Drake v Minister for Immigration and Ethnic Affairs

Daniel Dwight Drake, an American citizen residing in Australia, appealed the decision of the Administrative Appeals Tribunal (AAT) and the Minister for Immigration and Ethnic Affairs, who had ordered his deportation under the Migration Act 1958. Drake had been convicted of drug possession and sentenced to twelve months imprisonment, with an order for release after three months on entering into a recognizance of good behaviour for two years. The appeal raised four primary issues: the competence of the AAT to hear the case, the correct interpretation of "alien" under the Migration Act, whether Drake was sentenced to imprisonment for one year or longer, and the proper role of government policy in the AAT's review of the Minister's decision.

The Court found that the appointment of a Federal Court judge as a Deputy President of the AAT did not violate constitutional principles. The AAT's functions were administrative rather than judicial, and its role was to review the Minister's decision, not to determine whether the Minister's decision-making process was correct. Drake's classification as an "alien" under the Act was upheld, as he did not fall under any exceptions listed in the Act. The Court held that the full sentence, including the order for early release, constituted a sentence of imprisonment for one year or longer under the Act. Finally, the Court held that the AAT had failed to properly consider relevant factors, including the Minister's policy on deterrence, leading to an error in its decision-making process. The Court allowed the appeal and remitted the matter to the AAT for reconsideration.

The Court ordered that the Minister for Immigration and Ethnic Affairs pay Drake's costs of the appeal. The deportation order was set aside, and the matter was to be reviewed by the AAT, taking into account the relevant considerations and the need for a balanced approach between the interests of Australia and the individual's circumstances.