Haoucher v Minister of State for Immigration and Ethnic Affairs

[1989] HCATrans 262

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P6 of 1989

B e t w e e n -

MAJED MAHMOUD HAOUCHER

Appellant

and

THE MINISTER OF STATE FOR

IMMIGRATION AND ETHNIC AFFAIRS

Respondent

DEANE J
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

Haoucher(2)

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 26 OCTOBER 1989, AT 11. 10 AM

Copyright in the High Court of Australia

PlTS/1 /SH 1 26/10/89

MRS. OWEN-CONWAY:  May it please the Court, in this matter

I appear with MR P.G. DONOVAN, on behalf of the appellant. (instructed by Mazza Mccallum and

Robinson)

MR G. DOWNES, QC: If the Court pleases, I appear with my

learned friend, MR R.R. McLIVER, for the respondent

(instructed by the Australian Government Solicitor)

DEANE J:  Mr Owen-Conway.

MR OWEN-CONWAY: May it please the Court, this appeal concerns

a man, Mr Baoucher, who is to be deported without

knowing the reasons why. Although the Minister

has provided reasons for his decision in which he

said he accepted the findings made by the Administrative

Appeals Tribunal, he none the less concluded, contrary

to those findings, that exceptional circumstances

existed which justified him in departing from the

Tribunal's recommendation and that the interests

of the Australian community may be seriously harmed

by allowing the appellant to remain a part of it.

Now, these conclusions were arrived at without

the Minister clearly stating the reasons which
supported them. In short, the appellant does not
know precisely what the exceptional circumstances

were and he has no idea of what strong evidence

was before the Minister which presumably justified

such conclusions.

In my submission, the appellant had a real

and legitimate expectation that the recommendations

of the Tribunal would be implemented and that

expectation arose by reason of the following

factors: firstly, the fact that the recommendations

of the tribunal are almost invariably accepted by

the Minister. A person concerned having a recommendation

by the tribunal in his favour would have a real

and legitimate expectation that the Minister would

act in accordance with it. Secondly, it arose by

virtue of the terms of the government's criminal

deportation policy and, thirdly, it arose as a

combined effect of the AAT ACT, section 13 of the

AD(JR) ACT and sections 12 and 66E(3)

of the MIGRATION ACT. The Minister's discretionary

statutory power under section 12 of the MIGRATION ACT,

in my submission, is conditioned by the principles

of natural justice. The text of the statute creating

the power and the subject-matter of the statute, the interests which exercise of the power is apt

to effect and the administrative framework created

by the statute all suggest that the principles of

natural justice are applicable. In particular,

the exercise of the power under sectiion 12 of the

MIGRATION ACT is capable of affecting individuals and their interests in a manner substantially

different from the manner in which the interests

PlTS/2/SH	2	MR OWEN-CONWAY	26/10/89
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of the public at large are affected and, most importantly,

the exercise of the power under section 12 is amenable

to judicial review and an obligation to provide

reasons where requested as in this case.

In my submission, in these circumstances,

the appellant has a right to procedural fairness

being afforded to him before the Minister decides

whether to affirm the deportation order having a

provisional mind so to do.

TOOHEY J: Mr Owen-Conway, in the way that you put it, how

is it that section 12 gives rise to these considerations

rather than the decision by the Minister not to implement the decision of the tribunal? Is not the starting point that the deportation order was

made; it was appealed against; there was a recommendation

and it is the failure to implement the recommendation

that I take to be the subject of the complaint.

MR OWEN-CONWAY:  Yes, it is, indeed, Your Honour. I am putting

another element into it to give rise to the legitimate expectation but, certainly, the most important element

of it. What I am saying about section 12 is that

the discretion under section 12 is not an absolute,

unfettered discretion. It is a discretion which

has to be exercised according to law and it is a

discretion which is amenable to judicial review

under the terms of section 66 of the Act.

TOOHEY J: Yes, but the attack is not made, is it, on the

order of deportation which was in existence at all

times that there were proceedings before the tribunal

or when the matter was before the Minister?

MR OWEN-CONWAY:	No, it is not.
TOOHEY J:	No, you agree?
MR OWEN-CONWAY:	I am agreeing with Your Honour's proposition.

TOOHEY J:	You agree.
MR OWEN-CONWAY:	Yes.

TOOHEY J:  Yes. So, I am still not clear as to how or what

relevance section 12 has?

MR OWEN-CONWAY:  In short, I am saying this, Your Honour:

that the relevance of the statutory framework in

this case, which includes section 12; it includes section 66E(3); it includes the provisions of the

AAT ACT and, in particular, section 13 of the AD(JR) ACT

were such that where a ministerial discretion of

the kind which exists under section 12 is exercised,

then it is one which is exercisable only in accordance

with the principles of natural justice.

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Haoucher(2)

TOOHEY J:  But it had been exercised. The complaint r~a1ly

is that it was not exercised differently - and, in

particular, not revoked - following the r~com~endation

of the tribunal.

MR OWEN-CONWAY:	Yes, indeed.
TOOHEY J:	So, is that not the starting point of the inquiry?
MR OWEN-CONWAY:	Yes, it is.
TOOHEY J:	Yes.
MR OWEN-CONWAY:	Your Honours, I was about to say that in

this case, in my submission, the principles of natural

justice upon a reconsideration of the decision requires

the Minister to take the steps outlined in paragraph 11
of the outline of submissions and, just very briefly,

they ar~ to inform the appellant of what he proposed

to do and give him the opportunity of making further

submission& thus in the circumstances of subparagraph (a)

in paragraph 11 of the outline:  ~condly, to give the

appellant an opportunity of persuading him not to

depart from the Government's policy; that is in

subparagraph (b) of the outline; and, thirdly, to

advise the appellant of precisely what the

exceptional circumstances were which he did not,

and of an opportunity to be heard on them, which

he has not afforded.

Now, Your Honour, if I can just deal very

briefly with the short history of the matter, a

deportation order was signed on 19 August 1986 by

Mr Harris, a ministerial delegate pursuant to

sectioin 12 of the MIGRATION ACT against the

appellant as a result of his conviction in the
district court in Perth in May 1985 for possession

of 46 grams of cannibis resin with intent to sell

or supply. The appellant appealed to the Administrative

Appeals Tribunal for a review of this decision.

On 29 January 1987, and pursuant to section 66E(3) of the MIGRATION ACT, the tribunal remitted the the order be revoked. The AAT lacks the power to

matter to the respondent with a recommendation that

overrule a decision of the Minister but it may

make recommendations if it is not disposed to

affirm the decision and the AAT gave considerable
weight to the terms of the government's criminal

deportation policy which was tabled in Parliament

on 4 May 1983 and that policy is set out in the

appeal book at page 71. Paragraph 4 provides

relevantly:

It is the policy of the Australian Government

that recommendations of the Administrative

Appeals Tribunal should be overturned by the

Minister only in exceptional circumstances

and only when strong evidence can be produced

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Haoucher(2)

to justify his decision. Furthermore, it

is the policy of the Government that, when

the Minister decides to deport a person

contrary to a recommendation of the Tribunal,

the Minister will table in the parliament

at the first opportunity a statement of

his/her reasons for doing so.

Paragraph 9 of the statement gives a number of examples

which might render a non-Australian citizen liable

to deportation. Amongst them are the:

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.

The policy statement stipulates that the purpose

of deporting a criminal is to protect the safety

and welfare of the Australian community and to

exercise a choice on behalf of the community. Now,

in this respect, the t:ribunal gave weight to its
finding that the risk of recidivism by the appellant

was low. Paragraph 16 of the policy refers to:

The most important broad criteria on which

judgments will be based.

Included among them are:

The nature of the crime -

and -

the possibility of recidivism.

And, it was from paragraph 16 that the -~ibunal

largely took the particular matters to which it

gave special consideration.

On 12 May 1987 the Minister decided not to

revoke the deportation order. His obligation in terms of the MIGRATION ACT was to reconsider the matter in accordance with the recommendation of

the tribunal. The Minister gave a statement of

his reasons dated 17 August 1987 and those reasons

are set out in the appeal book at pages 83 to 85
and the relevant parts are set out in the judgment

of Mr Justice Sheppard in the Full Court at appeal

book 183 to 184. The appellant thereafter sought

a review of the Minister's decision not to revoke

the deportation order pursuant to the AD(JR) ACT

by application dated 21 July. This application

was heard before Mr Justice Forster on 9 December 1987

and subsequently dismissed by him on 9 February 1988

and His Honour's reasons are in the appeal book at

pages 154 to 168. By notice of appeal dated

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Haoucher(2)

29 February 1988, the appellant appealed to the

Full Court of the Federal Court. The appeal was

heard on 16 May 1988 and dismissed by a majority

decision on 29 September 1988 and the reasons of

the Full Court are set out in the appeal book at

pages 170 to 232.

The dissenting judge, Mr Justice Sheppard,

found that the appellant was not accorded procedural

fairness in the course of a judgment comprising some 37 pages of carefully reasoned analysis of

the facts and the relevant authorities and then,

finally, by application for special leave to appeal

dated 20 October 1988, the appellant sought the
leave of the High Court to appeal on the grounds
set out in the notice of appeal which appear in
the appeal book between pages 236 and 239 and on
17 February 1989, the appellant was granted special
leave to appeal.

Your Honours, the statutory framework can

be put very shortly: the decision reviewed was
pursuant to section 5 of the ADMINISTRATIVE DECISIONS

(JUDICIAL REVIEW) ACT. The decision of the Court

of decisions by the Minister under section 12 by

was made under section 12 of the MIGRATION ACT.

the AAT. Section 66E(3) provides that:

After reviewing a decision referred to in sub-section (1), the Tribunal shall either affirm the decision or remit the matter for

reconsideration in accordance with any

recommendations of the Tribunal.

Section 66E(l) makes it clear that a decision made

by the Minister, consequent upon the matter being

remitted to him for reconsideration, is not itself reviewable by the ibunal pursuant to section 66E and under section 20 of the MIGRATION ACT the Minister

has a general power to revoke a deportation order. The Minister's reasons were provided pur.suant to

section 13 of the AD(JR) ACT.

DEANE J: Well, now, is that not a convenient time to identify

the precise questions that we are concerned with?

MR OWEN-CONWAY: Yes. There are four - - -

DEANE J: Now, we start, do we not, with 66E(3) and am I correct

that the power of the Minister that is relevant here,

or the duty, is that which is only implied in 66E(3);

that is, that when the matter is remitted to him with

a recommendation, he has a duty to reconsider in

accordance with that recommendation?

MR OWEN-CONWAY:  Indeed, Your Honour, yes.

PlTS/6/SH	6	MR OWEN-CONWAY	26/10/89
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DEANE J:  So, the first question is whether he is bound by

the rules of procedural fairness in discharging that

implied statutory duty and, if so, whether when he

is departing from the recommendation, he owes a

duty to give the potential deportee an opportunity

of being heard.

MR OWEN-CONWAY: Precisely.

DEANE J:  Then, the next question is whethe~ if you fail

on tha~ the particular circumstances of this case

gave rise to a duty under the rules of procedural

fairness to extend to your client the opportunity

of being heard.

MR OWEN-CONWAY:	Yes.
DEANE J:	Now, are they the only questions involved in the

case?

MR OWEN-CONWAY: Essentially they are the core issues in

the case, Your Honour. If I might just - I would

identify four separate issues, if I might just put

them very quickly. Your Honour has much more

succinctly encapsulated the issues, I think, than

I am about to put them but this is the way I was proposing to put them: firstly, whether if the

Minister of State for Immigration and Ethnic Affairs intends to depart from facts found by the tribunal before recommending that a deportation order

under section 12 be revoked or where the Minister

intends to draw inferences of fact different from

those drawn by the tribunal or where the Minister

intends to rely upon further matters not adverted
to by the tribunal, he is bound to inform the person

concerned of what he proposes to do and to give

him an opportunity of making further submissions;

secondly, whether the Australian Government's criminal

deportation policy statement, which was read to

the Parliament on 4 May 1983, gives rise to a legitimate

expectation that the Minister will act in accordance with
it	when he comes to consider a recommendation

by the tribunal to revoke a deportation order or

will notify the person affected by the order that

he does not propose to act in accordance with the

policy andtte matters to be relied upon the Minister

for taking tnat course; thirdly, whether the Minister

is bound to give a deportee in the position of the
appellant an opportunity of persuading him that
he should not depart from his government's policy

should the Minister intend to depart from that policy

and whether, consequently, the appellant should

be provided with particulars of the matters which

provided the basis for the contemplation by the

Minister of a departure from his policy and, finally,
whether the Minister is required to inform a person

in the position of the appellant precisely what

exceptional circumstances exist pursuant to the

Australian Government's criminal deportation policy

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that justify him in departing from the tribunal's

decision and whether the Minister is further required

to give the appellant an opportunity of dealing

with those claims of exceptional circumstances.

Your Honour, they are the issues as I put

them in a rather more cumbersome fashion.

DAWSON J:  Mr Owen-Conway, can you clear up one matter for

me? Was the appellant able to put submissions to the Minister or his delegate in the first instance

before - - -

MR OWEN-CONWAY:	Yes, indeed he was, Your Honour.
DAWSON J:	He was able to put whatever reasons he wanted

against his deportation?

MR OWEN-CONWAY:	Indeed he was.
DAWSON J:	Yes.
MR OWEN-CONWAY:	And he did so and the matter was fully heard

and determined by the tribunal. His case was - - -

DAWSON J:	Not the - the delegate?
MR OWEN-CONWAY:	I am sorr~ Your Honour?

DAWSON J: Before the deportation order was made, was the

appellant able to put what reasons he wanted against

the deportation order being made?

MR OWEN-CONWAY:  There was a personal interview which was

conducted by officers of the department and during the

course of that interview he was given the opportunity

to state his case; indeed, he was.

DAWSON J:	Yes.
MR OWEN-CONWAY:	Your Honours, there is little authority

on the precise nature of a Minister's duty when
a matter is remitted to him by the ~ibunal.	The
Minister must reconsider in the light of the

recommendations but this begs the question of what

this involves and that has been dealt with by this

Court in MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

V POCHI, (1981) 149 CLR 139 and that decision was

referred to by Mr Justice Forster and the relevant

parts of the passages in POCHI's case referred to

by Mr Justice Smithers in BARBARO, commencing at

page 128. If I could just take Your Honours to

BARBARO V MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS,

(1982) 46 ALR 123 at page 128, line 15. BARBARO
was a case involving a deportation order made

under section 12 in respect of an alien. The

circumstances of that case were very similar to

this case. His Honour Mr Justice Smithers, at

line 15, said this:

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The immediate question is whether the

rules of natural justice were applicable in

respect of the reconsideration of the order

for deportation which the Minister gave to

the matter pursuant to the recommendation

of the Tribunal dated 18 March 1981.

It would seem that in making an order

for deportation under s 12 of the MIGRATION ACT in the first instance, the minister may not be required to observe the rules of

natural justice. As contemplated by the

MIGRATION ACT the deportation of an alien

who has suffered the relevant sentence of

the court is a matter in the discretion of

the Minister. The question is whether,

when such an order has been before the

Tribunal, and when the Tribunal has recommended that the matter be reconsidered

and that the order for deportation should

be revoked, there is a requirement to extend

natural justice before the discretion is

exercised against the person concerned.

Then, at line 35, His Honour continued:

One must therefore inquire whether, apart

from the ADJR ACT, there was a duty in the

respondent to extend natural justice to the

applicant in relation to reconsideration of

the matter by him pursuant to the recommendation

of the Tribunal. I assume that that duty

arises, if at all, as a consequence of the

AAT ACT and the ADJR ACT and the attitude

of Parliament underlying the provisions thereof

upon the nature of deportation procedures

applicable in the administration of s 12 of

the MIGRATION ACT.

Then, over the page at 129, His Honour referred

to the decision of this Court in POCH! and the

observations of the majority in that case who referred

to what was then the relevant part of the schedule
to the Act, Part XXII of the schedule. Their Honours

said:

"It will be observed that Pt XXII of the

Schedule does not empower the Tribunal, for

the purpose of reviewing a decision under

S 12 of the MIGRATION ACT, to vary or set aside

the decision under review, or to make a decision

in substitution therefor, or to give directions
in accordance with which the Minister must
reconsider the matter. Its only powers are

to affirm the decision or to remit the matter

for reconsideration in accordance with any

recommendations of the Tribunal. Clause 22(3)

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Haoucher(2)

does not mean that if the Tribunal makes

recommendations the Minister must, on

reconsideration, give effect to them ..... The

effect of a decision of the Tribunal remitting

a matter for reconsideration in accordance

with its recommendations is only that the

Minister is bound to reconsider the matter

in the light of the recommendations ..... "

Now, those were the observations of the majority

in that case. Mr Justice Murphy took a somewhat

different view holding that:

"There is no restriction in terms on the

number or nature of recommendations of the

Tribunal in accordance with which the Minister

is to reconsider. It would appear that

recommendations may be of law or fact. However,

because it is open to the Minister on

reconsideration to decide whether or not to

deport (providing this reconsideration is

otherwise according to law) any recommendation

by the Tribunal that he should not order

deportation cannot be binding, but advisory

only. Subject to that, para (3) above requires

that the reconsideration be in accordance

with the recommendations; it should not be

construed as authorizing a reconsideration

which ignores or departs from or is otherwise
not in accordance with any recommendation.

Whatever the nature of the recommendations which can lawfully be made, the Minister must

reconsider in accordance with them. An

interpretation that he can ignore the

recommendations, that is, reconsider otherwise

than in accordance with the recommendations

would be a negation of the statute."

Then, His Honour Mr Justice Smithers continues:

It appears, therefore, that there is

a duty in the minister arising out of the

fact that the Tribunal has made a particular

recommendation. He must proceed "in the light"

of it, he must "have regard" to it. It is

not to be thought that this duty is not a

real one. It is not to be thought that

Parliament did not intend that the recommendation

of the Tribunal should be meaningful. The

Tribunal is of high status, the review is

intended to be thorough and quasi-judicial,

and the words of the Schedule have a positive

import. If its recommendation is to be meaningful,
and if there is a duty on the Minister to

treat it as a meaningful recommendation, then

when it is made, some benefit must accrue

to the person in respect of whom it is made.

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The Minister is not bound to adopt all the

findings of fact of the Tribunal or to give

to inferences of fact the same weight and

direction as was given to them by the Tribunal.

But if the recommendation is to be meaningful

then it would seem that the least that can

be said is that where those findings of fact

and inferences are to be departed from, the
person concerned should be given the opportunity

to make representations.

Then, further down the page, at line 25:

Although relevant considerations tend

to reduce the import of the words of the
Schedule, "for reconsideration in accordance

with any recommendations of the Tribunal",

it is apparent, that those words are calculated

to convey to people concerned that the
recommendation of the Tribunal is something

upon which they can rely as a matter of

finality, or, at any rate, as not to be

departed from without due cause being

shown. The history of administration in

cases where there have been recommendations

made by the Tribunal, either for confirmation

of deportation orders or for revocation thereof,

is that in all cases except two, and, as is

now known in all cases except one, and that

one being this one, the recommendations of

the Tribunal have been given effect to by the Minster. It is to be noted also that when the then Minister decided, in respect

of the two cases referred to, to depart from

the recommendation of the Tribunal, he considered
that that step was so unusual as to require

that he explain the departure to Parliament.

Thus a person concerned, having a recommendation

by the Tribunal in his favour would certainly

have a real and legitimate expectation that

the Minister would act in accordance- with

the recommendation. And, of course, when,

as in this case, the time from the date when

the recommendation was made has lengthened

into 11 months, that expectation would be

intensified.

DAWSON J: I find that very difficult to understand, if I may

confess my difficulty. The appellant was able to

put all that he wanted to put on the merits to the

Minister or the Minister's delegate.

MR OWEN-CONWAY:	Indeed, Your Honour, yes.
DAWSON J:	Now, the Minister made the decision; it goes then

to the tribunal for review.	The tribunal makes a
recommendation.	What more can the appellant say

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other than, "You should follow that recommendation" and repeat the arguments that he had already put.

MR OWEN-CONWAY: Yes. Well, the answer to that question,

Your Honour, with respect, is it depends upons what

the exceptional circumstances were which justified
the Minister from departing from the tribunal's
recommendations and he, in my submission, is

required to make clear in his reasons what those

exceptional circumstances were . Now, it may

well be - we do not know - that the Minister has

taken into account matters not before the tribunal.

It may be that he has completely misinterpreted the

findings of the tribunal.	We simply do not know
because - - -

DAWSON J:  But what more could you put than you had already

put? What sort of thing?

MR OWEN-CONWAY:  I cannot give you an answer to that,

Your Honour, unless and until I was armed with the

Minister's reasons setting up clearly why he took the

view that there were exceptional circumstances justifying

departure from the ~vernment's stated policy.

DAWSON J:  But surely that is going beyond the rules of

natural justice. If, in the first instance, the then put it before your client and say, "Now, do you
want to argue about that some more?", why should he

be required to do that in this instance?

MR OWEN-CONWAY: Well, he is required to do it because of

the requirement under section 13 of the AD(JR) Act,

that he give reasons for his decision in refusing to accept or confirm th~ findings of the tribunal

and that decision is, itself, amenable to review
and that has been the course of the conduct of this

litigation. If the Minister is going to give reasons

which, in effect, amount in tantamount to merely

stating the conclusions - I have considered everything

that the Minister - you see, the Minister said that

he accepted the facts as found by the tribunal but
he gave in some cases different weight or different
characterization to those facts but in one important

respect, in one vital respect, in my submission -

and I rely upon the finding of Mr Justice Sheppard
in the Full Court in this regard and it was, in
any event, my submission before His Honour in the

Full Court to the same effect - in one important respect the Minister rejected a finding and a very

important finding of the tribunal; that related to

the risk of recidivism. Whereas the tribunal had

found that the risk of recidivism was wrong - - -

DAWSON J:  But this all gets very technical, does it not? I

mean the rules of natural justice surely are not as

complicated as that. They require before this man

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is deported that he be allowed to tell the Minister

why he should not be deported.	He has told the
Minister that.	Now, does it go beyond that?

MR OWEN-CONWAY:  Well, it does, with respect, Your Honour,

yes. I think that is why this case is distinguishable

from O'SHEA's case which I know is an authority my

friend will rely upon. The distinguishing feature

is that that reconsideration is itself amenable to

review and he must - he is obliged to give reasons

by statute.

TOOHEY J: Well, one distinction is that there has been a

further step interposed; namely, the reference to

the tribunal.

MR OWEN-CONWAY:  There has, indeed.

TOOHEY J: But, what is not clear to me, Mr Owen-Conway,

is how high you put this submission. Do you say that in every case in which the Minister decides

not to act on a recommendation of the tribunal he

is bound to give the proposed- deportee an opportunity

to be heard?

MR OWEN-CONWAY:  No, certainly not is the answer to that.

TOOHEY J:  No. I could understand that, clearly, if he was

going to act on some piece of information which

had come to him post-tribunal decision, he would

be bound to give- the deportee an opportunity to

to be heard in relation to that. But, if he decides
that, having read the decision of the tribunal,

he takes a different view of the seriousness of

the deportee's conduct, now, what does he do in

that situation?

(Continued on page 14)

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Haoucher(2)

MR OWEN-CONWAY:  If he takes a different view of the

seriousness of the deportee's conduct, in my

submission, he is entitled to take that different

view, and that is a matter for the Minister.

TOOHEY J: Without saying to the deportee, "I take a different

view and I propose to act on that different view"?

MR OWEN-CONWAY:  Yes, subject to - if Your Honours were minded

to accept the dicta of Mr Justice Smithers in BARBARO's

case, His Honour said that where the Minister made

findings of fact, or drew different inferences of fact,
or took into account contrary considerations not
thought to be so important by the tribunal, in all
those circumstances in order to give meaning to the

Minister's duty to reconsider in the light of the

obligation, in order that it must mean something at

least, then in those circumstances, before confirming

his decision to deport, he should extend to the person

affected, the opportunity to further state his case.

TOOHEY J:  The difficulty I have with Mr Justice Smithers'

judgment on page 130, in the passage that you read

towards the foot of the page about "real and legitimate

expectation" to act, it seems to come fairly close to

saying, although not in express terms, that that

real and legitimate expectation can only be met by

giving the deportee the opportunity to be heard again.

You do not put your case that high?

MR OWEN-CONWAY:  I do not put it that high. In the context of

Your Honour's question to me, where the Minister has taken a different view of the seriousness of the crime my answer is no, he is not obliged to give the person

affected a further opportunity to be heard, but it is

my submission that if he rejects a finding of fact made

by the Minister and, in my submission, he clearly has

done so in this case and, with respect, Your Honour, I

take issue that that is a technical matter and not

a serious matter because the relevance of recidivism

one of the most important factors referred to in the	is a factor clearly referred to in the policy and is
policy statement. So, in my respectful submission,
that was a fundamental difference of, a different
finding that was made.

GAUDRON J:	It is hardly a finding of fact, is it? It is the formation of an opinion as to a probability and, if that
is right, how does that differ from a different opinion
as to the seriousness of the matters in issue?
MR OWEN-CONWAY:	Your Honour, it may be a different finding of

fact, and that was indeed the view Mr Justice Sheppard

took, quite clearly, in his reasons. It may be a

different inference of fact - - -

GAUDRON J:  You cannot make a finding of fact about something

that has not happened, I mean, other than an inkling.

PlT6/l/HS	14	MR OWEN-CONWAY	24/10/89
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You cannot make a finding of fact as to what is going to happen in the future, surely.

MR OWEN-CONWAY:  The finding is as to the likelihood of the

event happening in the future.

GAUDRON J:	Yes, all right.
MR OWEN-CONWAY:	You can make a finding as to that 1n

probability terms, I suppose.

GAUDRON J:	Probability, yes.
MR OWEN-CONWAY:	And that is capable of presently being

susceptible to a finding of fact. But in any event,

whether it be a finding of fact - - -

GAUDRON J: Well, it is a guess, an informed guess, maybe,

but it is a guess.

MR OWEN-CONWAY:  In so far as anything might occur in the future,

it may or may not happen, to that extent anything in

that category is guesswork, I suppose, but in any

event it is a fundamentally different view of a very

important part of the consideration referred to in the

policy statement and if Mr Justice Smithers' dictum
is correct in BARBARO, that different consideration,

that different inference, if it be an inference, is

such that it would invoke the principle that the

appellant be given an opportunity to be heard on that

matter, after having been advised what the exceptional

circumstances were justifying a departure from the

AAT's recommendation and in this case it is not clear

from the Minister's reasons what those exceptional

circumstances were.

It is possible that if the Minister does not make

clear what they are then he may be taken either to have

rejected findings of fact or inferences of fact found

by the tribunal or, alternatively, he may have taken

into account matters not before the tribunal and
disclosed to the person affected by his decision.	We
simply do not know, but in either case the person

affected, in my submission, is entitled to know precisely

what the reasons are and to be given an opportunity to

be heard.

DAWSON J:  He gave reasons originally presumably, did he, or the

delegate did, when the deportation order was made?

MR OWEN-CONWAY:	Yes, Your Honour.
DAWSON J:	Why could it not be that he finds those reasons still compelling despite the recommendations of the tribunal?

MR OWEN-CONWAY:  It may be that he does, Your Honour. I am not

putting the proposition that in every case where

a recommendation of the tribunal is not accepted by

PlT6/2/HS	15	MR OWEN-CONWAY 24/10/89
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person affected a further opportunity of putting the same submission. That is not my submission at all.	the Minister the Minister is obliged to afford the the particular circumstances of this case, in the
particular circumstances where there was a clearly
issued stated of government policy giving rise to an expectation legitimately that the policy would be -

DAWSON J: 

The argument would then be about whether he could

or should not depart, and so on. It would be a
technical argument in the sense of an argument about

matters which were not matters on the merits. Now,

on the merits your client had the opportunity to say

why he should not be deported and that was really the

question, was not it?

MR OWEN-CONWAY: 

Yes, it was indeed.

DAWSON J: 

Did he want to add any reasons to those as to why he

should not be deported?

MR OWEN-CONWAY:  He may well want to, Your Honour, depending

upon the Minister's reasons for not accepting the

tribunal's recommendations and, as I have said,

on a number of occasions, those reasons do not say

what the reasons are.

McHUGH J:	Is that true? What about the first sentence of paragraph 10 of his reasons at page 85 of the book
where he says:

In view of the conclusions I reached in regard to this case as referred to above,

I took the view that exceptional

circumstances existed -

and that provides its own dictionary as to what were

the conclusions.

MR OWEN-CONWAY:  The difficulty with that, Your Honour, 1s

firstly he does not indicate which conclusions he 1s

referring to.

McHUGH J: It is the conclusions referred to above and they are

that there was a serious crime, that there was not a

low risk of recidivism, a question of hardship and a

question of contribution of the Australian community.

MR OWEN-CONWAY:  I wonder if I could just refer Your Honour to

what Mr Justice Sheppard had to say about that and that

is referred to at page 206, lines 16 to 29:

Finally, there is the reference in the

reasons to "exceptional circumstances".

I agree with counsel for the appellant

that it is by no means clear to what

this expression was intended to relate.

PlT6/3/HS	16	MR OWEN-CONWAY 24/10/89
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In my opinion it does not appear with

sufficient certainty that it necessarily

relates to all the matters specified in

paras. 6 to 10 inclusive of the reasons,

to some of them - and, if so, which - or

to matters which are new. The expression

is important because it comes from para. 4

of the policy statement. In my opinion

the appellant was entitled to know

precisely what the exceptional circumstances

were and to an opportunity of dealing with

them.

With respect, Your Honour, that is my submission

today. I also draw attention to the fact that a

reference to his reasons above is somewhat confusing

with respect to the Minister because, in paragraph 5,

he said that he accepted the findings of fact made by

the tribunal, although in some important respects he
did not accept the tribunal's characterization of those

facts, or the weight to be given to them in the

exercise of his discretion.

DEANE J:	Of course, it may be relevarit that in deciding not
to adopt the recommendation of the tribunal the
Minister ordinarily will not have before him the
submissions made on behalf of the applicant in support of that recommendation. In other words, he will be disregarding the result of the statutory process without having before him the information and submissions on
which the tribunal saw fit to act.
MR OWEN-CONWAY:	Indeed.

DEANE J: It may well be, for example, that in the course of

the proceedings before the tribunal one side said to
the other, "You needn't worry about arguing that this

isn't a serious offence, that's conceded".

MR OWEN-CONWAY:  Yes, indeed, may well be, Your Honour. At

page 202 of the appeal book, Mr Justice Sheppard dealt

with the Minister's disagreement with the tribunal's

assessment of the risk of recidivism and His Honour

said:

His disagreement was based on the appellant's prior criminal record and the warning which

was given him on 9 June 1981 that should

he re-offend, he could be deported. The

Minister concluded that the risk of

recidivism was serious. In counsel's

submission it is difficult to reconcile
this statement with the earlier statement
that the Minister had accepted the findings
of fact made by the Tribunal. His

disagreement in relation to recidivism, in

counsel's submission, did not fall into a
different characterization of those facts

or the weight to be given to them.

PlT6/4/HS	17	MR OWEN-CONWAY	24/10/89
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DAWSON J:	Initially did you or your client put submissions in relation to recidivism which was obviously a
relevant consideration?
MR OWEN-CONWAY:	Yes.
DAWSON J:	You did?
MR OWEN-CONWAY:	Yes.
DAWSON J:	What did you want to add to that?
MR OWEN-CONWAY:	Maybe there is nothing to add to it, Your Honour.

Maybe there is. It depends on -

DAWSON J:  That is a real question of what the danger 1s 1n

this particular case.

MR OWEN-CONWAY:	I accept that.
DAWSON J:	But that is a question which you initially addressed.
MR OWEN-CONWAY:	Yes, I accept that.
DEANE J:	But what you might have wanted to add may well have
been, "When we saw you in our interview al 1 we did was
this, but since then 17, 18, 19 people have given evidence to the tribunal. Their evidence was to this
effect. It persuaded the tribunal. Therefore, you
should not depart from what the tribunal concluded without at least looking at all the evidence that was before the tribunal and about that evidence we would
make these points".
MR OWEN-CONWAY:	Indeed, Your Honour, yes. "I have set down five

particular matters which usefully the appellant might
put to the Minister at this stage to give this

thing some practical import."

DAWSON J:  But you did have the opportunity to put that evidence,

if there was different evidence before the tribunal,

to the Minister.

MR OWEN-CONWAY:  We never had the opportunity to persuade the

Minister that there were no exceptional circumstances.

DAWSON J:	No, initially.
MR OWEN-CONWAY:	Yes, indeed, but now it has changed inasmuch

as he has made this finding that there are

exceptional circumstances which justify this very
unusual course and he has also found that the interests

of the Australian community may be seriously harmed.

DAWSON J:  But the importance of the issue of recidivism in the

particular case has not changed?

MR OWEN-CONWAY:  No.

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DAWSON J:  And on that issue you were able to put what

submissions you wanted to to the Minister?

MR OWEN-CONWAY:  Yes, but what might have changed is this:

if there were facts known to the Minister which gave

rise to the exceptional circumstances or if there were
documents referred to by the Minister which led him
to that view, then the appellant could usefully be

given the opportunity of dealing with those matters

and generally putting his case with respect to them and
that he has not been. The Minister did not suggest

that he was in possession of strong evidence to justify

his rejection of the tribunal's recommendation,

contrary to the policy, but if he was it must have

been based on information not put before the tribunal.

The Minister did not indicate how, and in what manner,

the interests of the Australian community would be
harmed by the appellant's continued presence in this

country.

On the broader point of whether Mr Justice Smithers'

dictum is correct in BARBARO's case, perhaps I should

just say this, that Mr Justice Sheppard, of course,

expressedly affirmed the decision of Mr Justice Smithers

in BARBARO and applied it, having made a finding in this

case that the Minister had made a finding of fact

contrary to that of the tribunal, Mr Justice Forster,

at first instance, indicated that he regarded

BARBARO's case as correctly decided, made no bones

about that, but distinguished it on the basis that

the Minister's views were merely differences of

opinion. Mr Justice Northrop, in the majority in the

Full Court, did not discuss BARBARO's case and

impliedly, presumably, rejected it. He did not refer

to it expressly in his judgment but he must have

impliedly rejected it inasmuch as although

His Honour found that the Minister had not made

different findings of fact per se, he did find that

the Minister had made different inferences of fact

and if, consistently with Mr Justice Smithers' judgment,

he had applied that judgment, he would necessarily

have found in favour of the appellant on that basis.

Finally, Mr Justice Lee, in the majority in the

Full Court, found that BARBARO's. case was correctly

decided but distinguished it on the basis that, in

this case, the Minister had just formed a different

opinion, and finally, just to bring the record up to
date, in the recent case of KURTOVIC

Mr Justice Einfeld considered a very similar issue.

In fact, he specifically considered the circumstances

of this case and said that in his opinion BARBARO's
case was correctly decided and that Mr Justice Sheppard's

reasons were correct in the Full Court and he

disagreed with the reasons of the majority. So, in

the case of all that judicial analysis there is only
one judge, Mr Justice Northrop, who, impliedly, has

rejected the broad thrust of the general tenor of

PlT6/6/HS	19	MR OWEN-CONWAY	24/10/89
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Mr Justice Smithers' judgment in BARBARO's case.

So in saying that, with respect to Your Honours, that

there is real merit in that dictum, I am fortified

by some judicial support.

The circumstances in which a decision maker is

bound to afford procedural fairness to a person from

his decision from whom his decision affects and

the extent of that obligation is given consideration

and substantial consideration, of course, by the

members of this Court in KIOA V WEST and if I could

just, to save reading this out to Your Honours just

say to Your Honours that the first six points in the

outline summarize the general propositions of law which,

in my respectful submission, are applicable in this

case and I would rely upon them. If Your Honours are

content with that I will not take Your Honours' time

up with reading them.

KIOA V WEST, of course, was not concerned with the added factor of a policy statement made by a

Minister indicating how he proprosed to deal with

cases of a particular kind which came before him,
but the minority judgments in this Court in SALEMI (No 2)

and the decision of the Privy Council in ATTORNEY-GENERAL

OF HONG KONG V NG YUEN SHIU showed that the existence

of such a policy may give rise to a legitimate
expectation, even though the particular circumstances

of a given case the legislation would not do so.

Although SALEMI (No 2) was decided narrowly against

the deportee, the judgments in KIOA V WEST established

that in the different statutory context in which KIOA

was decided the minority views, and particularly those

of Mr Justice Stephen, probably would have prevailed,

and I refer Your Honours to the judgment of

Chief Justice Mason at page 578 to page 581 in KIOA.

DAWSON J:  It is an odd concept, is not it, that you have a

deportation order against you and you have a legitimate

expectation that it will not be carried out? That is

what it amounts to.

MR OWEN-CONWAY:  Yes, it is odd. It is curious, but, none the

less - - -

TOOHEY J:  But that is not the way you put your legitimate

expectation, is it? I thought you put it in terms

of a legitimate expectation that the recommendation
of the tribunal would be acted upon.

MR OWEN-CONWAY:	Indeed, that is precisely correct.
DAWSON J:	The ultimate effect is how I put it.
MR OWEN-CONWAY:	Yes, the ultimate effect is as Your Honours

put it, I think. Furthermore, the	High Court in
KIOA V WEST referred with apparent	approval to
NG's case. In that case the Privy	Council held that:

PlT6/7/HS	20	MR OWEN-CONWAY	24/10/89
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where a public authority charged with

the duty of making a decision promised

to follow a certain procedure before
reaching that decision, good administration

required that it should act by implementing

the promise provided the implementation

did not conflict with the authority's

statutory duty; that, accordingly,

assuming that an alien had no general right

to be heard before being deported, the

implementation of the promise to

interview each illegal immigrant

that being the policy in the case -

and decide each case on the merits

required the applicant to be given an

opportunity to state his case and the

failure to ask him whether he wished to

make representations why he should not be

removed was a sufficient ground for setting

aside the decision.

Both SALEMI's case and NG's case differed from the

present case because they were decided in the context

of a statutory provision which gave to the Minister

wide discretion whether to deport or not against which

there was no appeal to the tribunal, although, of

course now, since 1977 even in the case of a section 18

migration it may be that the principles of natural

justice are applicable, depending on the circumstances.

Now, in this case although the policy statement

does not constitute a promise it does raise in the

reader's mind the expectation that it would be followed

and gave rise to the expectation that the Minister

would act in accordance with it or notify the person

affected that he did not propose to do so and of

the matters to be relied upon him for taking that

course. The Minister agreed that the appellant's

crime was outside the policy and in these circumstances,

in my submission, he was obliged to give the

appellant an opportunity of persuading him that he

should not depart from it and that was found

specifically by Mr Justice Sheppard.

TOOHEY J:  In what sense, Mr Owen-Conway, was the crime outside

the policy.

MR OWEN-CONWAY:	Well, the crime was possession of fractionally less than 2 ounces of cannabis resin which is not a
hard drug and the policy is directed specifically to hard drugs - heroin is mentioned specifically - hard or addictive drugs ordealing in drugs of other
description on a significantly large scale and this
man was convicted of being in possession of a small quantity of cannabis with the intention of selling or supplying by virtue of the application of the statutory

PlT6/8/HS	21	MR OWEN-CONWAY	24/10/89
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presumption under the MISUSE OF DRUGS ACT in this

State and he was sentenced originally I think it

was to five years imprisonment with a minimum term

of two and a half and that was reduced on appeal to

three years with a minimum term of 18 months and
the Chief Justice, Chief Justice Burt, in that case,

described him in words to the effect that he was

"a small time dealer" and Mr Justice Wallace said that

he thought the appropriate sentence for such an
offence was a substantial fine, not even a term of

imprisonment.

So although all drug offences, of course, are

serious in themselves, in terms of the overall spectrum

of drug offences it is not a serious matter and it is

clear from the policy that the policy is directed at

serious criminal activity and dealing, where drugs

are concerned, in hard drugs or soft drugs on a

significantly large scale. As I think I have indicated,

whereas Mr Justice Sheppard was in agreement with

Mr Justice Smithers' view in BARBARO that the provision for deportation under section 12 is of such a nature that considerations of reasonableness and fairness have

been injected into it by the legislature and, as such,

the Minister's discretion under section 12 is not

absolute in the sense that such considerations can

be ignored, Mr Justice Northrop and Mr Justice Lee

held that the Minister had an unfettered discretion

upon reconsideration and Mr Justice Lee further held

that, notwithstanding that the policy statement may

have given rise to a general expectation as to the
conduct of the Minister in exercising that discretion,

such expectation could not have the effect of

converting an unconfined discretion into a confined

discretion.

Mr Justice Northrop specifically referred to the

exercise of the Minister's power as unfettered at

appeal book page 210, lines 8 to 10, but according to

Mr Justice Smithers in BARBARO's case, the nature of

the discretion has been modified and is not unfettered
in the sense of being absolute.	Mr Justice Northrop

cited a passage from POCHI's case in which, in

His Honour's view, illustrated the unfettered nature

of the discretion conferred upon the Minister but,
in my submission, the members of this Court in POCHI
made it clear that the discretion was not absolute in
the sense of being absolutely unfettered. There was a
duty on the Minister and the duty was to reconsider in

the light of the AAT's recommendation.

McHUGH J:  What troubles me about it - perhaps I misunderstand

something here - is I do not know why your case is not

a very different case altogether, that when the Minister

reconsidered this decision he took into account a great

number of documents and submissions, at least one

of which your client had never heard from, and one

PlT6/9/HS	22	MR OWEN-CONWAY	24/10/89
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thing he did not have was any submissions from you.

If you look at page 83 of his statement of reasons he

says:

In making the above findings I had

regard to a submission to me from

Mr AC Harris, Deputy Secretary ..... together with the annexures thereto -

and he then sets them out.

MR OWEN-CONWAY:	Yes.
McHUGH J:	They include the statement of reasons of the

Administrative Appeals Tribunal but he did not have

before him your arguments before the Administrative

Appeals Tribunal, he did not have your answer to what

Mr Harris' submission was.

MR OWEN-CONWAY:  If I can just say probably against my own

case on this point, Mr Harris' submission was really

a rehash of his earlier view.

McHUGH J:	Yes.
MR OWEN-CONWAY:	The Minister called for a recommendation from

departmental officers, two of whom recommended that the

exceptional circumstances required did not exist and

the deportation order should be revoked. The Minister

indicated in a handwritten note that he wanted a

further view and Mr Harris afforded him that further

view in terms very similar to the view he had originally

stated.

McHUGH J:  Yes, I know, but the point I was making is that the

Minister says in coming to his decision he had regard

to that submission, together with all these annexures,

but one thing he did not have was your case except in
so far as the Administrative Appeals Tribunal may

have adopted it.

MR OWEN-CONWAY:	Yes.
McHUGH J:	You seem to confine yourself in a much narrower way.
MR OWEN-CONWAY:	Yes, that is true.
McHUGH J:	It does not seem to be part of your complaint that the

Minister did not have what your argument was about.

MR OWEN-CONWAY:  No, that is correct, Your Honour, and if

I can say the reason - - -

McHUGH J:	Why is it?
MR OWEN-CONWAY:	The reason is because the expectation was

that the recommendation would be followed and it is

only in the event that the recommendation is not

PlT6/10/HS	23	MR OWEN-CONWAY	24/10/89
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followed that we want to put our case, and it has only

been in one case, BARBARO's case, up to the time that

that case was decided, in which the Minister's

recommendation had not been followed. So it was

probably thought wholly unnecessary to rehash all the

argument again faced with a favourable recommendation

from the tribunal.

McHUGH J:  That is why it may be that you are unnecessarily confining yourself. The Minister had a statutory duty

to reconsider the matter and he did reconsider the

matter, but he took into account the findings of the

Administrative Appeals Tribunal but he took into

account all these other documents as well; but the

one thing he did not take into account was

your arguments about the whole matter. Anyway,

you seem to put it on a much narrower basis.

MR OWEN-CONWAY:  Yes. I was seeking to afford an explanation

why his counsel probably thought it unnecessary to, all the submissions to be relied upon on behalf of the

appellant and the reason for that, no doubt, would have

been because of the expectation that the recommendation

would have been implemented.

DEANE J:	But why do you not say in answer to Justice McHugh that
before the Minister decided to reject the recommendation
you do say he was bound to extend an opportunity to be
heard rather than, as it were, not really facing up to His Honour's question by saying, "The question did not arise until it was too late"?
MR OWEN-CONWAY:	To be perfectly frank, Your Honour, it is not a

matter which I have given consideration to until it has
just been put by His Honour: It is not a matter which has

been argued before the courts below. I can see the force

of His Honour's question and if I am able to adopt that

approach now, of course, I gladly accept it, but to be

honest, it is not a matter which I have considered up

to now.

McHUGH J:  You see, the Minister just did not merely reconsider

the reasons of the tribunal. On his own statement he

took into account a number of other documents and matters,

jncluding reports of interviews with people, and so

on, and in evaluating the AAT' s reasons he obviously

had regard to those documents, but one thing he did

not have regard to in evaluating the AAT's reasons

were your arguments that were put before the AAT.

MR OWEN-CONWAY:	Yes, that is correct.
DAWSON J:	Were the arguments which were put before the AAT any

different from the arguments which were before the

Minister's delegate in RICHMOND?

MR OWEN-CONWAY:  No, I would not have thought so, Your Honour.

PlT6/ll/HS	24	MR OWEN-CONWAY	24/10/89
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DAWSON J:	No.
DEANE J:	But you are talking of the difference between an

interview with the delegate and days of hearing of

witnesses before the AAT. How can you say that?

I mean the AAT heard sworn evidence from the man's

relations, and so on, about the possibilities. That

is not even comparable to what happens in an interview

with the delegate.

MR OWEN-CONWAY:  No, it is not.

(Continued on page 26)

PlT6/12/HS	25	MR OWEN-CONWAY	24/10/89
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DAWSON J:	But it was not suggested that you were going to put sworn evidence before the Minister; you were
going to put arguments about what was said, were you
not?
MR OWEN-CONWAY:	Yes, and the very same arguments presumably

that he would want to put now depending on what

factors influenced the Minister in rejecting the

AAT's recommendations.

DAWSON J:  And the arguments would be that he was giving

insufficient weight to the matters which you had

already put before him.

MR OWEN-CONWAY:  Well, the arguments would depend upon the

reasons and as I have said, Your Honour; It is

difficult to speculate as to what the arguments - - -

DAWSON J:  It would be argumentative in the light of it

but it would be, in the end, arguments that he had

given insufficient weight to the matters which you

had put before him and greater weight to other

matters that he should have.

MR OWEN-CONWAY:  Yes, but that argument might be referenced

by notations in the transcript, I suppose -

DAWSON J:  Well, it might be a much more elaborate argument.

It might be a much better argument.

DEANE J:  Or it might have been simply, before you reject

the conclusion of the tribunal that has conducted a

full inquiry, at least examine the evidence that they

had before them.

MR OWEN-CONWAY:  Yes, indeed. Your Honour, I was dealing

with the judgment of Mr Justice Northrop in the
Full Court. His Honour said that in reconsidering
a decision to depor4 the Minister did have regard to
the AAT's recommendation and he found that the

Minister did accept the facts found by the AAT but

made inferences from those facts different from the.
inferences made by the AAT from the same facts.	And,
that is at appeal book page 215 lines 11-13 and
24-30. So, His Honour was quite satisfied that,

indeed, the Minister had drawn different inferences

from the facts, not merely, presumably, come to a

different opinion. Now, although the Minister clearly

had regard to the tribunal's recommendations in the

sense that he gave consideration to them along with

the other documents referred to in his reasons, notwithstanding statements that he accepted the tribunal's findings, it appeared to Mr Justice Sheppard

that he acted contrary to them in one important

respect r._elating to the serious risk of recidivism.

PlT7/1/JH	26	MR OWEN-CONWAY	26/10/89
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According to Mr Justice Smithers in BARBARO, the duty to afford natural justice is not limited to

circumstances in which the Minister took a

different view of the facts from that taken by the

tribunal. The duty also applies where inferences

of facts are departed from:

or where considerations thought important

by the Tribunal have not been so regarded by

the Minister and contrary considerations

have been adopted by him.

That is at pages 130-131 in BARBARO's case. So,

in finding that the Minister had drawn different

inferences of fact in this case, in my submission,

Mr Justice Northrop should have concluded that the

appellant was not accorded procedural fairness and

by not so concluding His Honour may be taken to have

rejected the view of Mr Justice Smithers in

BARBARO's case although nowhere in his judgment did

he expressly refer to it. Whereas Mr Justice Northrop

was of the view that the submissions made by counsel

gave too much weight to the government's

criminal deportation policy, Mr Justice Sheppard
found that a combination of factors of which the

existenceof the policy and the considerations arising

from it were of substantial importance in the case.

Now, it is not submitted in this case that the policy has the effect of law and must be applied; that is not the submission. Rather, its relevance is in the creation of a legitimate expectation that it will be

followed and no more.

Mr Justice Northrop found that there was no

basis to support an implication that a Minister is

required to tell a deportee of his reasons for

rejecting a recommendation of the tribunal not to

deport and thus afford the deportee an opportunity to

make further submissions as to why the order of

deportation should not be made. But, it is submitted

that in this case there was, indeed, such a duty and

rise to an expectation in the appellant that his case	it arose because of a statement of policy which gave
would be dealt with in a p~rticular way unless he was told otherwise and given an opportunity to make
representations to the contrary but it is accepted
that such a duty does not arise in every case.
Mr Justice Northrop gave consideration to the
relationship between the exercise of a power or discretion conferred by statute and a policy promulgated
by a minister to guide persons on the exercise of that power or discretion. And, His Honour considered the
decision of the Full Court of the Federal Court in
DRAKE V MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS and a separate decision by Mr Justice Brennan, then as
President of the AAT, in DRAKE V MINISTER (No 2). In

PlT7/2/JH	27	MR OWEN-CONWAY	26/10/89
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these cases, the court and tribunal considered the
exercise of a power conferred by section 12 of
the MIGRATION ACT at a time before the Minister had
published the policy but at a time when there was in
existence another policy which had been promulgated
by the Minister with respect to the exercise of the

power to deport under section 12. In DRAKE, the

Federal Court stated its view of the proper approach

to ministerial policy statement. The court made

clear its view that the AAT ACT imposes on the tribunal

an obligation independently to assess the propriety

of government policy even as stated by a Minister.

Its proper function is not discharged merely by

determining whether the decision may conform with

whatever the proven relevant lawful government policy

might be. When, in accordance with the order of

the Federal Court, DRAKE's case was returned for

rehearing before the tribunal, it came before

Mr Justice Brennan and His Honour drew a distinction

which was to recur in later cases between the making
of a discretionary administrative decision and the

making of a curial decision. Notwithstanding the

wide language of the AAT ACT and the discretion

conferred on it clarified by the Federal Court, the

tribunal indicated in RE DRAKE, (NO 2), that

circumstances in which ministerial policy would be

departed from would be rare.

In ANSETT TRANSPORT INDUSTRIES V THE COMMONWEALTH,

Chief Justice Barwick at pages 61 and 62 in the
judgment, said this, and this was an issue which arose

in relation to:

the observance of government policy by

the Comptroller-General of Customs -

the Chief Justice said this:

I do not regard the observance of government

policy by the Comptroller-General of Customs

as any breach of his duty. Indeed, he

would be bound, in my opinion, to carry out

the communicated policy of government in
deciding whether or not to grant his consent
to importation. The vesting of a discretion
in an official in an area such as the control

of entry into Australia of goods or persons

does not, in my opinion, give him a power to

ignore or to depart from government policy in

the exercise of this discretion in relation to

such entry.

And, Mr Justice Gibbs as he then was, held at page 62:

that it would not be wrong ..... to give weight,

and indeed conclusive weight, to the policy

of the government.

P1T7/3/JH	28	MR OWEN-CONWAY	26/10/89
Haoucher(2)

And, Mr Justice Murphy at page 87 said that:

Unless the language of legislation

(including delegated legislation) is

unambiguously to the contrary, it should

be interpreted consistently with the

concept of responsible government. It

would be inconsistent with that concept for

the secretary or any officer of a

department to exercise such a power or

discretion contrary to the Minister's
directions or policy (provided of course

these are lawful).

In MINISTER V CUNNINGHAM and

MINISTER V EAST WEST TRADING COMPANY, it was held in

both cases that there were no grounds for elevating policy guidelines for the status of law and in both cases emphasis was laid on the need to concentrate

on the relevant statutory provisions. In the instant

case, the guidelines are consistent with the Act and

it is clear that the Minister's discretion is

intended to be exercised in the manner referred to

in the guidelines. As I have said, I would just like

to emphasize, it is not the appellant's submission
that the policy has the effect of law and must be
applied; rather it is said that in the circumstances
of this case it gave rise to a legitimate expectation

that the Minister would act in accordance with it

when he came to reconsider the recommendation of the

tribunal.

In the Full Court, Mr Justice Lee held that

although the ministerial statement of policy may have given rise to a general expectation as to the conduct

of the Minister in exercising his discretion, it could
not have the effect of adding to the provisions of
the statute and converting an unconfined discretion

to a confined discretion. It is submitted, with

respect, that this view ignores the effect that the

passage of the AAT ACT and ADGR)ACT had upon the

deportation power contained under section 12 of the

MIGRATION ACT. According to Mr Justice Smithers in

BARBARO:

the passage of the AAT ACT did introduce

a qualification of significance into the

deportation power ..... Once a duty to give

reasons for a deportation order was

introducP~ the exercise of the discretion

had inevitably undergone some kind of· ·

qualitative change.

The implication is that in the whole

transaction the discretion of the Minister is

subject to modification, taking its nature and

PlT7/4/JH	.29	MR OWEN-CONWAY	26/10/89
Haoucher(2)

extent from the duty to act not only
fairly and taking account of all

considerations which are relevant to the

making of a decision in the best interests

of Australia, but to do so openly.

Mr Justice Lee did acknowledge that it may be

arguable, according to the circumstances,that a

failure to adhere to stated government policy

constitutes a denial of procedural fairness given

that the statute has not excluded the duty to act fairly in accordance with the doctrine of natural

justice.

TOOHEY J:  Mr Owen-Conway, I am not sure that I really

understand the notion of policy here. A number of

the cases that you have referred to are statements of

government policy in relation to some social or

political issue and those cases, as I recall them, say

that that statement of policy is not elevated into

propositions of law by which the Minister is bound. But,

the policy you are speaking of here, as I understand it,

is the policy that the recommendations of the tribunal

will be implemented unless there are exceptional

circumstances. Is there any suggestion that the Minister failed even to give lip service to that policy? I am not suggesting that lip service is enough

but I would not have thought that there was perhaps any

gulf between you and the respondent on this point but

that remains to be seen.

MR OWEN-CONWAY:  Yes. No, it is not.

TOOHEY J:  As I understand the case that is put against you

is that there were exceptional circumstances and
whether there were or not is another matter and whether
those circumstances were of a nature that required the
appellant to be heard is also another matter but I do

not know that there is any great issue about policy

and its implementation.

MR OWEN-CONWAY:  I am anticipating that my friend's case will

be that in the circumstances of this case there was

no legitimate expectation in the appellant and I am

dealing with some of these cases on policy merely to
emphasize the fact - - -

TOOHEY J:  But, you do not say there was a legitimate

expectation that your client would be given the

opportunity to be heard; yqu have disavowedthat at an

earlier stage. What you are saying, as I understand it,

is that he should have been given the opportunity to

be heard to the extent that the Minister departed from findings of fact, or you would say inferences of fact, found by the tribunal or, and this again could hardly

be in dispute, if he chose to rely upon some new fact

that had just not been considered by the tribunal before.

PlT7/5/JH	30	MR OWEN-CONWAY	26/10/89
Haoucher(2)

MR OWEN-CONWAY:	Yes, I do not go any further than that.
TOOHEY J:	Well, then, does not the appeal refine itself

to a fairly narrow question, at least from your point
of view, as to whether the reasons offered by the

Minister for his departure from the recormnendation

of the tribunal, was such that the appellant should

have been given the opportunity to be heard in regard

to those reasons.

MR OWEN-CONWAY:  Yes, indeed they do, I am grateful,

Your Honour.

TOOHEY J:  Well, I am not inviting you to accept that as your

case, that is always perhaps a rather dangerous

thing to dq but that seemed to be the way the case

was heading.

MR OWEN-CONWAY:  Yes, I do accept that invitation; it is

correct that I am putting it in that way and the

fundamental submissions that I am making in this

case are set out in paragraph 11 of the outline which
appears on page 3 and really that is it, that is the
core of the submission. The previous 10 paragraphs

deal with general propositions of law which are not

likely to be,what I anticipate, hotly contested.

DAWSON J:  I have some difficulty with 'legitimate

expectations"; and I am not alone in that I gather. You

do not have a legitimate expectation that the Minister

will make a correct decision and you do not have a

legitimate expectation that if he decides there are

exceptional reasons he will decide in your favour.

MR OWEN-CONWAY:  No, the legitimate expectation is that he

will implement the recormnendation of the tribunal.

DAWSON J:  But, there is no legitimate expectation that he

will implement the recormnendation of the tribunal if

he finds that there are exceptional reasons why he

should not.

MR OWEN-CONWAY:  No.

DAWSON J:  And he did so find. Now, you say he was wrong, that

you could not have had an expectation in those
circumstances. What I am getting at is, it does come

back very much,,whichever way you look at it, to what

Justice Toohey's is putting to you that really what

you are saying is you had a legitimate expectation

of being heard.

MR OWEN-CONWAY:  Yes, just to take issue with Your Honour

on one point there if I may, I am not going so far as

to suggest that the Minister was wrong in finding

31

PlT7/6/JH	MR OWEN-CONWAY	26/10/89
Haoucher(2)

that there were exceptional circumstances. It may

be that he was right; I just do not know because he

has not explained what the reasons were which gave

rise to that finding. I simply say that the appellant

had a legitimate expectation that the recommendations

of the tribunal would be implemented.

DAWSON J:	Not if the Minister found exceptional reasons.
MR OWEN-CONWAY:	If the Minister found exceptional circumstances,

he was obliged, in my respectful submission, to state

clearly and precisely what those reasons were

justifying his departure from the recommendation of
the tribunal and to give the appellant the opportunity

to be heard on that radical and unusual departure.

And, that is it, that is my case; it goes no further

than that except to the extent that it is perhaps

further expanded in subparagraphs (a), (b) and (c)

of paragraph 11, but that is it.

TOOHEY J:  There is another way of putting it •and it is a

br~derway and it does not appear to be the way in
which you are putting the case.and that is that,

the matter having been the subject of a recommendation,

once the Minister embarked upon a reconsideration of

the matter, then putting the notion of legitimate

expectation to one side, procedural fairness required

that he give the appellant the opportunity to be heard

in respect of any matters upon which the Minister

proposed to rely which had not been made available to

the appellant at any earlier stage. I am not suggesting

that that would take you any further but that is

perhaps another way of viewing the matter.

MR OWEN-CONWAY:  Yes. I do not think it would have taken me

any further, with respect, Your Honour, because

there were only three reports which the Minister had
access to which were not available prior to the hearing
of the AAT - before the AAT, two of wpich reports were

favourable in the appellant's favour and the third

was Mr Harris' memorandum to which reference has

already been made, in effect, restating Mr Harris'

earlier position. Clearly, if it had come to light

that there had been other material which the Minister

had had access to in respect of which the appellant

had had no opportunity to comment upon, apart from

Mr Harris' reference, then it would have been put on that basis but that is the reason why it has not been.

TOOHEY J:	Yes.
MR OWEN-CONWAY:	I think I have taken Your Honour through a

short judicial analysis of the findings so far.	I have
mentioned that Mr Justice Einfeld has given

consideration to this case in KURTOVIC and expressly said

that he preferred the views of Mr Justice Sheppard.

PlT7/7./JH	32	MR OWEN-CONWAY	26/10/89
Haoucher(2)

McHUGH J:  How can yo~ SfiY that? I mean, he was bound

by the ..... aecision.

MR OWEN-CONWAY:  He said that he was bound by them and

applied the majority in this case but said that he

was doing so only because he was bound and he preferred

Mr Justice Sheppard's views.

TOOHEY J:	It is not offered· in terror em then?
MR. OWEN-CONWAY:	Your Honours., unless I can be of any further

assistance, those are my submissions.

McHUGH J:  Before you sit down can I just ask you this so

I can understand. It seems to me that by relying on

the government's policy you may be narrowing the

scope of the Minister's duty under the Act. When the

matter is remitted to him, he is to reconsider it in
accordance with the recommendation of the tribuna½
not the finding. Now, if he elects to depart from

the recommendation and reconsider the matter, why is

it that you do not say he is bound to take into account

everything that you have said on the subject-matter

including the case you have presented before the tribunal?

MR OWEN-CONWAY:  I do say that now, Your Honour, with respect.

I was reluctant to do so because, as I said, it had not

occurred to me to put it that way before. If I am permitted to put it that way now before this Court,

I do so.

TOOHEY J:  One reason why you might not do it is that_ if you

had a favourable recommendation from the tribunalwith

findings of fact in your favour and expressions about
the appellant which are favourable to him, well that
may well put your client's position at the highest.

Why go delving into other areas that may, perhaps,

detract from what the tribunal has recommended?. But that

would depend upon an analysis of the recommendation

and the findings of the tribunal. What is still not

entirely clear to me, Mr Owen-Conway, is if we follow

you down the track of legitimate expectation in

relation to the recommendation, apart from the view

taken by the Minister of recidivism and the qualitative

assessment by the Minister about the seriousness of

the offence, are there any other matters in respect of

which you say there was an obligation on the Minister to

allow your client to be heard?

MR OWEN-CONWAY:  Yes, it is set out in paragraph ll(c) of

the outline.

TOOHEY J:  Well, that is perhaps approaching it from a

different direction. You are saying that there was an

obligation on the Minister to state the exceptional

circumstances.

PlT7 / 8/JH	33	MR OWEN-CONWAY	26/10/89
Haoucher(2)

MR OWEN-CONWAY:  Yes, that is the way I opened the case.

I did not manage to put emphasis upon that particular

submission. Because, it goes back to what I said

at the start, this is a case about a man who is being

deported without knowing the reasons why and it really

is, in my respectful submission, as simple as that;

he does not know why.

TOOHEY J:  Well, he knows why but he does not know why,

perhaps, the Minister did not accept the reconrrnendation

of the tribunal.

MR OWEN-CONWAY:  He knows what the Minister's conclusion is

but he does not know how he arrived at it and, in my

submission, he is entitled to know that and to be

.. given an opportunity of dealing with it. Thank you, Your Honours.

DEANE J:	Yes, Mr Downes?
MR DOWNES:	Your Honours, may I hand up what I think is the

requisite number of copies of the outline?

DEANE J:	Yes, Mr Downes.
MR DOWNES:	Your Honours, could I begin by taking Your Honours

to a short passage in the judgment of the Chief Justice

in KIOA V vJEST, 1,59-CLR 551 and.the.passage is at 533 about point 3 of

the page when His Honour is speaking of the concept

of the legitimate expectation and His Honour says:

The expectation may be based on some

statement or undertaking on the part of the

authority that makes the relevant decision.

In the view of some members of the

Court in SALEMI (NO 2) the "amnesty"

constituted an example of such an

undertaking. Alternatively, the expectation

may rise from the very nature of the

application, as it did in the case of the

application for a renewal of a licence in

FAI -

V WINNEKE -

or from the existence of a regular practice

which the person affected can reasonably

expect to continue.

So, His Honour there isolates three alternatives: statement or undertaking, the very nature of the

application and the existence of a regular practice.

Now, my learned friend appears, to a greater or lesser

degree, to rely on each of these approaches but the

fact remains that the very first thing one has to do in

considering a legitimate expectation case, in our

respectful submission, is to look at all of the

PlT7 /9, / JH	34	MR OWEN-CONWAY	26/10/89
Haoucher(2)

circumstances which are relevant with a view to

giving consideration to the question of whether a

legitimate expectation can arise in the circumstances

and as we would see it the relevant legitimate

expectation in the present case is an expectation

that the Minister would revoke the deportation order

which was in existence and continue to be binding

until that revocation - that the Minister would not

revoke, I am sorry, the deportation order without

giving an opportunity to the appellant to put

further submissions before him.

Now, Your Honours, in our outline of submissions,

in the first three paragraphs we have sought to

isolate three relevant circumstances which go to

determining on whatever ground one is going to

postulate the question whether a legitimate

expectation could be said to arise in the present

case. And, the first, of cou~ee, matter that we

advert to is the provisions of section 66E itself and the way they have been construed by this Court. And, that takes me, if I may, to a case my learned friend

referred Your Honours to, namely, the

MINISTER FOR IMMIGRATION V POCHI, 149 CLR 139, when it

first came to this Court, and that, as Your Honours

will recollect, was a decision of this Court in,which

special leave was refused or, perhaps I am incorrect,

an existing grant of special leave was rescinded, in

effect, on the ground that the Minister was not bound

to act on the recommendation of the Administrative

Appeals Tribunal and it would, therefore, be

inappropriate given those circumstances for this Court
to have granted special leave to have considered the
questions which arose relating to the deliberations
of the tribunal itself when there was a real prospect
that the Minister would not act on the decision of
the tribunal in any event. The relevant passages,
only, I think, one short sentence of which was read by
my learned friend - I simplr make that observation not

not going to read anything that has already been read, any- critical way but to tell Your Honours that I am

The relevant passages are at pages 142 and at about

point 8 of page 142, the majority, the then

Chief Justice Mr Justice Mason, Mr Justice Aickin and

Mr Justice Wilson said:

Clause 22(3) -

I should tell Your Honours this - Your Honours may know - that the statutory scheme was the same in

POCHI's time but at the time POCHI was decided the

relevant structure was not contained in the

MIGRATION ACT, it was contained in a schedule to the

JUDICIAL REVIEW ACT and one assumes it was thought

more helpful to potential litigants to have their

rights spelt out in the Act which was governing their

P 1 T7 /1()' JH	35	MR OWEN-CONWAY	26/10/89
Haoucher(2)

situation and so section 66E picked up what was, in

effect, in the ADOR)ACT and put it into the

MIGRATION ACT. So, Clause 22(3) is a reference to

those earlier provisions:

Clause 22(3) does not mean that if the

Tribunal makes recommendations the

Minister must, on reconsideration, give

effect to them. If it had that meaning

a recommendation would be equivalent to a

direction, and a remitter for

reconsideration in accordance with the

recommendations of the Tribunal would be

tantamount to the making of a decision in

substitution for that under review.	The
contrast between the provisions of

Pt XXII and those of section 43 make it

clear that Pt XXII does not have such an

effect. The effect of a decision of the

Tribunal remitting a matter for

reconsideration in accordance with its

recommendations is only that the Minister

is bound to reconsider the matter in the light of the recommendations. There are obvious reasons why the Parliament may

have considered that the Tribunal, in

making a review of decisions under the

MIGRATION ACT, should have less extensive

powers than are granted in the case of
other administrative decisions.

And then, Your Honour, just a bit below half-way down the same page:

However, there were a number of reasons why

this Court, which, unlike the Federal Court,

first place there is the fact that a decision of the Tribunal

is not bound to hear an appeal from the the present case. In the

binds the Minister only to the extent that

it may require him to reconsider his

decision. If this Court were to affirm the
dismissal by the Federal Court of the appeal

from the Tribunal's decision, the Minister

would remain free, on reconsideration, to

decide that the deportation should proceed.

In other words, a decision of this Court

dismissing the appeal would not bind the
Minister to adopt the recommendation of the
Tribunal. Although the Minister would be
obliged to reconsider the matter, he would
not be bound to exclude from his
consideration evidence which the Tribunal
or this Court considered was of insufficient

probative value, or to give weight to

PlT7 /lJ/ JH	36	MR DOWNES • -QC •	26/10/89
Haoucher(2)

material which the Tribunal or this

Court considered to be of decisive

importance. He would not be required to

accept as correct any views as to the
facts, or as to the weight of the

evidentiary material, expressed by the

Tribunal or the Court; he would merely

be required to have regard to the

Tribunal's recommendation.

TOOHEY J:  Mr Downes, was the statement of policy to which

we were referred by Mr Owen-Conway in existence at

the time of J>OCHI' s case.

MR DOWNES:  There have, Your Honour, been successive statements

of policy in existence over the years. There

certainly was one in existence at the time - I think

it was probably the one that was in existence and

is referred to in some detail in DRAKE's case which

is in our written submissions. But, the instant

policy, the one with which we are here concerned,

did not come into effect until 1983; it was a

statement in the House, I think, by the then

Minister who was the Minister in KIOA V WEST, Mr West, in, I think t May -l 9J3. The precise date appears

at, I think, page 70 which is the first page of

the policy appearing in the appeal book.

(Continued on page 38 )

PlT7 /12'JH	37	MR DOWNES, QC	26/10/89
Haoucher(2)

TOOHEY J: Well, are we to understand from that that at the time

POCHI's case was decided, any statement of policy

in existence did not relate to the implementation of
the tribunal's decision but rather to broader

questions of government policy?

MR DOWNES:  Your Honour, it is a matter that perhaps I should

take the opportunity to look at to satisfy myself
fully about, but my understanding is that the earlier
policy in existence at this time did not refer to the

attitude the Minister would take to recommendations

from the tribunal. But, Your Honour, I am not seeking

to rely on POCHI's case as in anyway foreclosing

because of the words that were here used, "The
question of procedural fairness or natural justice",
but simply to say that here is this Court's statement

of the way one must construe the words of now

section 66E which is a most pertinent matter in

determining, along with other matters, whether a

legitimate expectation of the kind he contended for

could arise.

DAWSON J: It seems to suggest that the duty is only to look at the recommendations and reconsider the material

that was previously .....

not the evidence that was before the tribunal.

MR DOWNES: Exactly, and I am going to take Your Honour to

O'SHEA's case in a moment, if I may, which, we would submit, takes this matter somewhat further

and, in effect, says that what one has here is a

statutory scheme in which the way - in a real sense

one might say there is an opportunity for a further

hearing before the Minister. The way that further
hearing is achieved is through the statutory scheme

of going to the Administrative Appeals Tribunal;

putting all your material to the Administrative

Appeals Tribunal; and then having that tribunal's
recommendations taken through to the Minister. It
is a bit like a committee - a statutory scheme in

which a committee is appointed, and Your Honours

will recollected FAI V WINNEKE in which the Court

specifically said, "Well, the Governor doesn't

actually have to hear. He can appoint somebody else

to hear and receive a recommendation from the

person who undertakes the hearing". But I think

I am anticipating myself a little by going to that

at this stage.

DEANE J:	Mr Downes, a matter has come up requiring the Court to give some attention to it, so if that is a
convenient time we will adjourn now until 2.15 pm.

AT 12.15 PM LUNCHEON ADJOURNMENT

PlT8/l/DR	38	MR DOWNES, QC	26/20/89
Haoucher(2)
UPON RESUMING AT 2.20 PM:
DEANE J: Yes, Mr Downes.

MR DOWNES:  Your Honour, one of the other matters that was

agitated in POCHI's case was a constitutional question

as to the validity of section 12 and the Court also

considered, in the first POCHI, that that was not

appropriately dealt with at that time. But that

question did come back to the Court and it came back

to the Court in POCHI V MACPHEE, (1982) 151 CLR.

There, Your Honours, the constitutional question

relating to section 12 was debated and resolved in

favour of the section's validity. But a second

attempt was made to agitate the same issue as had

been referred to in the earlier case and in the

passages I took Your Honours to.

So that an argument was raised in the second

POCHI case that the Minister was bound upon

reconsideration to adopt the tribunal's decision.

That was dealt with by Sir Harry Gibbs, at page 105,

he writing a judgment in which I think each of

the other judges with the exception of

Mr Justice Murphy agreed. That was dealt with by
His Honour at page 105 in 151 CLR at point 3, when

His Honour said:

It was held by four of the five members of

the Court who heard the matter -

that is the earlier matter -

that the effect of the provisions which

empowered the Administrative Appeals Tribunal
to review a decision under s. 12 of the

MIGRATION ACT was that the Minister was not bound, when he reconsidered the matter,

to give effect to any recommendations made by

the Tribunal: a recommendation of the
Tribunal in such a case is not tantamount to

a direction, and the Minister is bound only to

reconsider the matter in the light of the

recommendation.

TOOHEY J: But, Mr Downes, was that said at a time when

section 66E was there in its present form?

MR DOWNES:  It was said at a time when section 66E was there

in the form of clause 22 to the schedule to the

ADMINISTRATIVE DECISIONS(JUDICIAL REVIEW)ACT,	that
clause being, for all intents and purposes, in

identical form to section 66E. So, the answer to

PlT8/2/DR	39	MR DOWNES, QC	24/10/89
Haoucher(2)

Your Honour's question is, literally, no, section 66E

had not been enacted but the existing provision was

in identical form and the only change was, I think,

the change I mentioned before the luncheon adjournment,

to take the provision out of the JUDICIAL REVIEW ACT

and put it into the MIGRATION ACT. The first

proposition that we seek to put before Your Honours

as one matter to be taken into account in determining

whether a legitimate expectation could arise, is the

fact that the decision of the tribunal is not binding

and - well, I will not read Your Honour the passage

I read to Your Honours just before the luncheon

adjournment again - but that the Minister is free to
depart from fact finding and other findings in his

reconsideration.

I ask, rhetorically if I may, before

Your Honours, if that is the proper construction of

the section, is that a section which readily could be

said to give rise to a legitimate expectation of a hearing before the facts found by the tribunal are departed from. Your Honour, the next matter that we have adverted to in proposition 2, or in

paragraph 2 of the written submissions which we say

is relevant to a consideration of whether a

legitimate expectation could arise - - -

McHUGH J: Well, can I just ask this before you go on to your

second point?

MR DOWNES:  Yes, Your Honour.

McHUGH J: Accepting what was decided in POCHI, why is not the

proper construction of section 66E(3) that the

Minister is not entitled to move outside the

recommendations? That is to say, he cannot vary

factual findings and, indeed, cannot reject

recommendations other than recommendations which go

to the very decision itself.

MR DOWNES:  Your Honour, we would respectfully submit that

POCHI's case establishes the proposition that he

can do that very thing. That he can go outside -

he has to take into account the recommendation,

but no more than that and he can go outside it if

he wishes to provided, at the same time, he is

taking that into account. So, that is the

submission we will put in answer to Your Honour but

I would wish to say that, as my learned friend very

frankly accepted, this matter has not been raised

before and it really does cross over to other grounds.

It is not really, we would respectfully submit, a

natural justice or a procedural fairness point, it

is a relevant/irrelevant consideration point.

TOOHEY J:  I do not see that. If the matter has been the

subject of consideration by the Minister; it has

PlT8/3/DR	40	MR DOWNES, QC	26/10/89
Haoucher(2)

gone to the Administrative Appeals Tribunal; comes

back from the tribunal with a recommendation that

the deportation order be not enforced; if the way

in which you put it is that the matter is then, as

it were, at large before the Minister for reconsideration

why does_ not the whole process start all over

again with the concept of natural justice that

requires the Minister to put to the proposed

deportee any consideration that might lead to his

deportation?

MR DOWNES: Well, Your Honour, that is when the statutory

scheme approach - the O'SHEA's case approach - we
would respectfully submit, comes into play and I

will come to that in a moment if I can. But,

basically, we say that the scheme is - the

appellant, the deportee, really does have his

opportunity to have his case heard by the Minister.

The statute says the way he gets it is by going to

the tribunal; putting all his submissions before

the tribunal and, as in this case, the tribunal,

in effect, accepts them all; makes all the findings

that are favourable to the deportee and so to

speak, the tribunal, speaking for the deportee,
then puts before the Minister the arguments in

favour of the reconsideration.

TOOHEY J: But the way in which you put it, Mr Downes, and

it may be that you do not intend it this way:

which was never before the tribunal

that, if having received a recommendation, the information

and which bears directly upon the decision whether

to deport or not to deport, that he does not have

to tell the deportee about that?

MR DOWNES:

No, Your Honour, I do not go that far. I do

not have to go that far - I do not, for the

purpose of the submission - but what

Mr Justice Smithers decided in BARBARO's case

and when Your Honours look at the way it was acted

upon in the Full Federal Court in this case, and I particularly refer to Mr Justice Sheppard, its

application was limited. Mr Justice Sheppard

said BARBARO's case, which I follow, decides no

more than this: if you are going to act on some

new fact, then an obligation to accord natural

justice will arise. That is what Mr Justice Smithers

said.

I am going to put a submission to Your Honours

in due course that there was not any new finding of

fact here, in effect. The only area in which it is

PlT8/4/DR	41	MR DOWNES, QC	26/10/89
Haoucher(2)

alleged there was a new finding of fact is the

recidivism area. The submission I propose to put to

Your Honours on that is, broadly speaking, that

which in argument fell from Justice Gaudron

earlier this morning: namely, that it is really not

a factual matter at all, it is an opinion about the

future. But I do want to take Your Honours briefly

to what the tribunal said on that issue in any
event.

So, that is the first proposition. One, the proposition is, Your Honours, that there was no new

fact finding here. So, we can live with BARBARO's

case. But, Your Honours, the relevant test is not
fact finding or no fact finding, it is new issue

or no new issue, with respect. If the Minister is

going to act on some totally new issue, as opposed

to some new fact relating to an existing issue,

then there may be room to find an obligation to give

an opportunity to put a further submission but we

would respectfully submit that it is at that point

that it stops. We do not put it exactly in the way

that BARBARO's court, as interpreted by

Mr Justice Sheppard put it, we say it has to be a

new matter - to use a phrase in one of the cases
I will come to in a moment - and this, for the

reason that what is the right of the deportee is to put submissions on matters. It is not to deal with specific factual issues; it is to put to the Minister what he wants to put on a particular

topic - recidivism. Presumably, he says to the

Minister, "I won't do it again". One wonders what

else he can possibly say than that I won't do it

again?

McHUGH J: Yes, but let us go a bit deeper than that. It

certainly strikes my mind as unfair, rightly or

wrongly, that the Minister says, "Well, I have

taken into account these 11 submissions or
statements including the statement of reasons of

the Administrative Appeals Tribunal". The one

evidence that was led by the present appellant	thing he has not taken into account is all the
before the Appeals Tribunal and the submissions
that were put on his behalf.

MR DOWNES: Well, Your Honour, so far as the evidence is

concerned, the whole scheme has as its object that

he should not do that. Again, I come back to

O'SHEA's case - - -

McHUGH J:  I can understand that if he just merely said, "Well,

I have made my decision and I will take into

account the recommendation of this tribunal that he

should not be deported and I will act on that

basis". But here, he has considered these 11 submissions

or documents.

PlT8/S/DR	42	MR DOWNES, QC	26/10/89
Haoucher(2)

MR DOWNES: 

eould I just say, while we are on this point and

Your Honour is at pages 83 and 84, most of them -
I mean, for example, item 5, item 6, item 7 are,

in fact, the applicant's submissions. I mean, the

lady that the man was living with wrote a letter

saying that - well, I will not go into details -

saying what her views were; the brother did - they

are all in the appeal book from about pages 120 on:
the actual interviews; all of the material that could

have been put on the topic "I won't do it again" is

in this material that Your Honour refers to. There

is only one reconnnendation there, I think, the

original delegate's decision, which is against the -

TOOHEY J: Yes, but your proposition would be that if it were

there and if it were against, it is still not something

that needs to be put to the deportee so long as it

does not constitute a new issue.

MR DOWNES: A new subject-matter, yes.

TOOHEY J: Well now, take recidivism. Let us say since the

matter was considered by the tribunal and some
opinion expressed by the tribunal and the
likelihood of recidivism, the person is before the
courts again and is convicted of some other
offence. Now, that is a very relevant matter: it

is not a new issue, it bears upon the question of

recidivism. Can the Minister take that into account

without giving the deportee an opportunity to be

heard as perhaps to the circumstances of which the

offence was connnitted?

MR DOWNES:  It is an odd example that Your Honour raises, if

I might say so, for two reasons -

TOOHEY J: Well, it could be fairly connnon.

MR DOWNES:	I think I should tell Your Honours so Your Honours do not misunderstand something in the appeal book.
Your Honour describes the facts but not a fact
which the Minister ever knew about or took into
accoun4 but the evidence discloses that the appellant did connnit another offence but that was not known to, nor taken into account, by the Minister. So, in case Your Honours see the material
there, I should tell Your Honours that because it is
not relevant to - - -

TOOHEY J: No, I was aware of that but that did not

MR DOWNES: Yes, well, that is the first proposition,

Your Honour. The second thing that is odd about

the illustration Your Honour raises, if I may say so,

PlT8/6/DR	43	MR DOWNES, QC	26/10/89
Haoucher(2)

is that it is only the absence of further offences

that really is ever going to help the appellant.

The commission of a further offence, of course, is

not going to count in his favour, one would imagine,

in any circumstance. So, Your Honour asked me aquestion
about whether that is a new matter. In a sense,
I think it is possibily a matter of sufficient
significance that it may require a further comment,

Your Honour.

TOOHEY J: Well, that just suggests, perhaps, that this sort of matter fact distinction is a fairly semantic one.

MR DOWNES: Well, one has to isolate what are the relevant

matters; what one is going to categorize as a new

matter on the facts of each case.

McHUGH J: Suppose the appellant and Miss Moncrieff had been

married since the decision of the Administrative

Appeals Tribunal was a fact. Why was that not a
matter that the appellant would be entitled to

urge against the view the Minister took about the

appellant's ties with the community?

MR DOWNES: But, Your Honour, may I approach the matter this

way by answering Your Honour by saying what Your Honour is, in effect, doing is choosing the

hypothetical situation which simply is not the

case.

TOOHEY J; No, it is to test your proposition that it is

only when new issues that arise that a deportee is

entitled to be heard.

MR DOWNES: Well, we would respectfully submit that that

factor would not require - the marriage - would not

require a further opportunity to put a submission.

DAWSON J: Well, you could say perhaps it would, perhaps it

would not.

MR DOWNES: Well, I do say that but I think I have been put

to dealing with the hypothetical. I say it does

not matter on the facts of this case.

DAWSON J: Well, there are arguments one way or the

other. The Minister can confine himself to the

matters that were before him because that is the

basis on which he made his decision and he sticks

to it. Or he might choose to take into account

subsequent events but that is a matter of the

procedure which he adopted and if he took them

into account, well, perhaps he would have to give

the people an opportunity to answer them, but it

is not this case. I find difficulty understanding

how one can keep within recommendations without

implementing them.

DEANE J:	Act in accordance with them.
Haoucher(2)

PlT8/7/DR 44 MR DOWNES, QC 26/10/89

DAWSON J: Yes, acting in accordance with them. I mean, you

must go outside the recommendations if .....

decide the other way.

MR DOWNES:  I take Your Honour's point, exactly. Yes.

DAWSON J: And it seems strange to me that the Minister, having

made a decision, having heard the representations

of the appellant, gets some recommendations, he

gives them due consideration or perhaps he does not,

but he decides not to change his mind and that he

is then required to give another hearing to enable

someone to put further submissions to induce him

to change his mind. But, you do not have to answer

that.

MR DOWNES: Well, I think we accept and adopt Your Honour's

thrust, if I might say so.

DEANE J: Well, what about an example that is in point here:

the Minister says, "I gave weight to the fact that

the applicant was willing and able to return to

Lebanon in 1980". Was it before him that he only

went to Lebanon for three months to divorce his

wife in circumstances where there was a family

position that had arisen there and he came back

as soon as he could?

MR DOWNES:  The circumstances of the visit to Lebanon were as

fully recorded as they could be in the reasons of

the tribunal and he had the reasons of the tribunal.

DEANE J: And what if they had not been there?

MR DOWNES:  I would respectfully submit that that would not

have been a new matter which would have required a

further opportunity for the putting of submissions.

DEANE J: So, if the tribunal had simply said, "He returned to

Lebanon in 1980", and the Minister has said,

"I gave weight to the fact that the applicant was

willing and able to return to Lebanon in 1980", it

would not matter that there was a full and convincing

explanation of that which was quite contrary to the

basis on which the Minister acted and which had been

put before the Administrative Appeals Tribunal.

MR DOWNES:  I think I would answer Your Honour by saying, yes.

Your Honour, it is important, might I say this, to

note that one is not dealing here with curial

justice, one is dealing with administrative justice.

DAWSON J: Could I just ask one question? Was that something

which was put to the Minister's delegate originally?

It must have been, the dates .....

or at least he had an opportunity to put it to him.

PlT8/8/DR	45	MR DOWNES, QC	26/10/89
Haoucher(2)

MR DOWNES:  Precisely, yes, Your Honour. But could I just go

back to the point that if what one is searching for
here is a kind of justice of the type which courts

administer then the kind of proposition that

Your Honour puts has its validity. But, might I

remind Your Honour, going back to, for example,

KIOA's case and the Chief Justice's judgment, that

His Honour there recognizes that, notwithstanding the finding in KIOA's case, there are going to be

circumstances in which, depending on the facts of

the particular case, a potential deportee is

entitled to any opportunity to say anything but

at most what he entitled to is the opportunity to

put material before the Minister on the topic
generally or, possibly, particular topics.

"I am considering deporting you. What do you want to say on the topic?" and that is the chance

which in administrative justice, procedural fairness,

the potential deportee gets. Or, the Minister might

say, "I am considering deporting you and the things

I am thinking about are: the number of crimes you have committed in the past and whether you might do

it again; the seriousness of those crimes; the ties

you retain with Lebanon and the ties you have in

Australia". He does not have to go, with respect, further than that and in the course of a letter or

submission, to pick Your Honour's illustration, the

deportee might say, "It is true that I went to

Lebanon in 1980 but that should not be counted

against me".

The Minister does not have to say, "Why should

not that be counted against you?" The opportunity

has been given and availed of.

DAWSON J: Really what you have, you have a decision which is

made after it appears in the papers a full and fair

opportunity to put any submissions that the

appellant wanted to put. There are various procedures

available to try and dislodge that decision but, in

the end, that is the decision which stands and it

remains the decision which was made after a full and

fair opportunity to put forward the appellant wished

to put. Is that not the situation?

MR DOWNES: Yes, Your Honour, and we would submit two

opportunities: one direct and one through the medium
of the tribunal and as Mr Justice Sheppard - - -

TOOHEY J:  The difficulty with that proposition is this,

Mr Downes, that I can see the force of that if there were no reference to the Administrative Appeals Tribunal.

I can see the force of the proposition that the
Minister is not bound, as it were, to conduct a full-
scale hearing himself; he puts various matters to

the proposed deportee; makes a decision, and that is

it. But, when you have interposed, somewhere along

PlT8/8/DR	46	MR DOWNES, QC	26/10/89
Haoucher(2)

the line, a full-scale hearing before the

Administrative Appeals Tribunal which the Minister is required to have regard to, it seems to me that there is a new element introduced.

DAWSON J:  What was the question? Whether he have

regard to the hearing or the recommendations?

MR DOWNES:  We would say it is a matter of the way one

characterizes it and in the light of O'SHEA' s case,

we would respectfully submit there is only one way

to characterize it. In the statutory scheme,

what is happening is the legislature is, in effect,

saying, "For the purposes of the determination of

whether the deportation order should be revoked,

the Administrative Appeals Tribunal will be an

administrative body before whom there will be a full,

virtually a curial hearing which you will have an

opportunity to put anything you like. It will

then, adopting the FAI V WINNEKE model, so to speak,

make its recommendation, with its reasons, to the

Minister. Your opportunity for procedural fairness

will have been fully offered by that right to go to

the tribunal but the Minister, without giving any reasons at all, save for the obligation imposed by section 13 in the present case, can act contrary to

that decision. He is free, going back to POCHI's

case, to engage in some fresh fact finding provided

he does not - the word "matter" does come from,
and I will take Your Honours to it, Mr Justice Mason's
judgment in O'SHEA' s case - provided there is not a

new matter.

TOOHEY J: Well, that is. perhaps not all that different to

bound to give the deportee the opportunity to be

the way in which Mr Owen-Conway was putting it. As

heard on anything, following a recommendation from the

tribunal other than, or only in those cases where

the Minister proposed to take a different view to

that taken by the tribunal.

MR DOWNES: Well, he says a new fact and recidivism, for

example, is a new fact. I say, recidivism is not

a new fact and, in any event, it has to be a new

matter. That I think is where perhaps the lines

are drawn.

TOOHEY J:  But the gap may not be all that great in the end

between the two approaches.

MR DOWNES: It may not be, Your Honour. Your Honours, I was

going on to the second proposition in our submissions

in which we deal with the question of policy. I

could give Your Honours, if Your Honours wish, the

page references to the cases we there set out.

P1T8/9/DR	47	MR DOWNES, QC	26/10/89
Haoucher(2)

Unfortunately, they are not in the written

submissions.	I do not think it is necessary for me
to take Your Honours to the cases.	I think the

propositions identified in point 2 are all really

unexceptional, if I might say so. That in exercising

a discretion such as the instant discretion, the

Minister is free "to apply or not to apply" any stated policy and those are the words of Mr Justice Brennan

when he was the president of the Administrative

Appeals Tribunal in RE DRAKE V MINISTER.	The
relevant pages are 640 and 642.

The Minister is free to take into account

policy subsequently formulated. That is STOTT V

MINISTER FOR IMMIGRATION and the relevant page is 749.
It would be wrong for him to exercise the discretion

in accordance with a "policy without regard to the merits of the particular case". Well, that is any number of administrative law decisions over the last

century or so, plus section 5(2)(b) of the

ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT.

(Continued on page 49)

P1T8/10/DR	48	MR DOWNES, QC	26/10/89
Haoucher(2)

MR DOWNES (continuing): Policy statements will be broadly

construed, and applied with caution. The reference

to that is the same DRAKE and the same series

of litigation, but different decision of

Sir Nigel Bowen, Mr Justice Smithers and

Your Honour Mr Justice Deane in the Federal Court.

The relevant pages are pages 420 and 421.

CONYNGHAM's case that my learned friend referred

to, the pages are, in addition to page 451

there identified, 452 and 453. Finally,

EAST WEST TRADING that I think my learned friend

also referred to, and the pages are 470, 478 and

479.

Your Honours, the second matter that we

would respectfully submit that one needs to

take into account in determining whether procedural

fairness requires a further opportunity in

connection with a recommendation of section 66E

is, in so far as the policy of the Minister is relevant, the limitations -on· t,he po_licy that

are identified in proposition 2. In other words,

a policy, we would respectfully submit, given

that it does not have to be followed in the

ordinary course, given that if it is followed

slavishly there is a breach anyway, given that

it ought to be broadly construed, is unlikely

to give rise to a requirement for procedural

fairness. If one takes, for example, NG's case

that my learned friend referred to, the Hong Kong

deportation case, could I just now mention that case, and

without taking Your Honours to it, say that that case,
we would respectfully submit, is in quite a different

category altogether to the present case for two

reasons, one of which is relevant to the point I

am addressing at the moment. The first is that

there there was, so to speak, an actual promise.

There is nothing in the policy, that I will take

Your Honours to in a moment, here that says, "You will have a hearing". There is not a word that

suggests you will have a further hearing.	But
in NG's case what happened was the Immigration

Department in Hong Kong said illegal immigrants

will not be deported without a hearing, an

express promise of a hearing, and then they

simply deported or sought to deport NG. So, that

is the first difference between NG's case and

the present case.

The second difference, not relevant to

the proposition I am currently addressing, is

that Mr Ng was not given any opportunity to be heard. I mean, here, on any view, Mr Haoucher had a number of opportunities to put forward

submissions. Your Honours, that is the second

matter that we submit is relevant to a determination

of whether there is any relevant requirement of

procedural fairness. ·

PIT9/l/JM	49	MR DOWNES, QC	26/10/89
Haoucher(2)

The third is in our proposition 3, and

what I have done here, Your Honours, if I
may, and I will just read it, is to pick up

the words of Mr Justice Mason in O'SHEA's case,

substituting,in square brackets,some words

apt to the present case. The scheme provided

for by section 66E of the Act "is not unfamiliar".

It allows "for the presentation of the [deportee's]

case before the [Administrative Appeals Tribunal]

when it is considering whether it should make a

recommendation to [the] ... Minister [that the deportation order be revoked] ... The hearing before the [Tribunal] provides a sufficient

opportunity for a party to present his case so

that the decision-making process, viewed in its

entirety, entails procedural fairness". Now,

could I take Your Honours to O'SHEA's case.

Your Honours will recall- certainly

Your Honours Mr Justice Deane and Mr Justice Toohev

will recall- that this related to the release on ·

licence of a sexual offender in circumstances
in which the offender was entitled to make his

application and be heard by a board. The board
then make a recommendation to the Governor in

Counsel and the question is whether, when the Governor

in Counsel rejected the recommendation of the

board,there was some right to a further hearing.

We would respectfully submit that save for the

existence in the present case of the words of
the deportation policy, which undoubtedly my
learned friend relies upon and I do not want
avoid the obligation to address it in turn,

but save for that matter the two cases we would

respectfully submit are in effect on all fours.

The passage in the judgment of Sir Anthony Mason is at page 389, and it is a little longer and I

should read it if I may, at point '2 of the

page, or 3:

The scheme for which s.77a Provides is

not unfamiliar. It allows a nlace for the

presentation of the offender's case - before

the Board when it is considering whether it

should make a recommendation for release.

There are many illustrations of this

legislative model which entails the holding of

an inquiry by a body authorized to make a

recommendation to a Board or Minister which

without conducting any further inquiry. may make a decision rejecting the recormnendation

There is a reference there to TAYLOR V PUBLIC SERVICE

BOARD, KIOA's case and PEKO-WALLSEND.

The hearing before the recommending body

provides a sufficient opportunity for a

party to present his case so that the

PIT9/2/JM	50	MR DOWNES, QC	24/10/89
Haoucher(2)

decision-making process, viewed in its entirety,

entails procedural fairness. If the decision-

maker intends to take account of some new

matter -

and that is the origin of the phrase I was referring

to earlier -

and the party has had no opportunity of dealing

with it, the decision-maker should give him

that opportunity.

And the authority is PEKO-WALLSEND. Mr Justice Wilson

and Mr Justice Toohey wrote a joint judgment

and in that judgment at page 402, at about point 2

of the page:

The CORRECTIONAL SERVICES ACT exnressly secures procedural fairness to Mr. O'Shea in the

course of the Board's consideration of his

case. But beyond that he is in the hands of

the Government, which must accent ~olitical

responsibility for his release.- Given the

nature of this decision, it cannot be said

that Mr. O'Shea could have more than a hope

that the Governor would be prepared to act

on the recommendation of the Board. Hope,

of itself, is not sufficient to ground an

expectation that will attract legal

consequences. So far as the concept of

legitimate expectation is concerned,

Mr. O'Shea must be taken to know that the

Act committed to the Governor, with the

advice and consent of the Executive Council,

the responsibility for determining where the

public interest lay. He would also know that

the reservations expressed in the medical

reports and implied in the stringent conditions

recommended by the Board would be likely to

give the Governor and the members of the

Executive Council cause for anxious

consideration ..... The nature of the decision

that they were required to make was such

that participation by Mr. O'Shea was

inappropriate.

Further support for that view is to be

gained from a consideration of the practical

difficulties of allowing representations to

be made by Mr. O'Shea. The report and

recommendation is received by the Minister from

the Board. He then takes the matter to

Cabinet for decision as to the advice ..... He

cannot be required, before taking it to

Cabinet, to disclose to Mr. O'Shea his oersonal

view of the matter. The conventions - -

regarding -

51

PIT9/3/JM	MR DOWNES, QC	24/10/89
Haoucher(2)

Cabinet discussions nrotect the Minister's

position ..... In any event, there can be

no guarantee that Cabinet will accept his

view. Nor, should Cabinet resolve that

the Executive Council will advise the

Governor not to act on the recommendation,

could that decision be conveyed to Mr. O'Shea

so that he could make representations with

a view to Cabinet reconsidering the matter.

In truth, Mr. O'Shea will have had a full

and final opportunity to adduce material

and make submissions on the question of

his release on licence in the course of

the hearing before the Board. The procedures

simply do not permit a further opportunity

at a later stage.

If I could go over now to Mr Justice Brennan's

judgment at page 409, half-way down the page:

It is a commonplace of modern schemes of

administration that a nower of decision is
reserved to a Governor.or Minister after

an inquiry by an expert board and, unless

the relevant statute so prescribes, it is

not necessary for the repository

of- the power to have a further

hearing, even thou~h the r~pository is

free to exercise his discretionary power in

a manner contrary to a recommendation ..... TAYLOR

V PUBLIC SERVICE BOARD. This form of

administrative scheme is suited to cases where
the facts need to be found and evaluated - a

task entrusted often to persons with expert

qualifications - but there is an element

of policy in the decision which the repository

of the power is to keep in his own hands. It

is not a general rule of administrative procedure

as it is of judicial procedure that the person

who hears should decide. A need for a further

hearing by a repository of a power after a

hearing by an expert board may arise if, in the particular circumstances, the interests of a party are affected by some new fact or matter which the decision-maker proposes to take into account and which the party has

had no opportunity to deal with.

Pausing there, if I may, Your Honours will see the phrase that Mr Justice Brennan uses is

"new fact or matter" and could I also - - -

McHUGH J: Why is there not a new matter here? I mean, if

you look at it in terms of pleading terms, the

Minister has made a new case against the applicant

in relation to the serious offence; that is a new

issue. The Minister now says, "One of the reasons

PIT9/ 4/JM	52	MR DOWNES, QC	24/10/89
Haoucher(2)

I'm going to deport you is because you cornnitted

a serious offence." That is raised for the

first time in his reasons for judgment; it is

not raised anywhere else in the whole case from

beginning to end, is it?

:t1R DOWNES:	Your Honour - - -
McHUGH J:	If you were counsel for the defendant in the

trial and the plaintiff changed tack to that

extent on you, you would have a legitimate

complaint.

:t1R DOWNES:  I may well do, Your Honour, but could I, with

respect, say that that highlights the proposition,

to use the phrase of Mr Justice Brennan, that

we are here concerned not with judicial procedure

but with administrative procedure. All the

Minister has to say is, "What do you want to

say to me about the seriousness of the crime
you've just conunitted?" That is all he has

to say.

McHUGH J: 

But has he ever said that?

:t1R DOWNES: 

He has not had to say it because the opportunity

to say something about the crime had been availed
of on two occasions, one direct to the Minister,
or the Minister's delegate and one to the - - -

McHUGH J: But in the context of the policy, and the 9olicy

referred to heroin or hard drug offences. That was the original reason that they were going to deport him and then he goes to the tribunal and

he succeeds. Then the Minister says, "Well,

one of the reasons I'm going to deport you now

is because even though it didn't involve hard
drugs, or dealing on a significantly large scale,

I consider the offence to be a serious one and so I'm going to deport you on that basis." He has had no opportunity to meet that case.

:t1R DOWNES:	Your Honour, he had an opportunity to put to the tribunal - to take the tribunal's case - what
he wanted to put about the matter of the
seriousness of the offence and there is a great analysis of it in the tribunal's reasons. It
was no doubt the subject of substantial debate.
So he had the opportunity and put the material. Your Honour, I do not want Your Honour to think
that what I am saying _  to Your Honour depends upon
the policy, but I am going to come to that in a moment. With great respect, the suggestion that the Minister has departed from the policy
is not, we would respectfully submit, correct.
It is not correct to say, we would respectfully
submit, that the policy says expressly, or gives
rise even to the inference that, "If your offence
is a drug offence, unless it is a hard drug

53

PIT9/5/JM MR DOWNES, QC 24/10/89

Haoucher(2)

offence, or an offence with an illicit drug

in substantial quantities, you run no risk

of deportation." On the contrary, what the

policy is about is telling people when they are

at risk of being deported. It is not telling

anybody anything about when they might be allowed

to stay in Australia; it is telling them when they

are at risk of being deported and it tells them

some circumstances; these are examples ..

I would like to take Your Honours to the policy in a moment, but, we would respectfully

submit that the idea that it is as open and shut

as my learned friend has suggested is just, we

would suggest, not correct. In any event, there

is nowhere that the tribunal found that the

relevant offence was not within the policy. What

they said was it was not within the examples in

paragraph 9 of the policy.	They said nothing more
than that.	They did not say it was not within

the policy. After anguishing over the issue of
seriousness of the offence and looking at

other hard drug cases in the AAT and so forth,

they ultimately came to the conclusion that they

simply had to deal with it on one basis and one

basis only, namely that it was an offence

punished by imprisonment of three years which was

well within the requirement of the statute.

It is not an area that, I must say, I have

a great famili.'.:l.rity about, but can I say this, Your Honours- and it is dealt with in both the judgment of Mr Justice Lee and Mr Justice Sheppard-

we are dealing with something called cannabis resin

which is different to what I think one calls

ordinarily "marihuana". In the statute it was

dealt with not along with cannabis which is

rnarihuana, but along with heroin. So far as the

statutory scheme was concerned cannabis resin

was in the category "heroin", not in the category

"cannabis".	So far as the quantity was concerned,
it was of a sufficient quantity that gets into

those sections that appear in Crimes Acts, I think,
throughout Australia which deems the holder to be

engaged in traffic because of the anount. It is true that, there is no doubt, the tribunal found

that it was not within the examules within

section 9 which said, "hard drug or illicit drug

plus substantial quantity", and it is true that

the Minister said, "I accept that", but what he

accepted was that it was not within the examules

in section 9. He did not accept for a moment,

and the tribunal did not find, that it was not

within the policy as such, but those facts

relating to the way in which the legislature dealt

with the particular matter need, we would

respectfully submit, to be borne in mind.

DAWSON J: And he had had an opportunity to talk about this

conviction, had he not, to the Minister?

PIT9/6/JM	54	MR DOWNES, QC	24/10/89
Haouche.r(2)

MR DOWNES:  Yes, Your Honour.

DAWSON J: It was not a new fact?

MR DOWNES:  No. As he had had an 09portunity to, and did,

deal with all his other convictions: assault occasioning actual bodily harm when he struck his de facto on the head with a tin with

sufficient severity to cause her to go to

hospital, I think, with bleeding; when he

produced a two or three inch gash with a

knife across his brother's chest as a result of

which he was convicted of a further offence and

sent to prison for a couple of months. There

was breaking and entering. All of those matters,

at any event, were elucidated on the question

of recidivism.	He put his submissions on every
single one of them.	They were dealt with as

to every single one by the tribunal and, with

respect, what more could he say?

DAWSON J: 

I do not know why we keep concentrating on -

maybe I am the odd man out, b~t I do not understand
why we cannot keep concentrating on what happened

before the tribunal. The question is whether he

had a fair chance, a fair opportunity to put what

he wanted to put to the Minister.  He did,

originally.

MR DOWNES: 

Yes, Your Honour.

DAWSON J: 

The fact that the tribunal's reconnnendations,

which he is bound to consider, did not change the

Minister's mind does not alter that fact.

MR DOWNES:	Yes, Your Honour.
DAWSON J:	I would like to know if my view is .not - - -
MR DOWNES:	I have the feeling though, Your Honour, that

success on that submission may - - -

DAWSON J:	-just not an assessment down the line.
MR DOWNES:	-procure a vote, but maybe not a - - -
DAWSON J:	..... a waste of time, Mr Downes.
TOOHEY J:	I would not pin all your hopes on that

argument, Mr Downes.

MR DOWNES:  Your Honours, I think I had got to the

bottom of page 409. I do not think I am going

to take Your Honours in any detail to any other

reported case but I would, if I may, seek to

of Mr Justice Brennan at page 410:  take Your Honours to a little more of the judgment

PIT9/7/JM	55	MR DOWNES, QC	24/10/89
Haoucher(2)

But there does not have to be a further

hearing on matters of policy alone.

If a statute provides for the facts relevant to a decision to be ascertained

and evaluated by a board and for the

board to report and make a reconnnendation

to the decision-maker, prima facie there

is no room for an implication that the power

to make the decision is conditioned on

the giving of an opportunity for a further

hearing. To impose such a condition without

statutory warrant would be to force a judicial

model on the administrative process. That is

not the function of a court.

Again, if I might pause there, His Honour returns

to the theme that one is not concerned with

judicial models but with administrative models.

Such a doctrine would require, in effect, two hearings, even though no new fact had emerged

after the first hearing and no fact was being

taken into account by the decision-maker

which had not been taken into account at the

first hearing. There is no lack of

administrative fairness in a system in which

a decision-maker reaches his decision on

facts ascertained and evaluated by a board

appointed by statute for that purpose provided

the decision-maker does not take into account

any other fact on which the affected person has

had no opportunity to be heard. The decision-

maker's general policy or the manner in which
he should exercise his discretion on the
ascertained facts are not matters on which an

opportunity for a further hearing must be

given. The pyramidal structure of administration

by which the powers of discretionary

decision-making are reposed in a Governor

(acting on the advice of the Executive Council),

Minister or senior official standing at the

peak of a bureaucracy could not operate

efficiently if the decision-maker were required

to give an opportunity for a hearing in every

case affecting an individual after that

individual had had an opportunity, in the

course of the administrative process, of

dealing with every fact which is to be taken

into account in reaching the decision.

In the course of the appeal, some reference

was made to the political considerations which

members of the State Cabinet might take into

account ..... Whether or not political considerations

may lead to the making of unjust decisions, the

Act reposes the power in theGovernor acting on

the advice of the Executive Council, i.e., in

a political branch of government.

PIT9/8/JM 56 MR DOWNES, QC 24/10/89

Haocher(2)

The court's concern is not with the merits

of a decision: Parliament has entrusted

that question to the Executive Government.

The court's concern is solely with the

legal regularity of the impugned exercise
of the power. It can surely make no
difference to the procedural requirements

affecting the exercise of the power of the

Governor that the Board's reconnnendation

is to release or not to release an offender.

The offender's interest is in his freedom which lies within the Governor's discretion and, if he were to have a right to a hearing

by the Governor, he should have it whatever

the Board may have recommended. The

procedural requirements affecting the

exercise of the Governor's power should not

depend on whether a favourable recommendation

has created a "legitimate expectation" in the offender. I have elsewhere stated my

view about this notion: see KIOA V WEST.

It is a notion which, if taken as a criterion,

is apt to mislead for it tends to direct

attention on the merits of the particular

decision rather than on the character of the

interests which any exercise of the power

is apt to affect. The risk that an unjust

decision might be made by the Governor on the

advice of Cabinet furnishes no grounp for

the court to impose on the Governor the

Cabinet or a Minister a requirement to give

an offender who has already been heard by the

Board a further opportunity to be heard

before a decision on his release is made.

Your Honours, going back to our written

submissions, the outline of our argument, we say

in those circumstances, in proposition 4, short
of some nouveau view compelled by the criminal

deportation policy, there cannot be any further

opportunity to be heard. then seek to identify some of the relevant matters In paragraph 6 we	in the policy itself and could I take Your Honours
to the policy as it appears in the appeal book
starting at page 70. The actual cover is at page 69
which although it is not easy to read shows that the statement was made by the Minister on 4 May 1983. The document on page 70 is headed, "Criminal Deportation
Policy" and going, first of all, to about line 6, I think,
in accordance with the marginal numbering, on page 70,
the Minister said:  -

I propose therefore to inform the House of

policy which, under this Government, will

guide decisions under the Migration Act

when considering the possible deportation of
non-Australians convicted of specified criminal

conduct.

PIT9//9/JM

Haoucher(2) 57 MR DOWNES, QC 24/10/89

So one starts with the proposition that the Minister

in the opening paragraph describes the policy as a

guide and, we would respectfully submit, that

itself suggests that there is a sufficient

qualification not the give rise to a further

opportunity to put submissions. Going over to

page 71, proposition point 1 at the top, says:

The Australian Government, on behalf of the Australian community, has the right to

decide who will be accepted for permanent

residence in Australia and, ultimately,

for absorption into full membership of the

corrnnunity by way of Australian citizenship.

So it starts off with an assertion that one is

dealing with a right of government. Again, we

would submit, that is a factor which tells against

the appellant's argument. In point 2, and without

reading it, it twice refers to the Minister's

discretion to make this decision. Again,the reader

is being told that it is the government's right

to decide and the Minister's discretion. Then

he is told, and this is the point which has given

rise to most debate in this case, in point 4 -the reader,

that is, is told:

It is the policy of the Australian

Government that recommendations of the

Administrative Appeals Tribunal should be

overturned by the Minister only in

exceptional circumstances and only when

strong evidence can be produced to justify

his decision.

Now, Mr Justice Forster, Your Honours, at

page 158 said of the proyision, we would submit

correctly, that what this is talking about is

a factual overturning at its highest, a new

finding of fact, a finding that when the

tribunal found that on the evidence X really

did not commit a criminal offence on a particular

day, although there was evidence to support it,

the Minister finds that the offence was committed.

That is propelled by at least two words there - - -

McHUGH J:  But one of the difficulties about that and about

much of the argument in the case is it talks

about recommendations of the tribunal, not findings.

One would think the recorrnnendation was a recommendation

to postpone a deportation or to revoke it. Indeed,

that is what you have got in this case. It talks

about "only in exceptional circumstances" and "when
strong evidence can be produced to justify the

decision"; it rather indicates that there is some

further evidence that requires him to overturn the

decision.

PIT9/10/JM 58 MR DOWNES, QC 24/10/89

Haoucher(2)

MR DOWNES:  But once one says that what is required is

further evidence then that leaves out policy

considerations, for example, because a policy

consideration could not ever depend upon further

evidence. So the proposition which found favour

with Mr Justice Forster was that what point 4 is
about is not circumstances in which the Minister,
looking at the recommendation, accepting the

factual matter in the reasons nevertheless says,

on what is really a policy matter, "I, now as the

Minister,	am going to exercise my discretion
and do some balancing.	I am going to balance on

the one hand things such as the seriousness of

the crime, the risk of recidivism and things of

that sort, and the interests of the Australian

community in being protected from persons who

have committed crimes and may commit them again,

against the family tie risk of sending the man

back to a foreign country"et cetera. There

is no factual issue whatsoever involved in

something which says,• "I consider that this

risk of recidivism against this family tie weighs

in favour of one conclusion or the other." What

the Minister is doing, to use the words of

Sir Garfield Barwick that we have put at the very

end of our written submissions, is determining

"the composition of the nation", and in doing so,

weighing up matters going to policy, not fact

finding at all. And to talk of strong evidence

in that situation is meaningless, we would

respectfully submit. What strong evidence can you

have to say, "I think that it's more important

that we should keep families together than that

we should run the risk of having someone who

might commit another drug crime."

McHUGH J: What does "strong evidence" mean in paragraph 4?

(Continued on page 60)

PIT9/ll/JM	59	MR DOWNES, QC	24/10/89
Haoucher(2)

MR DOWNES:  "Strong evidence" means if the tribunal found

X as a fact and the Minister wants to say, "That

fact finding was simply wrong.", that he requires

strong evidence to do so. That is the statement

of the policy.

I said to Your Honour there were two words - Your Honours, there were two words in there that

we seize on. Your Honour picked up the word

"recommendations" and I think it is fair to say

that the word "recommendations" in the scale that

I am here dealing with goes on the other side.

But the other word is "overturned". I mean, it

is not accepted - "overturned" has th~ idea of changing when you add to that the reference to evidence some factual basis underlying the - central

to the reasoning of the tribunal.

So if the Minister wants to take the facts

found by the tribunal and turn them upside down

he has got to have a good reason for doing so.

So we would respectfully submit - not that it is

critical to our case - that point 4, properly

construed, is not even against us. Going on further

in the document, Your Honours will note that one

gets, after some preliminary material, to the heading

"Guidelines for deportation", at line 42. And,

again, there we, so to speak, ask Your Honours

to underline the word "Guidelines". Again, it

is a guide.

Then one goes to 8, which is the next one

I seek to take Your Honours to and this is - before

we have even got to this serious offences versus

other offences kind of consideration , we have

got something which puts things in the alternative

in 8 and says, in words of one syllable:

Deportation of a person convicted of

crime may be appropriate when a person:

constitutes a threat because there is a

risk he/she will commit further offences if

allowed to remain; or

has committed a crime so offensive to

Australian community standards that the

community rebels against having within it

a person who has committed such an offence;

or

has not established sufficient ties with

Australia -

et cetera. Now, so far, nothing at all about whether

you are dealing with hard drugs or illicit drugs

P lTl 0/1 /ND	60	MR DOWNES, QC	26/10/89
Haoucher

and in what terms. Simply a statement of

circumstances in which in accordance with this

policy deportation may be appropriate in

circumstances which have nothing whatsoever to do with the seriousness of the offence as such except that, obviously, the power does not even

arise unless you have an offence of the kind

referred to in section 12 and I think it is more

than 12 months.

Then one goes to 9 which is the critical matter

that is relied upon and the first heading is:

Examples of serious offences

So it starts off telling you these are examples and examples of serious offences. The fact that

it tells one that they are examples carries with

it the necessary qualification that there must

be others which may render non-Australian citizens

liable to deportation and then there is the one

relied upon:

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 -

And then, not that it is relevant, Your Honours,

and it was not relied on earlier but another category

is:

violence against the person -

and I pause simply to note that this deportee has

been convicted of two of such offences. Well,

that is known, and must be seen, we would respectfully

submit, in the much wider context in which it appears.

One then goes over the page. It is not relevant

but it is not clear, Your Honours.

tell Your Honours that the first word in 13 is Can I just

"Civil". So it reads:

Civil or military hostilities -

in case Your Honours wish to know what that word

was. But then one goes to 16 and if one is looking for something which is encapsulating in a kind

of broad way where one stands in terms of the policy

it is 16, not 9.

The most important broad criteria on which

judgments will be based are the nature of the crime; the possibility of recidivism; the contribution that the person has made to the community or may reasonably be expected

PlTl0/2/ND	61	MR DOWNES, QC	26/10/89
Haoucher

to make in the future and the family and/or

social ties that already exist. In particular

the following factors will be taken into

account ..... :

the nature of the offence -

two further down -

the risk of further offences -

and then, at the bottom -

This list is not exhaustive, if relevant,

other factors that come to notice will be

taken into account in individual cases.

And it must be correct to say - and we would respectfully submit it would be a wrong policy

for the Minister to adopt a policy which did not, for example, permit deportation of a resident who

had committed less serious crimes but done so at
one monthly intervals than somebody who had

committed a much more serious crime on only one

occasion. Recidivism or the risk of it is as

important as the seriousness of the offence.

You cannot focus on. seriousness of the offence

as if to say, "Well, unless you can say it is a

hard drug" - I am not even sure, although there

is a finding of the tribunal about this, how one

necessarily comes to the conclusion that only heroin

is a hard drug. There is no evidence about that

but the tribunal certainly concluded that this

cannabis resin was not a hard drug.

But it must be correct to say that the Minister

or the tribunal, for that matter, can weigh risk
of recidivism, on the one hand, against the

seriousness of the crime.so:that a less serious

crime gives rise to dep6rtation if there is a

history of offence. So we would respectfully submit

that the idea that this policy says, "You won't

be deported if you've been convicted of a crime

involving drugs unless it is a hard drug or unless

it is an illicit drug in substantial quantities",

is simply not a correct view of the policy.

I said to Your Honours that, in any event,

that is not what either the tribunal found or the

court concluded. Can I take Your Honours to

page 25 of the appeal book in which the ultimate

relevant finding of the tribunal appears under

the heading "Conclusion", line 9:

The conviction falls outside the wording of

the example of serious drug offences in the

PlTl0/3/ND	62	MR DOWNES, QC	26/10/89
Haoucher

ministerial statement on Australia's

criminal deportation policy.

That is the furtherest that the tribunal went.

It was not within the examples. I think I might

have misled Your Honours by saying that is what

Mr Justice Sheppard found.	I correct myself because
it is not what Mr Justice Sheppard found.	My

learned friend's notice of appeal, the written

submissions and his oral argument is based on the

proposition that there was a finding in the tribunal

that the particular offence was outside the policy

and it is true that Mr Justice Sheppard, I think

at page 206, made such a finding:

The Minister's assessment of the seriousness

of the crime, however raises a different problem.

This is at (h).

He agreed with the Tribunal's view of the

seriousness and nature of the crime and thus

agreed, apparently, that it was outside the

policy.

With respect, no, he did not agree that it was

outside the policy because the tribunal did not

say it was outside the policy. The tribunal said

it was outside clause 9 and he agreed with the

tribunal on that.

In my opinion it is impossible in those circumstances not to conclude that the Minister

was bound to give the appellant an opportunity

of persuading him that he should not depart

from his policy.

This is one of the three grounds upon which

Mr Justice Sheppard dissented from the majority

in the court below. And if the submission I put

is correct, whatever other view one takes about

what His Honour there said, that view is not

justifiable because His Honour is in error in saying

that the tribunal and therefore the Minister thought

that it was outside the policy.

Could I go back now, Your Honours, to our

written submissions, and I have got to proposition 7

in our written submissions and I think I have

covered that. Point 8, and we simply say there that the

appellant took advantage of the opportunity

presented by the appeal to put evidence and

submissions before the tribunal on all relevant

matters, including the seriousness of his criminal

record and risks of recidivism, and I think it
appears on the very first page of the reasons of

the tribunal that the tribunal:

PlTl0/4/ND	63	MR DOWNES, QC	26/10/89
Haoucher

heard evidence from the Applicant, three of the Applicant's brothers, his de facto wife

and a medical practitioner.

Your Honours, proposition 9, I should explain why

that appears in our outline. Your Honours will

recollect that I opened by taking Your Honours

to a passage in the judgment of Sir Anthony Mason

in KIOA's case and His Honour there identified

a number of circumstances in which one could find

a legitimate expectation arising and one of those

circumstances was, in effect, an undertaking or

promise. There is an element of that here in

the argument based on the deportation policy because

if what is said - and as I understand it it is

• o/

said, it is as follows: I had a legitimate

expectation that I would be given a further

opportunity to be heard before the decision was

made and a decision was made adverse to me because

Australia's immigration policy contains within

it a provision which says that "except in

exceptional circumstances" et cetera, then the

legitimate expectation can only arise if the person

who is said to have it is aware of and acts on

or acts in the faith of that promise.	NG's case,
"You won't be deported without a hearing".	Ng
acts on that.

It may be that this case will ultimately be

determined without looking at legitimate expectation

arising out of a promise. The other examples in

Mr Justice Mason's judgment do not depend upon

a promise or undertaking to the person. And

Your Honours will recollect that Mr Justice Brennan,

I think, in his passage in KIOA's case, in which he, as in a number of places, has criticized the

concept of legitimate expectation, has said that

one of the things that he thinks is wrong with

it is that it focuses upon what people think.

But to the extent to which there is here an argument

that there is a legitimate expectation arising

out of the policy, it can only arise if the person

who had the legitimate expectation was aware of

the policy.

Mr Haoucher says in his affidavit in the

Federal Court what it was he was aware of, no

doubt as the basis for this kind of argument and,

in effect, what he says at page 65 of the appeal

book is that he was told by his solicitor that

he would probably be all right but he was not told

anything about the policy. It is true the policy

is referred to in the reasons but he does not say

that he was aware of it.

So Mr Haoucher does not say that he had any knowledge of the matters that arise out of the

PlTl0/5/ND	64	MR DOWNES, QC	26/10/89
Haoucher

policy. The best that you could say for him in

that regard is that there is an inference that

his solicitors knew about it and that was the basis

for what they told him and which appears at

page 65 of the appeal book.

TOOHEY J:  You may right about that, Mr Downes, although

it is not hard to conceive of the expression as
some sort of conceptual notion which courts apply
in an appropriate case but it probably does not

matter for the purposes of this argument.

MR DOWNES:  No. A subjective idea does not really arise

if one is looking at an objective approach,

Mr Justice Mason's category that arises out of

the nature of the application. But if one is

adopting a subjective approach, "I had a legitimate

expectation because" - and very often it arises

in this very way. A letter is written by some

officer in a department which says, "We won't do

something without giving you a further opportunity."

If such a letter had got lost in the post it could not be argued that the legitimate expectation that arose from the receipt of the letter actually existed.

In the present case - I think I have put the submission on that point, actually. That is the

proposition in point 9 of our written submissions.

Then, point 10, we say if the appellant was

entitled to some further opportunity to be heard he would not be entitled to do more than put his case on relevant matters. That is a matter which

has been the subject of some dialogue, if I might

say so, between Your Honours and myself during

the course of my submissions. But we would respectfully

submit, without taking Your Honours in detail,

that having regard to the difference between
administrative justice and curial justice, that

is all the opportunity that this man was entitled

to. And without taking Your Honours to it, the passages in Mr Justice Mason's judgment in KIOA's
case, I think, started about page 584.	But

His Honour there, Your Honours will recall the

passage in which the Chief Justice said that it is not so much a question of whether procedural

fairness but what procedural fairness requires

in a particular case and His Honour then went on

to consider what was required. And, indeed, accepted,

we would respectfully submit, correctly, because

it is, so to speak, received doctrine, if I may

put it that way, subject to Your Honours' decision

in this case, in administrative law context that

one does not have more than the opportunity to

put matter.

So we go on to say that the appellant was

given and accepted that opportunity before the

PlTl0/6/ND	65	MR DOWNES, QC	26/10/89
Haoucher

tribunal. It accepted the submission, in effect,

with the result that through the recommendations and reasons of the tribunal they came before the

Minister for consideration. It follows the extent

to which the policy may give rise to a right to
put submissions, the statutory model has already
had the effect of the rights being given and availed

of, to now hold that the appellant should have

had yet a further opportunity to put before the

Minister the same material that he had already

put by virtue of the statutory model would accord

far more than procedural fairness, it would allow

the form to dominate the substance.

By that we mean, in these submissions, if

we are correct in saying that one is not concerned
with a kind of curial approach which says every

new nuance of matter is entitled to be addressed

and answered but all you have got is an opportunity

to say, "I'm not going to do it again and my brother

says I'm not going to do it again and therefore

the risk of recidivism is light.", and things of

that sort. If that is the only opportunity you

have got then it must be correct to say, in this

case, what more could Mr Haoucher possibly put

to the Minister and what more could possibly be
put to the Minister on his behalf than was put
to the Minister originally and was contained in

the recommendations of the tribunal.

Your Honours, in proposition 11, we say that

each of the judges who have so far considered this

matter have held that no opportunity will ordinarily
arise to put further submissions on matters of

policy or opinion. This is the point at which

the way in which His Honour Mr Justice Sheppard

dealt with BARBARO's case is important.	Could
I take Your Honours briefly to that.	What

His Honour said is at the bottom of 195.

Your Honours will notice that on 193 and 194

Mr Justice Sheppard has set out passages from

Mr Justice Smithers' judgment and underlined parts

of it. And then he says; at 195:

There is a question how far the

principles propounded by Smithers J were

intended to go. The learned primary Judge

thought the application of BARBARO's case

was limited to cases where the Minister took

a different view of the facts from that taken

by the Tribunal or took into account some

fresh facts without, in either case, any

opportunity being given to the applicant to

make further submissions. I think that this

view of the matter is supported by the use

by Smithers J of the words in the two passages

PlTl0/7/ND	66	MR DOWNES, QC	26/10/89
Haoucher

from his judgment which have been emphasized.

I therefore conclude, contrary to the

submission made by counsel for the appellant

here, that BARBARO is not authority for the proposition that the Minister is obliged to

invite any person he proposes to deport
pursuant to s. 12 to make representations

to him in every case in which the person has

had a favourable recommendation from the

Tribunal.

And His Honour is, I think, to similar effect at pages 204 and 207.

DEANE J:	I do not think you need trouble reading that,
Mr Downes.

MR DOWNES:  I am not going to do that. At the bottom of

the second part of proposition 11, we have dealt

with the matter that I put to Your Honours earlier

about whether the Minister departed from the policy

and I do not need to add anything further to that.

I come now, Your Honours - and it is proposition 12 -

to deal with the particular factual matters which
my learned friend relies upon and, broadly speaking,
and going to his categories (a), (b) and (c),

they are: the finding of the seriousness of

recidivism was a new matter - that is point (a);
point (b), there was a departure from the criminal

deportation policy; and point (c), the Minister

did not say what exceptional circumstances were

and, I think, my learned friend says, in any event,

before he found there were exceptional circumstances

should have given a further opportunity to be heard.

Can I just pause there for a moment to dispose

of one matter while I have it in mind; To the

extent to which under (c) he is saying the Minister

did not say what the exceptional circumstances

were and he ought to have said what the exceptional

circumstances were, that simply is another case,

if there is substance in it - we would respect submit

not - another case that might have been brought

by the appellant, never was brought and cannot

be brought now. And that is a case which says,

"Your reasons under section 13 of the JUDICIAL

REVIEW ACT were inadequate and you ought to give

further reasons". So I do not think it is critical

to what he says because he says, in any event,

he should have given notice. But to the extent

to which part of the content is that the reasons

were not adequate, that simply is a matter not

open, we would respectfully submit.

Can I go briefly, Your Honours, to the matter

of recidivism and can I take Your Honours first

of all, briefly I hope, to what the tribunal said

PlTl0/8/ND	67	MR DOWNES, QC	26/10/89
Haoucher

about recidivism.	And that is in the appeal book
at page 20.	They started off with the proposition

that recidivism was a matter obviously to be

considered. In line 20 they show the tribunal

considered it was a risk although I accept,

obviously enough, they said a "low risk".

(Continued on page 69)

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Haoucher

MR DOWNES (continuing): Over the page, they again, on line 3,

refer to the risk:

His greatest risk is that if he allows consumption of alcohol to play a large

part in his life, he runs the risk of

endangering his future.

They then say recidivism can never be, or the possibility of it, can never be eliminated. And

finally that they did not consider that it was

"anything other than an ever present risk", and

I place stress on the words "ever present risk".

So, that is what the tribunal said about recidivism

and they certainly, we would respectfully submit,

did nOt say, "We do not think he will ever do it,
or is unlikely ever to do it again." In fact,

Your Honours, what there the tribunal had found, and I will not take Your Honours to the relevant pages, but in 1978 he was convicted of a gaming

offence; in 1980 was the knife incident with his

brother, for which he was given two months: that is

as page 8 point 1 of the tribunal's reason. In 1982

was the offence with his de facto wife and the tin,

that is a 9 point 10, and at the same time he was

convicted of three other offences, including breaking

and entering. In 1983 there was a further breaking and entering and property damage at 10 point 2. In 1985 was the camal:i.s resin, and that is at 10 point 18.

Well now, what the Minister said about recidivism

is at page 85:

The Tribunal assessed the risk of

recidivism by the applicant as "low" and
categorised it as nothing other than an
ever present risk. However in view of the
applicant's prior criminal record and the

warning which was given him on 9 June 1981

that should he re-offend he could be deported -

there is no issue about that, that is in the tribunal

at 9 point 28. And, might I also tell Your Honours

this, that all this is again set out in an affidavit
of the appellant filed in the Federal Court. Anything

in that is wholly irrelevant to the issues of the

material that was before the tribunal, or before

the Minister, but there is an account in Mr Haoucher's

own affidavit of these matters starting at page 43,

but that was only for the purposes of the Federal

C.ourt.

So, the Minister goes on:

PlTll/1/FK	69	MR DOWNES, QC	26/10/89
Haoucher

However in view of the applicant's

prior criminal record and the warning which

was given him ..... that should he re-offend he

could be deported (which warning he apparently

failed to heed) I considered the risk of

recidivism to be serious.

We would respectfully submit that there is no new

fact being found here. There is no new matter being

considered. The Minister is simply evaluating,in

balancing the issues that he has to consider

what he considered was the risk of recidivism and we would respectfully submit to Your Honours that

there is really very little difference, if anything,

between an ever present risk and a serious risk.

So we would respectfully submit as to the recidivism

issue that, one, it is not a matter of fact, but an opinion, in any event it was a matter fully agitated

and upon which submissions were put both to the

delegate at the outset,to the tribunal and no

obligation for a further hearing can arise with respect

to that. There is simply nothing further, and this is
the proposition that we had in mind, if I might say
this,when I referred to the substance and the form

in the written submissions, that there really is no

point in saying that this man ought to have been given

a further opportunity of going to the Minister when he

really could not have said anything that had not

already been said again and again, an issue that

depended, at the end of the day, on a balancing exercise

really. So that is what we would respectfully say

about the factual claim based on recidivism.

DEANE J:  Mr Downes, I have been given some information that

indicates that the sittings may have to be cut a

little bit short tomorrow. We are concerned about

the next case. Could I suggest on the remaining things, if you give us references without taking us to transcript, and if you find that under the

want to put, you could put it in writing subsequently. implied pressure you overlook something that you

MR DOWNES:  Yes.

DEANE J; I am not stopping you now, but as I say - - -

MR DOWNES:	No, I understand that, Your Honour.
DEANE J:	- - - we are a little concerned about having time to

dispose of the next case and there is no criticism

of anybody here involved in that.

MR DOWNES:  No, Your Honour. I will seek to do that and perhaps

if I could just -

DEANE J:  In other words make the points you want to make and give

us any references .

PlTll/2/FK MR DOWNES, QC 26/10/89

Haoucher	70
MR DOWNES:	And if I could then just put in a sheet of paper

within, say, a week, would that be - a copy to my

learned friend, of course, or less if Your Honours

wanted it?

DEANE J: Yes.

MR DOWNES:  I think, Your Honour, that is what I wanted to say

about point 1. Point 2 is the alleged departure

from the criminal deportation policy. In a way I think
I have dealt with that in this sense, Your Honours,

that the only alleged departure from the criminal deportation policy that I understand ever to have

been raised is the one that appears in the notice

of appeal, the one that appears in Mr Justice Sheppard's

judgment which says that the tribunal found that it

was outside the policy and we say the tribunal

found no such thing, they only found it was outside

the examples. It did not even find that it was
outside 9, just the examples of 9.

I told Your Honours - I will not take you to the passage - but I told Your Honours what we said about

the tribunal's dealing with, in any event, this

question of seriousness. Their ultimate conclusion

is that which appears on page 20, at line 15,

which we respectfully submit is the more significant

than the one which has attracted all the attention

on page 18.

The next matter in my friend's submissions is

exceptional circumstances, and we would say firstly,

as to that, the question of whether or not there are
exceptional circumstances in a particular case

pre-eminently is a policy matter. It is a matter wholly,

we would respectfully submit, for the Minister. It is

not a matter upon which there is a need for the
putting of any submissions; it is not a matter which
calls for any procedural fairness in the sense of

the giving of an opportunity to put a further matter.

In any event, if the submissions I have put earlier

are correct one does not need to find exceptional

circumstances in the present case.

The way in which one determines whether the

circumstances are exceptional is by the kind of

balancing process that I have referred to earlier

and that, we respectfully submit, is for the Minister.

Your Honours, I think those are the matters

that we wish to put. There may be one or two matters
that I have not covered that are in the notes I have

scribbled down but, if it is convenient for the

Court I can put that on a sheet of paper too.

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Haoucher

DEANE J:  You can work on the basis that the Court is conscious

that it has put some pressure on you, and that being

so, within reason.

MR DOWNES:  Yes. Those are our submissions, Your Honour.

DEANE J:  Thank you, Mr Downes. Mr Owen-Conway, would it be

putting too much of a burden on you to suggest

that when you get any supplementary material from

Mr Downes you put your reply in writing within a week?

MR OWEN-CONWAY:  Yes, certainly, Your Honour. Thank you.

DEANE J:  If there is anything that you think you would be

disadvantaged by being required to put it in writing,

feel free to put it orally now.

MR OWEN-CONWAY:  No, I am sure I would not be, thank you,

Your Honour.

DEANE J:  Thank you. The Court is indebted to counsel.

AT 3.56PM THE MATTER WAS ADJOURNED SINE DIE

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Haoucher