Minister for Immigration, Local Government and Ethnic Affairs v Gray
[1994] FCA 225
•29 APRIL 1994
MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS v. GARY GRAY
No. QG2 of 1993
FED No. 225/94
Number of pages - 24
Administrative Law - Immigration
(1994) 19 AAR 266
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
NEAVES(1), FRENCH(2) AND DRUMMOND(2) JJ
CATCHWORDS
Administrative Law - statutory discretion - ministerial policy - role of policy in exercise of discretion - on merits review by Administrative Appeals Tribunal - relevant factors - misapplication or misconstruction - failure to take into account relevant factors - error of law.
Immigration - deportation - criminal deportation policy - merits review by Administrative Appeals Tribunal - misapplication of policy - whether reviewable error - prior warnings - effect and relevance - community benefit - how assessed - relationship to personal hardship to deportee and others.
Bayne, The Exercise of Discretion According to Policy Guidelines (1993) 67 ALJ 214
Migration Act 1958 s.55
Drake v. Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Nikac v. Minister for Immigration and Ethnic Affairs (1988) 20 FCR 65
Century Metals and Mining NL v. Yeomans (1989) 100 ALR 383
Re Drake (No. 2) (1979) 2 ALD 634
Nevistic v. Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639
Re Loh and Minister for Immigration Local Government and Ethnic Affairs (1990) 11 AAR 150
Gumus v. Minister for Immigration and Ethnic Affairs (1991) 30 FCR 145
Collector of Customs v. Pozzolanic (1993) 43 FCR 280
HEARING
BRISBANE, 4-5 May 1993
#DATE 29:4:1994
Counsel for the Appellant: Mr G. Downes QC and Mr M. Boulton
Solicitors for the Appellant: Australian Government Solicitor
Counsel for the Respondent: Mr P. Nase
Solicitors for the Respondent: Diane Soon and Co.
ORDER
THE COURT ORDERS THAT:
1. The appeal is dismissed.
2. The appellant to pay the respondent's costs of the appeal.
NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
NEAVES J The Minister for Immigration, Local Government and Ethnic Affairs ("the appellant") has appealed from the judgment of a judge of this Court setting aside the decision of the Administrative Appeals Tribunal ("the Tribunal") affirming a decision, made pursuant to s.55 of the Migration Act (Cth), that Gary Gray ("the respondent") be deported from Australia.
The decision that the respondent be deported from Australia, a decision made by a delegate of the appellant, was based on the respondent's conviction on 26 April 1985 of an offence of stealing with actual violence whilst armed with an offensive weapon for which he was sentenced to imprisonment for ten years. The offence was committed on 27 July 1984.
As at the time the decision to deport the respondent was made, s.55 of the Migration Act provided:
"55.Where -
(a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;
(b) at the time of the commission of the offence the person -
(i) was not an Australian citizen; and
(ii) had been present in Australia as a permanent resident for a period of less than 10 years or for periods that, in the aggregate, do not amount to a period of 10 years; and
(c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year,
the Minister may order the deportation of the person."
By virtue of subs.58(1) of that Act, where a person had been convicted of any offence (other than an offence the conviction in respect of which was subsequently quashed) the period (if any) for which the person was confined in a prison for that offence was to be disregarded in determining, for the purposes of s.55, the length of time that that person had been present in Australia as a permanent resident.
It is common ground that, at the time of the commission of the offence on which the deportation order was based, the respondent was not an Australian citizen and, applying the provisions of subs.58(1), had been present in Australia as a permanent resident for a period of less than ten years.
The facts and circumstances that give rise to the issues the subject of this appeal are fully set out in the reasons for judgment to be delivered by the other members of the Court and I need not repeat them. I am, however, unable to agree with the conclusion to which the other members of the Court have come. I shall briefly state my reasons.
Although the Tribunal, in its reasons for decision, made only two brief references to the statement on criminal deportation policy made in the House of Representatives on 4 May 1983 by the then Minister for Immigration and Ethnic Affairs, I agree with the other members of the Court that the Tribunal, as it was entitled to do, had regard to the whole of that Ministerial statement as it did to part of a statement made in the Senate on 8 December 1988 by the then Minister for Immigration, Local Government and Ethnic Affairs.
The Ministerial statement of 4 May 1983 was expressed to relate only to the "deportation liability of people who are not Australian citizens but are permanent residents of Australia". The purpose of the statement was to give guidance to decision-makers so as to remove, as far as possible, perceived inconsistencies in the determination of such cases in the past. The statement emphasised 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.
The guidelines for deportation appearing in the Ministerial statement (pars 6 - 16), so far as relevant to the present appeal, are set out in the judgment of the other members of the Court and, again, I need not repeat them. What is important for present purposes is that par.6 refers to the making of a choice on behalf of the community "that the benefit accruing to the community as a whole by his/her removal outweighs the hardship to the persons concerned and his/her family" and that par.16 sets out, though not in an exhaustive way, "broad criteria on which judgments will be based".
The learned primary judge concluded that, before the balancing required by par.6 of the Ministerial statement can be undertaken, it is necessary that the decision-maker come to a view that there is a benefit accruing to the community as a whole from the removal from the community of the person by deportation. He added that the making of a decision whether deportation represents a benefit to the community as a whole itself involves a balancing exercise and the consideration of a number of relevant factors identified in the deportation policy statements. He then set out a number of factors, some of which repeat what appears in par.16 of the statement of 4 May 1983. Each factor was, so his Honour held, to be assessed separately in determining whether there is a benefit to the community as a whole in ordering deportation. His Honour continued:
"What is important is that the Tribunal has considered the nature of the deportable offence and the sentence imposed, the applicant's previous criminal history, and the extent of rehabilitation in the context of determining the risk of recidivism of the applicant in committing serious drug related crime (see paragraphs 24 to 49 and especially paragraph 33 of the Tribunal's reasons) but has failed to consider these factors separately in determining whether or not there was a benefit to the community in deportation to be weighed against hardship to the applicant and his family."
The references to "the applicant" are, of course, references to Mr Gray.
The Ministerial statement of 4 May 1983 does not, in terms, require that two balancing tests be carried out or that the various relevant factors must be considered separately. By reading such requirements into the Ministerial statement, his Honour has, in effect, restated the policy guidelines and has then proceeded to test the Tribunal's reasons for decision against the guidelines as so restated. While it may be said that the Ministerial statement is deficient in some respects, the approach taken by his Honour is, in my opinion, not a permissible one.
In my opinion, upon a fair reading of its reasons for decision, the Tribunal cannot be said to have misconstrued or misapplied the Ministerial statement. It took into account the whole of the material that was presented to it, giving to each factor such weight as it considered appropriate. It reached the conclusion that the benefits to the community from deportation outweighed the considerations of hardship to Mr Gray and his family. In particular, in reaching that conclusion it did not, in my view, fail to take into account Mr Gray's efforts towards rehabilitation and the evidence that he could make "a potentially valuable contribution in terms of being a role model for successful rehabilitation of drug dependent criminals and drug dependent persons generally". In the light of the view which the Tribunal took as to the risk of recidivism, it is not surprising that the Tribunal did not make an express finding as to the weight it gave to that material.
Subject to the matter to which I will now refer, I am not satisfied that the Tribunal erred in law in reaching its conclusion or failed to take into account relevant matters that it was bound to consider. Nor, in my view, can the conclusion properly be reached that the Tribunal's decision was, as the primary judge concluded, "manifestly unreasonable".
The Tribunal, in its reasons for decision, referred to "numerous warnings" given to Mr Gray prior to the commission of the offence of armed robbery on which the deportation order was founded. The material before the Tribunal clearly established that, by letter dated 8 January 1979, after he had been convicted on 21 July 1978 of larceny from the person and given a suspended sentence of two years' imprisonment, Mr Gray was warned about the possibility of deportation should he again commit a serious breach of the law. What occurred on the other occasions to which the Tribunal referred cannot, in truth, be categorised as warnings of that nature. However, there can be no doubt on the material before the Tribunal that Mr Gray must have appreciated, when he committed the offence on 27 July 1984 that to commit a serious crime would lead to a consideration of his deportation. Considering the matter in its context, I am of opinion that the Tribunal's error was not such as to warrant the intervention of the Court.
I would allow the appeal, set aside the judgment under appeal and, in lieu thereof, order that the application to the Court be dismissed with costs. The respondent should pay the costs of the appellant of the appeal.
JUDGE2
Introduction
FRENCH AND DRUMMOND JJ Gary Gray came to Australia with his family as a 14 year old in 1974. He subsequently accumulated a considerable criminal history in this country. This culminated, in 1985, with his conviction in the Supreme Court of Queensland for the offence of armed robbery and a sentence of imprisonment with hard labour for ten years. On 26 June 1991, an order was made for his deportation. He lodged an application for review of that decision with the Administrative Appeals Tribunal. The Tribunal affirmed the decision. Gray appealed to the Federal Court and an order was made that the decision of the Tribunal be set aside and the matter remitted to it for further hearing and determination according to law. The Minister for Immigration, Local Government and Ethnic Affairs appealed against that decision which raises questions of the proper role of Ministerial policy in relation to criminal deportation.
Factual Circumstances
2. Gary Gray was born Gary Wood on 13 September 1959 in Aberdeen, Scotland. His father died when he was 10 years of age. His mother remarried a year later. The family moved to England where they lived for two years. In 1974 they migrated to Australia. Gray travelled out with his mother, sister and three brothers arriving at Melbourne on 17 March 1974. His step-father had preceded them by some months. Gray was aged 14 1/2 years upon his arrival in Australia and the family initially settled in Adelaide. He became unsettled, lost interest in his school work and began developing behavioural problems, including alcohol and drug use, while he was still only 15 years old. In May and December 1976 he appeared in the Elizabeth Juvenile Court charged with disorderly behaviour, larceny, two counts of possessing housebreaking implements, possession of Indian hemp, housebreaking and larceny. Each of these offences was dismissed. While on remand he was in the McNally Training Centre for a short period and was said to have shown a marked behavioural improvement. Gray was then employed by the South Australian Railways as a trainee engine driver and obtained good results during training. However he was reintroduced to drugs and again found himself in difficulty with the law. In May 1978 he was charged with housebreaking and larceny, possession of Indian hemp and smoking of Indian hemp. The housebreaking and smoking charges were dismissed and he was put on a good behaviour bond for the possession charge. Around this time he was living with Vickie Thomas who was pregnant by him. On 21 July 1978 he appeared in the Adelaide Supreme Court charged with stealing from the person of another. He was given a suspended sentence of two years imprisonment with hard labour and a $200 bond to be of good behaviour for three years with supervision. He and Miss Thomas were married on 4 November 1978 and their daughter, Naomi, was born on 13 December 1978 in Adelaide.
Gray was interviewed by an officer of the Department of Immigration and Ethnic Affairs in Adelaide on 6 December 1978. Following that interview he was sent a letter from the Department dated 8 January 1979 which was in the following terms:
"Dear Sir,
On 6th December 1978 you were interviewed at this office regarding the question of your possible deportation from Australia as a result of your conviction in July 1978 for Larceny. Your case has been carefully considered and it has been decided that you will not be deported at this time. You are warned however that should you again commit a serious breach of the law the possibility of deportation will again be considered. Would you please acknowledge receipt of this letter. Yours faithfully,"
On 23 June 1979, Gray was convicted in the Adelaide Magistrates Court of dangerous driving, driving while disqualified and illegal use of a motor vehicle. He was fined for each of those offences and his driver's licence was suspended. On 12 March 1980 he was convicted of disorderly behaviour and resisting arrest for which, again, fines were imposed. On 9 May 1980 he was convicted in the Para District Magistrates Court of driving under the influence and was sentenced to a term of three months imprisonment. He was also convicted of driving a vehicle while disqualified and sentenced to twenty eight days imprisonment. On 20 May 1980 he appeared in the Supreme Court for having breached his bond, his suspended sentence was revoked and he began serving the two year sentence originally imposed on 21 July 1978. He was interviewed at the Adelaide gaol by an Officer of the Department of Immigration, Local Government and Ethnic Affairs on 5 June 1990 and informed that the question of his deportation was to be reconsidered. At the time he told the interviewing officer that he had not used hard drugs again and that the new offences had occurred while he was under the influence of alcohol consumed after taking sleeping tablets. His marriage was continuing and the remainder of his family were residing in the Adelaide area. The interviewing officer noted that Gray said that after receiving the departmental warning late in 1978 he had forgotten about it almost instantly.
A departmental minute of 14 August 1980 indicates that the officer in charge of the case formed the view after the interview that Gray, having been in Australia for more than five years had ceased to be an immigrant and that the further offences which had been committed would not have rendered him liable for deportation. As a result Gray was sent a letter on 19 August 1980 from the Regional Director of the Department in Adelaide which was in the following terms:
"Dear Sir,
I refer to the interview you had with an officer of this Department on 5/6/80 at Adelaide Gaol regarding your possible deportation from Australia. I now wish to advise you that after careful consideration it has been decided that you will NOT be deported on this occasion.
Yours faithfully."
On 30 September 1980 there was a further conviction for illegal use of a motor vehicle in the Para District Magistrates Court with a three month term being imposed. There was then nothing on Mr Gray's record until 14 January 1982 when he was fined $90 in the Para District Magistrates Court for offensive language. In September 1982 however, he appeared in the Supreme Court of South Australia charged with armed robbery and was sentenced to imprisonment with hard labour for three years. A non-parole period of 18 months was fixed. The remarks of the sentencing judge set out the facts. At the time of the offence Mr Gray's life was "perfectly satisfactory". He was in employment with a firm called Simpson Pope. In May 1982 he was retrenched. There was no suggestion that it was for unsatisfactory work. He had an illness and the employer had put him off. He was unable to meet his financial commitments and turned to drink. The combination of stress and alcohol caused him to separate from his wife. On the day of the offence he went to a Credit Union in the expectation that there would be money in his account which he could withdraw. As it turned out there was not. He produced a pocket knife with which he threatened a female teller. He stole some $17,000 spent it on a motor vehicle and other personal items, had a holiday in Darwin and gambled part of it away in the casino. He obtained temporary work in Kununurra and it was after he had been apprehended for a minor traffic offence that he was charged with the armed robbery offence. The sentencing judge described the offence as "very serious indeed". He accepted however that the offence was unpremeditated and that alcohol consumed on the day played some part in it. Gray was admitted to Adelaide Gaol on 4 August 1982 and transferred to Yatala Prison on 22 September 1982. He was released on parole from Yatala on 5 March 1984.
On 26 April 1985 Gray was sentenced in the Supreme Court of Queensland for another offence of armed robbery committed while he was still on parole. In sentencing him the trial judge observed that the circumstances of the case were marked by the feature that he had in his possession a knife and that a female employee of the Bank suffered a minor injury as a result of that. Bank employees affected by the robbery suffered considerable distress. The girl in question collapsed and the accountant was manhandled in the progress of the robbery. Some $15,858 was stolen and all but $1,000 of that sum had not been recovered. The sentencing judge took into account the fact that Gray pleaded guilty to the offence and that he had long suffered a drug addiction and had associated with other persons some of whom have had a substantial criminal record. The aspect of the case which caused the greatest concern was his criminal history. The judge referred to that in part and went on to say that it was clear that at the time the armed robbery was committed, Gray was on parole from the previous conviction for armed robbery. After taking into account that Gray had been in custody for a period of four months, the trial judge sentenced him to imprisonment with hard labour for ten years.
Gray escaped from prison in November 1988 but was recaptured shortly afterwards. On 30 November 1990, a report was sent to the Department of Immigration, Local Government and Ethnic Affairs by the Queensland Corrective Services Commission. It notes that institutional misbehaviour had led to an extra 2 years 7 months being added to Gray's sentence. Charges for institutional misbehaviour brought against him had included three charges of escaping from custody and other charges of taking part in a riot, assault, possession and supply of dangerous drugs and uttering. He was characterised by senior prison officers as one of the 20 worst inmates in Queensland. Despite this, there were positive reports from custodial correctional officials to the effect that over the previous 12 months Gray had effected a positive change in attitude and behaviour. The author of the report, a community correctional officer, Mr Anthony Watson, however, seems to have discounted these observations on the basis that they were made by female officers. In summary, he offered the observation that it was difficult to gauge the pattern of Gray's future behaviour and that he should be assessed at a later date to ensure that education and change of attitude were continuing.
In the following year, 1991, the question of deportation was under active consideration. Gray was interviewed on 1 March 1991 and said that he intended to have considerable contact with his children in Adelaide after his release and that there had been family contacts since his imprisonment but this was difficult because his parents resided in South Australia. He said he had completed a bridging course through the University of Southern Queensland and had been accepted into a Bachelor of Engineering course. He was also pursuing a Bachelor of Arts through Charles Sturt University. He said he had participated in a self-help drug education program for almost two years, that he was no longer addicted to drugs and that drug use was not consistent with the goals he had set for himself. He had also developed a close relationship with a woman who had been visiting him since 1988. He said that his relationship with her had been one of the chief factors in changing his attitudes, especially in regard to aggressive behaviour. Deportation would be disastrous for him. He has been kept in Australia since he was 14 years old and has no ties with the country of his birth and considers himself Australian. His woman friend, Barbara Gay Crossing (also known as Barbara Ann Evans), was interviewed on 22 April 1991 and put in a written submission to the Department on 29 April 1991. She was involved with the Women's House, an Aboriginal Young Womens Shelter and voluntary work. She has also worked on a radio program for prisoners. She had known Gray for just over three years, first meeting him when he was involved in a protest on the roof of Brisbane prison early in 1988. She had visited him when he was transferred to the Northern Territory between December 1988 and November 1989. She said that since his transfer to the Sir David Longland Correctional Centre in November 1989 they had developed a loving relationship. She was prepared to provide him with accommodation at her current residence which she shares with two other women and a child. She confirmed that Gray had undertaken studies to qualify for tertiary entry and that he was pursuing external studies. A submission was also made by John and Edith Gray, Gray's parents, asking that he not be deported. They pointed out that he has no close relatives in Scotland and that all his close family are in Australia and are Australian citizens. He has two daughters from a previous marriage who would benefit from his being in Australia.
In a report to the Deputy Secretary of the Department of Immigration, Local Government and Ethnic Affairs, the Manager of the Operations and Administration Branch of the Department in Brisbane, reviewed Gray's history including the matters to which reference has been made. He noted that Gray had a long history of drug and alcohol abuse and that most of his offences were related to drug abuse. He considered it questionable whether Gray would be able to continue with abstention from drugs when he was released and subject to the pressures of living in freedom. The report quoted at length from the report prepared by Mr Watson, the community correctional officer on 13 November 1990, including the passage related to the more sympathetic response of female officers in their reports on Gray. The departmental report reviewed the nature of the crimes which he had committed and which were regarded as serious, the possibility of recidivism, which was assessed as high risk, the question of possible contribution to the Australian community and family and/or social ties in Australia. The seriousness of the offence, the absence of any significant contribution to the Australian community, the tenuous nature of his ties with parents, ex-wife and children and the risk of recidivism were all assessed as factors in favour of deportation. Against deportation were said to be his ties with his family, the relationship with Ms Crossing, the fact that he had arrived with his parents at the age of 14 years and had little or no contact with his family overseas since that time and the fact that he had recently successfully undertaken tertiary studies and become involved in prison community activities. In the event, the recommendation was made that factors in favour of deportation outweighed factors in favour of Gray being permitted to remain in Australia. The making of a deportation order was recommended. On 26 June 1991, Wayne Gibbons, a delegate of the Minister, signed a deportation order in the following terms:
"DEPORTATION ORDER
WHEREAS GARY GRAY is a non-citizen. AND WHEREAS the said GARY GRAY was convicted at Brisbane on the Twenty-sixth day of April 1985 of an offence namely stealing with actual violence whilst armed with an offensive weapon for which he was sentenced to ten years imprisonment and which offence he committed on the Twenty-seventh day of July 1984. AND WHEREAS at the time of the commission of the said offence the said GARY GRAY was not an Australian citizen and had been present in Australia for a period not in excess of ten years
NOW I, WAYNE JULIAN GIBBONS a Delegate of the Minister of State responsible for administering the Migration Act 1958, DO HEREBY ORDER, in pursuance of the power conferred upon me by Section 55 of the Migration Act 1958, that the said GARY GRAY be deported from Australia
Dated this 26 day of June 1991"
On 20 July 1991, Gray lodged an application for review of the deportation decision with the Administrative Appeals Tribunal. The Tribunal heard the case in June 1992 and gave its decision on 29 July 1992. The Tribunal affirmed the decision that Gray be deported from Australia.
Reasons for Decision of the Administrative Appeals Tribunal
10. The Tribunal gave a general account of Gray's personal background including his criminal history, to which reference has been made earlier in these reasons. It was noted that a number of documents in the material before the Tribunal disclosed that he had been warned as early as 1978 of his liability for deportation in relation to offences committed prior to his second armed robbery conviction. Specific reference was made to the letter of 8 January 1979 from the Department to Gray in which he was warned that should he again commit a serious breach of the law the possibility of deportation would again be considered. The Tribunal also referred to a record of the interview conducted between Gray and an officer of the Department on 6 December 1978 and the question "is he repentant?" which attracted the answer "yes, was high". The Tribunal then stated in its reasons, at para.19:
"19. Following these warnings in respect of the larceny convictions, the Department issued further warnings in reaction to the driving under the influence and driving while disqualified convictions (T21, T22). On 5 June 1985, the applicant was again interviewed by a departmental officer and warned of his liability for deportation
(T61)."
There appears to have been only one warning made in respect of the convictions, that being the warning contained in the letter of 8 January 1979. The "further warnings" said to have been issued in reaction to the charges of drunk driving and driving while under disqualification arose out of departmental reports of interviews conducted with Gray on 5 June 1980 and 9 June 1980. At the interview on 5 June 1980 he was informed that his case was to be reconsidered regarding deportation. The second document relied upon by the Tribunal (T22) was, in fact, an interview with Vickie Gray. While the interview obviously was relevant to the possibility of deportation, no warning as such was issued at that time. The third document said to involve a warning of liability for deportation comprised notes of the interview between Gray and a departmental officer on 5 June 1985 following his conviction for armed robbery.
The Tribunal referred to a Ministerial policy statement on criminal deportation announced on 8 December 1988 by the then Minister for Immigration, Local Government and Ethnic Affairs and quoted an extract from it in the following terms:
"Clearly, a person who has been previously warned about the liability for deportation and, notwithstanding that warning, commits a further deportable offence, should expect that the warning be given serious weight in consideration of his case. A person whose reputation is based on an array of convictions against the Australian society should usually be judged in the light of that past behaviour."
The Tribunal went on to say that given the "numerous warnings issued" and written acknowledgment and comprehension of those warnings given by Gray and his then wife to the Department, it placed "due weight on the fact of those warnings".
The Tribunal then turned to the crime which gave rise to the deportation order and concluded that it was "very serious". In so doing it had regard to a list of offences regarded as serious for the purposes of an earlier Ministerial policy statement issued in 1983. The Tribunal took into consideration the circumstances of that offence and noted "that at the relevant time the appellant was a seriously ill and distressed heroin addict committing his crime against others with violence in an attempt to supply his drug needs". The question of the risk of recidivism was then addressed. The Tribunal referred to Gray's previous addiction to heroin and use of other drugs. It was noted that he was currently on parole and resided at Logan House an intensive drug rehabilitation centre at Kingston in Brisbane. The Tribunal also accepted that Gray was progressing successfully with a Bachelor of Social Science at Charles Sturt University and a Bachelor of Engineering at the University College of Southern Queensland. It referred to Gray's submission that he had addressed the issue of violence and was fully aware of the trauma he had caused. His relationship with Ms Evans was mentioned. The report from Dr. Mulholland, a psychiatrist, spoke of the "daunting challenge" of regarding the risk of recidivism as anything less than significant. On the other hand the psychiatrist acknowledged that Gray seemed to have taken every conceivable correct measure to rehabilitate himself in the past few years:
"He appears to be engaged, in a systematic fashion, in attempting to rehabilitate himself in terms of drug dependence and improving his general personality functioning."
On the assumption that Gray completed his programme at Logan House and was permitted to stay in Australia, Mulholland said he would incline to the view that the risk of recidivism would be low. On the other hand, the Assistant Deputy Director General of the Queensland Corrective Services Commission, Mr Stewart, gave evidence to the Tribunal that Gray would be considered a high risk parolee in terms of supervision but not necessarily a high risk to the community although his history would indicate to the contrary. The Tribunal held that Gray's previous record indicated a high risk of re-offending in times of stress. It was accepted that he was doing all he could to reject drug usage so as to avoid a possible relapse into crime. But there was said to be no evidence to indicate how he would cope with difficult predicaments. The Tribunal formed the view that Gray's previous general record and conduct, the extent of the rehabilitation already achieved and the prospects of further rehabilitation assisted consideration of the risk. Further reference was made to the psychiatric report and evidence from the education officer at the Borallon Correctional Centre who offered the opinion that Gray was not a manipulative prisoner. Positive evidence from a prison officer for whom Gray had worked as education clerk in the prison was also referred to. The Education Manager, Mr Medaris, had stated in a report on 12 July 1991 that he considered Gray as being very unlikely to re-offend. Further supportive assessments came from Ms. Elizabeth Salmoni, the Educational Officer at the Sir David Longland Correctional Centre who said that she was very confident that he had and would make a worthwhile contribution to Australian society if granted the opportunity to remain in Australia. The psychiatrist's report referred to Gray as having a potentially valuable contribution to make in terms of being "a role model for successful rehabilitation of drug dependent criminals and drug dependent persons generally". The Tribunal considered factors of hardship and family and social ties. Various letters by Gray's relatives to the Department were cited. It was accepted that "as with all deportees, there will be hardship suffered by the applicant and his family in the event of deportation". At para. 59 the Tribunal said:
"I accept that deportation will considerably disrupt the applicant's rehabilitation and cause a degree of hardship to the applicant, his family and Ms Evans but these considerations are overborne by the weight of other factors. I find that the risk of recidivism is unacceptable. It is well established that the more severe the nature and extent of danger to which the community may be exposed, the lower is the level of risk which is acceptable. In this case, that requires a very minimal risk. I am considerably impressed by the applicant's recent positive efforts towards rehabilitating himself."
Notwithstanding this, the Tribunal went on:
"However, in this case the applicant's criminal record and conduct prior to 1990 appears to be the more reliable indicator in attempting to predict future criminal behaviour. Such predictions are always difficult and this case is no exception. Deportation is not to serve as punishment, I am duty bound to consider the public interest of the Australian community and it is in that context which I have considered the previous criminal record and conduct."
The grounds of appeal complained in part that the Tribunal had failed to accept uncontradicted evidence relating to Gray's steps to rehabilitate himself and the hardship which would be suffered by Gray, his family and children if he were deported. The inappropriateness of interrupting his rehabilitation was said not to have been considered and the contribution he could make to the Australia community with particular reference to his rehabilitation was not considered. There was said to be an unacceptable imbalance in weighing the risk to the community against the hardship which would be suffered by all concerned, particularly Gray's children.
On 18 December 1992, Cooper J made orders in the following terms:
"1. That the decision of the Administrative Appeals Tribunal of 29 July, 1992 be set aside and the matter be remitted to the Tribunal for further hearing and determination according to law.
2. That pending the further hearing and determination by the Administrative Appeals Tribunal, of the application to review the deportation order made on 26 June 1991 in respect of the applicant, no steps be taken to implement the said deportation order.
3. That the respondent pay the applicant's costs of and incidental to the application, including reserved costs if any, to be taxed."
A notice of appeal from the decision of the learned trial judge was filed on 7 January 1993.
Reasons for Judgment of the Trial Judge
14. After reviewing the facts of the case, his Honour referred to passages from the decision of the Tribunal in which it referred to prior warnings allegedly given to Gray and the risk of recidivism. His Honour also noted reference in the Tribunal decision to the substantial steps that Gray had made in his rehabilitation and the hardship it would cause him to be deported back to Scotland. His Honour identified the issues before the Court as follows:
1. Whether on the facts found by the Tribunal no reasonable mind could find that the very minimal risk that the applicant would re-offend was, in the circumstances, an acceptable risk.
2. Whether the Tribunal in setting the acceptable level of risk of Gray committing further offences as a very minimal risk failed to take into account various factors relating to the history of his offences and his efforts at reformation and the prospects of his rehabilitation as well as hardship to his children and wider family and related considerations.
3. Whether the Tribunal failed to bring to account in favour of Gray evidence of his importance as a role model of rehabilitation in overcoming drug dependence and criminality when determining the acceptable level of risk of recidivism, or whether in assessing the acceptable level of risk, the Tribunal failed to consider the possible harm to Australia's international reputation by deportation of the applicant.
4. Whether the Tribunal erred in failing to consider future hardship and suffering which would be caused to the applicant's Australian children by his deportation when considering whether a very minimal risk that he might re-offend was unacceptable.
5. Whether the Tribunal erred in treating the letter of 8 January 1979, the interview of 5 June 1980, the letter of 19 August 1980, and the interview of 5 June 1985 as relevant warnings within the Minister's policy guidelines.
6. Whether the Deputy President should have disqualified himself after he was made aware that the Department had written to the President of the Administrative Appeals Tribunal complaining of his conduct in those proceedings.
His Honour referred to the Ministerial policy of 4 May 1983 noting that it involved the balancing of the benefits to the Australian community which would be achieved by deportation against the personal hardship to the deportee and his/her immediate family. Passages in the policy statement relating to the liability for deportation of a person who has been previously warned in that regard and the position of persons who arrived in Australia as minors were referred to. His Honour observed that before the balancing required by the policy can be undertaken it is necessary that the relevant decision-maker form the view that there is a benefit to the community as a whole arising out of the deportation. The formation of that view itself involved a balancing exercise and the consideration of a number of relevant factors identified in the deportation policy statements. Although interrelated, each factor was to be assessed separately in determining whether there is a benefit to the community as a whole in ordering deportation. His Honour observed that it might be that the circumstances of a particular crime were so offensive that notwithstanding there is no risk of recidivism the balance after considering all other relevant factors would lie in favour of deportation. He went on to say that the determination of an acceptable level of risk involves more than a mere quantitative assessment. There is a qualitative assessment of risks and the consequences of further offences of the community. And the risk of recidivism is but one of the factors to be taken into account when forming a judgment as to whether or not there is a benefit accruing to the community as a whole in ordering deportation. It is not the only factor.
While accepting that the question of weight to be given to relevant factors was a matter for the Tribunal, it was not clear what particular weight was given by the Tribunal to the factors to which it adverted. His Honour formed the view that the Tribunal had sought to apply the policy statements in coming to its decision, and had referred to each of the broad criteria in the statement of 4 May 1983 and the question of prior warnings referred to in the statement of 8 December 1988. It had failed, however, to consider the relevant factors separately in determining whether or not there was a benefit to the community arising from the deportation to be weighed against hardship to the applicant and his family. The Tribunal had determined the benefit to the community flowing from the deportation solely by a judgment made on the risk of recidivism. Importantly, in his Honour's view, it did not take into account the extent of rehabilitation already achieved, the prospects of future rehabilitation and the positive contribution to the community that the applicant might reasonably be expected to make as a role model of rehabilitation. Gray's achievement and his potential to contribute to the rehabilitation process in the wider community were factors relevant to a determination of whether a higher level of acceptable risk ought to have been set by the Tribunal. The Tribunal did not attempt to make any quantitative and qualitative assessment of the risk and identify its true nature and extent once it accepted that there was a risk which exceeded a very minimal level. In his Honour's view the Tribunal had misconstrued and misapplied the Ministerial policy and had thereby made an error of law vitiating its decision. On p.27 of his reasons for judgment, his Honour said:
"In my view the error made goes beyond the misconstruction and misapplication of the published deportation policy. To determine a level of acceptable risk by reference only to such of the evidence and factors as were against the applicant to the exclusion of such of the evidence and factors as were in favour of the applicant, eg. the level of rehabilitation achieved and the potential as a role model, was manifestly unreasonable. This process of reasoning was in error. It led the Tribunal to exclude from its consideration material beneficial to the applicant which material might reasonably have persuaded a reasonable decision maker to have set a higher level of acceptable risk for this applicant notwithstanding his bad criminal history."
Separately his Honour took the view that the Tribunal's findings as to warnings given to Gray by the Department were in error. He said, at p.28 of his reasons for judgment:
"The evidence only establishes that the applicant received one warning on 8 January, 1979 in respect of his conviction in July, 1978 for larceny. The letters sent to the applicant and his wife in 1980 were not warnings. They were sent to advise the applicant and his wife that he would not be deported."
In his Honour's view there was no evidence to support the findings made in this respect and it was not open to the Tribunal to use the warning given in 1979 and Gray's contact with the Department between then and 5 June 1985 in the way in which it did. The absence of evidence made the finding in relation to warnings, beyond that given in 1979, an error of law. His Honour rejected a submission that quite aside from the Tribunal's findings as to warnings and its use of those findings, there was sufficient other material to justify it coming to the decision it did. But his Honour made the point that it was not possible to say what effect a proper appreciation of the facts might have had on the Tribunal's ultimate determination of the risk of recidivism and the level of acceptable risk.
His Honour also rejected a submission that the Deputy President constituting the Tribunal was biased in fact or in a position of apparent bias by reason of a letter sent by the department to the President of the Administrative Appeals Tribunal.
The Grounds of Appeal
18. By the notice of appeal it is contended that his Honour erred in finding that the decision of the Tribunal was vitiated by error of law and, in particular, erred in finding that:
1. there was a policy requirement that before the balancing required by the policy could be undertaken it was necessary that the decision-maker come to the view that there was a benefit accruing to the community as a whole from the removal from the community of the applicant by deportation.
2. failure by the Tribunal to follow the alleged policy requirement constituted legal error.
3. the Tribunal had not attempted to make any quantitative and qualitative assessment of the risk of recidivism and identify the true nature and extent of the risk.
4. the Tribunal had not taken into account the extent of rehabilitation already achieved and the prospects of future rehabilitation.
5. in setting the level of acceptable risk, the Tribunal had not taken into account any of the relevant factors other than the potential damage or effect on the community if further offences of the type previously committed recurred.
6. there was no evidence to sustain a finding that Gray received warnings other than the one given in 1979.
7. it was not open to the Tribunal to use the warning given in 1979 and Gray's contact with the Department between then and 5 June 1985 in the way in which it did.
8. there was no power in 1980 to deport Gray.
It was also said that his Honour erred in not holding that even if the Tribunal did wrongly categorise the contacts between the Department and Gray as warnings, this could not and did not constitute an error of law.
The Statutory Framework
19. The applicable provision of the Migration Act 1958 at the time of the making of the deportation order was s.55:
"Where -
(a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;
(b) at the time of the commission of the offence the person -
(i) was not an Australian citizen; and
(ii) had been present in Australia as a permanent resident for a period of less than 10 years or for periods that, in the aggregate do not amount to a period of 10 years; and
(c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year,
the Minister may order the deportation of the person."
The Relevant Policy
20. The Commonwealth Government's policy on the deportation of criminal non-citizens who are residents of Australia was set out in a statement made to the Parliament by the then Minister for Immigration and Ethnic Affairs on 4 May 1983. In the preamble to the policy statement it is said that the purpose of deportation is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the community. That is not to say that all non-Australians convicted of particular types of crimes would automatically be deported. The Government recognised in the policy the need to balance a number of very important factors, particularly:
1. The need for community protection against criminal behaviour.
2. The requirement to take into consideration the legitimate human rights of an individual.
3. The need to protect the rights of other persons including the family of the person concerned; and
4. The need to avoid discrimination when making deportation decisions.
The policy set out guidelines for deportation. The relevant parts of those guidelines are as follows:
"6. The purpose of deporting a person who has been convicted of a criminal offence in Australia is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the community that the benefit accruing to the community as a whole by his/her removal outweighs the hardship to the persons concerned and his/her family.
7. The greater the potential effect on the community or the greater the potential damage to the community the lower is the acceptable level of risk that the person concerned will commit further offences.
8. 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 Australia 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 to have become a full member of the community and, by reason of his/her conduct, is unsuitable for permanent residence in Australia.
9. Examples of serious offences which may render non-Australian citizens liable to deportation include: .
.
.
. armed robbery;
. violence against the person; .
.
.
10. Social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, can be discounted according to circumstances (eg marriage or the immigration to Australia of further family members). .
.
.
16. 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 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 when making a decision on whether a deportation order should be issued:
. the nature of the offence as outlined in paragraph 9 and the length of sentence imposed by the Court; . the person's previous general record and conduct; . the risk of further offences; . the extent of rehabilitation already achieved, the prospect of further rehabilitation and positive contribution to the community the person may reasonably be expected to make; . the length of lawful residence in Australia, the strength of family, social, business and other ties in Australia; . the degree of hardship which would be caused to lawful residents of Australia (especially Australian citizens) known to be affected adversely by deportation or conversely the extent of support for deportation from persons directly affected; . any unreasonable hardship the offender would suffer; . ties with other countries;
. the relevant obligations of the Commonwealth of Australia under international treaties ratified by the Australian Government; . the likelihood that deportation of the offender would prevent or inhibit the commission of like offences by other persons. This list is not exhaustive; if relevant, other factors that come to notice will be taken into account in individual cases."
On 8 December 1988, a further statement on criminal deportation policy was made by Senator Robert Ray, who was then Minister for Immigration, Local Government and Ethnic Affairs. The statement related largely to the position of Ministerial responses to Administrative Appeals Tribunal recommendations. In the course of that statement the Minister said:
"Similarly, the AAT has given on some occasions less weight than I or my predecessors believe justified in considering the total criminal history of a person who is liable for deportation. Clearly, a person who has been previously warned about the liability for deportation and, notwithstanding that warning, commits a further deportable offence, should expect that the warning be given serious weight in consideration of his case. A person whose reputation is based on an array of convictions against the Australian society should usually be judged in the light of that past behaviour."
And further:
"A sensitive issue which also arises from time to time concerns the liability for deportation of an adult who arrives in Australia as a minor. Clearly, the time a person has been in Australia and the degree of connection persons have with their country of origin are relevant factors in coming to a decision on whether or not a non-citizen resident ought to be deported when the person has offended against the laws of Australian society. The view has occasionally been expressed that persons who have migrated to Australia when they were minors ought never to be deported. This is not consistent with the legislation or Parliament's intentions. I share concerns about the desirability of deportation in these cases but in many we are dealing with an offender who embarked on a life of crime as a child and who pursues that life into adolescence or adulthood. Where there is a pattern of criminal behaviour indicating a likelihood that the person will commit further serious crime, I believe a decision to deport must seriously be entertained."
The Application of the Ministerial Policy
22. Counsel for the Minister contended that the learned trial judge placed an overriding emphasis upon the criminal deportation policy. He erred, it was submitted, in concluding that the policy should have guided the Tribunal's decision and in applying it as though it were a piece of legislation requiring nice analysis. Emphasis was placed upon the principle that each case must be determined on its own merits.
It is right to say that the Tribunal, which operates as part of a continuum of administrative decision-making, is not bound by governmental policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review:
"If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be." - Drake v. Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420.
The place of government policy in the Tribunal's decision making will depend upon the interests of good government and consistent decision-making on the one hand and the ideal of justice in the individual case on the other. But its decision must be the result of an independent assessment of all the circumstances of the particular case and not the uncritical application of policy - Drake (supra) at 421. This is nothing more than a statement of what is sometimes called the non-fettering principle which applies generally to statutory tribunals and decision-makers - see Bayne, The Exercise of Discretion According to Policy Guidelines (1993) 67 ALJ 214.
The proposition that government policy cannot bind the Tribunal does not imply that the policy can be ignored. It is reasonable to associate with the legislative intent that is taken to inform the construction of a wide statutory power, an acceptance of the likelihood that policies or guidelines will be developed by the Executive at either or both Ministerial or departmental levels to govern its application. As Bowen CJ and Deane J observed in Drake (supra) at 420:
"... the consistent exercise of discretionary administrative power in the absence of legislative guidelines will, in itself, almost inevitably lead to the formulation of some general policy or rules relating to the exercise of the relevant power."
This is particularly so in the case of a power which involves high volume decision-making or which may, in any event, because of its subject matter, be expected to attract policy guidelines. Certain classes of immigration decision are necessarily high volume, such as those relating to the grant of visas and entry permits. The exercise of the power to deport involves a direct interference with individual liberty. Common concepts of justice suggest that, while each case is to be considered on its individual merits, like cases will generally be treated similarly. The imputed legislative contemplation of such policies for that purpose must be limited to those which are consistent with the general purposes and requirements, express or implied, of the legislation in question. They cannot be expressed to fetter the exercise of the relevant discretion. Recognition of legislative contemplation that policy guidelines will be made is consistent with the requirement that each case is considered on its merits. But within that framework, the existence and content of lawful policy may properly be regarded as a relevant factor which, because it is properly contemplated by the legislature, must be taken into account by the Tribunal. In the case of the power to deport non-citizens convicted of criminal offences, the existence and content of a lawful criminal deportation policy is a matter the Tribunal is bound to take into account and to give such weight as it thinks proper having regard to all the circumstances of the case. There is a question which need not be resolved at this time, namely whether a primary decision-maker who also has a policy making function is free to disregard his or her own announced policy. A distinction between failure by a Minister to have regard to or properly interpret ministerial policy on the one hand and a like failure by a delegate on the other, was drawn by Wilcox J in Nikac v. Minister for Immigration and Ethnic Affairs (1988) 20 FCR 65 at 78:
"In a situation where the Minister is free deliberately to depart from his own policy, it is difficult to see that a decision by the Minister could be rendered invalid because, in making it, he misinterpreted the policy and thus accidently departed from it."
It is not necessary now to pass upon his Honour's observation. It should be remembered however, that departure from an announced policy may not be open unless procedural fairness requirements have been observed - Century Metals and Mining NL v. Yeomans (1989) 100 ALR 383. For present purposes it is sufficient to consider the position of the Tribunal. The Tribunal provides independent merit review, it is not a policy maker. The notion that the Tribunal may be bound to take into account applicable Ministerial policy as a relevant factor is fundamental to the approach enunciated by Brennan J. in Re Drake (No. 2) (1979) 2 ALD 634, the decision on the rehearing which followed the judgment of the Full Court in Drake v. Minister for Immigration and Ethnic Affairs (supra). At 645, his Honour, then President of the Tribunal, set out what he regarded as appropriate practice on the part of the Tribunal in relation to the review of a Ministerial discretion subject to a Ministerial policy:
"When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.
The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.
The general practice will require the Tribunal to determine whether the policy is lawful, not in order to supervise the exercise by the Minister of his discretion, but in order to determine whether the policy is appropriate for application by the Tribunal in making its own decision on review."
In Nevistic v. Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 at 644, Franki J, having referred to the quoted passages from Re Drake (No. 2) said:
"... government policy in the field is a matter to which significant weight must be given for the reasons enunciated by Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2)..."
See also Deane J at 647. An explicit statement of the obligation to have regard to ministerial policy appears in the reasons for decisions of Hartigan J (sitting as President of the Tribunal) in Re Loh and Minister for Immigration Local Government and Ethnic Affairs (1990) 11 AAR 150 at 154, discussed in Gumus v. Minister for Immigration and Ethnic Affairs (1991) 30 FCR 145.
The question arises whether a mis-application or mis-construction of the ministerial policy by the Tribunal gives rise to error which is reviewable on appeal to this Court as an error of law. It must be accepted, as counsel for the Minister submitted, that ministerial policy is not to be construed and applied with the nicety of a statute. Policies are not statutory instruments. They prescribe guidelines in general, and not always very precise, language. To apply them with statutory nicety is to misunderstand their function. On the other hand, where the existence and content of such a policy is to be regarded as a relevant fact which the Tribunal is bound to consider, a serious mis-construction of its terms or misunderstanding of its purposes in the course of decision-making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power. If a decision-maker, not bound to apply policy, purports to apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error. In a limiting case a policy may be so broadly stated as to cover all considerations properly brought to bear on the exercise of the discretion. In such a case misconstruction of the policy may reduce to misconstruction of the statute or misunderstanding of its purpose. In so saying, the Court accepts that the limits within which its jurisdiction to review decisions of the Tribunal is conferred require that it be exercised with restraint. In particular, the Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts. The reasons for its decision are not to be construed minutely and finely with an eye keenly attuned to the perception of error - Collector of Customs v. Pozzolanic (1993) 43 FCR 280 at 286-287.
The Tribunal in the present case adverted to elements of the ministerial statement on criminal deportation policy. It first turned to that aspect of the statement of 8 December 1988 which referred to the effect of previous warnings about liability for deportation. It placed "due weight" on the fact of the "numerous warnings" which it found had "issued". Its observations on this aspect of the case seemed to put heavy emphasis on the fact of previous warnings and to place them in the forefront of its consideration. The ministerial statement indicates that a person who has been previously warned should expect that the warning will be given serious weight in consideration of his case. That is expressed as no more than a matter of common sense. Its context is a reaction by the Minister to a perception that the Tribunal has on some occasions given less weight than he or his predecessors would believe justified in considering "the total criminal history of a person who is liable for deportation". The existence of prior warnings about liability for deportation is one in a range of factors to be taken into account and emphasises the need to look not just at the offence giving rise to the deportation but the total criminal history of the person concerned. An awareness on the part of the person at the time of the commission of the offence that it would render him or her liable for deportation may be a relevant factor whether or not that awareness was engendered by a specific warning. Such prior awareness may be indicative of a risk of recidivism and properly be taken into account on that basis. The approach taken by the Tribunal in this case, however, suggested that it treated what it regarded as "warnings" as adverse factors in their own right not necessarily connected with an overall assessment of the case. Beyond characterisation of the alleged warnings as such, there was no consideration of the inference to be drawn from them or their wider significance in the assessment of the entire criminal history.
A question associated with this aspect of the case is whether or not the Tribunal was right in forming the view, which it did, that there had been numerous warnings issued. The trial judge found that there was "no evidence" to support the finding and that it constituted an error of law. There is no doubt that Gray was warned on 8 January 1979 about the possibility of deportation should he again commit a serious breach of the law. But the other events relied upon by the Tribunal to make up the balance of the "numerous warnings" did not as a matter of ordinary usage answer that description. They might properly have been taken into account as matters alerting Gray to the fact that he was at risk of deportation. But the trial judge was correct in his conclusion that the Tribunal had no evidence to support the characterisation of these events as the "issue" of "numerous warnings". Absent supporting evidence, that mischaracterisation was an error of law. Having regard to the apparent significance attached to the existence of warnings in the Tribunal's application of the ministerial policy it cannot be said that an approach which took a less formal view of the policy and assessed the history of contact between Gray and the Department on a proper factual basis could not have led to a different result.
It was accepted by the Minister that the policy statements required a balancing of benefits to the Australian community achieved by deportation against the personal hardship to the deportee and his immediate family. This requirement is reflected in para. 6 of the statement of 4 May 1983. The learned trial judge, however, went further in his reasons and said that before the balancing exercise could be undertaken it was "necessary that the decision-maker come to a view that there is a benefit accruing to the community as a whole from the removal of the applicant by deportation". That exercise in itself, he said, involves a balancing exercise and the consideration of a number of relevant factors identified in the deportation policy statements. This aspect of the judgment was criticised on the basis that the policy imposed no such requirements. But on a proper reading of his Honour's judgment, the passage criticised involved nothing more than a recognition that assessment of overall benefit to the Australian community, questions of personal hardship to the prospective deportee apart, is an evaluative process which itself involves a balancing of factors.
The approach of the Tribunal as appears from its written reasons for decision, may be reduced to a series of propositions set out in the order in which they emerge from the reasons:
1. The Ministerial statement of 1988 said that a person previously warned about liability for deportation should expect that warning to be given serious weight in consideration of his case.
2. Numerous warnings were issued to Gray, which he acknowledged and understood, and due weight was to be given to those warnings.
3. The Ministerial statement of 1983 characterised armed robbery as a serious offence which may render non-Australian citizens liable for deportation.
4. Gray's offence was a serious offence within the framework of the policy. It was premeditated and followed a similar crime committed two years earlier for which he was still on parole.
5. At the time the offence was committed, Gray was a seriously ill and distressed heroine addict.
6. The risk of recidivism is a relevant factor and although Gray is doing all he can to avoid drug usage and a possible relapse into crime, his previous record indicates a high risk of reoffending under stress.
7. A very minimal risk of recidivism would be unacceptable in this case having regard to the severity and nature of the risk to which the community may be exposed.
8. Gray's criminal record and conduct prior to 1990 appear to be the more reliable indicator in attempting to predict future criminal behaviour than his positive efforts towards rehabilitating himself.
9. Deportation will considerably disrupt Gray's rehabilitation and cause hardship to himself, his family and his woman friend, Ms Barbara Evans.
10. The considerations of disruption and hardship are overborne by the fact that he presents a risk of recidivism.
In the course of this line of reasoning, the Tribunal referred to the Ministerial statements of 1983 and 1988. It expressly invoked the 1988 statement in relation to the question of prior warnings of liability to deportation. In relation to the 1983 statement, it noted that the offence was a serious one within the terms of that statement. It did not otherwise expressly invoke the policy nor expressly indicate whether it was proceeding in accordance with its general approach. It did, however, refer to factors in terms substantially similar to those which appear in para. 16 of the policy, they being:
1. The nature of the offence.
2. The risk of further offences.
3. The extent of rehabilitation already achieved and the prospect of further rehabilitation.
4. The length of lawful residence in Australia and the strength of family and social ties.
5. The degree of hardship caused to lawful residents.
6. Any unreasonable hardship the offender would suffer.
It is apparent from the language of its reasons that the Tribunal was adverting to the criteria referred to in para.16 of the 1983 statement. It seems to have made no finding on the question of the positive contribution that Gray might make to the community if he were not deported. There was evidence before the Tribunal which it did not reject that Gray could make:
"... a potentially valuable contribution in terms of being a role model for successful rehabilitation of drug dependent criminals and drug dependent persons generally."
The psychiatrist, Dr. Mulholland, who made that observation, added:
"If he was able to do this then this, and I think there is a reasonable chance that he will be able to do so, then this would be a significant contribution to our society (sic).
It is important that such role models exist, both for those who are in the drug dependent and/or criminal situation and, just as importantly, for those who are working with such people. For workers in these areas it is easy to become demoralised and the rewards that come from these areas come from the all to infrequent successful rehabilitation exercises. In this capacity he would serve as a useful role model for drug dependent persons and/or drug dependent criminals as well as being a source of satisfaction and reward for the many who have been involved in his rehabilitation."
The Tribunal appears to have made no finding in relation to that question and although it quoted the passages cited, it did not comment on them.
From all of this it appears clear that the Tribunal approached the case referring to most of the broad criteria in para.16 of the 1983 statement and the prior warnings factor referred to in the 1988 statement. It appears to have put into the balance, with overwhelming weight against Gray, the fact of prior warnings, the risk of recidivism and related to that, the seriousness of his offence. It made no express connection between the facts as found of prior warnings and the risk of recidivism. It made no overall assessment of Gray's potential to contribute to the community. There was ample evidence before the Tribunal to suggest the probability of such a contribution.
The policy statements were relevant factors which the Tribunal was bound to consider although not bound to apply so as to prejudice its independent assessment of the merits of the case. It is clear from the Tribunal's reasons that it was purporting to apply the 1983 policy by referring to various of the factors set out in para. 16 and weighing them in the balance. The purpose of deportation set out in para.6 of the statement, required a consideration of the benefit accruing to the community as a whole from Gray's removal and if there were a net benefit, then setting that off against the hardship to him and others. Understandably the policy statement gives primacy to the collective welfare of the Australian community and requires that to be identified and weighed against hardship to the offender. The structure of the Tribunal's reasoning indicates that the Tribunal did not recognise that the weighing exercise was an important element of the policy it was purporting to apply. And this view is in accordance with the approach which the learned trial judge took to the Tribunal's decision. For the reasons we have expressed earlier, we are of the opinion that his Honour was correct in treating the Tribunal's approach to the application of the policy which it purported to apply as one which involved an error of law. Further, we consider that his Honour was substantially correct when he held the determination of the level of acceptable risk by reference to factors adverse to the applicant and without reference to the level of rehabilitation achieved and potential as a role model, involved error. It is not necessary to go so far as to say that the Tribunal's approach in this regard was manifestly unreasonable. It suffices to say that it failed to have effective regard to those factors which it was bound to take into account in the assessment process.
For these reasons, we are of the view that the appeal should be dismissed with costs.
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