Haoucher v Minister of State for Immigration and Ethnic Affairs

[1989] HCATrans 29

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P27 of 1988

B e t w e e n -

MAJED MAHMOUD HAOUCHER

Applicant

and

THE MINISTER OF STATE FOR

IMMIGRATION AND ETHNIC AFFAIRS

Respondent

Application for special leave
to appeal

BRENNAN J GAUDRON J McHUGH J

Haoucher

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 17 FEBRUARY 1989, AT 12.07 PM

Copyright in the High Court of Australia

C2Tl/l/SR 1 17/2/89

MRS. OWEN-CONWAY:  May the Court, in this matter I appear

for the applicant.	(instructed by Mazza Mccallum
and Robinson)

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

my learned friend, MR P.A. COPPEL, for the respondent.

(instructed by Australian Government Solicitor)

BRENNAN J:  Mr Owen-Conway?

MR OWEN-CONWAY:  Yes, thank you, Your Honour. Your Honour,

this is an application for special leave.	The short
history of the matter is as follows.	A deportation

order signed on 19 August 1986 by Mr Harrist a

ministerial delegate, pursuant to section 12 of

the MIGRATION ACT, was made against the applicant

as a result of his conviction in the District Court

in Perth in May 1985 for possession of 46 grams of cannibas resin with intent to sell or supply. The applicant applied to the AAT for a review of this

decision. On 29 January 1987, and pursuant to

subsection 66E(3) of the MIGRATION ACT, the AAT

remitted the matter to the respondent with a

recommendation that the order be revoked. The AAT

lacks the power to overrule a decision of the

~inister, but it may make recommendations if it is

not disposed to affirm the decision.

The AAT gave considerable weight to the terms

of the government's criminal deportation policy which

was tabled in the Parliament on 4 May 1983 and which

provides at paragraph 4 that recommendations of the

AAT should be overturned by the .Minister only in

exceptional circumstances and only when strong evidence can be produced to justify a decision.

(Continued on page 3)

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Haoucher
MR OWEN-CONWAY (continuing):	The terms of paragraph 4 are set

out in the reasons of Mr Justice Sheppard at page 51
of the application book. Paragraph 9 of the policy
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 elicit

drugs on a significantly large scale. The policy

made it clear that the purpose of deporting a criminal behalf of the community.
was to protect the safety and welfare of the

In this respect, the AAT gave weight to its

finding that the risk of recidivism by the applicant

was low. Fourthly, on 12 August 1987, the Minister

decided not to revoke the deportation order. The

Minister's obligation, in terms of the MIGRATION ACT

was to reconsider the matter in accordance with the

recommendation of the tribunal. Fifthly, the Minister

gave a statement of his reasons dated 17 August 1987

and they appear at page 23 in the application book.

The relevant parts of the Minister's reasons are

set out by Mr Sheppard in his reasons for judgment
and they appear at pages 54 and 55 of the application

book.

The applicant thereafter sought a review of the

. Minister's decision not to revoke the deportation order
pursuant to the JUDICIAL REVIEW ACT by application

dated 21 July 1987 and this application was heard

by Mr Justice Forster on 9 December 1987 and

subsequently dismissed by His Honour on 9 February 1988 .

His Honour's reasons appear at pages 26-40 in the

application book. Seventhly, by notice of appeal

dated 29 February 1988, the application appealed to

the Full Court of the Federal Court. The appeal was

heard on 16 May and dismissed by a majority decision

on 29 September 1988.

(Continued on page 4)

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Haoucher

MR OWEN-CONWAY (continuing): Their Honours' reasons in the

Full Court appear at pages 41 to 103 inclusive in

the application book. The dissenting judge,

Mr Justice Sheppard, found that the applicant

was not accorded procedural fairness in the course
of a judgment comprising some 38 pages of carefully

reasoned analysis of the facts and of the relevant

authorities and, finally, by application for special

leave to appeal, dated 20 October 1988, the applicant

seeks the leave of the High Court to appeal on the

grounds set out in the draft notice of appeal,

which grounds appear at pages 116 to 119 of the

application book.

They are the short facts, Your Honour. The

short statutory framework is as follows: the

decision reviewed was pursuant to section 5 of the

JUDICIAL REVIEW ACT. The decision to deport was

made under section 12 of the MIGRATION ACT.

Section 66E of the MIGRATION ACT provides for:

A review of decisions of the Minister under

section 12 ..... by the -

AAT. Subsection 66E(3) of the MIGRATION ACT provides

that:

After reviewing a decision ..... the Tribunal

shall either affirm the decision or remit the

matter for reconsideration in accordance with

any recommendations of the Tribunal.

Subsection 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 AAT pursuant to section 66E or,

indeed, at all and, under section 20 of the

MIGRATION ACT, the Minister has a general power to revoke a deportation order and, finally, the

Minister's reasons were provided pursuant to

section 13 of the JUDICIAL REVIEW ACT.

Now, Your Honours, I have prepared a short ..•

outline of the applicant's submissions in support

of this application for special leave to appeal.

If Your Honours have had the opportunity of reading

that outline, I would not wish to really say anything

more about it. It really speaks for itself, in my

respectful submission. It refers to the three

questions of law which are set out in the affidavit

of Mr Donovan which appear relevantly in the

application book at pages 110D to lllE and it sets

out the issues which are said to be of substantial

public importance and they appear at page 112A to E

inclusive.

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Haoucher

BRENNAN J:	I take it you have a copy of this, Mr Downes?
MR DOWNES:	Yes, Your Honour.

BRENNAN J: Yes, Mr Owen-Conway?

MR DOWNES:	I would not want to read those submissions, Your Honour, taking time up doing that, but I would seek expressly to rely upon them and
perhaps just make some general observations,
if I might.

Your Honours, there is little authority

on the nature of a minister's task when a

matter is remitted to him by the AAT. What is

meant by a reconsideration in the light of

the recommendations? If Mr Justice Smithers

in BARBARO's case is correct, it certainly

encompasses a duty to accord an opportunity

to be heard where a Minister decides to
depart from findings of fact and/or inferences

of fact drawn by the tribunal. That much is

clear beyond any doubt from His Honour's

judgment in BARBARO's case.

In the Full Court in this case

Mr Justice Sheppard held, at page 75 of the

application book, that Mr Justice Smithers was

correct in this formulation and further that

the Minister ha4 on the facts,departed from a
critical finding of fact made by the AAT in

respect of the likelihood of the applicant

committing further offences. His Honour's

finding in that respect is at page 76 in the
application book. His Honour Mr Justice Sheppard

was in no doubt whatsoever that Mr Justice Smithers'

decision in BARBARO's case was in accordance with
the later decision of the High Court in KIOA and
was in accordance with what that later decision
would have required in terms of the requirement

to accord procedural fairness to the applicant.

That appears at page 62, paragraph D and E of

the application book in His Honour's reasons

for judgment.

In my submission the AAT ACT, section 13

of the JUDICIAL REVIEW ACT and section 66E(3)

of the MIGRATION ACT together created a

legitimate expectation that the recommendations

of the tribunal would be implemented in this

case. In addition, the existence of the policy

statement raised in a reader's mind the expectation

that it would be followed and it gave rise to a

legitimate expectation that the Minister would

act in accordance with it. That was so found

by Mr Justice Sheppard at page 76 of the application

book.

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Haoucher

BRENNAN J:  I do not follow that argument, Mr Owen-Conway.

Is the proposition that if a party thinks that

he has won on the merits, that has something

to do with the procedure that is to be followed

in considering the matter?

MR OWEN-CONWAY:  No, it is not, Your Honour, with respect

at all. The proposition is this:  that in

the circumstances of this case the government's
criminal deportation policy gave rise to a
legitimate expectation on the part of

Mr Haoucher that the Minister would follow its recommendation and if the Minister were not minded so to do he would give Mr Haoucher the

opportunity of making further submissions to

him. The reasons for that really are fully

out by Mr Justice Sheppard in his reasons for

judgment and I would respectfully seek to

adopt them and rely upon them. But in essence,

the government's criminal deportation policy makes it clear that the purpose of deporting a criminal is to protect the interests of the

safety and welfare of the Australian community,

certainly where a person has been convicted of

an offence of trafficking in hard drugs, or
in other drugs on a significantly large scale,
then the policy supports an order of deportation.

But in this case Mr Haoucher was convicted of

trafficking in cannabis resin - those drugs

are not hard drugs; the Minister, in his reasons

for decision, accepted that they were not hard

drugs and accepted that the AAT's finding in

that respect were correct, but none the less

acted in essence against his own policy in

affirming the deportation order in the case.

(Continued on page 7)

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Haoucher

MR OWEN~CONWAY (continuing):  And it was a combination -

Mr Justice Sheppard felt it was a combination of

the acting against the government's criminal deportation

policy and the statutory framework which I have

referred to very briefly set out in both the

MIGRATION ACT, the JUDICIAL REVIEW ACT and the AAT ACT,

which gave rise to the legitimate expectation on the

part of Mr Haoucher that the AAT's recorrnnendation

would be followed. So Mr Justice Sheppard put it in

terms that it was a combination of all those

matters which gave rise to the legitimate
expectation that the M.inister would act in accordance

with his policy, or alternatively notify the person

affected that he did not propose to do so and further,

of the matters to be relied upon by him for taking

that course. ·

Now in this case the Minister agreed that the

applicant's crime was outside the policy and in the

circumstances, in my submission, he was obliged to

give the applicant an opportunity of persuading him

that he should not depart from it. And that was so

held by Mr Justice Sheppard at page 77B in the

application book. And this the applicant could only

do if he knew, wibh some particularity, of the

matters which provided the basis by the Minister for such departure. It is also not clear, Your Honours,

what the exceptional circumstances were upon which

the Minister relied. The applicant was entitled to

know precisely what they were and to an opportunity

of dealing with them so held by Mr Justice Sheppard

at page 77D.

Your Honours, if I could refer very briefly to the juAgments of Mr Justice Northrop and	·
Mr Justice Lee in the Full Court.	Mr Justice Northrop's

judgment appears in the application book at

pages 80 to 90. At page 81B, His Honour refers to

the exercise of the Minister's power upon a

reconsideration as being "unfettered". That is the

way His Honour put it. And the corrnnent on that is	that according to Mr Justice Smithers in BARBARO's
case, the discretion has been modified. It is not unfettered in the sense of being absolute. And the reasons for that ap~ear clearly from the segment of
Mr Justice Smithers judgment in BARBARO's case,
which are set out at pages 64 to 66 in the application
book in the body of Mr Justice Sheppard's judgment.

Your Honours, secondly, the passage cited from

POCHI's case by Mr Justice Northrop at page 82,

i-a~a~aphs·C to E, in His Honour's view:

illustrates tne unreccerea _nature ef the

discretion conferred upon the Minister.

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Haoucher

That is at page 82, paragraph E. But in POCHI's case

Their Honours in the High Court made it clear, expressly clear, that the discretion was not absolute.

Their Honours said that the duty is to reconsider

in the light of the recommendations of the AAT.

BRENNAN J: Is there any suggestion that that duty was not

performed in this case?

MR OWEN-CONWAY:  The proposition is this, Your Honour, that

the Minister certainly reconsidered, in the sense

that he was aware of the AAT's reasons, he had them before him, he had some supporting submissions from

various departmental officers, but he rejected a

crucial finding of fact made by the AAT in favour of

Mr Haoucher. That was in relation to the likelihood

of Haoucher's recidivism in the future, so held

by Mr Justice Sheppard and so held by Mr Justice Northrop,

inasmuch as Mr Justice Northrop held that the

Minister had rejected some inferences of fact found

by the tribunal.

(Continued on page 9)

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Haoucher

MR OWEN-CONWAY (continuing):  Now, in BARBARO's case

Mr Justice Smithers said that where the Minister

rejects either findings of fact or inferences of

fact from those primary findings of fact, then
before confirming his decision to deport, the

person affected must be given the opportunity of

making further submissions. And so this case

falls precisely within the parameters of the

decision in BARBARO's case, notwithstanding that

Mr Justice Northrop was in the majority in

dismissing this appeal.	Thirdly, at page 88
paragraph (d) - - -

BRENNAN J:  Mr Conway, I think we shall hear from

Mr Downes before we trouble you further.

MR OWEN-CONWAY:	Thank you, Your Honour.
MR DOWNES:	Your Honours, the judgments of each of the four judges below are characterized, we would
respectfully submit, by a remarkable degree of
agreement on all questions of law which arose
in the appeal and which would arise in any appeal
if Your Honours were to grant special leave.
None of the four judges before whom the matter
has so far come have held that there is no obligation
to give an opporunity, or that there can be no
obligation to give an opportunity to be heard when a matter is remitted under section 66E(3)
or when ministerial policy is involved.

Indeed, each of the judges below held that

circumstances could give rise to an obligation

to accord natural justice in those circumstances.

Mr Justice Forster at page 32 of the appeal book at line A indicated that he agreed with the view

expressed by Mr Justice Smithers in BARBARO's case.

At the bottom of page 31 he deals with it and his

conclusions are at the top of page 32:

whether or not if the Minister took a I do not find it necessary to decide

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 a denial of nature justice

would occur. I incline to the view that

it would and this view incidentally

accords with the decision of Smithers J

in BARBARO.

Mr Justice Northrop at page 87C says:

I agree with the reasoning of the trial

Judge that the appellant had not been

C2T6/9/HS	9	17/2/89
Haoucher

denied "natural justice" and had
not been denied "administrative fairness".

Mr Justice Lee deals with the matter perhaps a bit more specifically at page 96B where

His Honour says:

Forster J did not demur from that

statement by Smithers J -

he having set out a passage from Mr Justice Smithers'

judgment -

and was inclined to support it.

Forster J concluded, however, that any

departures by the Minister from statements

of the Tribunal related to matters of

opinion and not findings of fact.

So then Mr Justice Lee goes on to consider whether

the three matters raised there and raised in the

appeal before the Full Court were departures which

would require the opportunity to be heard.	He
addresses the matter again at page lOlC when
he says, starting a bit above there:

The ministerial statement of policy

may have amounted to an acknowledgement

that the Minister would only exercise

that discretion contrary to the

recommendation of the Tribunal in

exceptional circumstances but the use of

that discretionary power contrary to

such a recommendation does not involve

denial of an opportunity to be heard if

it merely amounts to the formation of

another view. That is not to say that

refusal to accept and act upon a Tribunal

recommendation is incapable of being

reviewed as an improper or unreasonable

exercise of power in an appropriate case.

Mr Justice Sheppard who was the only

(Continued on page 11)

C2T6/2/HS	10	17/2/89
Haoucher

McHUGH J:	Can I stop you there? That is not really the issue,
is it, as to whether it is an improper or unusual
exercise of power? It is a question whether there
was a legitimate expectation that you would be heard.

MR DOWNES:  Yes. I think I do have to accept that in the particular

passage that I just read to Your Honour there

Mr Justice Lee is referring to that particular

proposition, but the whole of the body of his judgment,

Your Honour, dealing with the particular matter as

identified and starting at 96 C is concerned

with the question of what was the level of departure

between the tribunal and the M-i.nister. The conclusion

he came to was that there was not such a level of

departure between the views of the tribunal and the views of the Minister as to require any opportunity to be heard. That is exactly the same approach that

was taken by:Mr Justice Sheppard; he came to a different

conclusion, however, but the conclusion that he came to

depended upon no' we would respectfully submit'

different view of the law but merely upon a different

view of the significance of the departure,of the

significance of the facts as to whether there was

any point where the departure passed from a mere

difference of opinion, in a sense, a policy question which is pre-eminently a matter for the Minister, to a difference on the facts.

McHUGH J:	We).l, can I ask you, do you support the statement of
Mr Justice Northrop at the bottom of 87 over to 88,
where he says:

The fact, if it be a fact, that in the past

the Minister had almost always given effect

to the recommendation of the Tribunal cannot
give rise to a legitimate expectation that

before departing from that practice, the

Minister should give an opportunity - - -

et cetera -

to make submissions ..... The existence of such

a legitimate expectation would be contrary

to the policy of sub-section 66E ( 3) .

Do you support that?

MR DOWNES: Well, Your Honour - answer, yes, I do. But that

issue would not, if Your Honours granted leave, be
an issue which would he necessarily or even likely

to be determined in the appeal and for those reasons we would submit it is not appropriate for this Court

to grant special leave.

McHUGH J:	But is that not central to Mr Justice Northrop·
reasoning? That is to say, that proposition. He

C2T7/l/VH	11	17/2/89
Haoucher

begins with the general proposition it is an unfettered

discretion.

MR DOWNES:	Except this, Your Honour, that even - that is the passages my learned friend took Your Honours to at
81 and 82, but could I draw Your Honour's attention
to the top of 83 in which he says that:

It is to beunderstood to mean that the Minister

must taken the recommendation into account and

give due weight to it.

None of the judges who heard this appeal in the Full

Federal Court were ignorant of the decision of this

Court in POCHI's case. Each one of them referred to

it; each one of them set out passages from it; each one of t:them regarded it as, one, giving the M.inister

a discretion to depart and, after all, that must be

grant of special leave on the ground that the	so. This Court, in POCHI's case, rescinded its own the recommendation made with the tribunal and, in a sense, in those circumstances, for this Court to
intervene and determine and hear argument about
whether the decision of the tribunal ought to have
favoured the Minister when it did not or the decision of the court below ought to have favoured the Minister
when it did not, this Court, in coming to a
conclusion it came to, must, as it : __ said. in its reason for doing so, have accepted that the Minister could depart from the result before the tribunal and,
we would go so far as to say, could depart from the
result before the tribunal without giving any notice
to the applicant of its intention so to do.

(Continued on page 13)

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Haoucher

MR DOWNES (continuing): That is the extent, we would

respectfully submit, of the reasoning of the majority

in referring to discretion.

McHUGH J: But is not the case that is put against you this:

the Minister through the statement of policy says,
"I will abide by the decision of the Administrative
Appeals Tribunal in the exercise of my discretion
unless there are exceptional circumstances with
strong evidence to justify the departure" and
that gives rise to legitimate expectation that before
exercising the power he will give you notice of what
the exceptional circumstances are and give you an

opportunity to put submissions about it.

MR DOWNES:  Your Honours, we would submit that one has to look

at the matter in its full context. The first matter

one has to look at is, what is the ministerial policy

statement to begin with? And it is a very broad

document covering a multiplicity of matters. It is

not a statement of the circumstances in which you

will be allowed to stay in Australia; it is a

statement of the circumstances in which you may well

be deported from Australia.

To the extent to which it refers within it to

some circumstances as to the way in which recommendations

of the tribunal will be dealt with, it cannot be taken,

Your Honour, as something which binds the Minister

finally. The Minister would be himself undoubtedly

acting in breach of the common law rules relating to
administrative decision making and one of the
subsection - I just forget the particular subsection
at the moment - of section 5, if he were to apply

rigidly a policy relating to the results of four

tribunals.

So that, Your Honours, when one is evaluating

what is the legitimate expectation, that legitimate

expectation has to be evaluated along with the

consideration that a policy is no more than a guide
or indication of what might happen.	It cannot give

rise to a legitimate expectation that in all

circumstances its literal words will necessarily

be followed. So that is the first proposition that

we would respectfully submit is important and,

Your Honour Mr Justice Brennan in DRAKE's case, which

is referred to in some of the judgments below, refers

to those matters.

BRENNAN J: Mr Downes, I have difficulty for reasons I have

elsewhere explained with this whole notion of

legitimate expectatior and if I could put it in

terms which I find more persuasive, the proble~

really is this, is it not, that if you have a statement

by a minister which says, "Here is my policy. I lay it before Parliament and this is the policy which my

C2T8/l/BR	13	17/2/89
Haoucher

department will apply in exercising its discretionary

powers" and the Administrative Appeals Tribunal applies

the same policy and the minister then goes on to say, "::;o long as that policy is applied, I will not depart from the recommendations of the MT unless there are

some exceptional circumstances". Is it fair then

for the minister to depart from the MT's

recommendations without giving notice to the person

affected that this is, in his view, an exceptional

case so that that person can come along and say,

"Well, it is not really an exceptional case"?

MR DOWNES:  Your Honour, we would respectfully submit that, to

use, I think, the critical phrase of Your Honour's,

it is fair or not unfair to do that.

(continued on page 15)

G2T8/2/BR	14	17/2/89
Haoucher

MR DOWNES (continuing): Could I illustrate it this way,

Your Honour. There is now in fact, apparently, a

new policy statement which indeed qualifies the

previous policy statement. That new policy was not

announced immediately before the applicant's

deportation was considered by the minister. But he

might just as easily have delayed making a final

decision, made an announcement to Parliament that he

was changing the policy and thereafter anybody who

was be.ing convicted of any offence relating to

drugs would be deported, and then there would have

been no basis for any legitimate expectation. Now,

it is in that context, Your Honour, that - - -

McHUGH J:	Does that follow?
MR DOWNES:	Yes, Your Honour.
McHUGH J:	Does not the legitimate·expectation arise when

the matter is dealt with by the tribunal and a

decision is reached. Is not the legitimate expectation

formed at that stage?

MR DOWNES:	The legitimate expectation - - -
McHUGH J:	On your _il1ustration it throws up ,t;ha problems

of the whole question of legitimate expectations,

there is no douht about that, it is a difficult

concept.

BRENNAN J:  But does not this case also throw up another

difficult problem and that is, what is the relationship

between a policy which is announced to govern the

exercise of a discretionary power and the procedural

requirements which the announcement of that policy

creates with respect to the exercise of that

discretionary power as a general question?

MR DOWNES:  Yes, Your Honour, we womld respectfully submit - I accept what Your Honour says that that question is

in the background or may be in the background of determinination of some cases, ut it is not, we

would respectfully submit, capable of being solved by

this Court by a pronouncemen~ if the Court were to grant

leave in this case, which would be of general

assistance in the future because the result

tP. which this Court would be likely to arrive at is,

in a sense, the result which all of the judges below
arrived at, certainly all of the judges who in terms

addressed the matter arrived at and I include in

that Mr Justice Sheppard who twice qualified his

finding that there would be a duty to act in

accordance with the rules of natural justice at

page 78A - well,page 67A is the first, I think, he said

in line 3:

C2T9/l/SR	15	17/2/89
Haoucher

I therefore conclude, contrary to the

submission made by counsel ..... that Barbaro

proposes to deport ..... to make representations to him in every case.

is not authority for the proposition that the

And again at page 78A, he said:

I do not accept the submission of counsel .....

that procedural fairness always requires the

Minister to give a person who has obtained
a favourable recommendation from the

Tribunal an opportunity to be heard.

And as Your Honour said and Mr Justice Mason, too,

I think indeed most of Your Honours in KIOA's case,

what really one has arrived at, in a very real sense

in natural justice cases, is a situation in which

what one has to do is to look at the particular facts

of a case - not at general propositions of law but
the particular facts of the case and determine on

those facts whether procedural fairness requires the

giving of an opportunity to be heard. And the impact

of a ministerial statement is only one of very many

circumstances which can arise in cases from time to

time as to whether a particular case warrants the

giving of an opportunity to be heard.

So that, Your Honours, we would submit, that whilst

what Your Honour says is correct, namely that that issue

is an issue in the background of this case, firstly

it is unlikely that this Court will be able to give

guidance which will be of general assistance in the

future because the result will not be some definitive statement about the effect of a policy statement but

rather a statement about the impact that a particular

policy statement may have on any particular case and

then it is a matter of looking at those facts.

Your Honours, in coming to that conclusion we will say

nothing different to that which the judges below have

said. (Continued on page 17)

C2T9/2/SR	16	17/2/89
Haoucher

MR DOWNES (continuing):  Your Honours, it may be appropriate

really to also remind Your Honours, perhaps, that
first of all, the whole of the statement is not set

out anywhere in the appeal papers. In fact, I have

a copy of it here if Your Honours would find any

assistance in looking at it but it is, in a very

real sense, a document which does not tell you when

you are likely to be allowed to stay in Australia.

It tells you when you are at grave risk of being

deported from Australia. In other words, it is

not a document which, in the reader who is at risk,

will create an idea of security but will alert his

attention to circumstances of risk of deportation and there are very many overlapping provisions in

it. One can see some of the overlapping provisions

in the passages from it that I have set out in

Mr Justice Sheppard's judgment, Your Honours, at -

would Your Honours just pardon me a moment.

GAUDRON J: Fifty-two.

MR DOWNES:  Yes, it is, 52 and, in particular, Your Honours,

for example, 16 is not unimportant. I can tell

Your Honours that paragraph 9 - perhaps it might

be convenient if I - I did mention to Mr Owen-Conway,

for the applicant, before Your Honours came on the

bench while he was in Perth and I was here, that

I had copies of this document and I think - so if

I hand them to Your Honours - - -

BRENNAN J:	So, have you any objection to our seeing - - -
MR DOWNES:	- but I have not furnished him with one.

BRENNAN J: Just a moment, Mr Downes. Mr Owen-Conway, have

you any objection to our looking at this document?

MR OWEN-CONWAY:	None whatsoever, thank you, Your Honour.
BRENNAN J:	Thank you.

MR DOWNES:  Your Honours will see that paragraph 9 which contains,

as its first provision, a statement relating to drugs,

does contain other examples of serious offences

including, for example, violence against the person

and Your Honours will be aware from reading the

papers that the applicant has been convicted of

two offences involving violence to the person apart

from the offence relating to drugs but for more

important purposes, Your Honour, of taking

Your Honours to this document, is simply to show

Your Honours that it is a document setting out

circumstances in which, so to speak, you are at

risk of deportation. It is not a document which

exclusively identifies matters in a way which can cause one to say, "Well, I have not fallen within

this particular category, therefore, I am safe".

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Sixteen, for example, which is set out in full at

page 52 of the appeal book is one which shows what

a broad policy document this is.

BRENNAN J: Well, the relevant paragraph is paragraph 4, is it

not?

MR DOWNES:  That is the one relating to the tribunal, yes,

Your Honour.

BRENNAN J: Well, it is the one relating to the exercise of

the power urlder section 66E.

MR DOWNES:  Yes, Your Honour.

BRENNAN J: Well, now, the question, it seems to me, which that

poses is if it be the policy that the AAT decision will

be overturned only in exceptional circumstances and

only when strong evidence can be produced, how can

a minister consistently with that policy overturn a

decision unless there are exceptional circumstances

and strong evidence is produced?

MR DOWNES: Well, Your Honour, for present purposes, no evidence

- the question of whether there is further evidence or

strong evidence produced does not arise because the

MLnister formed his view,not based upon any different

view of the facts or upon any different facts, but upon

policy considerations associated with his assessment of matters which, although based in fact, were not factual matters, for example, the risk of recidivism.

(Continued on page 18)

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MR DOWNES (continuing): The tribunal said the risk, whilst

they recognized it, was low. The tribunal recognized

that, in assessing the risk of recidivism, they were,

Your Honours, to use their own words, at page 17:

Assessing factors which must unfold in the

future.

They were offering an opinion, not a finding of fact.

Now, the Minister took the view that that finding of the tribunal did not give sufficient weight to the

risk of recidivism. As Your Honours may have seen

by looking at the last part of Mr Justice Lee's

judgment, it would seem that there is room for

the view that the Minister's view was, as subsequent

facts demonstrated, the justified view, the view more

justified than that of the tribunal, because as the

evidence appeared before Mr Justice Forster and was

found and is referred to by Mr Justice Lee, after

the relevant events, af.ter the relevant recommendation

of the tribunal but before the hearing before

Mr Justice Forster, the applicant pleaded guilty to

and was convicted of another offence involving drugs

and that, Your Honours, is a final ground that I,

perhaps, anticipate now that I was going to urge

as an ultimate reason why Your Honours should not

grant special leave in this case; namely, that that

being an undoubted fact, the circumstances being

somewhat different to the circumstances that were

before the tribunal, Your Honours may consider that,
as a matter of discretion, so to speak, it is not
appropriate to grant leave in this case because this
case, given the change in the factual circumstances

that obtain, may not be an appropriate vehicle for

Your Honours to -

GAUDRON J:  Was the offence to which you referred committed

during that period or was the conviction sustained

during that period?

MR DOWNES:  I am not sure, Your Honour. Certainly, the

conviction was after the tribunal hearing and before
the hearing before Mr Justice Forster.	I think,

although I cannot tell Your Honour from my own

know1edge with any accuracy, that all the relevant

events occurred after the tribunal. It may have

been that the event occurred, that is, the offence

was committed before the hearing before the tribunal

but the court hearing did not take place. I think the

only places dealt with in the application book is at

102.      Mr Justice Lee begins dealing with it at the

bottom of 101 where he says:

Finally, it should be noted that the

grant of an order to review is a discretionary

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remedy and events occurring subsequent to

the Minister's decision may be pertinent to the exercise of the Court's discretion ..... In his application for an order for review heard before Forster J, the appellant disclosed

that his employment had ceased in March 1987 -

that goes, of course, to the issue of contribution

to the Australian community -

And that subsequent to the Minister's decision,

but prior to his application for an order for

review the appellant had been convicted of a

further offence, namely the possession of

cannabis.	He admitted purchasing the drug
at Burswood Island Casino.	He was not then

in employment. Both matters could only

serve to reinforce the Minister's opinion
on the appellant's ability to contribute to
the Australian community and his capacity for

recidivism.

(Continued on page 21)

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BRENNAN J:  But, Mr Downes, let that be so, all the

significance the subsequent conviction can have

is this, is it not, if the Minister acted

within his power under section 66E, that is
the end of the matter. If, by reason of

procedural effects,he did not act within his

power, his decision should be set aside and

he must decide it again?

MR DOWNES:	Yes, Your Honour.
BRENNAN J:	And in deciding it again, no doubt he would

take into account any matters which have occurred

since the AAT's decision?

MR DOWNES:	Yes, Your Honour.
BRENNAN J:	And also, no doubt, giving the deportee

or potential deportee an opportunity, if it
be appropriate, having regard to the requirements

of natural justice to deal with the new facts.

MR DOWNES:  Yes, Your Honour. We would nevertheless

submit that the fact of the further offence is

a reason which Your Honours can take into

account in determining whether this is an

appropriate case for special leave.

BRENNAN J: Yes.

MR DOWNES:  Your Honours, I do not want to weary

Your Honours too much longer. Could I just

put one or two propositions, succinctly I hope to

Your Honours? The first is this: that the

in the context of the legislation. Undoubtedly section 12 creates a right to deport in the Minister. Section 66E(l), as Your Honours in	ministerial policy statement has to be seen strength of the discretion which the Minister
has when the matter is returned to him, and
I particularly draw Your Honour's attention to
the fact that there is no basis for going to the
tribunal from any decision of the Minister on
reconsideration. Section 66E(l), which gives the right to go to the tribunal, excludes a decision made on a matter remitted by the
tribunal for reconsideration, which is a statutory indication of the width, we would
respectfully submit, of the discretion. When one
adds to that, Your Honours, that the policy is
a broad policy; when one adds to that, Your Honours
that this is a case far removed from, for example,
BARBARO's case where what the Minister did was to,
so to speak, engage on an independent fact finding
exercise as a result of which he concluded that
Mr Barbaro was a member of the Mafia, the
evidence not being a matter which was before the
tribunal, this being very far removed from that

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case, it being a case in which what the Minister
did was come to different conclusions on
matters of opinion, on matters of policy, which

he considered to give rise to exceptional

circumstances. We would respectfully submit

that where the Minister does legitimately form

different opinions on policy kinds of question

relating to seriousness of drug offences, for

example, relating to likelihood of recidivism -

being the two examples with which we are here

concerned - then the Minister is entitled to

form the view that that is an exceptional
circumstance and the applicant, having had

any amount of opportunity, so to speak, to put

his case forward to the Minister, and getting

his last and most important opportunity through

the tribunal, because that is really, Your Honours,

we would respectfully submit, what the ultimate

effect of an appeal to the tribunal is, all the

tribunal can do is make a recommendation.

All it can do is be, so to speak, the mouthpiece

of the applicant to the Minister in a formal way

making a recommendation.

What, Your Honours, we would respectfully

ask in those circumstances, all the issues having

been ventilated before the tribunal, all the

issues having been put up to the Minister by

the tribunal, so to speak, on behalf of the

applicant, there being no new facts, the matter

only being a matter of opinion, we would

respectfully submit that in all those circumstances,

only first~on the facts of this case no question

arises as to whether there ought to have been a

further opportunity given, and secondly, and

in any event, no question of principle satisfactorily

arises which ought to attract this Court's grant

of special leave. Those are our submissions.

BRENNAN J:  Thank you, Mr Downes. We need not trouble you

in reply, Mr Owen-Conway.

This is a case which, in the Court's opinion,

special leave should be granted. It is granted

accordingly.

AT 12.56 PM THE MATTER WAS ADJOURNED SINE DIE

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