that he was represented by counsel before the Tribunal, and then gave evidence himself, denying the alleged membership, and, indeed, knowledge of the alleged organisation.

The content, or requirements, of natural justice vary with the circumstances of each case, but some guidelines have been formulated. It is established that, in general, reliance by a tribunal upon a provision such as s. 33 (1) (b) and (c) of the Administrative Appeals Tribunal Act is not per se a breach of the rules of natural justice (see per Diplock L.J. in R. v. Deputy Industrial Injuries Commissioner; Ex parte Moore (1965) 1 Q.B. 456; Myers v. Director of Public Prosecutions (1964) 3 W.L.R. 145; Kavanagh v. Chief Constable of Devon and Cornwall (1974) 1 Q.B. 624, 633, per Lord Denning M.R.; Minister for Immigration and Ethnic Affairs v. Pochi (1980) 31 A.L.R. 666, 686-690 per Deane J.).

The admission of an adverse hearsay report, without an opportunity being provided to cross-examine the author, does not by itself amount to a denial of natural justice (T.A. Miller Ltd. v. Minister of Housing and Local Government and Anor. (1968) 1 W.L.R. 992; Kavanagh v. Chief Constable of Devon and Cornwall (1974) 1 Q.B. 624, 633; see also R. v. War Entitlement Appeals Tribunal; ex parte Bott (1933-34) 50 C.L.R. 228, 244, 250). Consideration of whether there has been a denial of natural justice must have regard to statutory provisions, such as s. 33 of the Administrative Appeals Tribunal Act (as well as ss. 30, 31 and 32). In the present case, it seems to us that the appellant was treated fairly. He had an opportunity by his own evidence, and by any other he could produce, to refute statements in the Report, and he had a legal representative through whom all appropriate submissions could be made.

In our view the submissions on this question of law fail also. The appeal should be dismissed with costs.

The order of the Court is that the appeal be dismissed and that the appellant pay the respondent's costs of the appeal.