Nevistic v Minister for Immigration and Ethnic Affairs

[1981] FCA 40

Re: RATIMIR NEVISTIC
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1981) 51 FLR 325
No. G4 of 1981
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Franki(1), Deane(2) and Lockhart(3) JJ.

CATCHWORDS

Administrative Law - Appeal from Administrative Appeals Tribunal - Whether appeal on question of law.

Administrative Appeals Tribunal Act 1975 (Cth.) s.44

Migration Act 1958 (Cth.) s.12.

Administrative Law - Appeal from Administrative Appeals Tribunal - Whether appeal on question of law - Function of Federal Court on appeal from Tribunal - Migration Act 1958 (Cth), s. 12 - Administrative Appeals Tribunal Act 1975 (Cth), s. 44.

HEADNOTE

The appellant was an alien who was sentenced to six years' imprisonment for drug offences. After his release the Minister for Immigration ordered that he be deported, and the appellant applied to the Administrative Appeals Tribunal for review of the deportation order. The Tribunal affirmed the decision of the Minister, and the appellant appealed to the Federal Court against the decision of the Tribunal.

Section 44 of the Administrative Appeals Tribunal Act 1975 enables an appeal from the Tribunal to the Federal Court only on a question of law. The appellant contended that the Tribunal erred in law by placing too much weight on government policy and thereby abrogated its function of independently reviewing the Minister's decision.

Held: Per Deane J. - (1) The court's function on such an appeal is not to review the decisions of the Minister, or the Tribunal, upon their respective merits; but to determine on the material before it whether the decision involved an error of law.

(2) In its proceedings the Administrative Appeals Tribunal is required to act judicially, and in reviewing an administrative decision it is subject to the same general constraints as those to which the person making that decision was subject: namely, the power must not be exercised for a purpose other than that for which it exists, regard must be paid to relevant considerations, and irrelevant considerations must be ignored.

(3) Where the person making the decision was required to take into account relevant government policy, in determining an application for review of that decision the Tribunal may also treat that government policy as a relevant factor, examining it critically, and giving it such weight as it considers appropriate in the circumstances, and balancing if necessary the justice of the individual case against the desirability of consistency in the treatment of citizens generally.

Drake v. Minister for Immigration and Ethnic Affairs (1979), 46 FLR 409, considered.

(4) In reaching its decision that the Minister's decision was the correct or preferable one, the Tribunal had considered all the relevant circumstances, including government policy, and it thereby committed no error of law. The appeal would be dismissed.

HEARING

Sydney, 1981, February 26; April 16. #DATE 16:4:1981

APPEAL.

Appeal from a decision of the Administrative Appeals Tribunal (Davies J.).

F. S. McAlary Q.C. and A. Young, for the appellant.

P. Flemming, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Whiteley O'Neal & Longman.

Solicitor for the respondent: B. J. O'Donovan, Commonwealth Crown Solicitor.

R. R. BOADEN

ORDER

1. The appeal is dismissed.

Appeal dismissed.

JUDGE1

A deportation order pursuant to the powers in s.12 of the Migration Act 1958 ("the Act") was made by the Minister of State for Immigration and Ethnic Affairs ordering that the applicant, Ratimir Nevistic, be deported from Australia.

The applicant applied to the Administrative Appeals Tribunal for a review of that order. The President of the Administrative Appeals Tribunal affirmed the decision of the Minister.

The applicant appealed to this Court under s.44 of the Administrative Appeals Tribunal Act 1975. That section provides for an appeal "on a question of law". It is important to note that there is no appeal to this Court on any other basis than on a question of law.

The specific questions of law raised were the following:
"1. That His Honour erred in law in giving to Government policy a priority, or a paramountcy over other relevant considerations.

2. That His Honour erred in law in giving to Government policy a qualitatively different value from that attributed to other relevant considerations.

3. That His Honour fettered the exercise of his discretion by deciding that Government policy should be applied in the absence of compelling circumstances to the contrary.

4. That His Honour fettered the exercise of his discretion by deciding that Government policy shall be applied unless it was unjust or unduly harsh to do so."

In 1980 the Minister issued a statement entitled "Government policy relating to deportation of persons convicted of criminal offences". The errors of law which were alleged in this appeal all relate to the manner or the extent to which the learned President in determining the review had dealt with the question of Government policy.

No principles are laid down in the Act for the guidance of the Minister or according to which he is required to exercise his discretion in relation to orders under s.12. However, he must act in accordance with the principles of natural justice and the general requirements according to which statutory powers of Ministers must be exercised. For example, he must not exercise the power in bad faith or in a way which constitutes an abuse of the power.

The Administrative Appeals Tribunal in exercising its power of reviewing the decision of the Minister stands in the place of the Minister. The question for the determination of that Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal. There are no statutory provisions controlling or guiding the exercise of the power of the Administrative Appeals Tribunal in determining a review other than those which are found in the Administrative Appeals Tribunal Act 1975. However the proper approach by the Tribunal was considered in Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 A.L.R. 577 where Bowen C.J. and Deane J. said at p.589:
"The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. The Act offers little general guidance on the criteria and rules which the Tribunal is to apply in the performance of its task of reviewing administrative decisions which are subjected to its surveillance. Even in a case such as the present where the legislation under which the relevant decision was made fails to specify the particular criteria or considerations which are relevant to the decision, the Tribunal is not, however, at large. In its proceedings, it is obliged to act judicially, that is to say, with judicial fairness and detachment. In its review of an administrative decision, it is subject to the general constraints to which the administrative officer whose decision is under review was subject, namely, that the relevant power must not be exercised for a purpose other than that for which it exists (Water Conservation & Irrigation Commission v. Browning (1947) 74 C.L.R. 492 at 496, 498, 499-500, 504), that regard must be had to the relevant considerations, and that matters 'absolutely apart from the matters which by law ought to be taken into consideration' must be ignored: R. v. Cotham (1898) 1 Q.B. 802 at 806; Randall v. Northcote Corp (1910) 11 C.L.R. 100 at 109-110; Shrimpton v. Commonwealth (1945) 69 C.L.R. 613 at 620; R v. Anderson; Ex parte Ipec-Air Pty. Ltd. (1965) 113 C.L.R. 117 at 189; (1965) A.L.R. 1067 at 1071."

Part XXII s.22(3) of the Schedule to the Act provides that the Tribunal may either affirm a decision made under s.12 of the Act by the Minister or remit the matter for reconsideration in accordance with any recommendations of the Tribunal. Except for an appeal to this Court on a question of law the decision of the Tribunal is final apart from any action of the Minister upon a reconsideration.

What is a question of law depends on the circumstances. Frequently the application of particular words in a statute to a particular set of facts is involved and the relevant test to apply has recently been considered by the High Court in Hope v. The Council of the City of Bathurst (1980) 54 A.L.J.R. 345. No question of this nature arises in the case before us. There is no dispute that the applicant is (a) an alien and (b) has been convicted in Australia of an offence for which he has been sentenced to imprisonment for more than a year. Section 12 of the Act therefore gives the Minister power to deport the applicant.

It was common ground that the Minister had a discretion not to deport the applicant.

The applicant accepted the joint judgment of Bowen C.J. and Deane J. in Drake v. Minister for Immigration and Ethnic Affairs (supra) as correctly stating the law. The proper approach to the consideration of the part Government policy may play in the Tribunal's determination is dealt with in greater detail in that judgment at pp.589 to 591 but I quote only the following passage from p.590:
"In a matter such as the present where it was permissible for the decision-maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision. It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. 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 be."

In the decision being considered by us the President referred to the argument by Counsel for the Minister that because of Government policy the interests of the community in removing persons who are involved in the drug problem must almost always outweigh the compassionate considerations which might otherwise prevail and that, in the absence of compelling circumstances, persons who have been convicted for involvement in the production, importation, distribution of or trafficking in illicit drugs should be deported.

The learned President then said:
"However, although the 1980 statement contains an explicit statement to that effect, it would, I think, be wrong to conclude that the issue as to the deportation of a criminal is to be resolved merely by reference to that statement. Section 12 of the Migration Act confers a discretion to deport a person who has been convicted of a crime of a certain character. That section sets down the law, the legislative framework within which this review is to be considered. In reviewing a ministerial decision made under those sections, Government policy is a relevant matter to be taken into account but the Tribunal may not abbrogate its duty to arrive at the correct or preferable decision simply by applying Government policy to the facts of the case. See Drake v. Minister for Immigration and Ethnic Affairs 2 A.L.D.60, per Bowen C.J. and Deane J. at p.68. In this review, Mr Purnell placed weight upon the statement of practice enunciated by Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No.2) 2 A.L.D. 634 at p.645 that,

'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.'

That statement of practice was enunciated after a most careful and valuable examination of the reasons why weight should be given to Government policy. It is clear from a careful reading of his Honour's decision that his Honour was not expressing the view that the Tribunal should exercise the function of applying Government policy rather than the function of arriving at the correct or preferable decision having regard to the legislative authority to be exercised. Rather, his Honour made clear at p.643 that,

'If the Tribunal applies ministerial policy, it is because of the assistance which the policy can furnish in arriving at the preferable decision in the circumstances of the case as they appear to the Tribunal.'

His Honour's reasons did not seek to abbrogate that statement but rather to consider and express the many reasons why Government policy may be a weighty and influential factor to be taken into account."

The learned President commenced his decision with a detailed examination of the evidence dealing with the history of the applicant and his family circumstances and other relevant matters and then said:
"The last matter to be taken into account is the policy of the Government with respect to the deportation of criminals, particularly those which have been involved in the growing, importation or distribution of illicit drugs."

After setting out the relevant part of the Government policy the President continued with the two passages which I have set out and a little later in the decision he continued:
"The giving of due weight to the humanitarian issues involved in a decision is, therefore, not to be overborne by a statement of Government policy. It is the duty of this Tribunal to take those factors into account and to give them due weight. Moreover, in my view, the policy statement of 1980 does not seek to overbear them. Rather the statement that, '. . . in the absence of compelling circumstances, people who render themselves liable to deportation because of convictions for involvement in the production, importation, distribution or trafficking of illicit drugs have been and will continue to be deported', reflects a policy on the part of the Government that due weight be given to the harm which such activity causes to this country and to the desirability of deterring it."

After referring to the deterrent effect of deportation the President said the decision to be made was not an easy one and concluded his decision thus:
"In the present case, I think that, if it were not for the Government's policy on deportation, I may find in favour of Nevistic. The term of imprisonment is likely to have achieved a sufficient reform in Nevistic's outlook to ensure that, hereafter, he does comply with the community's laws. Thus, apart from the factor of Government policy, the balance may lie against deportation, though I could not say that clearly it would so lie. However, Government policy in this 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), cited above. This policy finds expression in the 1980 statement which the Minister of State for Immigration and Ethnic Affairs has tabled in Parliament. The policy there stated gives considerable significance to the desirability of deterring other persons from committing crimes of a like nature. If I were myself to formulate a policy, I think I would not give such weight to the factor of deterrence. For the reasons I have discussed above, implementation of the policy tends to operate in some cases as an additional or double punishment. And it so operates not with respect to the whole population but only with respect to immigrants and aliens, many of whom suffer from disadvantages resulting from migration, language problems and the like. Moreover, I doubt that deterrence has a noticeable effect unless the deportee is a member of an ethnic community particularly involved with the particular type of offence.

However, for the reasons enunciated by Brennan J. in Re Drake (No. 2), the formulation of an overall policy for the deportation of criminals is primarily a function of the Government. The Migration Act has reposed the administration of the Act in the hands of the Minister of State for Immigration and Ethnic Affairs. It is his duty to formulate a policy so that there be consistency in approach to deportation decisions. The formulation of a policy, is moreover, the exercise of a power which the Act reposes in him. The 1980 policy for the deportation of criminals is a policy properly formed in the political context. It is a policy which involves an area where value judgments are required and where different views may validly be taken. As the policy has properly been formulated in the political context and is an exercise of political power and, also, as it is desirable that there be consistency in decision-making, it is proper that I should give weight to it. I would not decide this case by applying the precise terms of the policy statement. Nor do I take the policy into account uncritically and without regard to what I see as its limitations and problems. However, one of the matters to which I should give weight is Government policy and the substantial effect of that policy is that a person in the position of Nevistic should be deported. Application of that policy to Nevistic is not unjust nor unduly harsh. There are no particular factors operating in his case which would make it wrong to give weight to the policy in this review.

Taking into account Government policy, I think that the correct and preferable decision is that Ratimir Nevistic be deported from Australia. I shall therefore affirm the Minister's decision."

In my opinion the President carefully examined the various relevant circumstances and, in particular, those dealing with the effect of deportation upon the applicant and his family and having examined all relevant circumstances other than Government policy he said that he considered ". . . the balance may lie against deportation, though I could not say that clearly it would so lie". He then took into account Government policy saying ". . . it is proper that I should give weight to it. I would not decide this case by applying the precise terms of the policy statement. Nor do I take the policy into account uncritically and without regard to what I see as its limitations and problems. However, one of the matters to which I should give weight is Government policy and the substantial effect of that policy is that a person in the position of Nevistic should be deported".

In my opinion the learned President having decided that, apart from Government policy, the question of whether deportation should be ordered was substantially evenly balanced, considered that it was appropriate to give some weight to Government policy. Having then examined Government policy carefully, and not without regard to what he saw as its limitations and problems, decided that, added to the scales of justice, it was sufficient to tip the balance in favour of deportation.

In my opinion I can see no error of law in this approach. No argument was presented that Government policy was not a matter to which some regard could be had by the Tribunal and indeed Drake v. Minister for Immigration and Ethnic Affairs (supra), is an authority standing in the way of any such submission.

I would dismiss the appeal.

JUDGE2

The appellant is an established resident of Australia but remains an alien. He lives with his wife, who is also an alien, and their four young Australian children at Orange in New South Wales. In August, 1977, he was convicted in the New South Wales District Court of being in possession of a quantity of Indian hemp in excess of the prescribed quantity. He was sentenced to imprisonment with hard labour for a term of six years. A non-parole period of two and one half years was fixed. The appellant was released from prison, on parole, in February, 1980.

In April, 1980, the Minister of State for Immigration and Ethnic Affairs, acting pursuant to s.12 of the Migration Act, 1958, ordered that the appellant be deported from Australia. It is plain from the evidence that the conditions precedent to the existence of the power to order deportation under s.12 had been satisfied. The appellant applied to the Administrative Appeals Tribunal for review of the Minister's decision that he be deported. The Tribunal was constituted by its learned President (Davies J.) who concluded that, taking into account government policy on the question of deportation of persons involved in the growing, importation, or distribution of illicit drugs, the correct and preferable decision, in all the circumstances of the case, was that the appellant be deported from Australia. The appellant appeals from that decision of the Tribunal.

The appeal to this Court lies pursuant to the provisions of s.44 of the Administrative Appeals Tribunal Act, 1975. By the express provisions of that section, the appeal is limited to a question of law. This Court is not entrusted with the duty or power to conduct a review on the merits of the Minister's decision on the question of deportation of an alien. That power and duty is entrusted to the Administrative Appeals Tribunal and to that Tribunal alone. The gravity of the consequences of the deportation of the applicant, to the applicant himself, to his wife and to their four Australian children leads inevitably to a desire to ensure that the applicant has access to every legitimate avenue of appeal. It cannot, however, warrant the Court's purporting to arrogate to itself a jurisdiction which it does not possess.

The question of law which the appellant claims to be involved in the appeal is stated in a variety of ways in the substituted grounds of appeal. In essence, it is that the Tribunal erred in law in that it abrogated its function of determining whether the decision that the appellant be deported was the correct or preferable one by adopting the approach that the policy laid down by the Minister should be followed and applied unless the application of that policy tended to produce an unjust or unduly harsh result in the circumstances of the particular case. Put somewhat differently, it is said that the Tribunal erred in law in treating government policy as paramount. In essence, the relevant government policy in the present matter was that, "in the absence of compelling circumstances, people who rendered themselves liable to deportation because of conviction for involvement in the production, importation, distribution or trafficking of illicit drugs have been and will continue to be deported". It is to be noted that among the listed examples of "factors" which, according to government policy, "are taken into account, but need not be regarded as compelling" is "the presence in Australia of the offender's spouse or children, whether Australian or not".

In Drake v. Minister for Immigration and Ethnic Affairs ((1979) 24 A.L.R. 277), this Court held that the Administrative Appeals Tribunal was not, in reviewing a deportation order, 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 government policy might be. At the same time, the Court was at pains to make clear that the Tribunal was, at the least, entitled to treat applicable government policy as a relevant factor in the determination of an application for review of a deportation order. The precise part which government policy should ordinarily play in the determinations of the Tribunal was stated, in the joint judgment of Bowen C.J., and myself (ibid, at pp.590-1), to be a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for compromise, in the interests of good government, between the desirability of consistency in the treatment of citizens under the law and the ideal of justice in the individual case. We went on to add that it "may be that the Tribunal concludes, on the material before it, that a particular government policy . . . was, in itself, unobjectionable and that the need for consistency in the particular area of administrative decision-making was such that, in the circumstances of the case, the correct or preferable decision was that which resulted from the application of that policy to the facts of the matter before it".

There are many reasons for the desirability of consistency in the making of decisions affecting rights, opportunities and obligations under the law. Paramount amount them is the fact that inconsistency in the treatment of those amenable to the law involves an element of injustice. Particularly where there is competition or correlativity between right, advantages, obligations and disadvantages, equality of treatment under the law is an ingredient of modern concepts of justice and the rule of law. It is important that those who constitute the Tribunal should, in their search for the correct or preferable decision in the particular case, be entitled to pay regard both to decisions of the Tribunal in other matters and to policies enunciated and developed by those entrusted with the primary administration of the relevant law.

On the other hand, while consistency may properly be seen as an ingredient of justice, it does not constitute a hallmark of it. As Smither J. pointed out in Re Gungor and Minister for Immigration and Ethnic Affairs (Administrative Appeals Tribunal: 30 May, 1980), consistency must ultimately be related to policy and is safely sought by reference to policy only when the policy is appropriate and acceptable. Decision makers may be consistently wrong and consistently unjust. The Tribunal is not bound by either its own previous decisions or by the content of government policy. There have been and will be cases in which the Tribunal concludes that it should refuse to follow a previous decision of the Tribunal or reject or disregard the dictates of a relevant policy of the government. The existence of such cases serves to emphasise the fact that each applicant to the Tribunal is entitled to have his or her application for review decided on its own particular merits. The desire for consistency should not be permitted to submerge the ideal of justice in the individual case.

The content of government policy applied by the Minister and taken into account by the Tribunal in the present matter is plainly controversial. Particularly in its use of the word "compelling" it is unfortunately ambiguous in its wording. It was subjected to stringent criticism by Smithers J. in Re Gungor and Minister for Immigration and Ethnic Affairs (supra) where the Tribunal refused to apply it according to its terms. By its terms, it deals in a draconian and, indeed, callous fashion with what I would conceive to be the essential problem in the assessment of the merits of the present matter. That problem relates to the circumstances in which Australia, as a mature civilized nation, should act in a manner which entails depriving four vulnerable and innocent young Australian children either of their father or the opportunity of growing up in their native land.

The assessment of the overall merits is however for the Tribunal and not for this Court. The above questions and problems, including the weight to be given to government policy, are for the consideration of the Tribunal in the performance of its functions. They do not, in themselves, constitute or involve any question of law. The Tribunal, in its decisions, commonly reasons from primary facts to conclusion on factual issues, expounds principles and maxims of experience and identifies considerations, goals and standards which it accepts as of relevance to the particular decision. Again, this does not necessarily mean that any question of law is involved. The process of reasoning, the formulation of principle and maxim and the weighing of considerations, goals and standards are not the exclusive domain of the lawyer. In themselves, they constitute no more than indicia of an attempt to reach rational, as distinct from arbitrary, decision.

Examination of the Tribunal's decision in the present case makes clear that the Tribunal did not abdicate its function of determining whether the decision that the appellant be deported was the correct or preferable one. The Tribunal expressly adverted, in the context of recognizing government policy as relevant, to the fact that it was bound to reach its own decision. It critically examined the content of the relevant government policy. It expressly referred to the importance of "giving due weight to the humanitarian issues involved in a decision". It expressed a conclusion that it "would not decide this case by applying the precise terms of the policy statement".

It is true that the Tribunal appeared to place decisive importance on government policy: it indicated that, absent that policy, its decision may have been different. The Tribunal was, however, entitled to adopt the approach that, in all the circumstances including the desirability of consistency in decision-making, the preferable or correct decision in the particular circumstances of the instant case was that which resulted from the application of the general government policy. This, as I read the Tribunal's decision, is what it did.

The issue involved in the present appeal is not whether, on the material before the Tribunal, the members of this Court either agree or disagree with the decision which the Tribunal reached. The question before this Court is whether it appears that the Tribunal fell into error of law. The answer to that question is that it does not.

I would dismiss the appeal.

JUDGE3

This is an appeal from a decision of the Administrative Appeals Tribunal affirming the decision of the Minister for Immigration and Ethnic Affairs that the appellant be deported from Australia.

An appeal lies to this Court from a decision of the Tribunal on a question of law: s. 44 (1) of the Administrative Appeals Tribunal Act 1975.

The question of law has been formulated in the amended grounds of appeal in various ways; but essentially it is that the Tribunal gave government policy as to the deportation of persons involved in the growing, importation or distribution of illicit drugs, a paramountcy over other relevant considerations, such that it abrogated its own function of independently reviewing the Minister's decision to deport the appellant.

Government policy is essentially as follows:-
"8. Where a person was convicted of an offence which indicated that the person had been involved in the production, importation, distribution or trafficking of illicit drugs, it is considered that the interests of the Australian community in their deportation are such that in almost all cases they heavily outweigh the considerations arising from the circumstances of the offender and the circumstances of people whose interests are affected by deportation.

9. Because of the cost to the Australian community in human terms, of illicit drug abuse, it is considered that the interests of the community in removing persons who are involved in the drug problem in the ways referred to in this statement, and in deterring other persons who might be minded to commit similar offences, must almost always outweigh the compassionate considerations which might otherwise have prevailed.

10. Accordingly, in the absence of compelling circumstances, people who render themselves liable to deportation because of convictions for involvement in the production, importation, distribution or trafficking of illicit drugs have been and will continue to be deported.

11. It is not possible to define exhaustively what will be regarded as compelling circumstances. All relevant factors are taken into account, but the weight given to drug offences of the kind referred to in this statement is such that the considerations in favour of deportation must almost always outweight the considerations against deportation. For example, consistent with the approach of previous Ministers, it is Government policy that the following factors are taken into account, but need not be regarded as compelling, either singly or in combination.

(1) the presence in Australia of the offender's spouse or children, whether Australian or not;"

The facts are fully set out in the reasons for the decision of the Tribunal and need not be stated except for those at the heart of the matter.

The appellant was born in 1942 in Yugoslavia. He migrated to Australia in 1970 and married here in 1976. The appellant and his wife lived together for some years both in Europe and Australia before they married. They have four children, all born in Australia: three daughters and a son, who, at the date of the Tribunal's decision (19 December 1980), were aged ten, nine, seven and three respectively.

At all material times since coming to Australia, the appellant and his wife lived at Orange, New South Wales, where the appellant worked as a carpenter and joiner. He is an excellent tradesman. He is a good husband and father. He has nearly completed building a home for his family on land at Orange. They are a happy family.

In 1976 when building work was slack and he was wondering how he could earn money, the appellant became a party to an arrangement for the illicit growing and sale of marihuana. The appellant's role in the enterprise was to grow the crop on a friend's land and to sell it to an acquaintance who had initially introduced him to the venture.

On 9 February 1977 the appellant was arrested by police officers while driving away from the land where a marihuana crop was growing. At the time of his arrest he had a loaded .303 rifle with him. He said that he carried it to shoot kangaroos and other animals. He was charged and released on bail; but subsequently failed to appear to answer the charge. While evading arrest, the appellant acquired a driver's licence in a name other than his own. Ultimately he was arrested at his home. He pleaded guilty to the charge against him and was sentenced to six year's imprisonment to date from 23 August 1977. A non-parole period of two and a half years was specified. He was released on parole in February 1980.

Before he entered into the project to grow marihuana the appellant was convicted in 1973 of driving with an elevated blood alcohol level, fined $200.00 and disqualified from holding a licence for 12 months. Before the period of his disqualification had expired he applied for and obtained a driving licence in the name of a friend who lives in Yugoslavia. In August 1974 he was again convicted of driving with an elevated blood alcohol level and was convicted, fined $250.00 and disqualified from holding a licence for three years.

Since his release from prison, the appellant has been reunited with his family and friends and has been able to obtain employment. While he was in prison work was done on his home by friends and, since his release, he has spent some of his time completing the house.

The function of the Tribunal was considered by the Full Court of this Court in Drake v. Minister for Immigration and Ethnic Affairs 1979 2 A.L.D. 60. Bowen C.J. and Deane J. in their joint judgment said at pp. 69 and 70:-
"Ordinarily, however, an administrative officer charged with the exercise of discretionary power will be entitled, in the absence of specifically defined criteria or considerations, to take into account government policy. The propriety of paying regard to general policy considerations is most evident in a case such as the present where there are no specified statutory criteria for the exercise of the discretionary power and where the power is entrusted to a Minister of the Crown responsible to Parliament. Clearly, in considering whether a deportation order should be made in respect of the plaintiff in the present matter, the Minister was entitled to be guided by any general relevant government policy which was not inconsistent with the provisions or the objects of the Migration Act. Indeed, 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 of rules relating to the exercise of the relevant power . . . In a matter such as the present where it was permissible for the decision-maker to take relvant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision. It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. 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.

It is not desirable to attempt to frame any general statement of the precise part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for comprise, in the interests of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case . . . It is, however, desirable that, in any case where the Tribunal reaches the conclusion that the particular circumstances are such as to make the correct or preferable decision that which results from an application of some government or ministerial policy to the particular facts, the Tribunal makes it clear that it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion. This is particularly so in matters such as the review of a deportation order where no two cases will be identical and where personal liberty will commonly be involved."

Smithers J. in a separate judgment said at p. 77
"It is the function of the Tribunal in deportation cases to test the propriety of a deportation order against what is seen to be the best interests of Australia in the particular case and to act accordingly."

It is important to bear in mind that it is not this Court's function to review the decision of the Minister or the decision of the Tribunal on their respective merits. Whether this Court would, on the material before the Tribunal, come to the same conclusion as it did is not the question. An appeal lies only on a question of law. The question for this Court is to determine whether the Tribunal erred in law.

An examination of the Tribunal's reasons for decision establish that it did not abrogate its own duty to independently review the Minister's decision to deport the appellant. For example, the Tribunal said:
"In reviewing a ministerial decision made under those sections" (i.e. of the Migration Act 1958) "Government policy is a relevant matter to be taken into account but the Tribunal may not abrogate its duty to arrive at the correct or preferable decision simply by applying Government policy to the facts of the case. See Drake v. Minister for Immigration and Ethnic Affairs 2 A.L.D., 60 per Bowen C.J. and Deane J. at p. 68. . ."

Later the Tribunal said:
"The giving of due weight to the humanitarian issues involved in a decision is, therefore, not to be overborne by a statement of Government policy. It is the duty of this Tribunal to take those factors into account and to give them due weight. . ."

Again:
"I would not decide this case by applying the precise terms of the policy statement. Nor do I take the policy into account uncritically and without regard to what I see as its limitations and problems. However, one of the matters to which I should give weight is Government policy and the substantial effect of that policy is that a person in the position of Nevistic should be deported."

Plainly the Tribunal placed great weight on government policy with respect to the deportation of criminals particularly those involved in the growing, importation or distribution of illicit drugs. The Tribunal said:
"In the present case, I think that, if it were not for the Government's policy on deportation, I may find in favour of Nevistic. The term of imprisonment is likely to have achieved a sufficient reform in Nevistic's outlook to ensure that, hereafter, he does comply with the community's laws. Thus, apart from the factor of Government policy the balance may lie against deportation, although I could not say that clearly it would so lie."

One matter that caused me especial concern was whether the Tribunal sufficiently recognised that the effect of the deportation order against the appellant would be that four young Australian children must either leave Australian soil and live in Yugoslavia - a land with a culture and language unknown to them - or remain here with their mother, but without their father. However, I am not satisfied that the Tribunal failed to take this important consideration into account.

It has not been shown that the Tribunal so emphasised government policy as to abdicate its own function of independent review of the deportation order. No error of law has been established.

The appeal should be dismissed.