Farrelly, J.M. v Minister for Immigration, Local Government & Ethnic Affairs

[1991] FCA 244

Re: JOHN MARTIN FARRELLY
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G664 of 1990
FED No. 244
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)

CATCHWORDS

Administrative Law - appeal from Administrative Appeals Tribunal - error of law requires remittal to the Tribunal - whether fresh evidence to be adduced before to Tribunal - extent of requirement to state reasons for decision - role of government policy in decision-making process considered.

Administrative Appeals Tribunal Act 1975 (Cth): s.43(2B)

Migration (Criteria and General) Regulations: reg.36(1)(b)

HEARING

SYDNEY

#DATE 9:5:1991

Counsel and Solicitors H. di Suvero instructed by
for Applicant: Messrs Peter D. Irving and Co.

Counsel and Solicitors R.J. Weber instructed by the
for Respondent: Australian Government Solicitor

ORDER

The appeal be allowed.

The matter be remitted to the Administrative Appeals Tribunal for decision in accordance with law with or without the reception of fresh evidence as the Tribunal in its discretion shall determine.

The respondent pay the applicant's costs of the appeal and of the application before Burchett J on 23 November 1990.

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

JUDGE1

The applicant, Mr John Martin Farrelly, appeals against the decision of the Administrative Appeals Tribunal constituted by a Deputy President (Mr Bannon QC) whereby the Tribunal affirmed the decision of the respondent Minister for Immigration to deport Mr Farrelly.

1. It is not necessary to set out in detail the facts before the Tribunal because at the outset of the appeal counsel for the Minister conceded that in one respect at least the Tribunal had erred in law and accordingly that it was necessary that the matter be remitted to the Tribunal for further consideration. The real dispute between the parties ultimately was whether, when the matter was returned to the Tribunal, fresh evidence could be adduced.

2. The applicant is a New Zealand citizen who arrived in Australia on 20 March 1984. Since he has been in Australia he has been convicted in respect of three drug related offences. The first offence, for which he was fined, related to possession of a prohibited drug (cannabis leaf). The second offence was that of supplying Indian hemp for which he was convicted and received a custodial sentence of two years and six months with a ten month non-parole period. The quantity of the drug concerned on that occasion was 630 grams.

3. While out on bail Mr Farrelly was again arrested and charged with a further offence of supply (again cannabis), allegedly with a view to obtaining moneys to conduct his legal defence. For this third offence which involved 1.2587 kilograms he was sentenced to a further term of four years with a non-parole period of eighteen months, the sentence not to be cumulative with the previous sentence but apparently backdated. In the result Mr Farrelly was released from custody after serving thirteen months having regard to remissions then available for good behaviour.

4. At the proceedings before the Tribunal Mr Farrelly was not legally represented. His sister acted as his agent. During the course of argument the Deputy President said that it would be possible for Mr Farrelly, if deported, to return to Australia:
   

"in five years' time or perhaps less if the Minister will let him. That is the net effect of deportation - five years absence from Australia."

1. Miss Farrelly indicated that she understood that it was a lot more difficult to gain re-entry. The Deputy President suggested that that was not so in the case of a New Zealander.

2. In the course of his reasons the Deputy President said:
   

"While the law remains as it is, the applicant's offence appears to me sufficiently serious to warrant deporting him. Leaving Australia is not the end of life, and he may apply to return in due course."

1. The parties are in agreement that having regard to the provisions of regulation 36(1)(b) of the Migration (Criteria and General) Regulations, a person who has been deported from Australia in relation to the commission of a crime is not entitled again to be granted a visa or entry permit to enter Australia.

2. Two other errors of law were said to have been committed by the learned Deputy President. The first, it was said, was that the Tribunal had found that Mr Farrelly's offences had not involved dealing with drugs on a significantly large scale and that accordingly the Tribunal should have, in accordance with the ministerial policy in force, directed that he not be deported. Second, it was said that the Tribunal had failed to set out its reasons signifying the matters which it took into account as the benefits and disadvantages of Mr Farrelly being permitted to stay in Australia contrary to s.43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth).

3. In my view there is no merit in the first of these two submissions. The ministerial statement which was in evidence and titled "Australia's Criminal Deportation Policy" provides guidelines for deportation and gives examples of serious offences which may render non-Australian citizens liable for deportation. The examples include:
   

"production, importation, distribution, trafficking or commercial dealing in heroin or other `hard' addictive drugs or involvement in other illicit drugs on a significantly large scale ..."

1. I have difficulty in seeing that the submission involves ultimately a question of law. As the judgment of Bowen C.J. and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 points out (at 590-91):
   

"It is not desirable to attempt to frame any general statement of the precise part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for compromise, in the interests of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case."

1. See too Haoucher v Minister for Immigration and Ethnic Affairs (1988) 83 ALR 530 at 533-34 per Northrop J.

2. Thus, whilst the ministerial statement may be a valuable guide to the Tribunal in ensuring consistency of decision-making, it is not fettered by it. Indeed, it is not suggested that the Deputy President in any way misunderstood the law so far as the application of ministerial statements is concerned. The submission proceeded on the basis that the Deputy President must have found that the offence in question was not on a significantly large scale having regard to a comment made by him in the following terms:
   

"It is true that the Minister's Policy draws a sharp distinction in Clause 9 between involvement with what are called 'hard' addictive drugs such as heroin and other drugs. Cannabis leaf or Indian hemp undoubtedly falls into the class of 'soft' drugs. Clause 9 of the Minister's policy also treats as serious 'involvement in other illicit drugs on a significantly large scale'. In my opinion, the applicant's involvement as shown in the sentencing remarks of Wall and Ducker JJ. (T6 and Exhibit 3), and also in the applicant's statement to the police, made while in prison for use in the trial of his co-accused, which has yet to occur ... does not fall into this category."

1. It cannot be said, however, that the Deputy President regarded the offences as lacking seriousness. Indeed, towards the end of his reasons after regretting the fact that legislation did not give the Tribunal a discretion to permit offenders to remain in Australia upon terms the learned Deputy President said:
   

"While the law remains as it is, the applicant's offence appears to me sufficiently serious to warrant deporting him."

1. Whether this statement involved a rejection of the ministerial statement I do not know. What is clear, however, is that the Deputy President considered for himself as one of the elements, at least in the decision-making process, the seriousness of the offences for which Mr Farrelly had been convicted. He took the view, and in my view correctly, that they were serious. Offences may be serious notwithstanding that, within the class of offences for which custodial sentences in excess of one year may be awarded, they are, as counsel for Mr Farrelly suggested, at the bottom of the range. Without more, it is clear enough that the offences were sufficiently serious to warrant a deportation order unless outweighed by other factors which the Tribunal would have to take into account. In my view it has not been shown that the Tribunal committed any error of law in this regard.

2. The second of these submissions presents greater difficulty. It is, I think, irrelevant for me to pass finally upon it as it has become a matter of academic exercise. The case will need to be returned to the Tribunal and howsoever the Tribunal is then constituted, whether it be by Mr Bannon QC or another member, it will be for the Tribunal to consider the issue again, having regard as one of the factors to be taken into account the fact that the consequence of a deportation order would be that Mr Farrelly would be forever banned from returning to Australia.

3. The second criticism stemmed from two matters. First, there was in the reasons a comment by Mr Bannon that he could not find a relevant distinction between the case of Mr Farrelly and another decision in Re Farrugia v The Minister (N90-92 of 23 August 1990, unreported) in which Mr Bannon had confirmed the Minister's decision to deport. The practice of apparently incorporating by reference principles set out in other cases is one to be regretted in that persons to whom the decision is addressed may have no access to unreported decisions. That does not mean, of course, that there is an error of law committed and the court is mindful of the practical exigencies of those concerned in the Administrative Appeals Tribunal with the disposal, as efficiently as possible, of large numbers of cases.

4. The problem in the present case is that a perusal of the judgment in Farrugia demonstrates that there are many distinctions of relevance between the case of the applicant and the case of Mr Farrugia. To mention but two, there was a finding by Mr Bannon in Farrugia that Mr Farrugia had established no firm ties with Australia and also a finding that he was the sort of person more likely to succumb to the temptations of drug supply than more privileged persons. On the other hand the Tribunal found in Mr Farrelly's case that the risk of recidivism was slight and that Mr Farrelly had formed a close personal relationship with a Miss Walker and had loyal and devoted family and friends in Australia.

5. It may well be that the reference to Farrugia was made because in Farrugia as in the present case a second offence occurred while the applicant in question was on bail. That of course would hardly seem to make the two cases identical or indeed even similar.

6. Where, in a case such as the present, a large number of factors were required to be weighed by the Tribunal in arriving at its conclusion, it is desirable that the Tribunal indicate the matters which it has taken into account. The obvious purpose behind s.43(2B) of the Administrative Appeals Tribunal Act is to ensure that the persons affected by the decision will know the basis of the decision so that they are in a position to assess whether the decision was made in accordance with law and whether or not an appeal should be brought against it. On the other hand, where the Tribunal has sought to set out in its reasons the basis for decision, the court will be slow to conclude that an error of law has been committed where the complaint is that the reasons did not refer to every possibly relevant matter.

7. It is an error of law for a Tribunal which is bound to state reasons for its decision, to fail to express findings and reasons for decision adequate for the purpose of enabling a proper understanding of the basis on which a decision has been reached. See Dornan and Ors v Riordan and Ors (1990) 95 ALR 451 at 460-61 and the cases referred to in Max Opitz v Repatriation Commission (Federal Court of Australia, unreported, 17 April 1991). However, as Sheppard J pointed out in Bisley Investments Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 255 what is required is "substantial compliance" with the provisions of s.43(2B).

8. As I have already said, however, it is unnecessary to decide whether the Tribunal has in the present case erred in not setting out in great detail the matters which it took into account. No doubt when the Tribunal comes to exercise its power again it will ensure that there are set out in its reasons the relevant facts found and matters taken into account by it in reaching its conclusion.

9. Neither of the last two matters necessitate the calling of any evidence. However, it may well be that the Tribunal, being of the view that Mr Farrelly could return to Australia at any time after five years and was not excluded from so doing for life did not seek evidence on further matters or it may well be that the agent for Mr Farrelly might have sought to adduce evidence relevant to the issues before the Tribunal had the Tribunal not expressed a different point of view. In these circumstances it seems to me appropriate that the Tribunal might entertain the reception of further evidence. Whether there is such further evidence that might relevantly be adduced is not a matter for me to determine, that should be a matter for the Tribunal.

10. In the course of discussion with counsel on this matter, the question arose as to whether the Tribunal might hear evidence on other matters as well. This suggestion was strongly resisted by counsel for the Minister who referred me to some comments of Sheppard J in Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575 at 585 where his Honour pointed out that the power of the court to make orders in the event of appeals coming to it from the Administrative Appeals Tribunal was restricted to an order which is appropriate by reason of the court's decision. This court is limited in the appeal to errors of law. It was said that the only order which could properly be made was one the propriety of which was circumscribed by and would go no further than was necessary to reflect the court's view on the alleged or found error of law.

11. While, with respect, I agree totally with all that was said by Mr Justice Sheppard in Gungor, in my view it is a matter to be left to the discretion of the Tribunal whether the Tribunal would be prepared to entertain an application by the applicant to adduce fresh evidence, not merely on the consequences of the applicant being unable forever more to return to Australia but on some other new, but relevant, matter. The Tribunal is entitled to proceed with a minimum of formality and can at any time prior to making a decision entertain an application for fresh evidence to be adduced. Whether it will accede to that application will depend upon matters such as the cogency of the evidence and the reasons why that evidence was not adduced at an earlier point of time. In cases, as here, where the person affected by the decision was not previously represented by counsel, the Tribunal might well adopt a more lenient approach than it would adopt if the applicant before it had been at all times represented by counsel. I stress, however, that it is a matter entirely for the Tribunal and not a matter on which this court would make a direction in advance.

12. In these circumstances the appropriate order is that the matter be remitted to the Tribunal for decision in accordance with law with such further evidence to be taken by the Tribunal as the Tribunal in its discretion shall determine appropriate. The respondent consents to an order for costs on a party and party basis. Accordingly, I will order that the respondent pay the applicant's costs of this appeal including the costs of the application before Burchett J on 23 November 1990.