Degerli v Minister for Immigration and Ethnic Affairs

[1981] FCA 250

Re: HALIL DEGERLI
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. VG.73/1981
Immigration and aliens

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Keely, J
Fisher, J
Davies, J

CATCHWORDS

immigration and aliens _ conviction _ trafficking in Indian hemp _ deportation order _ appeal

Role of the Tribunal _ whether it can go behind the conviction

Evidence

Migration Act 1958 s.12

Administrative Appeals Tribunal Act 1975 s.44

HEARING

MELBOURNE

#DATE 23:12:1981

ORDER

THE COURT ORDERS

(1) that the appeal be dismissed;

(2) that the appellant Halil Degerli pay to the respondent his costs of the appeal.

JUDGE1

This is an appeal under s.44 of the Administrative Appeals Tribunal Act 1975 from the decision of a Deputy President of the Administrative Appeals Tribunal affirming the decision of the Minister of State for Immigration and Ethnic Affairs made on 22 August 1980 that Halil Degerli be deported from Australia. Many grounds were raised in the notice of appeal but at the hearing of the appeal Mr. B.W. Nettlefold, QC, senior counsel for the appellant, restated the grounds as follows :

1. The Tribunal was wrong in law in proceeding on the basis that it could not go behind the conviction even if good cause was shown by the applicant that the conviction should be looked at, for on the evidence before the Tribunal it was established :

(i) that the verdicts were inconsistent and therefore unsatisfactory;

(ii) the applicant did not receive a fair trial in all the circumstances of the case and therefore the Tribunal should have held that that constituted exceptional circumstances within the meaning of the policy statement so as to warrant a re-examination of the deportation order by the Minister.

2. The Tribunal failed in its duty to act judicially and with judicial fairness in that it made a ruling that evidence was admissible on one ground and then proceeded to use it against the interests of the applicant without giving the applicant an opportunity to be heard on the matter.

3. Where it is shown in the course of the hearing that the verdicts of the jury showed that it accepted the case of the applicant on one charge and rejected his case on the second charge that that constituted exceptional circumstances within the meaning of the Government policy and that the Tribunal failed in its duty and thereby acted contrary to law in not remitting the matter for the reconsideration of the Minister.

After a trial at which he had been represented by counsel and at which he had pleaded not guilty, the applicant had been convicted in the County Court of Victoria on a charge :

'That on or about the 22nd November 1978 he ... trafficked in a drug of addiction, to wit Indian Hemp, without being authorised by or licensed under the Poisons Act 1962 so to do;'.

He had been acquitted of a charge :

'...that he at Irymple in the said State on or about the 22nd November 1978 sold a drug of addiction, to wit Indian Hemp, without being authorised by or licensed under the Poisons Act so to do.'

The evidence which had been put to the jury on behalf of the prosecution disclosed that, on 22 November 1978, police officers had found 10,000 Indian hemp plants hidden in a spray tank on a farm property at Irymple which was owned and worked by the appellant. The appellant had given evidence to the jury that the plants had not been grown on his property or by him, that the plants had been placed in the spray tank by another person, that he had asked that person to remove them and that he had believed that they had been removed.

In evidence before the learned Deputy President were a transcript of the evidence of the criminal trial, the learned trial Judge's summing up to the jury, the jury's verdict, the learned trial Judge's remarks on sentence and the conviction. From this evidence, the learned Deputy President was asked to conclude that the verdicts of the jury were inconsistent and that, for the purpose of the deportation proceedings, it would be unsafe to rely upon the appellant's conviction. No further evidence of the circumstances which led to his conviction was given by or on behalf of Mr. Degerli.

After considering the material before him, the learned Deputy President said,

'The circumstances of the applicant's trial and conviction mean that the applicant had in his possession for sale 10,000 Indian Hemp plants which were hidden in a spray tank on his property. These plants would have yielded a commercial quantity of smokeable material. He was either in possession exclusively or jointly with one or more other persons.'

In our view, this conclusion was a proper one. The transcript of the evidence of the trial, the learned trial Judge's summing up, the learned trial Judge's remarks on sentence and the conviction were all matters which the learned Deputy President was entitled to take into account in considering the facts which led to the conviction. See s.33 of the Administrative Appeals Tribunal Act 1975. Moreover, a conviction for an offence is not only evidence of the facts underlying the conviction but ordinarily strong evidence of those facts. In the present case, the conviction was strong evidence for the conviction was reached after a trial at which the appellant had been represented and at which evidence from himself and other witnesses on his behalf had been adduced. As no further evidence of the crime was adduced before the Tribunal on behalf of the appellant, there was, indeed, in our view, no ground upon which the learned Deputy President could have come to any conclusion but the conclusion reached which we have stated above. It was submitted that the conviction and the acquittal were inconsistent and that for that reason the conviction should not have carried weight. In our view, the verdicts were not inconsistent. But even if they were, the appellant stood convicted of the offence of trafficking. His Honour was therefore not in error in relying upon that conviction as evidence of the facts which his Honour found to be proved.

It was submitted by Mr. Nettlefold that the learned Deputy President incorrectly proceeded on the basis that he could not go behind the conviction even though the evidence before the Tribunal, it was said, established that the verdicts of the jury were inconsistent and that the applicant did not receive a fair trial. This submission misconceives the role of the Tribunal in reviewing the decision of the Minister. The fact of the conviction stands conclusively as the source of the jurisdiction of the Minister to make a deportation order and as affecting the standing or credit in the community of the applicant as a convicted person. Moreover, the correctness of the conviction and the fairness of the trial procedures which resulted in the verdict of the jury are not the concern of the Tribunal. They are the concern of the Criminal Appeal Courts and of the prerogative of the Crown. If the Tribunal were to ignore the conviction or merely to act upon its own view as to the form of the indictment, the course of the trial, the correctness of the summing up and the propriety and consistency of the verdict and the penalty, it would take into account irrelevant considerations.

It was submitted by Mr. Nettlefold that the learned Deputy President unduly restricted his task. Mr. Nettlefold placed weight upon the learned Deputy President's statement that, 'The conviction cannot be challenged before the Tribunal'. But in making this statement, his Honour was not intending to limit his consideration of relevant matters. His Honour went on to say, '...the Tribunal will hear all evidence which the applicant seeks to adduce, even though it contradicts his conviction' and 'The task of the Tribunal is to ascertain what the applicant did and the real facts behind his conviction'. His Honour simply drew the distinction between the conviction which stands conclusively as a source of jurisdiction for the making of a deportation order and as a matter affecting the standing or credit in the community of the convicted person on the one hand and all the other facts and matters weighing in favour of or against deportation on the other. The latter matters may involve the Tribunal in considering the applicant's behaviour, including his involvement in crime. But that task is not undertaken with a view to reviewing the conviction itself, for that is the function of the criminal courts. In our opinion, the learned Deputy President did not restrict himself in the task which it was the duty of the Tribunal to perform.

If any criticism is to be made of the reasons of the learned Deputy President it is in respect of the words that he used in indicating the scope of his enquiry. To state that he will hear all evidence 'even though it contradicts' the conviction, and that his task is to ascertain 'the real facts' behind the conviction could suggest that the correctness of the conviction is a relevant factor. However, in our view he used these words not for such a purpose but to indicate that all the evidence was relevant for the purpose of assessing the conduct of the appellant. 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 he should be required, in the interests of this country, to depart. 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.

However, there was no evidence before the learned Deputy President other than that presented at or arising out of the trial. Thus he was not faced with the difficulty of considering evidence which ran counter to that given at the trial or the facts necessarily found by the jury in reaching their verdict. If such evidence had been before him, his duty would have been to consider and evaluate it not for the purpose of reviewing the verdict of the jury but as a factor in his assessment of the conduct of the appellant. There was no such additional evidence and he very properly took into account all relevant matters. There is no ground for contending that he disregarded any relevant matters thereby restricting his assessment. No error of law has thus been established.

For these reasons, grounds of appeal 1 and 3 as enunciated by Mr. Nettlefold cannot be upheld.

The second ground arises from the fact that, in the course of the hearing before the learned Deputy President, a question was raised as to whether the 10,000 Indian hemp plants found on his property would, because they were immature, have contained sufficient of the toxic ingredient Indian hemp to satisfy the qualities required of an illicit drug. His Honour heard further evidence on this point and concluded,

'The evidence presented to the Tribunal additional to the evidence at the applicant's trial satisfies me that those plants, even though immature, would have contained .1% to .2% of tetrahydrocannabinol, the toxic ingredient of Indian Hemp.'

Mr. Nettlefold's second ground of appeal alleges that this evidence should have been received only as going 'to establish the gravity of the applicant's conduct', to use another of the learned Deputy President's expressions, and not to the issue of whether or not the appellant had been guilty of criminal conduct. That was the way the matter was put by Mr. Nettlefold, although it was not put clearly. In our opinion, the evidence received by the learned Deputy President was relevant evidence which it was proper for him to receive once the issue of the chemical ingredient of the Indian hemp plants had been raised. That evidence, together with the other evidence before the learned Deputy President, established the appellant's involvement in a venture concerned with illicit drugs. Perhaps such evidence was unnecessary but we would not regard the reception of the evidence as improper for it clarified an issue raised before the Tribunal. In our opinion, the learned Deputy President properly admitted and gave weight to that evidence. The applicant had a proper opportunity to test that evidence or to contradict it.

For these reasons we would dismiss the appeal with costs.