Tabag v Minister for Immigration and Ethnic Affairs

Re: AHMET TABAG
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1982) 70 FLR 61
No. VG41 of 1982
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Woodward(1), Keely(2) and Jenkinson(3) JJ.

CATCHWORDS

Administrative Law - deportation order - appeal from Administrative Appeals Tribunal - question of law - weight to be given to different factors in exercising discretion - decision of Minister to deport - considerations to be taken into account - significance of family break-up and hardship to innocent members of family - Ministerial guidelines considered.

Administrative Appeals Tribunal Act, 1975 s.44

Migration Act, 1958 s.12

Human Rights Commission Act, 1981 Schedule : International Covenant on Civil and Political Rights, Articles 13, 23(1) & 24(1).

Administrative Law - Deportation order - Appeal from Administrative Appeals Tribunal - Whether due regard paid to family break-up - Whether failure to pay due regard to certain matters constitutes "a question of law" - Administrative Appeals Tribunal Act 1975 (Cth), s. 44 - Migration Act 1958 (Cth), s. 12 - Human Rights Commission Act 1981 (Cth), Sched. I.

HEADNOTE

The appellant appealed to the Full Court of the Federal Court of Australia from a decision of the Administrative Appeals Tribunal (McGregor J.) affirming an order by the Minister (respondent) that the appellant be deported. One major ground for the appeal was that the Tribunal failed to have due regard to the effect of that deportation upon the appellant's family.

Held, per curiam, that the appeal should be dismissed. Per Keely and Jenkinson JJ - The question whether "adequate" weight had been given to the hardship to the appellant's family that would result from the deportation of the appellant is a matter for the Administrative Appeals Tribunal, not for the Court. The contention in the instant case that the Tribunal failed to have due regard to certain matters does not raise any question of law for determination of the Court.

Per Woodward J. - Giving very little weight to a matter as important as the breaking up of a family could amount to an error in law. In this case the Tribunal had not erred.

Drake v. Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Steed v. Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620; Blackwood Hodge (Australia) Pty Ltd v. Collector of Customs (New South Wales) (1980) 47 FLR 131, followed.

Evans v. Bartlam (1937) AC 473; Green v. Upton Pty Ltd (1958) 76 WN (NSW) 116; Tasmanian Pulp & Forest Holdings Ltd v. Woodall Ltd (1972) Tas. SR 41; Nevistic v. Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325, considered.

Pochi v. Macphee (1982) 56 ALJR 878; Instrumatic Ltd v. Suprabase Ltd (1969) 1 WLR 519; Re Drake (No.2) (1979) 2 ALD 634; Dick v. Piller (1943) K.B. 497; Henderson v. Clifford Watmough & Co. (1939) 161 LT 233; Grimshaw v. Dunbar (1953) 1 QB 408; Murtagh v. Barry (1890) 24 QBD 632; Brown v. Dean (1910) AC 373; Collins v. Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407, referred to.

HEARING

Melbourne, 1982, November 16, 17; December 23. #DATE 23:12:1982

APPEAL.

Appeal from a decision of the Administrative Appeals Tribunal affirming a deportation order of the Minister for Immigration and Ethnic Affairs.

P. A. Liddell Q.C. and R. J. Kemelfield, for the appellant.

G. Griffith Q.C. and N.A. Moshinsky, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: T. W. Brennan & Co.

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

E.F.F.

ORDER

The appeal be dismissed.

JUDGE1

This is an appeal from a decision of the Administrative Appeals Tribunal, constituted by Mr. Justice McGregor, affirming a decision of the Minister for Immigration and Ethnic Affairs, made under s.12 of the Migration Act 1958, that the appellant be deported from Australia.

The stated ground of the deportation order was that the appellant had been "convicted at the County Court in Mildura on the fifteenth day of June 1979 of an offence for which he was sentenced to imprisonment for one year or longer". In fact the appellant was sentenced to five years imprisonment, with a non-parole period of three years, for an offence related to his attempting to grow a commercial crop of marijuana.

The appeal to this court is, pursuant to s.44 of the Administrative Appeals Tribunal Act 1975, limited to questions of law.

The appellant relied upon a number of grounds of appeal which his counsel sought to amend and supplement at the hearing. The court reserved its decision on the question whether the new grounds relied upon did in fact raise questions of law. Counsel for the respondent Minister drew attention to some uncertainties in the way in which the grounds were formulated, but did not object to the appellant having leave to amend.

As the appeal was argued it became clear that, if the appellant was to succeed, it would have to be on one of the following new grounds:
"9. The deportation of the Appellant in the circumstances, whereby there will be a break-up of his family, constitutes a misuse of the power under Section 12 of the Migration Act, a breach of the implied conditions of its exercise such that no reasonable Tribunal on the evidence before it could have concluded that the decision of the Minister to deport should be affirmed.

(a) The power to deport under Section 12 of the Migration Act is subject to a qualification that it is not to be exercised without due regard to those affected, which includes not only the person to be deported but also to others who, by family relationship may be affected and that the power must be exercised not cruelly but humanely according to the standards of civilized society.

(b) The power to deport was not in the circumstances exercised with due regard not only to the Applicant but also to the welfare of those who by family relationship or other association may be affected and, in particular, those persons referred to in paragraph 5(ii) hereof, and in all the circumstances amounts to a cruel and/or inhumane exercise of the same and/or a cruel and inhumane punishment and/or a breach of modern civilized standards and/or was not exercised in a humanitarian way and/or in the national interest.

10. The Tribunal failed to have due regard to the consequence that the deportation of the Applicant could lead to a break-up of his family resulting in hardship and injustice to innocent members of it so as constitute a breach of the implied condition of the exercise of its power or alternatively a misuse of its power such that no reasonable Tribunal acting according to law could have reached such a decision.

11. The Tribunal failed to have due regard to the break-up of the family and the consequent effects thereof on innocent members of the appellants immediate family and in particular the resulting hardship and injustice to them which ought to have been treated as a special, compelling or overiding consideration or alternatively given additional weight above all other considerations in his case and by reason of the Tribunal's failure to have such regard to this aspect of the case it reached a decision which was not reasonably open to it on the evidence before it.

12. The power to deport was exercised without due regard to the Human Rights Commission Act 1981 (No. 24) and the International Covenant on Civil and Political Rights and/or in breach of the said Act and the said Covenant and by reason of the said Act and the said Covenant and on the evidence before it, it was not open in law for the Tribunal to affirm the deportation."

In my view these grounds, although they overlap and are difficult to construe, do raise questions of law and the appellant should have leave to amend by including them. I would also allow the other amendments sought by the appellant.

I think it would be consistent with the argument presented for the appellant, to paraphrase these grounds of appeal thus -

(a) the break-up of the appellant's family, and the hardship caused to members of it (particularly his wife and youngest child) as a result of his deportation, were such powerful factors in this case that no reasonable tribunal acting according to law could have reached the decision appealed against;

(b) alternatively, the Tribunal's reasons for its decision showed that it failed to give due weight to these matters, which should have received very great weight, and that failure was of such significance as to amount to an error in law; and

(c) had due regard been given to the provisions of the Human Rights Commission Act 1981 and the International Covenant on Civil and Political Rights, the Tribunal could not have reached the decision it did.

Counsel for the appellant approached the case on the basis that he placed no reliance on any hardship to the appellant. He had broken the law in a serious way and had to expect to pay for it by punishment which could properly include deportation.

On the other hand, the price which the members of his family were being asked to pay was said to be out of proportion to the father's offence. The two members of the family who were particularly referred to were the wife and younger (15-year-old) daughter. The other three children of the family are aged 19, 22 and 25.

So far as the mother was concerned, she would undoubtedly accompany her husband back to Turkey. She would immediately be separated indefinitely from her older daughter and two infant grandchildren. She would also be separated from her two sons. It was likely that - either immediately or in the course of two or three years - she would be parted from her younger daughter. The family would thus be split for many years and perhaps for ever.

The younger daughter might accompany her mother and father back to Turkey but, if she did so, she would be going to an alien environment. She could neither speak nor write Turkish and would be leaving all her friends and her other immediate relatives. The effect on her education and thus on her chances of employment in future could only be adverse.

On the other hand arrangements could be made for her to stay with other relatives in Australia, or perhaps to return to Australia in two or three years time. This would involve indefinite separation from her parents.

This evidence has to be seen against the background of a family which, by all accounts, has until now been closely-knit.

In my view these circumstances raise very important considerations which should be given great weight by any authority called upon to recommend or decide upon the issue of deportation.

Counsel argued that these factors of family disintegration and hardship to innocent members of the family must, as a matter of law, be given special weight, which could be categorized as paramount, compelling or of a different order from other relevant factors.

On the other hand it was conceded that in cases involving national security, or the risk of repetition of serious crime, such factors could outweigh even these vital family considerations. It was also conceded that the weight to be given to the factor of family disintegration would depend on such matters as the cohesiveness of the particular family, the distance of the country of origin from Australia and the ages of the children.

In developing his argument about the special weight to be given, in appropriate cases, to the considerations referred to, counsel relied upon statements by Brennan J. in Re Pochi (1979) 26 ALR 247 at 275, Deane J. in Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 p.647-8 (see also Lockhart J. at p.652), Davies J. in Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALD N129 and Fisher J. in Re Georges and Minister for Immigration and Ethnic Affairs (1978) 1 ALD 331 at 339.

Counsel also referred to a statement of the Court of Appeal in an English deportation case, Reg. v Nazari (1980) 1 WLR 1366 at 1374, to the effect that "This Court and all other courts would have no wish to break up families or impose hardship on innocent people".

However none of the judgments referred to suggested that the factors of family break-up, or of hardship to innocent members of the family, should be regarded as being over-riding, or different in their legal effect from other factors to be considered.

The only authority for such a suggestion is to be found in statements by Murphy J. in the recent unreported decision of the High Court in Pochi v Macphee & Anor, 22 October 1982. His Honour there said that where "an alien migrant has a family (spouse and children) living with him in Australia, exercising the (Minister's) power so as to break-up the family would be inhumane and uncivilized". His Honour went on to say that in his opinion s.12 of the Migration Act "does not permit the Minister to order the deportation of the plaintiff in circumstances which would either break-up his family or compel his wife and children, who are Australians, to leave Australia".

Pochi's Case, where the wife was a naturalized Australian and the children had been born here, was obviously a stronger case than the present one, but the basic principle would still apply.

Counsel for the appellant did not argue that Murphy J.'s judgment meant that this Court should hold, as a matter of law, that there could be no valid deportation order in cases involving family break-up.

Counsel rather relied on his Honour's judgment to argue that family disintegration is such an important factor that it must prevail to prevent deportation in all but the worst of cases - and this was not such a case.

In developing this argument, counsel referred to the Human Rights Commission Act 1981, which came into force after the Tribunal began hearing the present case but before the hearing finished. It was not drawn to the attention of the Tribunal.

The International Covenant on Civil and Political Rights is set out in a Schedule to the Act, to be used as a yardstick for domestic laws and practices, but it is not made part of the laws of this country.

The most relevant Articles of the Covenant for present purposes are Articles 13, 23(1) and 24(1).
Article 13 reads "An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority."

This requirement is clearly met by the provision for review of the Minister's decision by the Administrative Appeals Tribunal.
Article 23(1) states that "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State."

Article 24(1) reads "Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State."

Such provisions would act as a reminder, if one were needed, of the importance of the family and of the protection of children in our society.

However I do not believe that such reminders are needed. Of the judicial statements on these matters referred to above, that of Lockhart J. in Nevistic's Case will suffice to illustrate my point. His Honour said,
"One matter that caused me especial concern was whether the Tribunal sufficiently recognized that the effect of the deportation order 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."

I take this to mean that, in the opinion of Lockhart J., the Tribunal in that case had both taken the consideration into account and recognized its importance.

The opening words of that passage from the judgment of Lockhart J. would seem to suggest that, in his Honour's view, the giving of inadequate weight to a consideration which should have great weight could amount to an error of law which would concern an appellate court.

That is the view which I take, and I would express it in three simple propositions -

(1) For the Administrative Appeals Tribunal to ignore an important relevant consideration would clearly amount to an error of law.

(2) The weight to be given by the Tribunal to a relevant consideration will rarely involve any question of law.

(3) If it is clear from published reasons, or from the decision on its face, that very little weight has been given by the Tribunal to a matter which should clearly have been given great weight, that could be so close to ignoring a relevant consideration as to amount to an error of law.

I have had the advantage of reading, in Jenkinson J's draft reasons for judgment, his survey of the authorities dealing with the circumstances in which attribution of false weight to considerations relevant to the exercise of a discretion can amount to an error of law.

Even putting to one side the injunction of Lord Denning M.R. that a right to appeal limited to a 'point of law' should be interpreted widely and liberally (Instrumatic Ltd. v Suprabase Ltd. (1969) 2 All E.R. 131 at 132) I find myself, with great respect, unable to agree with Jenkinson J. that if the wrong weight is given to a relevant consideration and this results in a wrong and unjust discretionary decision, that does not necessarily involve an error of law.

Jenkinson J., while conceding the fineness of the distinction, says that only if the decision is one to which no reasonable mind could have come (or if the misattribution of weight has violated an accepted principle of law) will the fault amount to an error of law.

I have difficulty with this distinction for two reasons. In the first place, if a decision is reached which "no reasonable" judge or tribunal could have reached, it will usually be because a serious error has been made in identifying and giving weight to the various factors requiring consideration in the particular case. Only rarely will it be due to an error of law in the strictest sense - the violation of an accepted principle of law or misinterpretation of an enactment.

I see no difference in principle between the former, more usual, case and one in which the error in identifying and giving weight to factors is apparent from the reasons for decision of the judge or tribunal or from some other material before the appellate court.

The second difficulty I have with the distinction is that to categorize a decision as one which no reasonable judge or tribunal could reach, is merely a pejorative way of saying that the decision is clearly wrong. It will often be apparent that the judge or tribunal member is an eminently reasonable person; all that can be meant is that on the particular occasion he or she has reached an unreasonable result; and to say that is to say no more than that he or she was clearly wrong - in other words that the strong presumption in favour of the correctness of the judge's or tribunal's decision has, to the satisfaction of the appellate court, been displaced.

Thus I would prefer to say that no reasonable mind (in the impersonal, analytical sense in which that phrase is here being used) could come to a wrong and unjust (as distinct from a questionable) discretionary decision. In my view, if it is clear from the reasons stated that no sufficient weight has been given to an important relevant consideration, then an error of law has occurred, the court of appeal must examine closely the way in which the discretion has been exercised, and if it reaches the conclusion that the final result is wrong and unjust it should reverse that exercise of discretion.

This is not to say that, once an error of law is found, the appellate court should necessarily substitute its own discretion for that of the tribunal or judge whose decision is being reviewed. It should continue to give weight to that discretion, which may well have been correctly exercised in spite of the error of law. Obviously, the more serious or numerous the errors identified, the less weight can be attributed to the primary exercise of discretion.

But if the appellate court is satisfied that the error of law has contributed to a result which appears to it to be wrong and unjust, I believe it must allow the appeal.

I do not think that this is such a case. I accept that in deportation cases the breaking-up of a close-knit family is a consideration of major significance. A similar degree of significance should be given to the uprooting of a child from thoroughly familiar Australian surroundings, and the placing of that child into a totally foreign setting, where language, culture and opportunities for personal development are completely different.

It is clear that the Tribunal in this case recognized the hardships involved and I am not satisfied that it undervalued them to the point where it could be said to have erred in law.

In its lengthy and carefully stated reasons for its decision, the Tribunal dealt with the proper role in its deliberations of the Ministerial guidelines applying to cases such as the present and with the nature of the applicant's offence. The history of the family was also set out in appropriate detail.

Although, as I have said, Counsel expressly made no point of hardship to the applicant, it is worth noting that McGregor J. found him to have been a man "of sterling character" before he began to grow marijuana in large commercial quantities, following the total failure one year of his grape crop. He was detected before he could harvest the plants, but, until the hearing before the Tribunal, failed to tell the full story of the man who had promoted the criminal venture. By that time the man was beyond the reach of Australian authorities.

So far as the family situation was concerned, it was conceded by counsel for the Minister before the Tribunal "that there would be hardship upon (the applicant) and on his family, including his wife, if he were deported."

Counsel for the applicant urged upon the Tribunal the cultural differences between Australia and Turkey, but did so in the context of an argument, not repeated before this Court, that absorption into the Australian scene put the applicant beyond the reach of a deportation order. He made no very special point, as he has before this Court, of the hardship to innocent members of the family which would be caused by the deportation.

In his findings his Honour stated
"There would be some loss to the Australian community if applicant were deported; and, further, if any members of his family also left Australia. There would also be hardship to him and his family. For example, any of the family who returned to Turkey with him would suffer the disadvantage of having to live in a country which they had not chosen; and the frustration of not continuing to remain here where they hope to be established and wish to make their home. There might be language and cultural difficulty with the youngest girl, Yesim; less with other members of the family; and separation of any who did return to Turkey from those members of the family (including his brother Guven) who would stay here. But certainly two (and, almost certainly, I consider, three) children will remain. Mrs. Oguskay (married daughter) and Alifer Tabag (son) confirmed this. Tanfer Tabag (son) said he is engaged to an Australian girl; that if his father is deported (and his mother goes back with him) he would "stay for a while and then have to think things over". I would expect he would remain here if the applicant is deported. I consider arrangements might well be able to be made for the daughter, Yesim, to remain here; yet then she would lose her parents' care and attention; if she went with them she would do so against her inclination otherwise. Perhaps when more adult she might return here."

As a matter of emphasis it might be thought that in this passage his Honour has understated the probably serious effects on the wife and younger daughter of the family break-up.

The Ministerial guidelines, to which his Honour then refers, speak of the interests of the Australian community in deporting persons convicted of producing or trafficking in illicit drugs heavily outweighing in almost all cases "considerations arising from the circumstances of the offender and the circumstances of people whose interests are affected by deportation."

They go on to provide,
"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."

The following paragraph specifies that "the presence in Australia of the offender's spouse or children, whether Australian or not", need not be regarded as a compelling circumstance within the meaning of para 10, but it should be taken into account.

His Honour having referred to these guidelines then stated the way in which, in accordance with authority, he proposed to give weight to them and the Minister's application of them to the particular case, without allowing either to control his decision in the matter.

He next considered the related questions of deterrence of others and consistency of decisions. He said, in effect, that the Turkish Community in the Mildura area, where the applicant was well-known, would pay particular attention to the result in this case, particularly since a Mr. Degerli had recently been deported for a similar offence.

His Honour then said that there were aspects of the two cases which were "materially different e.g. Degerli and his wife were much younger than the applicant and have no children." He went on to point to other differences which, except for length of time in Australia, were heavily in favour of the present applicant. He had earlier quoted counsel for the Minister as submitting that it would be "almost verging on the capricious" not to deport the applicant after Degerli had been deported. His Honour obviously gave weight to this contention when he went on to speak of the need for an evenhanded approach.

This is the segment in his Honour's reasons which has caused me most concern. I would myself have thought that the difference between merely returning husband and wife to the country from which they both came several years after marriage and, additionally, breaking-up a cohesive family and either separating a fifteen year old girl from her parents or forcing her to live in a totally alien environment, were so great as to destroy all comparison.

My concern that this treatment of the requirement of evenhandedness could demonstrate an insufficient weighting of the factor of family break-up is not greatly allayed by his Honour's final summary of all issues. He says
"I have given due weight to recidivism, hardship which might befall this community, applicant and others who would be affected by his deportation and balanced such matters against countervailing factors if he remained here . . . .
In my view, the best interests of Australia will be served if the applicant is deported . . . . "

It is argued by counsel for the appellant that these passages in his Honour's reasons show so little regard to the effects on innocent members of the family as to amount to an error in law in the sense I have discussed earlier.

However I recognize that the weight given by his Honour to this factor cannot be measured by the number of lines in his decision devoted to it, nor by the presence or absence of a form of words duly reciting the importance of family life. Since his Honour did not overlook such matters, or dismiss them as being comparatively unimportant in this case, I am unable to say that he erred in law in treating them (as he did) as subsidiary to the public interest in deterring marijuana production. The appeal must therefore be dismissed.

I would, however, express the hope that, before the Minister is called upon to make a final decision in this matter, he will have an opportunity to consider the views expressed by this Court on the very great significance of family cohesion and the rights of innocent members of families such as that of the appellant.

JUDGE2

This is an appeal from a decision of the Administrative Appeals Tribunal, constituted by Mr. Justice McGregor, given on 30 March, 1982 affirming the decision of the Minister of State for Immigration and Ethnic Affairs, dated 9 April, 1981, that Ahmet Tabag (the appellant) be deported from Australia. Since the filing of the notice of appeal on 16 April, 1982, the Full High Court has decided (on 22 October, 1982 - not reported) the case of Pochi v The Honourable Ian Malcolm Macphee and another and as a result the appellant has not pursued certain of the original grounds of appeal.

The appellant was convicted in June 1979 under s. 32 of the (Vic.) Poisons Act 1962 of the offence of trafficking in a drug of addiction (indian hemp) without being authorised or licenced under that Act to do so. He was sentenced by Chief Judge Whelan to be imprisoned for seven years with a minimum period of five years before being eligible for parole - a sentence which, on appeal, was reduced by the Full Court of the Supreme Court of Victoria to one of five years with a minimum non-parole period of three years. The appellant was released on 11 June, 1981 and returned to work on his land at Koorlong. It was common ground before the Tribunal that his parole period will expire on 11 June, 1983.

During the hearing before this Court application was made for leave to add four grounds of appeal, namely, grounds 9, 10, 11 and 12 and to add words to grounds 1, 4, 5, 6 and 7. Ground 1 of the notice of appeal was not pressed separately from ground 9. Grounds 2 and 3 were abandoned. Ground 4 was that the Tribunal "attached in substance undue importance to policy statements of the Minister of State for Immigration and Ethnic Affairs to the deterrence of others to such an extent that it reached a conclusion that was not reasonably open to it on the evidence before it".

In considering the grounds of appeal and in particular the submissions that the Tribunal "attached in substance undue importance to policy statements" (ground 4), failed to take "any adequate account" (ground 5), and failed to have "due regard" to other matters (grounds 9, 10,11 and 12), it is important to bear in mind the function of this Court, which is to hear an appeal limited to a question of law (s. 44 Administrative Appeals Tribunal Act 1975). As Deane J. said in Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 F.L.R. 325 at 333 :-
"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."

I consider that in hearing an appeal from the Tribunal on "a question of law" it is not open to this Court to allow the appeal on the basis that in its opinion the Tribunal attached "undue" importance to one matter or failed to have "due" regard to another matter. The question of what weight should be given to "government policy" or to any other relevant consideration is a matter for the Tribunal. As Bowen C.J. and Deane J. said in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 F.L.R. 409 at 420-421 :-
"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 compromise, 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."
In Steed v Minister for Immigration and Ethnic Affairs (1981) 37 A.L.R. 620, in dealing with an appeal from a decision of the Tribunal which affirmed the decision of the Minister to deport, a differently constituted Full Court (Fox, McGregor and Morling JJ.) also referred to the role of the Tribunal in considering what weight should be given by it to government policy and said (at 621, 622) :-
"What he did was to identify the significant parts of the policy relevant to the appellant's situation, consider for himself the weight which should be given to this policy and apply it to the facts of the instant case. . . .
We have said that this appeal did not involve a question of law. It was in fact an invitation to us to become involved in factual considerations, and this we must deprecate. The application of the Minister's policy was a factual consideration for the Tribunal. The proposition that failure to take into account a material consideration is an error of law must be properly understood and used in relation to that which is truly material."

On the question of the proper role of this Court in hearing appeals from the Tribunal and the desirability of a restrained approach, I adopt with respect the opinion expressed by Fisher J. in Blackwood Hodge (Australia) Pty. Ltd. v Collector of Customs (New South Wales) (1980) 47 F.L.R. 131 at 145 :-
"It is my firm view that this Court when hearing appeals from a Tribunal constituted for the purpose of reviewing decisions of this nature, should adopt a restrained approach. Parliament contemplated that only in exceptional circumstances should the decision of the Tribunal not be the final decision. This does not mean that when an error of law is identified, the court should be reluctant to intervene. In fact, it is under a duty to do so. Rather it should heed the comments of Davies L.J. (as he then was) in R. v Industrial Injuries Commissioner; Ex parte Amalgamated Engineering Union (No. 2) ((1966) 2 Q.B.31): "I should like to echo the words of my Lord, Lord Denning M.R., in saying that I deprecate the practice, and hope it would not continue, of attempting to magnify or inflate questions of fact into questions of law and of trying to obtain decisions from the courts on matters which the legislature would appear to have thought suitable for decision by the various bodies and authorities set up under the Act of 1946" ((1966) 2 Q.B., at p. 50)."

In any event, in my opinion an examination of the reasons for decision of the Tribunal does not give any support to the contention that the Tribunal attached "undue importance" to any policy statement. In this connection the Tribunal said :-
"The Tribunal may, and should, I find, in this review, give weight to the Government Policy mentioned earlier. The heading in it which precedes, and paragraphs 8, 9 and 10 following, are relevant, though I do not accept uncritically everything which appears there . . .
To this Policy, I am entitled to give weight though not fetter my discretion. Nor can it be allowed to insist on a conclusion in some automatic fashion, without personal evaluation. But it may assist in an overall conclusion."

Ground 5 was that the Tribunal had failed to take any adequate account of various matters including the hardship to the appellant's wife and family, a matter upon which the appellant placed very great reliance. The appellant, who was born in Turkey 45 years ago, came to Australia in 1970 with his wife and their four children who had been born in Turkey in 1957, 1960, 1963 and 1967 respectively. There was no dispute between the parties that there would be hardship upon his wife and family. The Tribunal said that it had been conceded by the respondent Minister "that there would be hardship upon him and on his family, including his wife, if he were deported". It also referred to the submission put to it on this matter by the appellant's counsel and then said :-
"There would also be hardship to him and his family. For example, any of the family who returned to Turkey with him would suffer the disadvantage of having to live in a country which they had not chosen; and the frustration of not continuing to remain here where they hope to be established and wish to make their home. There might be language and cultural difficulty with the youngest girl, Yesim; less with other members of the family; and separation of any who did return to Turkey from those members of the family (including his brother Guven) who would stay here. But certainly two (and, almost certainly, I consider, three) children will remain. Mrs. Oguskay (married daughter) and Alifer Tabag (son) confirmed this. Tanfer Tabag (son) said he is engaged to an Australian girl; that if his father is deported (and his mother goes back with him) he would "stay for a while and then have to think things over". I would expect he would remain here if the applicant is deported. I consider arrangements might well be able to be made for the daughter, Yesim, to remain here; yet then she would lose her parents' care and attention; if she went with them she would do so against her inclination otherwise. Perhaps when more adult she might return here . . . .
There could be, for example, economic loss to those of the family who stayed, i.e. of financial support they might have received from the applicant."

The appellant argued that the Tribunal had not given adequate weight to the hardship to the appellant's family that would result from the deportation of the appellant. Counsel described this as an over-riding factor and as being different in kind from the other matters which were relevant to the Tribunal's decision. I am unable to uphold that contention. The weight to be given to that factor is a matter for the Tribunal - not for this Court. The passages which I have quoted from the reasons for decision show that the Tribunal, in considering its decision, did weigh the matters relating to hardship to the family against the other factors. Moreover, his Honour said :-
"Still, there remains for the Tribunal the duty to exercise an independent discretion referred to in s. 43 of the Act quoted above and guided by the principles cited from the Drake appeal also referred to at page 7 hereof. I have given due weight to recidivism, hardship which might befall this community, applicant and others who would be affected by his deportation and balanced such matters against countervailing factors if he remained here.
I do not attempt to recapitulate all arguments or refer to all the evidence. I have found assistance from the words of Brennan J. in Re Drake (No. 2) at p. 645 and what is accepted in Nevistic as an acceptable approach to a consideration of the Government Policy."
If, contrary to the opinion which I have expressed, it were open to this Court to consider whether the Tribunal gave "adequate" weight to those matters I would be quite unable, on my examination of its reasons for decision, to reach the conclusion that the Tribunal failed to give adequate weight to those matters.

The Tribunal's reasons for decision show that it expressly took into account the other matters raised by ground 5, including the appellant's remorse, the low risk of recidivism, the loss to Australia of the appellant and the possible loss of other members of his family, the fact that the appellant had not completed his parole period and the related question of his rehabilitation. I deal later with the question of the desirability of consistency. Counsel for the appellant said that ground 5 depended upon the conclusion that the Court reached upon the proposed new grounds 9, 10 and 11. Those new grounds are set out in the reasons for judgment of Jenkinson J. . I have had the advantage of reading his reasons for judgment and agree with them as to each of those grounds. I also agree with the observations there made by Jenkinson J. as to the views expressed by Murphy J., in Pochi v Macphee and anor. (supra), and with his reasons for judgment as to ground 12.

Grounds 6, 7 and 8 may be taken together. In the form as to which leave is sought to amend they are as follows :-
"6. The Administrative Appeals Tribunal misapplied the consideration of the desirability of making a decision consistent with other decisions of the Tribunal to such an extent that it reached a conclusion that was not reasonably open to it on the evidence before it.

7. The Administrative Appeals Tribunal wrongly treated its decision in the case of Degerli as requiring for consistency that this Applicant should be deported and failed to give any or any sufficient weight to the dissimilarities between the two cases to such an extent that it reached a conclusion that was not reasonably open to it on the evidence before it.

8. The Administrative Appeals Tribunal failed to have regard to other decisions made by it which required as a matter of consistency that this Applicant should not be deported."
In my opinion none of those grounds is supported by an examination of the Tribunal's reasons for decision. In expressly rejecting a submission, advanced on behalf of the respondent Minister, that it would be "almost verging on capricious" not to deport the applicant having regard to what had happened in another case to Mr. Degerli, the Tribunal said :-
"It is trite to say that one cannot decide one case (or review) merely by reference to the facts in another. If that approach were appropriate I would find there are aspects of the two reviews which are materially different."
It is true that, after giving some examples of material differences between the case of the present appellant and that of Mr. Degerli, the Tribunal said :-
"Though it would not be appropriate to uphold deportation of the applicant because Degerli, in a case with similarities, has been deported, I bear in mind that the application of the provisions of the Migration Act 1958 ought be, and appear to be, particularly to those who are in the category who can be affected by that application, evenhanded."
However, in my opinion his Honour was there saying no more than that, in considering the matters, he applied the principle that his decision should "be, and appear to be, . . . evenhanded". Both the context and the passage quoted from the decision of Brennan J. in Re Drake (No. 2) (1979) 2 A.L.D. 634 at 639, make it clear that his Honour was concerned to avoid "an arbitrariness which is incompatible with commonly accepted notions of justice". Further the passage which he quoted from Deane J. in Nevistic v Minister for Immigration and Ethnic Affairs (supra) included the statement that "the desire for consistency should not be permitted to submerge the ideal of justice in the individual case". Having regard to the matters dealt with in his Honour's reasons for decision I regard grounds 6, 7 and 8 as having no substance.

I would grant the appellant's application for leave to add the proposed new grounds 9 and 12. I would also grant leave for the amendments to grounds 1, 4, 5, 6 and 7 of the grounds of appeal which are proposed to enable the appellant to contend that the Tribunal "reached a conclusion that was not reasonably open to it on the evidence before it". I would also grant leave to add the proposed new grounds 10 and 11 to the extent to which those amendments seek to advance the same contention. However, in my opinion that contention in each of the grounds is unsound and it was open to the Tribunal to reach that conclusion. Except to the extent stated I would refuse to grant the appellant's application for leave to amend his grounds of appeal by adding the proposed new grounds 10 and 11 because in my opinion a contention that "the Tribunal failed to have due regard to" certain matters does not raise any question of law for determination by this Court. However, as I have already said, in any event the proposed contentions have not been substantiated.

No error of law by the Tribunal having been shown, the appeal should be dismissed.

JUDGE3

Appeal pursuant to S.44 of the Administrative Appeals Tribunal Act 1975 from a decision of the Administrative Appeals Tribunal constituted by a presidential member alone, the Honourable Mr. Justice McGregor.

The appellant Ahmet Tabag, is the subject of an order made by the respondent Minister on 9 April 1981 that Mr. Tabag be deported. The order was made in purported exercise of the power conferred by S.12 of the Migration Act 1958 on the Minister to order the deportation of an alien who has been convicted in Australia of an offence for which the alien has been sentenced to imprisonment for one year or longer. The appellant admits that he is an alien who was so convicted and sentenced in June 1979. He invoked the exercise of the function conferred on the Administrative Appeals Tribunal by S.25 of the Administrative Appeals Tribunal Act 1975 and S.66E of the Migration Act 1958 to review the respondent Minister's making of the order for his deportation. That Tribunal affirmed the Minister's decision.

When the hearing of this appeal commenced application was made by Mr. Liddell Q.C., who appeared with Mr. Kemelfield for the appellant, that amendment of the notice of appeal be allowed. (See Order 53, Rule 4(2)). The proposed amendments, no less than the original notice, raised doubt as to whether in all respects the appeal was on questions of law. (See S.44(1) of the Administrative Appeals Tribunal Act 1975). The court therefore reserved its decision of the application, in order to obviate a possible consequence of the grant of leave to amend in the terms proposed: that a ground of appeal allowed by the court to be included in the notice was in the court's final judgment held to raise no question of law.

The grounds of appeal numbered 1, 2 and 3 in the document proposed as the amended notice of appeal were abandoned. The ground numbered 4 is in these terms:
"That the Administrative Appeals Tribunal attached in substance undue importance to policy statements of the Minister of State for Immigration and Ethnic Affairs to the deterrence of others to such an extent that it reached a conclusion that was not reasonably open to it on the evidence before it".

Mr. Liddell's submissions did not place this ground in the forefront of his case. But it may conveniently be considered first in relation to the requirement that the appeal be on questions of law.

In Instrumatic Ltd. v. Suprabase Ltd. (1969, 1 W.L.R. 519; (1969) 2 All E.R. 131 Lord Denning, M.R. said:
"The Official Referee made an order dismissing this action for want of prosecution. The plaintiffs seek to appeal to this court. The defendants take a preliminary point. They say that an appeal to this court lies only on a point of law; and that there is no point of law here. The official referee, they say, exercised his discretion; and the manner of its exercise is not a point of law.
There are many tribunals from which an appeal lies only on a "point of law"; and we always interpret the provision widely and liberally. In most of the cases the tribunal finds the primary facts (which cannot be challenged on appeal); and the question at issue is what is the proper inference from those facts. In such cases, if a tribunal draws an inference which cannot reasonably be drawn, it errs in point of law, and its decision can be reviewed by the courts. That was settled, once and for all, in Edwards (Inspector of Taxes) v. Bairstow (1956) A.C. 14; (1955) 3 All E.R. 48. In other cases the question is whether, given the primary facts, the tribunal rightly exercised its discretion. In such cases, if the tribunal exercises its discretion in a way which is plainly wrong, it errs in point of law, and its decision can be reviewed by the courts. The courts can review the discretion of a tribunal, just as they can review the discretion of a judge in chambers, and on like grounds. The principles stated in Ward v. James (1966) 1 Q.B. 273 at p.293; (1965) 1 All E.R. 563 at p.570 apply as much to the discretion of a tribunal as to the discretion of a judge".

In that case Edmund Davies L.J. said:
"I agree. Whether there was material justifying the court in exercising its discretion by way of dismissing an action for want of prosecution is, in my judgment, clearly a matter of law. There is nothing in the decision of Theo. Conway, Ltd. v. Henwood (1934), 50 T.L.R. 474, to the contrary. The central point of the present appeal was never canvassed there at all. That being so, it follows that under R.S.C., Ord. 58, r.5, an appeal does lie to this court against the official referee's decision that the plaintiffs' claim, like that of the defendants' counterclaim, be dismissed.

The only question, accordingly, is on what ground the official referee should have proceeded. The proper approach in such a case was considered at length in Ward v. James (1966) 1 Q.B. 273 at p.293; (1965) 1 All E.R. 563 at p.570 and the principal authorities were collected by Lord Denning, M.R. . Perhaps I may be permitted a brief extract from one of the cases there cited, viz., Charles Osenton & Co. v. Johnston (1942) A.C. 130 at p.138; (1941) 2 All E.R. 245 at p.250, where Viscount Simon, L.C., said:

'The law as to the reversal by a Court of Appeal of an order made by the judge below in the exercise of his discretion is well established, and any difficulty which arises is due only to the application of well-settled principles in an individual case. The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. If, however, the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion, in that no weight, (and I particularly stress the following words) or no sufficient weight, has been given to relevant considerations such as those urged before us by the appellant, then the reversal of the order on appeal may be justified".

The touchstone on this topic is, in my judgment, to be found in one sentence of Bowen, L.J., in Gardner v. Jay (1885) 29 Ch.D 50 at p.58. Discussing the discretion of a judge in regard to the mode of trial, he said:

'That discretion, like other judicial discretions, must be exercised according to common sense and according to justice, and if there is a miscarriage in the exercise of it it will be reviewed . . . '"

Phillimore, L.J. said:
"I agree. The question of whether the learned official referee exercised his discretion correctly in this case is a pure question of law. There was absolutely no dispute as to the facts on which he had to exercise his discretion."

The reasoning of the three members of the Court of Appeal might be thought to assimilate the function of a court exercising an unfettered appellate jurisdiction by way of rehearing and the function of a court exercising the jurisdiction to entertain an appeal only on a question of law. Ward v. James, Charles Osenton & Co. v. Johnston and Gardner v. Jay concerned the former function. In the very case from which Edmund Davies L.J. cites a passage in the speech of Viscount Simon L.C. the distinction between the two functions is in my opinion plainly drawn. Lord Wright said in that case ((1942) A.C. at 142-143):
"My Lords, this appeal raises a question which is always embarrassing to an appellate court - namely, whether it should reverse an order made by the judge on a matter of discretion. But there is in general a statutory right of appeal from such orders, and, as Brett L.J. wisely observed as long ago as 1882 in Ormerod v. Todmorden Joint Stock Mill Co., Ltd.8Q.B.D. 664, 679:

'If we have the jurisdiction to review it seems to me that the legislature places the discretion in this court on an appeal in the place of the discretion of the learned judge, who, this court thinks has not exercised his discretion rightly. This court lays down for itself the rule, which I think is the right one, that it will not exercise its own discretion unless it thinks the case is perfectly clear.' This House, in Evans v. Bartlam (1937) A.C. 473, had to consider the problem, and reached a similar conclusion. In the Court of Appeal in that case the opinion had been expressed that the court had no power to interfere with the exercise of the judge's discretion unless the court thought he had acted upon some wrong principle of law. Lord Atkin thus dealt with the matter (1937) A.C. 480: 'Appellate jurisdiction is always statutory; there is in the statute no restriction upon the jurisdiction of the Court of Appeal; and while the appellate court in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of the judge's discretion except on grounds of law, yet if it sees that on other grounds the decision will result in injustice being done it has both the power and the duty to remedy it'. I think, however, it would be a mistaken interpretation of the noble and learned Lord's opinion to attach undue emphasis to the words 'normally' and 'will' in the passage I have quoted. No doubt the appellate tribunal has a simpler task if it sees that the judge has proceeded on a wrong view of the law, but Lord Atkin was clearly not intending to limit the appellate jurisdiction to cases of error in law by the judge. Indeed, strictly speaking, there is in such cases no true exercise of discretion. Nor did Lord Atkin use the word 'will' as involving certainty, or even what is called moral certainty. The context, I think, shows that all he meant was 'may', that is, that there is a reasonable danger of injustice. This view of Lord Atkin's meaning seems to me to be justified by his opinion as a whole and the opinions delivered by the other Lords in that Appeal".

The passage from the speech of Lord Atkin in Evans v. Bartlam which Lord Wright sets out immediately follows this sentence (1937) A.C. at 480):
"But while the judge has such a discretion as I have mentioned I conceive it to be a mistake to hold, as Greer L.J. seems to do, that the jurisdiction of the Court of Appeal on appeal from such an order is limited so that, as the Lord Justice said, the Court of Appeal "have no power to interfere with his exercise of discretion unless we think that he acted upon some wrong principle of law."

The distinction is, I think, recognised by Kitto J. in Lovell v. Lovell (1950) 81 C.L.R. 513 at 532-534:
"The decision of this appeal appears to me to depend upon an appreciation of the function of an appellate tribunal in reviewing a judgment given in the exercise of a discretion. It may be, as Jordan C.J. said in In re Will of Gilbert (1946) 46 S.R. (N.S.W.) 318 at p.323, 63 W.N. 176, at p.179., that the restraint to which a court of appeal should submit itself is less stringent where the exercise of discretion is determinative of legal rights than it is where the discretion relates to points of practice or procedure. But even in the former case the court of appeal must guard against reversing a discretionary decision merely because it would itself have decided the matter differently; it is not justified in substituting its own judgment for that of the primary judge unless it is clearly satisfied that his judgment was erroneous.

If the judgment is affected by an error in point of legal principle, of course the error may be corrected. But leaving on one side mistakes of law (for it is conceded on all hands that the learned primary judge made no such mistake in this case), it is true to say of any appeal (other than one which is a rehearing in the Quarter Sessions sense of the term) that the onus of showing that the decision under appeal was wrong lies upon the appellant: Powell v. Streatham Manor Nursing Home (1935) A.C. 243, at pp. 249,255. The onus is particularly heavy where an attack is made upon findings of fact made by a judge who had the advantage of seeing and hearing the witnesses; in such a case each judge of the appellate court must put to himself the question: 'Am I-who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case-in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong?': Watt or Thomas v. Thomas (1947) A.C. 484 at p.488. And the onus is similarly heavy where the appeal is against an exercise of a discretion. 'A clear conclusion that the judge . . . was plainly wrong' is the sole justification for a reversal of his decision.

In the cases on the subject a variety of expressions is to be found describing grounds upon which such a clear conclusion may be formed in a discretion case. Lord Simon, in Blunt v. Blunt (1943) A.C. at p.526, spoke of 'a misapprehension of fact in that it (the primary court) either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant'. His Lordship also quoted Lord Wright's statement in Charles Osenton & Co. v. Johnston (1942) A.C. at p.138, that 'if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations . . . then the reversal of the order on appeal may be justified'. The proposition that the appeal court will consider whether 'no sufficient weight' has been given to relevant considerations is not inconsistent with the principle that the appeal court does not deal with the appeal as if it were exercising the original jurisdiction: even if it considers that insufficient weight has been given to some relevant consideration, it will still not substitute its judgment for that of the primary judge unless it comes clearly to the conclusion for that reason that the discretion has been exercised wrongfully. Lord Atkin, in Evans v. Bartlam (1937) A.C. 473 at p.481, said that if the appellate tribunal 'sees that on other grounds (i.e. other than grounds of law) the decision will result in injustice being done it has both the power and the duty to remedy it'; and Lord Wright in Osenton's Case (1942) A.C. at p.143, interpreted this as applying when there is a reasonable danger of an injustice. But it is to be noticed that Lord Wright prefaced his judgment, (1942) A.C. at p.142, with a quotation from Ormerod v. Todmorden Joint-Stock Mill Co. Ltd., (1882) 8 Q.B.D. 664 at p.679, in which Brett L.J. said that 'This court lays down for itself the rule, which I think is the right one, that it will not exercise its own discretion unless it thinks the case is perfectly clear', and later in his speech Lord Wright used words, (1942) A.C. at pp. 147-148, which I think are important: 'I have already explained that, in my opinion, when the statute gives a right of appeal from an order made by a judge in exercise of his discretion and an appeal is taken, the discretion of the appellate court is substituted for that of the judge, as Brett L.J. pointed out in the passage which I have quoted above. The responsibility of deciding is then placed on the appellate court. No doubt that court starts with the presumption that the judge has rightly exercised his discretion. It must be satisfied that the exercise was wrong - 'clearly satisfied' is the phrase used; but if the court is said to be satisfied, it must mean that it is 'clearly' satisfied. 'Clearly' strictly adds nothing though it is useful to emphasize the strength of the presumption in favour of the judge's order being right. The appellate court must not reverse the judge's decision on a mere 'measuring cast' or on a bare balance".

Appeals from the English County Court to the Court of Appeal were limited by s.105 of the County Court Act 1934 to "the determination or direction of the judge in point of law or equity or upon the admission or rejection of any evidence". The effect of the limitation was lucidly expounded in the dissenting judgment of du Parcq, L.J. in Dick v. Piller (1943) K.B. 497 and in that learned judge's reasons for the judgment of the Court of Appeal in Henderson v. Clifford Watmough & Co. (1939) 161 L.T. 233, which was applied by the Full Court of the Supreme Court of New South Wales in Green v. Upton Pty. Ltd. (1958) 76 W.N. (N.S.W.) 116.

In Henderson's Case the Court of Appeal said:
"The appellant seeks to set aside a judgment of a county court judge whereby the sum of 852 was awarded to her as damages in an action brought by her against the defendants in respect of personal injuries due to their negligence. The defendants having admitted liability, the only matter in issue before us was the amount of the damages.

This Court has no jurisdiction to review the decision of the learned judge unless he has erred 'in point of law'. Error in law may be apparent on the face of the judgment, or it may be demonstrated by necessary inference from the record of the proceedings. If it is manifest that the judge 'must have decided' a matter of law erroneously, this court is entitled, and indeed bound, to revise his decision: (see Cawley v. Furnell (1851), 12 C.B. at p.302).

The principles of law applicable to the present case, were (1) that certain well-recognised kinds of damage should be taken into consideration; (2) that such a sum should be awarded by way of damages as would reasonably compensate the plaintiff. It is conceded that there is no ground for saying that the learned judge in this base omitted to take any particular head of damage into consideration. What is said is that the sum which he awarded was so inadequate that he must have come to an erroneous decision on some unspecified point of law. The plaintiff was a worker in a factory seventeen years of age. The injuries which she suffered necessitated the amputation of two joints of the second finger of her right hand. The special damage proved amounted to 16 pounds: so that the sum awarded to compensate her for her permanent disability, with all its possible consequences, and for her pain and suffering was only 69 pounds.

If it be granted for the sake of the argument that the sum arrived at by the learned judge was insufficient to compensate the plaintiff, it may be said to follow that the learned judge fell into error, but it by no means follows, in our opinion, that his decision was wrong 'in point of law'. In order to arrive at the total sum to be awarded a judge must first make up his mind what facts are proved, and he must then be guided by his knowledge of the world and of social conditions, and, to use the phrase of Field, J. in Phillips v. London and South-Western Railway Company ((1879) 5 Q.B. Div. at p.79): 'reasonable common sense'. In other words, the question is eminently one of fact. It is of course, possible that a judge may sometimes form a mistaken view on such a question of fact, and it is even probable that any view which he may form will not commend itself to every other judicial mind; but so far as the county courts are concerned, his decision on facts is unassailable in this court. In this case we can find nothing to justify the inference that the learned judge, supposing him to have been wrong, erred in point of law. We are therefore, clearly of opinion that this appeal cannot be entertained and must fail.

We would only add that in our opinion it is not useful to consider in this connection decisions as to the duty of this court in considering appeals against the verdict of a jury or a decision of a judge of the High Court sitting without a jury. The rules laid down as to the decisions of juries (see per Greer, L.J. in Roach v. Yates, (1938), 1 K.B. at p.360) show that this court, when not bound by any statutory provision such as that applicable here, will in a proper case, set aside a decision which may truly be said to be one of fact."

The reference to the process of inferring error of law from the patent unreasonableness of the decision under appellate review recalls to mind what Lord Radcliffe said in Edwards (Inspector of Taxes) v. Bairstow (1956) A.C. 14 at 35-36, speaking of cases stated by Commissioners for the General Purposes of the Income Tax:
"I think that the true position of the court in all these cases can be shortly stated. If a party to a hearing before commissioners expresses dissatisfaction with their determination as being erroneous in point of law, it is for them to state a case and in the body of it set out the facts that they have found as well as their determination. I do not think that inferences drawn from other facts are incapable of being themselves findings of fact, although there is value in the distinction between primary facts and inferences drawn from them. When the case comes before the court it is its duty to examine the determination having regard to its knowledge of the relevant law. If the case contains anything ex facie which is bad law and which bears upon the determination, it is obviously erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three, since I think that it is rather misleading to speak of there being no evidence to support a conclusion when in cases such as these many of the facts are likely to be neutral in themselves, and only to take their colour from the combination of circumstances in which they are found to occur."

In Tasmanian Pulps & Forest Holdings Ltd v. Woodhall Ltd (1972) Tas. S.R. 41 what Burbury C.J. there called "the liberal approach of the courts to statutory appellate jurisdiction restricted to points of law" was adopted in construction of the expression "question of law" in S.8 of the Tasmanian Appeals Costs Fund Act 1968. In that case application was made for a certificate of indemnity under that section, which provided that such a certificate might be granted "where an appeal . . . on a question of law succeeds". The appeal in question had been against an order by Nettlefold J. under s.6 of the Arbitration Act 1892 staying proceedings in the Supreme Court of Tasmania. That order was the product of the exercise of a discretionary judgment. The reasoning by which the members of the appellate court had reached their conclusion that the appeal should be allowed is not set out in full, but it would appear that the attribution by Nettlefold J. of relative weight to a consideration relevant to the exercise of the discretion was held to have been erroneous and that for that reason his exercise of the discretion was held to have miscarried. The application by the respondent to that appeal for an indemnity certificate was referred to a Full Court, by which the application was granted, the appeal being held to have succeeded "on a question of law".

There is other authority which supports the conclusion that an attribution of what the appellate court regards as too much or too little weight to a particular consideration relevant to the exercise of a judicial discretion will be regarded as involving an error of law if the misattribution of weight is considered by the appellate court to result in a miscarriage of justice. Dick v. Piller itself may be so regarded, as may Grimshaw v. Dunbar (1953) 1 Q.B. 408. The distinction may be thought fine between persuasion that a decision is wrong and works injustice to a party and persuasion that a decision is one which no person acting judicially - that is, inter alia, reasonably - could, upon the facts found by him, have reached. But I would regard it as a valid distinction, and I would be disposed to the view that misattribution of relative weight to a relevant consideration resulting in a wrong and unjust discretionary judicial decision does not necessarily involve error of law. Error of law will be held to have infected the decision if it is one to which on the facts found no reasonable mind could have come, or if the misattribution of weight to a relevant consideration has violated what may be regarded as a rule or principle of law governing the attribution of relative weight. Such rules tend to develop and to achieve the status of legal principle governing the exercise of judicial discretionary powers which are frequently invoked. Murtagh v. Barry (1890) 24 Q.B.D. 632; Brown v. Dean (1910) A.C. 373; and Grimshaw v. Dunbar (1953) 1 Q.B. 408 provide examples.

It is not the exercise of a judicial discretion which is here in question, and the application to the function conferred on this Court by s.44 of the Administrative Appeals Act 1975 of principles governing the exercise of appellate jurisdiction in relation to curial decisions demands care. (See, for example Collins v. Minister for Immigration and Ethnic Affairs (1981) 36 A.L.R. 598 at 601). And in this case the administrative function under consideration is not - except when the preliminary determination was made as to whether the appellant is an alien whose conviction and sentence were of a description specified in s.12 of the Migration Act 1958 - the ascertainment of a person's right or liability under a law which defines the right or liability by reference to the existence of certain facts. The discretionary judgment to be made is as to the best exercise, in the interest of the Australian community, of a power conferred by the Act to permit or bring to an end the presence in Australia of such an alien. To the exercise of that power many considerations are relevant. After a discussion of some of them, Deane J. observed, in Nevistic v. Minister for Immigration and Ethnic Affairs (1981) 34 A.L.R. 639 at 647-648:
"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."
Not without application to the function Mr. Justice McGregor was called upon to perform in this case, although written of a judicial enquiry as to whether particular conduct was misleading or deceptive, are the following observations by Deane and Fitzgerald JJ. in Taco Company of Australia Inc. v. Taco Bell Pty. Ltd. (1982) 42 A.L.R. 177 at 199-200:
"If the resolution of the question were entrusted to a jury, the question whether a respondent had engaged in conduct of the type described in s.52 would be susceptible of a simple monosyllabic answer without disclosure or record of reasoning processes. Where resolution of the question is entrusted to a court constituted by a judge without a jury, however, it is encumbent upon the court to indicate the process of reasoning which has led to the answer which is given. It is inevitable that that process of reasoning will tend to be worded in the language of the lawyer and that the path to decision of the factual question will be paved with generalizations which, particularly when enshrined in the volumes of law reports, bear a superficial resemblance to formulations of legal principle but which are, in truth, no more than part of an exposed process of reasoning in the course of deciding the question of fact".

The ground of appeal I have quoted may be understood as asserting that the affirmation of the Minister's decision to deport was a conclusion to which on the facts found by Mr. Justice McGregor no person acting judicially - in the sense of reasonably - and making no error of law could have come. So understood, the ground would in my opinion raise a question of law. But if that ground were understood as asserting no more than that an importance unduly great, in the judgment of this Court which the ground invites, had been attached by the Tribunal to the Minister's policy statements as to "the deterrence of others", and that in consequence the Tribunal had reached a conclusion which this Court should consider wrong and unjust, I would doubt whether the ground raised any question of law. Unless this Court is prepared to say that the relative importance of deterrence of others from the commission of drug offences (to which the policy statement contemplated by the ground of appeal refers) is to be the subject of a rule or principle of law, (to be derived from a consideration of the provisions of the Migration Act 1958 and of the purposes for which the power conferred by s.12 exists) with which the Tribunal has failed to comply in exercising its function, a conclusion that the Tribunal's decision was "wrong", and that its decision worked "injustice", and that an attribution of "undue importance" to a particular consideration had contributed to bring that decision about, might be reached without the determination of any question of law, I would be disposed to think.

It is, however, unnecessary that I express a concluded opinion as to what is comprehended by the phrase "on a question of law" in s.44 of the Administrative Appeals Tribunal Act 1975 for the purpose of dealing with ground 4 of the notice of appeal as proposed to be amended. If that ground be understood as asserting no more than that the Tribunal's decision was one which this Court could judge to be plainly wrong, and for the reason stated in the ground, and if the conception of matter of law which has been expounded in Instrumatic Ltd. v. Suprabase Ltd. be adopted, yet I think that ground has not been sustained. The Tribunal's evaluation of the deterrent effect of the appellant's deportation in the particular circumstances of this case is recorded in the reasons for the Tribunal's decision. The evidentiary material shows that evaluation to be reasonable. I do not detect any indication that the importance attributed by the Tribunal to the deterrence of others was "undue" or unjustified. A wide range of opinions may reasonably be entertained on the subject, and on the probable deterrent effect of a particular decision.

Grounds 9, 10 and 11 of the notice of appeal as proposed to be amended are as follows:
"9. The deportation of the Appellant in the circumstances, whereby there will be a break-up of his family, constitutes a misuse of the power under Section 12 of the Migration Act, a breach of the implied conditions of its exercise such that no reasonable Tribunal on the evidence before it could have concluded that the decision of the Minister to deport should be affirmed.

PARTICULARS:
(a) The power to deport under Section 12 of the Migration Act is subject to a qualification that it is not to be exercised without due regard to those affected, which includes not only the person to be deported but also to others who, by family relationship may be affected and that the power must be exercised not cruelly but humanely according to the standards of civilized society.

(b) The power to deport was not in the circumstances exercised with due regard not only to the Appellant but also to the welfare of those who by family relationship or other association may be affected and, in particular, those persons referred to in paragraph 5(ii) hereof, and in all the circumstances amounts to a cruel and/or inhumane exercise of the same and/or a cruel and inhumane punishment and/or a breach of modern civilized standards and/or was not exercised in a humanitarian way and/or in the national interest.

10. The Tribunal failed to have due regard to the consequence that the deportation of the Appellant could lead to a break-up of his family resulting in hardship and injustice to innocent members of it so as constitute a breach of the implied condition of the exercise of its power or alternatively a misuse of its power such that no reasonable Tribunal acting according to law could have reached such a decision.

11. The Tribunal failed to have due regard to the break-up of the family and the consequent effects thereof on innocent members of the appellants immediate family and in particular the resulting hardship and injustice to them which ought to have been treated as a special, compelling or overiding consideration or alternatively given additional weight above all other considerations in his case and by reason of the Tribunal's failure to have such regard to this aspect of the case it reached a decision which was not reasonably open to it on the evidence before it."

The persons to whom reference is made in what is described in the particulars under ground 9 as "paragraph 5(ii) hereof" are the appellant, his wife, his youngest daughter, his son, his grandchildren and his brother's children.

The language in which these grounds are expressed recalls to mind the observations by Murphy J. in Pochi v. MacPhee and Anor. (Full High Court: unreported; judgment 22 October 1982) concerning certain limitations which that learned judge thought were imposed on the power conferred by s.12 of the Migration Act 1958. Murphy J. said, inter alia:
". . . in the absence of unmistakable language to the contrary, every statutory power although not expressly qualified, is subject to unexpressed qualifications. Powers must be exercised not only in good faith and for the purposes for which they are granted, but also with due regard to those affected.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In relation to the power to deport, 'due regard' must be had not only to the person who may be deported, but also to others who by family relationship or other association may be affected. Due regard means that the power must be exercised not cruelly, but humanely according to the standards of civilised society. Although this qualification is applicable to powers generally, it applies particularly to the deportation powers. Australian laws including those for deportation of aliens are intended to express the standards of a civilised humane society. My view in Sillery v. The Queen (1981) 55 A.L.J.R. 509, was that our legal heritage from the English Revolution of 1688 and the resulting Bill of Rights suggests a limitation on law making which prohibits cruel and unusual punishment. Even if Parliament has power to make laws which authorise cruelty, which may be doubted, all Acts should be construed (at least in the absence of unmistakable language to the contrary) as subject to an unexpressed qualification that the power be exercised humanely according to modern civilised standards.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Where, as here, an alien migrant has a family (spouse and children) living with him in Australia, exercising the power so as to break-up the family would be inhumane and uncivilised. The plaintiff's wife and children face the awful dilemma of staying in Australia, so that the family is broken-up, or leaving Australia with Mr. Pochi to live in a foreign country. In Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 A.L.R. 247, Mr. Justice Brennan said of Mr. Pochi:
'. . . it is certain that (his) deportation . . . would destroy or gravely damage a growing Australian family, and that would be a grave detriment not only to them but to Australia. His deportation, separating him from his Australian wife and children or requiring them to accompany him to a country that the children do not know, would be destructive of their prospects in life as well as his . . . I am not persuaded that the applicant's deportation would be in the best interests of Australia.' (At 275).
The breaking-up of a family (or forcing the spouse and children to leave their homeland) is incompatible with the way in which 'a mature and civilized nation should act' as Mr. Justice Deane said in Nevistic v. Minister for Immigration and Ethnic Affairs (1981) 51 F.L.R. 325, at 335). It disregards 'the human aspects of deportation' (see Mr. Justice Smithers, Drake v. Minister for Immigration and Ethnic Affairs (1959) 46 F.L.R. 409, at 430, 434-435).
In my opinion s.12 of the Act is valid but does not permit the Minister to order the deportation of the plaintiff in circumstances which would either break-up his family or compel his wife and children, who are Australians, to leave Australia. To do so would be a misuse of the power, a breach of the implied conditions of its exercise."

The statement that exercise of the power conferred by s.12 "so as to break-up" the family of an alien migrant whose spouse and children are living with him at the time of exercise of the power is inhumane and uncivilised, and therefore lacking in "due regard" to those members of the alien's family, and therefore in breach of an "unexpressed qualification" to which the power is subject, may have been intended to have reference to the particular family of the alien whose deportation was the subject of that case. Or it may be that the statement was intended to be of general application. If it was, I would respectfully decline to accept the general proposition. Judgment of deportation as inhumane or uncivilised would, I think, necessarily wait upon disclosure of many more circumstances than those to which the statement refers, if it be considered as a general proposition and without advertence to the particular facts in Pochi v. MacPhee.

The relevant circumstances in this particular case are disclosed in the reasons for judgment of Woodward J. If the law be as Murphy J. stated it in Pochi v. MacPhee, as to which I need express no opinion except what is written in the preceding paragraph, I find nothing in the circumstances to suggest that the Tribunal's decision was cruel or inhumane or a breach of "modern civilized standards", or to think that the Tribunal's exercise of its function had not been "in a humanitarian way", or was not in the national interest. Careful balancing by the Tribunal of considerations and interests in search of the right decision upon the exercise of the power to deport the appellant seems to me apparent from the reasons for the decision, and suggests to me the very contraries of cruelty, inhumanity and the uncivilised. But if I were moved to conclude that a decision in favour of deportation was cruel or inhumane or uncivilised, by reason of its effect on the welfare of the persons to whom reference is made in the particulars under ground 9 in "breaking-up" the family of which they are members, and if I were dealing with that ground on the footing that such a conclusion would establish as a matter of law that the decision had been reached in breach of a qualification to which the power conferred by s.12 is subject, so that the decision would be legally insupportable, there would yet remain for consideration, in my opinion, the following question: was the conclusion thus expressed in those exprobative terms one at which no person could fail to arrive if he were acting reasonably and on the facts found by the Tribunal. It is to the Tribunal that all the processes of reasoning and fact finding involved in such a conclusion are committed, not to the members of this Court. In particular, the values by reference to which such a conclusion (concerning cruelty, inhumanity and the uncivilised) must be reached are to be those of the Tribunal, not the members of this Court. Unless it appeared to the Court that no person acting reasonably could fail to reach that conclusion, the decision in favour of deportation would not, I am inclined to think, be shown to have been infected by error of law of the kind suggested in ground 9.

The ground numbered 10 falls in accordance with what I have said about ground 9.

Acceptance of the ground numbered 11, which was perhaps framed as a variation of the views expressed by Murphy J. in Pochi v. MacPhee, would require acceptance, as a rule or principle of law regulating the exercise of the power conferred by s.12 and the exercise of the Tribunal's function of reviewing a decision under s.12, of the proposition that a defined relative weight or importance is to be given to one of the considerations relevant to the exercise of those functions. Alternative means of definition are suggested in ground 11 and were advanced by way of submission in support of that ground.

The probable harmful effects of deportation on "innocent members of the . . . immediate family" of a person exposed to the exercise of the power conferred by s.12 would always be, as I suppose, worthy of substantial weight in considering whether to exercise the power. The circumstances of particular cases are likely to be so different that I do not consider it practicable to attempt the formulation of such a rule as ground 11 proposes. A rule or principle according such harmful effects a relative weight independent of the circumstances of the particular family or of the particular persons liable to be harmed could not in my opinion be justified. If I were to attempt such a formulation as ground 11 suggests, the terms of any rule I might contemplate would not in their application to the circumstances of this case authorise a conclusion that the Tribunal had in this case failed in observance of the rule.

The ground numbered 12 refers to the Human Rights Commission Act 1981, which came into operation before the decision of the Tribunal was announced. That ground reads:
"The power to deport was exercised without due regard to the Human Rights Commission Act 1981 (No. 24) and the International Covenant on Civil and Political Rights and/ or in breach of the said Act and the said Covenant and by reason of the said Act and the said Covenant and on the evidence before it, it was not open in law for the Tribunal to affirm the deportation".
The material before this Court does not justify a conclusion that the Tribunal failed to have "due regard" to the Act or to the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in a schedule to the Act. Nothing in the proceedings before the Tribunal or in its decision or its reasons for the decision was in contravention of any provision of the Act or of the Covenant, in my opinion.

The other grounds of the appeal, numbered 5, 6, 7 and 8 in the document proposed as the amended notice of appeal, were without substance, in my opinion.

I would give leave to amend the grounds of the appeal in the terms proposed on the appellant's behalf and I would dismiss the appeal.

[1982] FCA 308

23 DECEMBER 1982