Re Sarina; Ex parte Council of the Shire of Wollondilly

[1980] FCA 106

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS v. POCHI (1980) 44 FLR 41
Immigration and Aliens - Administrative law

COURT

FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
Smithers(1), Evatt(2), Deane(3) JJ.

CATCHWORDS

Immigration and Aliens - Deportation - Order of Minister - Review by Administrative Appeals Tribunal - Proof of conduct relied upon - Whether conduct such that deportation is in best interests of Australia - "Rights" of aliens in absence of deportation order - Migration Act 1958 (Cth), s. 12.

Administrative Law - Administrative Appeals Tribunal - Review of deportation order of Minister - Function of Administrative Appeals Tribunal - Whether decision of Tribunal involved statements of general administrative practice or statements of principles of law - Duty of Tribunal to observe principles of natural justice - Administrative Appeals Tribunal Act 1975 (Cth), ss. 27, 28, 33, 43 (2), 44.

HEADNOTE

The Minister ordered the deportation of the defendant under s. 12 of the Migration Act 1958. Upon the defendant's application for review of that decision the Administrative Appeals Tribunal ("the Tribunal") recommended its revocation. The Minister appealed from that decision on the ground inter alia that the Tribunal wrongly regarded itself as being restricted in reaching its decision by misconceived principles of law. The Minister relied upon three passages in the Tribunal's reasons to establish this ground. The first of those passages read: "When an alien who is an established resident becomes liable to deportation under s. 12, the general rule must be that the conduct which is relied on to show that a deportation order is in the best interests of Australia must be proved, not merely suspected."

Held: Per curiam - (1) As to the passages in the decision of the Tribunal, other than that set out above, relied upon by the Minister, the Tribunal had not purported to lay down any binding principle of law but merely what it saw as general principles of fairness and common sense which were considered appropriate to the case before the Tribunal and which the President stated in general terms for the guidance of members of the Tribunal in the future performance of their functions.

Per Deane J., with whose reasons for judgment Evatt J. agreed - (2) A similar position existed in relation to the first passage quoted above.

(3) In any event as a matter of law the Tribunal was required in the circumstances to observe that principle because: (a) the Tribunal is under a duty to observe the requirements of natural justice. Sullivan v. Department of Transport (1978), 20 ALR 323; Drake v. Minister for Immigration and Ethnic Affairs (1979), 24 ALR 577, applied. (b) It is an ordinary requirement of natural justice that a person bound to act judicially "base his decision" upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined. R. v. Deputy Industrial Injuries Commissioner; Ex parte Moore, (1965) 1 QB 4568 applied.

Bridges v. Wixon (1945), 326 US 135; Woodby v. Immigration and Naturalization Service (1966), 385 US 276, referred to.

Quaere whether there are any special cases involving the deportation of an established resident in which the general rule need not be observed.

(4) The Minister had not shown that the Tribunal had failed to give consideration to relevant factors.

(5) The reference in the reasons of the Tribunal to the defendant's right to remain in Australia was to the fact that in the absence of a deportation order and while he remained lawfully within Australia the defendant could neither be arbitrarily deprived of his liberty nor forceably removed from the country.

(6) Appeal dismissed.

Per Smithers J., dissenting - (a) In performing a review of a decision the Tribunal should consider itself as though it were performing the relevant function of the administrator in accordance with the law as it applied to him. (b) If a suspicion were real, based upon proved facts, relevant to the issue of community risk and significant, it could not offend natural justice to have regard to it. (c) The Tribunal erred in law in so far as it excluded from consideration the existence of the suspicion in question on the ground that it was suspicion and not proved fact and that in the circumstances there would be something unfair or oppressive in taking that class of evidence into account.

HEARING

MELBOURNE, 1980, March 25, 26; July 31. #DATE 31:7:1980

APPEAL.

The applicant appealed from a decision of the Administrative Appeals Tribunal.

J. C. S. Burchett Q.C. and F. J. Purnell, for the plaintiff.

B. Morric, for the defendant.

Cur. adv. vult.

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

Solicitors for the defendant: Grant, Crooks & Granleese.

T. J. GINNANE

JUDGE1

July 31.

The following written judgments were delivered.

SMITHERS J. This is an appeal from a decision of the Administrative Appeals Tribunal whereby that Tribunal reviewed a decision of the Minister for Immigration and Ethnic Affairs made pursuant to s. 12 of the Migration Act 1958 (Cth) dated 7th August, 1978, to deport one Luigi Pochi. The decision of the Tribunal made pursuant to Pt XXII of the Schedule to the Migration Act was that it remitted the matter to the Minister for reconsideration in accordance with the recommendation made by it, namely, that the deportation order be revoked.

1. The appeal is brought by the Minister pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975 (Cth). It comes to the Federal Court of Australia in its original jurisdiction but it is convenient and accords with the substance of the proceedings to refer to the Minister as the appellant and to Luigi Pochi as the respondent. Section 12 of the Migration Act is as follows: "12. Where (whether before or after the commencement of this Part) an alien has been convicted in Australia of a crime of violence against the person or of extorting any money or thing by force or threat, or of an attempt to commit such a crime, or has been convicted in Australia of any other offence for which he has been sentenced to imprisonment for one year or longer, the Minister may, upon the expiration of, or during, any term of imprisonment served or being served by that alien in respect of the crime, order the deportation of that alien." (at p43)

2. It is common ground that the respondent is and was at all material times an alien and it appears that on 17th March, 1977, he was convicted of the offence of supplying Indian hemp and was sentenced to imprisonment for two years with a non-parole period of twelve months. It is clear therefore that on 17th August, 1978, the Minister had statutory authority to make the order that the respondent be deported. That order was made after the Minister had given the respondent opportunity to make representations to him that the order be not made and the respondent had made such representations and the Minister had considered what the respondent had put before him. (at p43)

3. The power conferred on the Minister to make an order for deportation is one to be exercised according to his unfettered discretion. It is his responsibility to act according to his assessment of the requirements of good government. (at p43)

4. But for the provisions of the Administrative Appeals Tribunal Act ("the Act") implementation of the Minister's order would normally have proceeded pursuant to s. 20 of the Migration Act. But by reason of Pt XXII of the Schedule to the Act the decision to order the deportation of the respondent was one which the respondent was entitled to seek to have reviewed by the Australian Administrative Appeals Tribunal. (at p43)

5. The applicant sought such a review and his application was heard by the learned President of the Tribunal. It is provided by Pt XXII of the Schedule that upon such an application the Tribunal may affirm the Minister's decision or remit the matter to him for reconsideration in accordance with any recommendation made by it. As the Act does not specify the grounds upon which the Tribunal may review the Minister's decision the inference is that the Tribunal is required to act by reference to the requirements of the statutory objectives underlying the grant to the Minister of the powers contained in s. 12 of the Migration Act. Clearly enough those objectives were connected with the maintenance of standards of the Australian population by deporting aliens whose deportation was seen by the Minister to be desirable in the best interests of Australia. Without doubt the statutory objectives include protecting the Australian community from persons in respect of whom it is reasonable to think that their future conduct may be detrimental to the Australian community. As was said by Latham C.J. in O'Keefe v. Calwell (1949) 77 CLR 261 : "The Government of a country may prevent aliens entering, or may deport aliens: Musgrove v. Chun Teeong Toy (1891) AC 272 . Exclusion in such a case is not a punishment for any offence. Neither is deportation: see Attorney-General for Canada v. Cain & Gilhula (1906) AC 542, at p 547 - 'The power of expulsion is in truth but the complement of the power of exclusion.' The deportation of an unwanted immigrant (who could have been excluded altogether without any infringement of right) is an act of the same character: it is a measure of protection of the community from undesired infiltration and is not punishment for any offence. This view of the nature of deportation was adopted by this Court in Ex parte Walsh; Re Yates (1925) 37 CLR 36, at pp 60, 96 " (1949) 77 CLR, at p 278 . Of course deportation may well operate as if it were a penalty and impose extreme hardship upon the individual concerned. But s. 12 of the Migration Act is not designed to punish an alien but to protect the community. (at p44)

6. It was said by Starke J. in Ex parte Walsh; Re Yates (1925) 37 CLR 36 : "But the Parliament may also use preventive or protective measures for the peace, order and good government of the Commonwealth within the ambit of its powers (cf. R. v. Halliday (1917) AC 260 ). And for that purpose it may use both the executive and the judicial power of the Commonwealth. A Court might be authorized to restrain, e.g., the commission of acts likely to impede or obstruct trade and commerce with foreign countries or among the States. And so too, in my opinion, the Parliament has ample legislative power to authorize the Executive to exclude persons and to suppress and prevent acts detrimental to the Commonwealth, in respect of subjects over which it has power. Thus it would be a valid law, in my opinion, if the Parliament provided that any alien who in the opinion of the Minister was an undesirable resident of Australia might be deported: it would be valid because the Parliament has full power over the subject of aliens" (1925) 37 CLR, at pp 132-133 . And this is what Parliament has done in s. 12 of the Migration Act. It has specified the condition which must exist before an alien can be described as legally deportable. The condition is that the alien has suffered a conviction of the nature specified in the section. Once that condition is fulfilled it is a matter for the judgment of the Minister whether he exercises the power of deportation conferred on him thereunder. As was said by O'Bryan J. in R. v. Governor of Metropolitan Gaol; Ex parte Tripodi (1961) 3 FLR 134 in relation to s. 13 of the Migration Act which is for the purpose analagous to s. 12: "Once the conditions precedent to the exercise of the power to deport are satisfied and the Minister comes to exercise his discretion to make or not make an order for deportation he is, in my opinion, exercising an executive function, not a judicial function" (1961) 3 FLR, at p 136 . (at p45)

7. Later he said: "The discretion reposed by Parliament in the responsible Minister of State to order the deportation of an immigrant who appears prima facie to be an undesirable citizen is of a kind not dissimilar from the discretion to detain during time of war persons who a responsible Minister of State may have reason to believe are disaffected or disloyal. Of such a power Isaacs J., in Lloyd v. Wallach (1915) 20 CLR 299 said: 'Construing the regulation in the first place, it means that where the Minister from any circumstance whatever forms the belief that a naturalized person is disaffected or disloyal, that is sufficient. He is the sole judge of what circumstances are material and sufficient to base his mental conclusion upon, and no one can challenge their materiality or sufficiency or the reasonableness of the belief founded upon them. He is presumed to act not arbitrarily nor capriciously, but to inform his mind in any manner he considers proper . . . ' (1915) 20 CLR, at p 308 " (1961) 3 FLR, at p 138 . (at p45)

8. No doubt such discretion is conferred by Parliament in the confident expectation that it will not be exercised arbitrarily but as an exercise of good government and in the best interests of Australia. And, as pointed out in Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 , this requires recognition that in a matter such as deportation Parliament would intend the Minister to act by reference to matters of substance rather than to any technical test. But, as Mason J. said in R. v. MacKellar; Ex parte Ratu (1977) 137 CLR 461 , in relation to the making of a deportation order under s. 18 of the Migration Act: "The discretion is unlimited in scope except in so far as the nature and purpose of the Act may possibly suggest some confinement. And it is not easy to see how any limitation in scope in relation to a power to deport a prohibited immigrant can be derived from an Act which deals with the topic of immigration. The very general words of the section leave the Minister free to take into account government policy on important issues and, where it is thought to be appropriate, the personality and circumstances of the individual" (1977) 137 CLR, at p 479 . These comments would appear to apply to an order under s. 12 of the Migration Act. (at p45)

9. It is in respect of a decision made as an exercise of this ministerial discretion that the application for review was made. It is provided by s. 43 (1) of the Administrative Appeals Tribunal Act that for the purpose of reviewing a decision the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision. And by s. 43 (6) a decision of the person as varied by the Tribunal or in substitution for the decision of a person shall for all purposes, other than certain purposes irrelevant to this discussion, be deemed to be a decision of that person. These provisions operate subject to s. 26 which gives overriding effect to the provisions of Pt XXII of the Schedule to the Act, but they tend to confirm what is no doubt otherwise implied, that in reviewing a decision the Tribunal is to be considered as being in the shoes of the person whose decision is in question. It follows from this that in reaching a decision in review of a decision of an administrator the Tribunal should consider itself as though it were performing the relevant function of that administrator in accordance with the law as it applied to him, including the law contained in any relevant statute interpreted according to its terms and objectives. (at p46)

10. It follows therefore that in reviewing the Minister's decision of 7th August, 1978, the Tribunal would be concerned to ascertain that the respondent was an alien and that he had suffered a relevant conviction and, having done so according to strict standards of proof, go on to consider whether in the circumstances, a decision to deport the respondent was the right decision to make according to the standards of good government or the best interests of Australia. (at p46)

11. The question for the determination of the Tribunal was whether the decision before it was the correct or preferable one on the material before the Tribunal. Further in its proceedings "it is obliged to act judicially, that is to say with judicial fairness and detachment. It is subject to the same general restraints 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 . . . that regard must be had as to the relevant considerations, and that matters absolutely apart from the matters which by law ought to be taken into consideration must be ignored", per Bowen C.J. and Deane J. in Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 ALR, at p 589 . Thus natural justice must be afforded to the applicant. (at p46)

12. In this case one submission of the appellant is that the Tribunal failed to direct its attention to the consideration of the factor that on the evidence there was ample suspicion that the respondent had been involved in commerce in marihuana to a material degree. It failed, so it is said, "to deal, by reference to the relevant considerations, with a matter which arose for its determination and which it purported to determine" (see Sullivan v. Department of Transport per Deane J. (1978) 20 ALR 323, at p 349 . It was said by Fisher J. in the same case: "An error of law arises if there has been on the part of the Tribunal misapprehension or failure to take account of any material fact. 'Relevant conditions must be taken into account and irrelevant considerations disregarded' S. A. de Smith, Judicial Review of Administrative Action (3rd ed.), pp. 84 and 253. Reference should also be made to Robertson v. Federal Commissioner of Taxation per Dixon J. (as he then was) (1937) 57 CLR 147, at p 169 and R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, at p 242 " (1978) 20 ALR, at p 350 (at p47)

13. It was contended that the Tribunal failed to have regard to the considerations referred to because it misdirected itself by holding there was a rule of law applicable in the circumstances of this case, that "the conduct relied upon to show that a deportation order is in the best interests of Australia must be proved not merely suspected". However I do not think that the learned President directed himself that as a matter of law he could not in the circumstances of the case take into account the fact that there was suspicion of serious and significant misconduct on the part of the respondent. It appears to me that in the passage challenged his Honour was expressing the view that in looking at the matter from the point of view of the best interests of Australia or of good government, as an administrator, it would not be correct, in the case of an alien who had established himself in Australia, to take into account misconduct suspected but not proved, notwithstanding that suspicion of such conduct might, as a matter of logic, be a relevant and significant consideration. There was of course no question of treating suspected misconduct as though it were proved misconduct. The only question was whether the existence of suspicion of misconduct was a matter to be taken into account in relation to the issue before the Tribunal and given such weight as it deserved. And on careful reading of the reasons for the decision of the Tribunal it is, I think, apparent that his Honour took the view that in the case postulated it would not be correct to take into account the existence of even a well-founded suspicion that the respondent had been involved in commerce in marihuana to a substantial extent because, in the case of an alien who had been in Australia for a long time and set up a family, it would be unfair or oppressive to take account of such a suspicion. His Honour found as a fact that there were ample grounds for suspecting such misconduct and followed that finding with the statement that, in the case of an alien who had established himself, the general rule must be that the conduct which is relied on to show that a deportation order is in the best interests of Australia must be proved and not merely suspected. His Honour then proceeded to contrast the case before him with those cases where deportation based on reasonable suspicion may be justified, namely, where a convicted alien is an immediate threat to the security of the nation or to the lives of Australian residents and the threat is unlikely to be averted by the ordinary processes of law enforcement, or where he is reasonably suspected of being a member of an active terrorist organization or of unlawfully training an army of insurgency in a foreign country, or in rare cases of threatening the life of another. And in a subsequent comment his Honour (in Pochi v. Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 referring to the serious consequences of deportation, said: "Such a consequence is not justified by evidence which fails to prove that he was engaged in trading in marihuana, but which raises only a suspicion that he was so engaged" (1979) 36 FLR, at p 514 . This contrast between the class of case in which the conduct must be proved and those cases where deportation may be justified on suspicion of particular types of conduct appears to me to indicate that his Honour refrained from placing the suspicion of the conduct in question into the scales and assessing its significance as part of the totality of the relevant matters. It was excluded on the ground that it was suspicion of misconduct rather than proof of misconduct. It was argued that in the application of the principles of natural justice this was the appropriate course. But if the suspicion were real, based upon proved facts, relevant to the issue of community risk and significant, it could not offend natural justice to have regard to it. It was inevitably a matter for governmental consideration for attention according to the standards of good government. One does not appoint a suspected thief to a position of authority. The existence of a suspicion is inevitably relevant to the making of decisions with respect to which that which is suspected is significant. And of course this is conceded in the judgment under review with respect to cases where that which is suspected is significant to national security and certain other kinds of community interests. And the distinction, for current purposes, between the quality of the community interests in respect of which it is thus seen as appropriate to act on suspicion, and of the interest of the community in protection against commerce on a large scale in drugs, even marihuana, is not manifest. In the course of human affairs it is normal for persons to govern their conduct by reference to what they suspect, as well as to what they know. In other words to act on real suspicion on matters of importance is normal and rational. And of course this is conceded in the case of suspicion of conduct involving security and certain other kinds of community risks. That it is valid in the course of government, to have regard to suspicion when it is relevant and significant, is in line for instance with the decision in R. v. Inspector of Leman Street Police Station; Ex parte Venicoff (1920) 3 KB 72 where, with reference to a deportation order, the Home Secretary had expressed no concluded view that the critical allegations, namely taking women to a foreign country for the purpose of exploiting them and deriving money from their prostitution, were true, and the Earl of Reading C.J. said that it was not for the court to pronounce upon whether the order was or was not for the public good because Parliament had empowered the Secretary of State as an executive officer to make such orders and had imposed no conditions. (at p49)

1. This case is one of a number of cases, including R. v. Governor of Brixton Prison; Ex parte Soblen (1963) 2 QB 243 , in which it was held that the executive officer making a deportation order was not bound to hold an inquiry into the facts. It has been argued in the words of Quilliam J. in Pagliara v. Attorney-General (1974) 1 NZLR 86 that: ". . . there has been a subsequent change in judicial thinking of so marked a character as to mean that Soblen's case (1963) 2 QB 243 no longer states the law and should not be followed here. It is, of course, clear that both Venicoff's (1920) 3 KB 72 and Soblen's cases were decided (so far as affects the matter before me) upon the distinction between an act which is merely administrative in nature and one which is of a judicial character. This is a distinction which appears to have been drawn in the earlier cases regarding natural justice. Now, it is contended, the basis has changed so that the Courts have required the audi alteram partem principle to be observed in all cases, whether of administrative or of judicial action" (1974) 1 NZLR, at p 92 . (at p49)

2. The development of judicial thinking referred to was exemplified in a number of cases discussed in particular by Stephen J. in Salemi v. MacKellar (No. 2) (1977) 137 CLR 396 who, speaking with respect to the wide powers conferred by s. 18 concerning prohibited immigrants, said: ". . . it is by no means clear that, in the absence of an amnesty, s. 18 should, in the present state of development of the law, be regarded as empowering the Minister summarily to deport an 'overstayed' prohibited immigrant . . . without first according him the opportunity of making submissions on his own behalf" (1977) 137 CLR, at p 436 . But a requirement to afford natural justice does not involve that in a situation where the Minister or the Administrative Appeals Tribunal is concerned to decide whether according to the standards of good government and on an assessment of risks to the community, matters which are of legitimate concern to the Minister in performing his function, and to the Administrative Appeals Tribunal in performing its function, must in the name of natural justice be excluded from consideration. Observance of the principles of natural justice does not affect the relevance or significance of those matters. Factors relevant and logically related to the assessment of community risks are not only of legitimate but compelling concern. If when natural justice has been afforded there remains real suspicion relevant and significant in relation to community risks, the fact that such suspicion exists must be of legitimate concern. The issues and considerations in the inquiry did not concern only the extent of hardship which the respondent might suffer as a result of his alien status and conduct, but also the risks to which Australian citizens might be exposed if the respondent remained in Australia. It is against those risks that Parliament has seen fit to confer such extensive powers upon the Minister. Parliament intends the Minister to assess the risks in each case and to do so according to normal standards of reasoning. And the Administrative Appeals Tribunal is required to respond to these parliamentary intentions. Unless reasonable and ample suspicion of serious and significant misconduct is taken into account the degree of risk cannot be assessed. (at p50)

3. In this case it is clear that the conduct suspected was significant on the issue of community risk. His Honour said that if it were proved, the case against the respondent would be a strong one. It follows that, from the point of view of relevance to the decision to be made, suspicion of the conduct concerned, based on ample grounds, can hardly have been irrelevant. If it were relevant then the decision of the Tribunal was arrived at in the absence of consideration of a material factor. The stronger the suspicion the nearer is the case to proof. The stronger the suspicion the greater, in terms of reality, the risks to the community. (at p50)

4. Had the factor in question been taken into account and given its appropriate weight in the totality of relevant considerations, including the respondent's lengthy residence in Australia, a different recommendation might have been made by the learned President. Of course it might not. But until the significance of that factor was taken into account and weighed, an interest of the Australian community, which it was the Minister's duty to safeguard and which was vital to the review, was omitted. That interest was the degree of community risk involved in the respondent's continuing residence in Australia. (at p50)

5. Once it is conceded that as a matter of rational thinking suspected serious misconduct is relevant on the issue of deportation then to exclude it, on the ground of the respondent's long residence in Australia would seem to apply a rather technical or perhaps artificial test in deciding what factors should be considered in a context where regard to substance was required. The risk to the community may be as real in the case of an alien of long-established residence in Australia as in the case of a relatively recent arrival. If suspected misconduct is a matter relevant on logical and rational grounds to the assessment of community risks then the substance of the matter calls for its consideration. In such event considerations such as the respondent's long residence in Australia have full weight on the issue of what the best interests of Australia may require. (at p51)

6. Accordingly, if the learned President excluded from consideration the existence of the suspicion in question on the ground that it was suspicion and not proved fact and that in the circumstances there would be something unfair or oppressive in taking that class of evidence into account, it is my view that he erred in law. The statement in Drake's case (1979) 24 ALR, at p 589 that the Tribunal must have regard to the relevant considerations is a statement of law. It supplemented what had been said by the Full Court in Sullivan v. Department of Transport (1978) 20 ALR 323 as expressed categorically in the words of Fisher J. set out above. Foundation for this view appears by necessary implication from the nature of the function reposed in the Administrative Appeals Tribunal by the Administrative Appeals Tribunal Act. Achievement of the purpose of the statutory grant of power and the imposition upon the Tribunal of the duty to review an administrative decision made in the exercise of some other statutory power and discretion for the purpose of testing its validity in fact and law and deciding whether in the circumstances it ought to be varied or set aside clearly involves consideration of all relevant matters. (at p51)

7. The distinction between excluding the factor in question from consideration as a matter going to the discretion conferred by s. 12 of the Migration Act, and taking it into account and giving it such weight as it deserves in the total picture including what may, at that stage, be regarded as a matter of good government, to be fair, is of course, one of substance. Obviously a different decision may be reached according to which of those procedures is adopted. (at p51)

8. It is important to recognize that matters under consideration do not go to the question of the legal deportability, as it has been called, of the respondent. The facts alleged to establish deportability must be strictly proved. But once this is done and one comes to the question of whether the legally deportable alien ought, in the course of good government, to be deported, one is in the realm of judgment by or on behalf of the nation acting reasonably and prudently in its own best interests in the light of those circumstances known to it by reference to which judgment can be fairly and reasonably made as to what course is desirable and prudent to protect those interests. (at p51)

9. In this particular case the relevant suspicion arises from conduct of the respondent himself or of his wife with his knowledge. It arose in the first instance from the payment of some $80,000 which the respondent and his wife could not pay out of their own resources. In the course of extending natural justice to the respondent it was inevitable that the respondent be asked to explain where the money was obtained. The respondent did so explain. He said that some $61,000 was obtained from friends and relatives by way of loans and some $23,000 were the proceeds of winnings on several occasions at the races. A number of the relatives and the bookmaker with whom the respondent had placed his bets gave evidence. As to this the learned President said: "I do not believe much of the applicant's account of assembling this finance, partly because I do not believe some of the accounts as to the particular items, and partly because I do not believe that a commitment to the payment of $117,000 or thereabouts would have been made prior to 4th June, 1975, without knowing that the money was available" (1979) 36 FLR, at p 500 . (at p52)

10. As to the alleged betting wins the learned President said: "The history of the applicant's betting with Mr. Crawford was remarkable. His credit betting opened on 18th January, 1975, when he lost $1,400. Thereafter, his winning days produced funds which were used to assist in the payment of the deposit, the payment of the stamp duty and the balance of the purchase price. He then had a losing day in August and, at the time when the first period of the bank bridging advance was expiring, he had another winning run. His betting with Mr. Crawford ceased in April of 1976. Although he was not a regular race-goer, he won $28,500 on twenty-six bets, and lost only thirty-two bets which cost him $4,910. Although the bookmaking records of Mr. Crawford appear faultless, the applicant's run of luck on the racecourse is so surprising as to excite scepticism if not incredulity.
    

"Loans made with remarkable generosity, a surprising series of betting wins, and some cash deposits of unknown origin provided the major part of the contribution made by Mr. and Mrs. Pochi to the purchase of the Vignali Wines premises. Without those sources of funds, it is clear that the applicant could not have participated in the venture. When the venture was first proposed, the applicant saw his bank manager at the Hobart Place branch of the Commercial Bank of Australia. He wanted $80,000 or $90,000. The bank manager said: 'It is a very bad time for the bank to give money out.' The applicant then approached the Bank of New South Wales, and according to the applicant the manager of the Fyshwick branch 'treated me like I was joking and he say plenty of time for you to open business and all this and he just opened the door and kicked me away'. But the applicant says he had assurance of assistance from members of the family before the auction sale of the Fyshwick premises. The applicant's recollection as to the amount of any promised sum before the auction was very vague: 'Some of them say how much they can help me. Some cannot tell me how much they can help . . . like somebody tell me $3,000, $1,000 then they give me $2,000.' But some 'like Francesco Stalteri told me how much he give'. And the Zappias did also. But he says that he did not count on the $8,000 received from Antonio Stalteri nor the exact amount lent by Rocco Musitano. He says that his brother Bruno promised him about four or five thousand dollars, though his house was not then burnt down. In truth, apart from using the relatively small amount in his current account at the time, it was not until he won $2,000 at the races on 28th May and received $15,000 from Francesco Perri on 1st June that he had a prospect of even paying the deposit, which was paid on 4th June. Mr. Madaffari's $5,000 was received on 3rd June and the next significant banking was from another win which was banked on 27th June. Antonio Stalteri's $8,000 could not have been relied on in advance of the wedding on 12th July; Bruno Pochi could not have been relied upon before his house burnt down; Francesco Stalteri needed to deposit $400 in cash before he could lend $6,000 on 23rd July and the betting wins of the July meeting had to be forthcoming in order to meet the final contribution to the purchase price which was deposited to the credit of the solicitor's trust account on 12th August. The coincidence between the applicant's need for funds at particular times, and the availability of those funds at those times from sources which could not have been guaranteed in advance raises the questions whether the applicant must have had another secure but clandestine source of funds before he undertook the commitment, and whether, if he had such a source, he used the lenders and the bookmaker or some of them to channel the clandestine funds into the venture of Vignali Wines. The evidence is circumstantial but circumstantial evidence can be logically probative, as Knox C.J. and Dixon J. said in Morgan v. Babcock & Wilcox Ltd. (1929) 43 C.L.R. 163. " (1979) 36 F.L.R., at pp. 504-506. . (at p53)

1. As to the suspicion generally his Honour pointed out: "A circumstance which strengthens the case against the applicant is the payment by Mrs. Pochi in May 1977 of one-fifth ($7,000) of the aggregate costs of the defence of the five persons who were charged as a result of the Colleambally raid. The applicant says he knew nothing of this until after the payment was made, and that he had anticipated that Guiseppe Agresta would pay the costs. Although Guiseppe and Pasquale Agresta and their respective spouses were discharged from bankruptcy only in January 1977, it appears that Guiseppe Agresta paid the whole of the costs in cash towards the end of the trial, and that Mrs. Guiseppe Agresta subsequently applied to Mrs. Pochi to be reimbursed the share which had been apportioned to the applicant. Mr. Mackenzie, the solicitor who acted for all accused, said that he 'apportioned it only on the basis that there were five accused and (he) believed that they should all pay an equal amount'. He also instructed the same counsel on behalf of the applicant and the tow Agrestas. If the applicant were not involved with the Agrestas in the venture, and a fortiori if (as he maintained) he were innocently chipping parsnips on the day of the raid, it is curious that his representation betokened no conflict of interest with the Agrestas, and that his contribution to costs was equal to theirs. Although these circumstances deepen the suspicion that the applicant was involved as an entrepreneur in the Colleambally plantation, they do not prove that involvement" (1979) 36 FLR, at p 507 . (at p54)

1. It is fair to say therefore that the suspicion originally arising out of the proved fact of the payment of the $80,000 or thereabouts was inevitably rendered more intense, and even sinister, by the fact that the respondent told an untrue story on oath as to the source of the money, and must have arranged the elaborate unaccepted explanation involving the giving of unacceptable evidence which was given by a number of persons. As counsel for the appellant argued: "If in answer to an administrator's serious suspicions an alien who has already rendered himself the subject of the discretion to deport by incurring a s. 12 conviction does nothing to explain the subject of that suspicion and a fortiori if he suborns evidence in a vain attempt simply to remove the subject of the suspicion, why, we would rhetorically ask, should not the administrator or the tribunal when it sits in the place act on the suspicion?" And one may add that from these circumstances it would be far from unreasonable that the Minister or the Tribunal should conclude that real risks of future serious clandestine conduct seriously detrimental to Australia were involved. And one may add that in the circumstances the probability of the commission and concealment of major misconduct really does rest in more than suspicion. (at p54)

2. It cannot be said that so to conclude would infringe cannons of natural justice because the proper inference is that although the respondent was given every opportunity to explain the original factor generating suspicion, he had not only failed to do so, but in the manner of his failure had materially intensified the unfavourable aspects of the episode. (at p54)

3. In relation to the view that the general rule in a case like the present is that suspected but unproved conduct should be excluded, reference was made to the declaration of the United States Court of Appeals for the Sixth Circuit that, although deportation is not a criminal procedure, the consequences of deportation may be so painful that "no deportation order may be entered unless it is found by clear, unequivocal and convincing evidence that the facts alleged as grounds for deportation are true" (Woodby v. Immigration and Naturalization Service (1966) 385 US 276, at p 286 ). But those remarks were made with respect to the grounds upon which the legal deportability of Woodby depended. It appears that "deportation proceedings were instituted against her on the ground that she had engaged in prostitution after entry" and that "a special inquiry officer and the Board of Immigration Appeals found that she was deportable upon the ground charged". Accordingly, these expressed views of the court are of only limited assistance. They do not deal with the situation which obtains after deportability has been established and the question is whether by the standards of good government it ought to be enforced. It could not be contended that facts going to legal deportability should not be strictly proved. Again, in Bridges v. Wixon (1945) 326 US 135 , where the aspect of deportation as a penalty was referred to, it was decided that meticulous care must be exercised lest the procedure by which the person concerned is deprived of that liberty not meet the essential standards of fairness. But what was in issue was the failure to observe a procedural provision going to the issue of deportability. (at p55)

4. It is important that the nature of deportation proceedings as an incident of the power of the State in respect of aliens inherent in every sovereign State be kept in mind. The decision in Harisiades v. Shaughnessy (1952) 342 US 580 is helpful in this respect. The headnote justified by the reasons of the court contains the following statements, "1. The Alien Registration Act of 1940, so far as it authorises the deportation of a legally resident alien because of membership in the Communist Party, even though such membership terminated before enactment of the Act, was within the power of Congress under the Federal Constitution. Pp. 581-596. (a) The Act does not deprive the alien of liberty without due process of law in violation of the Fifth Amendment. Pp. 584-591. (1) The power to deport aliens is inherent in every sovereign state. Pp. 587-588. (2) The policy toward aliens is so exclusively entrusted to the political branches of the Government as to be largely immune from judicial inquiry or interference; and it cannot be said that the power has been so unreasonably or harshly exercised by Congress in this Act as to warrant judicial interference. Pp. 588-590. (3) The fact that the Act inflicts severe hardship on the individuals affected does not render it violative of the Due Process Clause. Pp. 590-591." (at p55)

5. In Fong Yue Ting v. United States (1893) 149 US 698 it was asserted that the right to exclude or expel aliens absolutely or upon certain conditions in war or in peace is an inherent and inalienable right of every sovereign and independent nation and the power of Congress to expel may be exercised entirely through executive officers. The relevant statute provided that certain classes of aliens might be arrested and taken before a United States judge "who shall order him to be deported . . . unless he shall clearly establish to the Judge that by reason of sickness or other unavoidable cause, he was unable to procure his certificate (of residence) and, by at least one credible white witness, that he was resident in the United States at the time of the passage of the Act". It was said by the court: "The proceeding before a United States judge, as provided for in section 6 of the Act of 1892, is in no proper sense a trial and sentence for a crime or offence. It is simply the ascertainment, by appropriate and lawful means, of the fact whether the conditions exist upon which Congress has enacted that an alien of this class may remain within the country. The order of deportation is not a punishment for a crime. It is not a banishment, in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment. It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the Government of the nation, acting within its constitutional authority and through the proper departments, has determined that his continuing to reside here shall depend. He has not, therefore, been deprived of life, liberty or property, without due process of law; and the provisions of the Constitution, securing the right of trial by jury, and prohibiting unreasonable searches and seizures, and cruel and unusual punishments, have no application.
   

"The question whether, and upon what conditions these aliens shall be permitted to remain within the United States being one to be determined by the political departments of the Government, the judicial department cannot properly express an opinion upon the wisdom, the policy or the justice of the measures enacted by Congress in the exercise of the powers confided to it by the Constitution over this subject." (at p56)

1. These authorities emphasize the essentially national character of the work of administering the Migration Act from which flows the vital interest of the Government, represented by the Minister in the first instance, and as a matter of substance by the Administrative Appeals Tribunal itself on an application for review in considerations going to the degree of potential risk to the community. The review, is an exercise in administration in an area of executive government by an administrative body, required to extend natural justice, but otherwise operating by reference to the same powers and the same principles as those applicable to the administrator whose decision is under review and whose duty it was to take into account all relevant considerations going to the interests of the community according to the standards of good government. (at p56)

1. Before the court it was contended also that the learned President had erred in law by adopting the following mistaken principles, namely: (a) that, when an applicant for review before the Tribunal is deprived of a full opportunity to deal with material adverse to his interests placed before the Tribunal by the Minister in confidential session from which the applicant himself is excluded, "the probative force of the information must be particularly cogent if that information is to be acted upon"; and (b) that evidence which is hearsay "inevitably lacks the cogency inherent in evidence given by a person who has personal knowledge of the facts to which he deposes". (at p57)

2. In the reasons for judgment herein of my brother Deane, which I have had the advantage of reading, these contentions are discussed and on grounds stated are rejected. I am in full agreement with the views so expressed. (at p57)

3. Having regard to the foregoing I would remit the application to the Administrative Appeals Tribunal for rehearing. Much time having been involved in dealing with the last-mentioned contention I would make no order as to costs. (at p57)

JUDGE2

EVATT J. I have had the advantage of reading the reasons for judgment prepared in this appeal by Deane J. I agree entirely with those reasons and with the conclusion that the appeal should be dismissed. I find no need to add anything on my behalf. (at p57)

JUDGE3

DEANE J. The plaintiff, the Minister for Immigration and Ethnic Affairs ("the Minister"), appeals from a decision of the Administrative Appeals Tribunal ("the Tribunal") recommending the revocation of a decision of the Minister under s. 12 of the Migration Act 1958 (Cth) that the defendant, Luigi Pochi, be deported. In accordance with the provisions of sub-cl. (4) of Pt XXII of the Schedule to the Administrative Appeals Tribunal Act 1975 (Cth) (on occasion referred to as "the Act"), the Tribunal was constituted by Brennan J. who was, at the time, its President. (at p57)

1. The appeal to this Court is brought pursuant to s. 44 of the Act. By the express provisions of that section, the appeal is limited to an appeal on a question of law. Strictly speaking, the proceedings are not "an appeal" since they lie within the original jurisdiction of the court. It is, however, convenient to adopt the nomenclature of the Act and to refer to them as an appeal. (at p57)

2. Section 12 of the Migration Act 1958 provides, for present purposes, that where an alien has been convicted in Australia of any offence for which he has been sentenced to imprisonment for one year or longer, the Minister may, upon the expiration of, or during, any term of imprisonment served or being served by that alien, in respect of the crime, order the deportation of that alien. There is no dispute between the parties that Mr. Pochi is an alien for the purposes of the section or that the condition precedent to the existence of the power, namely conviction with the specified consequences, has been fulfilled. The issue between the parties before the Tribunal was the general issue on the merits, namely, whether in all the circumstances of the case the Minister's order that the defendant be deported should be affirmed or, alternatively, whether a recommendation should be made that it be revoked. (at p58)

3. The essential facts can, for the purposes of the appeal, be shortly stated. (at p58)

4. Mr. Pochi came to Australia from Italy in 1959 when he was twenty years old. In May 1962 he married his present wife who had come to Australia from Italy some ten years previously. They have three infant children all of whom were born in Australia. On 11th September, 1974, Mr. Pochi applied for Australian citizenship. On 25th February, 1975, the Minister's delegate approved a grant of citizenship. Apparently, the decision to grant citizenship was never communicated to Mr. Pochi. In the result, he did not take the necessary step of swearing allegiance. The position would, therefore, seem to be that, were it not for bureaucratic bungling, Mr. Pochi would already be an Australian citizen and not liable to deportation. (at p58)

5. On 17th March, 1977, Mr. Pochi was convicted at Quarter Sessions in Griffith, New South Wales, of the supply of Indian hemp and was sentenced to imprisonment for two years with a non-parole period of one year. He served one year in penal institutions between March 1977 and March 1978. The order for his deportation was made on 7th August, 1978. The conviction involved acceptance by the jury of Mr. Pochi's participation, at least in a labouring capacity, in the cultivation on a massive scale (some thirty acres) of Indian hemp on a property at Colleambally in southern New South Wales. (at p58)

6. On the hearing before the Tribunal, evidence was led from a member of the New South Wales Police Force (Detective Senior Constable R. A. Jenkins) which was relied upon by the Minister as tending to implicate Mr. Pochi in the growing of Indian hemp at places other than Colleambally and to assign to him a more important role than that of farm labourer in both the activities at Colleambally and the other illegal operations. The evidence so led was vague. It consisted, in essence, of suspicion, opinion and hearsay. It was led in confidential session of the Tribunal in the presence of Mr. Pochi's legal advisers. Mr. Pochi was however himself excluded from the Tribunal while the evidence was led and his legal advisers were not permitted to acquaint him with it. In the result, it is likely that counsel appearing for Mr. Pochi were at a disadvantage both in cross-examining the Detective Senior Constable and in the general conduct of their client's case. (at p58)

7. Evidence was also led on behalf of the Minister showing that Mr. and Mrs. Pochi, who had few apparent liquid assets, had, in 1975, apparently contributed in excess of $117,000 to the capital of a partnership known as Vignali Wines on account of the purchase of premises in the Australian Capital Territory. It was suggested that these moneys represented the proceeds of Mr. Pochi's involvement in illegal drug activities. Mr. Pochi led evidence before the Tribunal aimed at establishing that the major source of these moneys was successful gambling and borrowing from relations and friends. It is apparent from the Tribunal's reasons for decision that Brennan J. disbelieved this evidence. The result was that the availability to Mr. Pochi and his wife of some $80,000 of this money remained without acceptable explanation. (at p59)

8. Brennan J. was of the view that Mr. Pochi's conviction, standing alone, did not, in the circumstances, "establish conduct of such gravity as to demonstrate" that it was in the best interests of Australia that he be deported. His Honour's conclusion in that regard was not attacked on the appeal. The only other matters relied upon to support deportation were those arising from the alleged additional involvement in drug activities in the context of the unexplained funds. In detailed reasons for decision, his Honour considered the overall circumstances of the case. In the result, he declined to accept the evidence led in confidence to which reference has been made as constituting a proper or adequate basis for a finding of any involvement of Mr. Pochi, beyond the facts implicit in his conviction, in illegal drug activities. The basis of his overall conclusion that the Tribunal recommend that the deportation order be revoked appears from the following extract from the reasons for decision: "In these reasons, it must suffice to say that the confidential information, in conjunction with the other circumstances of the case including my finding as to the applicant's access to clandestine funds, does not warrant a positive finding that he was involved in commerce in marihuana. There are ample grounds for suspecting that the applicant was so involved, but the evidence does not prove it. When an alien who is an established resident becomes liable to deportation under s. 12, the general rule must be that the conduct which is relied on to show that a deportation order is in the best interests of Australia must be proved, not merely suspected" (1979) 36 FLR, at p 513 . (at p59)

9. The main attack made by the Minister on the Tribunal's decision was that the Tribunal wrongly regarded itself as being restricted in reaching its decision by misconceived principles of law. It was sought to identify, in the Tribunal's reasons, three such mistaken principles of law. These were:
   

(i) that: "When an alien who is an established resident becomes liable to deportation under s. 12, the general rule must be that the conduct which is relied on to show that a deportation order is in the best interests of Australia must be proved, not merely suspected" (1979) 36 F.L.R., at p. 513. ; (ii) that when an applicant for review before the Tribunal is deprived of a full opportunity to deal with material adverse to his interests placed before the Tribunal by the Minister in confidential session from which the applicant himself is excluded, "the probative force of the information must be particularly cogent if that information is to be acted upon" (1979) 36 F.L.R., at p. 512. and (iii) that evidence which is hearsay "inevitably lacks the cogency inherent in evidence given by a person who has personal knowledge of the facts to which he deposes" (1979) 36 F.L.R., at p. 512. . (at p60)

1. In proceedings before the court the question for its determination is whether, on the material before the Tribunal, the decision which the administrative decision maker made was the correct or preferable one (Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 ALR, at p 589 ). The Act offers little specific 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. It is, however, plainly desirable that, conformably with the ideal of justice in the individual case, there be consistency in the treatment of the individual from one case to the other. It is inevitable that the desirability of such consistency will lead to the mergence of general principles of administrative practice and to the Tribunal's being conscious of the fact that subsequent administrative decision makers and Tribunals are likely to look to what is said in one case for guidance as to general principles of administrative practice to be applied in subsequent cases. In these circumstances, this Court, being entrusted only with authority to hear appeals on questions of law from decisions of the Tribunal, should be vigilant against the danger of treating such statements of general administrative practice which are properly a matter for the Tribunal as if they were statements of overriding principles of law which can properly be challenged by appeal to the court. (at p60)

1. If the Tribunal had purported to lay down, as overriding principles of law binding upon it in all circumstance, the second and third of the three propositions which it is alleged so to have laid down, it would, in my view, have been mistaken. There is no general principle of law binding the Tribunal either to the effect that "the probative force" of information heard in confidential session from which the applicant for review is excluded "must be particularly cogent if that information is to be acted upon" or to the effect that hearsay evidence "inevitably lacks the cogency inherent in evidence given by a person who has personal knowledge of the facts to which he deposes". The first of these statements has much to recommend it on the grounds of ordinary fairness and decency. The second has much to recommend it on the grounds of common sense. Neither statement amounts, however, to an overriding principle of law binding, in all circumstances, on the Tribunal in the sense that departure from it would necessarily involve error of law on the Tribunal's part. (at p61)

2. Careful reading of the Tribunal's reasons for decision has, however, quite failed to persuade me that his Honour was, in truth, purporting to lay down, as a general principle of law binding on the Tribunal, either of these two propositions. The overall reasons for decision, as I read them, made it clear that his Honour was laying down not principles of law but what he saw as general principles of fairness and common sense which he thought appropriate to the case before the Tribunal and which, as President of the Tribunal, he stated in general terms for the guidance of members of the Tribunal in the future performance of their functions. So understood, the question whether either or both of the two propositions are too widely stated is something to be determined by the Tribunal from case to case and does not involve an issue of law upon which an appeal lies to this Court. It is unnecessary to consider whether, in any event, the principles of natural justice would require the adoption of the approach embodied in both or either of the two principles in the specific context of the circumstances of the present case. (at p61)

3. It is not quite so clear that the Tribunal intended so to confine the scope of the first of the three above-mentioned propositions. That proposition was, as has been mentioned, that: "When an alien who is an established resident becomes liable to deportation under s. 12, the general rule must be that conduct which is relied upon to show that a deportation order is in the best interests of Australia must be proved, not merely suspected". Ultimately, the content and context of statements of that proposition in the Tribunal's reasons have led me to conclude that his Honour was not purporting to state a principle of law binding upon the Tribunal which the Tribunal was constrained to observe at the risk of excess of jurisdiction but that, as with the other two propositions, he was doing no more than making explicit, in the course of his reasoning process, a relevant proposition which, in his view, should be accepted and acted upon. In particular, that part of the Tribunal's reasons which deals with the "special cases to which the general rule requiring proof need not apply" clearly indicates that the "general rule" was applied, by his Honour, as a general rule of administrative practice rather than as an overriding principle of law. It follows that the question whether the statement of the general rule was appropriate is, likewise, not a question of law upon which an appeal lies to this Court. (at p61)

4. Lest I be mistaken in my reading of the Tribunal's reasons in relation to the last-mentioned of the three challenged propositions, I feel that I should indicate that I am, in any event, of the view that, as a matter of law, the Tribunal was required, in the circumstances of the present matter, to observe the principle which his Honour enunciated. In my view, the Tribunal was bound, as a matter of law, to act on the basis that any conduct alleged against Mr. Pochi which was relied upon as a basis for sustaining the deportation order should be established, on the balance of probability, to its satisfaction by some rationally probative evidence and not merely raised before it as a matter of suspicion or speculation or left, on the material before it, in the situation where the Tribunal considered that, while the conduct may have occurred, it was unable to conclude that it was more likely than not that it had. It seems to me that this conclusion follows, as a matter of law, from the authorities referred to and the reasoning advanced by the Tribunal to establish the proposition as a general principle to be observed by it as a matter of administrative practice. The importance of the question leads me to state, for myself, the reasons which lead me to the conclusion which I have expressed. In so doing, I am conscious of my indebtedness to what is contained in the Tribunal's reasons. (at p62)

5. If the slate were clean, I should have thought that there was a great deal to be said for the view that the banishment, consequent upon his conviction of a criminal offence, of one who has become an accepted member of the Australian community was an interference with personal liberty by way of punishment (see, for example, the dissenting judgment of Field J. in Fong Yue Ting v. United States (1893) 149 US, at pp 748-749 ). If that view were correct, a question would arise as to whether a provision purporting to confer upon an executive officer of the Commonwealth a power as close to the heart of judicial power as the subjection of the individual to interference with personal liberty by way of punishment was consistent with the provisions of Ch. III of the Constitution. It has however been said, in many cases, that deportation cannot properly be regarded as the punishment of an offence (see, for example, Koon Wing Lau v. Calwell (1949) 80 CLR 533, at p 555 ; Ex parte Walsh; Re Yates (1925) 37 CLR, at p 61 ; O'Keefe v. Calwell (1949) 77 CLR 261, at p 278 ). The validity of legislation entrusting to executive officers and organs, decisions as to the deportation of established residents has long been accepted (see, for example, Ex parte Walsh; Re Yates (1925) 37 CLR, at pp 68-69, 96 ; Koon Wing Lau v. Calwell (1949) 80 CLR, at p 555 ). The affinity between an order of deportation of an established resident consequent upon his conviction of a crime and the imposition of punishment for a criminal offence is not however, as will be seen, irrelevant when one comes to examine the principles by which a statutory tribunal empowered with reviewing an order for such deportation must ordinarily be guided in the discharge of its functions. (at p63)

6. The Administrative Appeals Tribunal Act 1975 did not directly impose upon decision makers, whose decisions it made subject to review, any substantive or procedural obligations to be observed in the making of such decisions. It did, however, effect a quiet revolution in regard to such decisions. The Act lowered a narrow bridge over the moat of executive silence in that, subject to limited exceptions, it conferred upon a person entitled to apply to the Tribunal for a review of a decision, the right to be supplied with a statement in writing prepared by the person who made the decision and setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and giving the reasons for the decision (s. 28). Any person whose interests may be affected by an administrative decision is, if the decision be one to which the Act applies, entitled to have the decision reviewed by the Tribunal (s. 27). On such a review, the Tribunal is not bound by the rules of evidence or procedure applicable in courts of law (s. 33). It is, however, under a duty to observe the requirements of natural justice (Sullivan v. Department of Transport (1978) 20 ALR, at p 342 and Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 ALR, at p 589 ). The administrative decision maker, whose decisions are subject to review by the Tribunal, will presumably be conscious in making his decision both of the possibility of being required to furnish a written explanation of the decision and of the right of an affected party to be accorded natural justice on a review of the decision by the Tribunal. Indirectly, the establishment of the Tribunal must tend to encourage such an administrative decision maker to extend to a person affected by the decision the natural justice to which he will be entitled upon a review of the decision by the Tribunal regardless of whether the decision maker himself is under an obligation to act in accordance with the requirements of natural justice. For present purposes, however, the important matter is that the Tribunal itself was obliged to conduct its review of the decision to deport Mr. Pochi in accordance with the requirements of natural justice, that is to say, in accordance with the essential standards of fairness of the common law. (at p63)

1. There is no universally applicable definition of the requirements of the rules of natural justice which must, in the absence of legislative provision to the contrary, be observed by a statutory tribunal empowered to make or to review decisions affecting the rights, property or legitimate expectations of a person. (See, as to the appropriateness of the reference to "legitimate expectations", per Stephen J. in Salemi v. MacKellar (No. 2) (1977) 137 CLR, at pp 436-440 and cf. per Barwick C.J. (1977) 137 CLR, at p 404 .) The reason for this is that the precise content of those rules will vary according to te statutory framework of the particular proceedings and the particular circumstances of the individual case. "Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard-and-fast rules" (per Lord Reid in Wiseman v. Borneman (1971) AC 297, at p 308 ). "The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth" (per Tucker L.J. in Russell v. Duke of Norfolk (1949) 1 All ER 109, at p 118 adopted by Lord Donovan in Wiseman v. Borneman (1971) AC, at p 314 and by Mason J. in R. v. MacKeller; Ex parte Ratu (1977) 137 CLR 461, at p 476 ). "What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances" (per Kitto J. in Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation (1963) 113 CLR 475, at p 504 ). In the forefront of the relevant circumstances lie the nature of the decision which the statutory tribunal is authorized to make or review and the effect that that decision may have on the person affected by it (see Durayappah v. Fernando (1967) 2 AC 337, at p 349 ). It is in this regard that the affinity between banishment of an established resident consequent upon a criminal conviction and punishment of an offence is relevant. As Douglas J., speaking for the majority of the United States Supreme Court in Bridges v. Wixon (1945) 326 US 135 said: "Though deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of his right to stay and live and work in this land of freedom. That deportation is a penalty - at times a most serious one - cannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness." (at p64)

2. The United States Supreme Court has recognized that the requirements of a fair hearing to which an established alien is entitled will not be satisfied if a deportation order is based on no more than suspicion and speculation. In Woodby v. Immigration and Naturalization Service (1966) 385 US 276 Stewart J., speaking for the majority, said: "To be sure, a deportation proceeding is not a criminal prosecution: Harisiades v. Shaughnessy (1952) 342 US 580 . But it does not syllogistically follow that a person may be banished from this country upon no higher degree of proof than applies in a negligence case. This Court has not closed its eyes to the drastic deprivations that may follow when a resident of this country is compelled by our Government to forsake all the bonds formed here and go to a foreign land where he often has no contemporary identification. In words apposite to the question before us, we have spoken of the solidity of proof that is required for a judgment entailing the consequences of deportation, . . ." (at p65)

3. It is true that the actual issue involved in Bridges v. Wixon and Woodby v. Immigration and Naturalization Service related to fulfilment of a condition precedent to the power to deport. The comments quoted are, however, in my view, equally applicable to a case such as the present where, as was held by the Tribunal in a finding which has not been challenged or questioned, the facts involving fulfilment of the condition precedent to the power would not themselves warrant a deportation order and where the deportation order was sought to be upheld by reference to other conduct of which it was said the respondent had been, or might have been, guilty. The comments quoted from Woodby v. Immigration and Naturalization Service support the view that, in an appropriate case, the requirements of United States principles of procedural due process are not restricted to purely procedural steps which are preliminary to decision but extend to control the material upon which the decision itself can properly be based. (at p65)

4. In my view, judgments of the courts of the United States in relation to procedural due process, whether as embodied in the constitutional guarantees contained in the Fifth and Fourteenth Amendments or as a fundamental concept of the inherited law, can be of assistance in determining the rights of a party at the hands of a statutory tribunal which is bound to act in accordance with the rules of natural justice. The "essential standards of fairness" or "basic fairness" which have been recognized as forming the basis of United States principles of procedural due process lie likewise at the heart of the common law concept of natural justice or acting judicially (see Edwards v. Society of Graphical and Allied Trades (1971) 1 Ch 354, at p 382 ("fair play in action"); Wiseman v. Borneman (1971) AC, at p320 ; Furnell v. Whangarei High Schools Board (1973) AC 660, at p 679 and, generally, per Murphy J. in R. v. MacKellar; Ex parte Ratu (1977) 137 CLR, at p 483 ). In particular, I consider that the approach adopted by the United States Supreme Court that the fundamental standards of fairness which are inherent in the concept of procedural due process extend, at least when issues of the gravity of deportation of an established resident are concerned, to exclude a decision on the basis of suspicion and speculation, is of relevance and assistance in the determination of what are the requirements of natural justice when a decision involving issues of such gravity is under review before the Tribunal. Assistance in the resolution of that question is also to be derived from the judgments of Willmer and Diplock L.JJ. in R. v. Deputy Industrial Injuries Commissioner; Ex parte Moore (1965) 1 QB 456 . (at p66)

5. The last-mentioned case concerned proceedings before the Deputy Industrial Injuries Commissioner under the National Insurance (Industrial Injuries) Act, 1946 (U.K.) upon an appeal by the claimant against a refusal to award her industrial injury benefit. The Deputy Commissioner was not, on the hearing of the appeal, bound by the rules of evidence or procedure applicable in a court. He was free to obtain information from any source available to him. He was however bound to observe the principles of natural justice. Each of Willmer L.J. and Diplock L.J. made clear, in the course of his judgment, that he was of the view that the principles of natural justice operated not only in respect of the procedure adopted by the Tribunal but also in respect of the material upon which a decision was based. In the course of his judgment, Willmer L.J., said: "Where so much is left to the discretion of the commissioner, the only real limitation, as I see it, is that the procedure must be in accordance with natural justice. This involves that any information on which the commissioner acts, whatever its source, must be at least of some probative value" (1965) 1 QB, at p 476 . (at p66)

6. Diplock L.J., dealt with the matter in somewhat more detail. He said: "Where, as in the present case, a personal bias or mala fides on the part of the deputy commissioner is not in question, the rules of natural justice which he must observe can, in my view, be reduced to two. First, he must base his decision on evidence, whether a hearing is requested or not. Secondly, if a hearing is requested, he must fairly listen to the contentions of all persons who are entitled to be represented at the hearing.
   

"In the context of the first rule, 'evidence' is not restricted to evidence which would be admissible in a court of law. For historical reasons, based on the fear that juries who might be illiterate would be incapable of differentiating between the probative values of different methods of proof, the practice of the common law courts has been to admit only what the judges then regarded as the best evidence of any disputed fact, and thereby to exclude much material which, as a matter of common sense, would assist a fact-finding tribunal to reach a correct conclusion: cf. Myers v. Director of Public Prosecutions (1964) 3 W.L.R. 145. . "These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue" (1965) 1 Q.B., at pp. 487-488. . (at p67)

1. It would be both surprising and illogical if, in proceedings before a statutory tribunal involving an issue of the gravity of deportation of an established resident, the rules of natural justice were restricted to the procedural steps leading up to the making of a decision and were completely silent as to the basis upon which the decision itself might be made. There would be little point in the requirements of natural justice aimed at ensuring a fair hearing by such a tribunal if, in the outcome, the decision maker remained free to make an arbitrary decision. If decision, in such a case, were to be based on mere suspicion or speculation, the rules of procedure aimed at governing the process of making findings of material fact would involve no more than a futile illusion of fairness. I respectfully agree with the conclusion of Diplock L.J. that it is an ordinary requirement of natural justice that a person bound to act judicially "base his decision" upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined. As has been mentioned, the requirements of natural justice may vary according to the nature of the inquiry (see, for example, Russell v. Duke of Norfolk (1949) 1 All ER, at p 118 ) and that conclustion may not be of universal validity in that it may not, for example, apply in respect of some domestic forums. It is however of general validity in the case of a statutory tribunal which is bound to act judicially. Indeed, that conclusion, upon analysis and for present purposes, does little more than place in a proper context of the essential duty of fairness of a statutory tribunal bound to act judicially, the well established principle of law that a decision of such a statutory tribunal must ordinarily be based on evidence which is reasonably capable of sustaining it (Allinson v. General Council of Medical Education and Registration (1894) 1 QB 750, at pp 760, 763, 766 ; Ashbridge Investments Ltd. v. Minister of Housing and Local Government (1965) 1 WLR 1320, at p 1326 and see per Stephen J. in Ex parte Jordan (1898) 19 NSWR 25, at p 29 . Implicit both in Diplock L.J.'s conclusion and in that well-established principle are both the requirement that findings of material fact of a statutory tribunal must ordinarily be based on logically probative material and the requirement that the actual decision of such a tribunal must, when relevant questions of fact are in issue, ordinarily be based upon such findings of material fact and not on mere suspicion or speculation. Those requirements, like all the ordinarily applicable rules of natural justice, may be modified or abolished by the express words or intendment of the legislation establishing the tribunal or conferring jurisdiction upon it (see, Commissioner of Police v. Tanos (1958) 98 CLR 383, at p 396 cited with approval by Lord Wilberforce in Wiseman v. Borneman (1971) AC, at p 318 ; Twist v. Randwick Municipal Council (1976) 136 CLR 106 ; Salemi v. MacKellar (No. 2) (1977) 137 CLR 396 ). (at p68)

1. Examination of the provisions of the Administrative Appeals Tribunal Act 1975 discloses nothing which could be construed as suggesting that it was the legislative intent that the Tribunal should be free to disregard the requirements of natural justice in a case such as the present. In particular, there is nothing to suggest that it was the legislative intent that the Tribunal should, in a case such as the present, be free either of the requirement that its decision must, when relevant questions of fact are in issue, be based upon findings of material fact or the requirement that such findings of material fact be based on logically probative material. To the contrary, s. 43 (2) of the Act which requires the Tribunal to give its reasons in writing expressly provides that "those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based". In reviewing the deportation order made against Mr. Pochi, the Tribunal was, as a matter of law, bound to observe those requirements. (at p68)

2. As I have said, I am of the view that the Tribunal propounded the first of the three challenged principles as a principle of administrative practice which it thought appropriate to the circumstances of the application for review which it was hearing. If, however, I be in error in that regard and his Honour was propounding the principle as a principle of law binding upon the Tribunal, he was stating what was, in the particular circumstances of the particular case, a requirement of natural justice which he was, as a matter of law, bound to observe. (at p68)

3. In the course of its reasons, the Tribunal expressed the view that there "are some special cases in which the general rule requiring proof need not apply". Examples given were where "considerations of national security or an urgent need to eliminate a threat to human life may require deportation of a convicted alien without awaiting upon proof of conduct other than that for which he was convicted". It was argued on behalf of the Minister that the exceptions which his Honour recognized to the "general rule" were too narrow. In particular, it was submitted that that "general rule" should be inapplicable in a case such as the present where the alien, who is an established member of the Australian community, is suspected of involvement in illegal drug activities on a large scale. (at p69)

4. It is unnecessary, for the purposes of the present appeal, to express any view on the question whether there are, in truth, special cases involving deportation of an established resident in which the "general rule" need not be observed. If there be such cases, the explanation of them lies in the fact that the precise content of the requirements of natural justice varies according to the circumstances of the particular case and that it may, for example, be necessary "to balance the need for expedition with the safeguards which the common law has erected" (per Jacobs J.A. in Ex parte Smith; Re Russo (1971) 1 NSWLR 184, at pp 187-188 ). It suffices, for present purposes, to say that neither the gravity of the conduct suspected in the present case nor the potentially damaging consequences to the Australian community of such conduct would have justified the Tribunal in departing from the ordinary requirements of natural justice and affirming the deportation order in respect of Mr. Pochi on the basis that, while the material before it did not, in the Tribunal's view, warrant a finding that he was guilty of such conduct, a real suspicion of such guilt had been raised. (at p69)

5. The Minister also failed to make good an attack on the reasons of the Tribunal on the ground that the Tribunal had failed to give consideration to relevant factors. Reference was made to the possibility of recidivism, to an argument that, if Mr. Pochi was engaged in illegal drug activities in Australia, it would be in the interests of himself and his family that he be deported, and to certain considerations which, it was said, gave added weight to the hearsay evidence to which reference has already been made. It has not, in my view, been shown that his Honour paid no regard to any matter to which he was required to pay regard. The question of what, if any, weight should be given to the matters and arguments to which specific reference has been made was a matter for the Tribunal. (at p69)

6. Finally, an argument was advanced based on a reference in the Tribunal's reasons to Mr. Pochi's "right" to remain in Australia. It was suggested that the Tribunal had overlooked the fact that, as an alien, Mr. Pochi had no independent right, as against the Commonwealth, to remain in Australia (cf. Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch 149 ). It is apparent from the Tribunal's reasons for decision that there is no basis whatever for this argument. Those reasons make express reference to the existence of the national power to deport for as long as the alien status is retained and the fact that an alien has no indefeasible right to remain in Australia. The reference in the reasons of the Tribunal in Mr. Pochi's "right" to remain in Australia was plainly to the fact that, in the absence of a deportation order and while he remains lawfully within Australia, Mr. Pochi can, under the law of the Commonwealth, be neither arbitrarily deprived of his liberty nor forceably removed from the country. "Aliens, including aliens who are immigrants, are, while in Australia, entitled to the protection of our laws, and the common law would not deny to them, in appropriate cases, the application of the principles of natural justice" (per Gibbs J. in Salemi v. MacKellar (No. 2) (1977) 137 CLR, at p 420 ). (at p70)

7. In the result, the comprehensive attack which has been levelled against the decision of the Tribunal has failed at every point. It has not been shown that the Tribunal's decision was affected by any error of law. In so far as this Court is concerned, that is the end of the matter. (at p70)

ORDER

The appeal should be dismissed. The plaintiff Minister should be ordered to pay the respondent's costs.

Orders accordingly.