Yildiz v Minister for Immigration and Ethnic Affairs

[1982] FCA 310

Re: ALAETTIN YILDIZ
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1982) 70 FLR 105
No. VG67 of 1982
Administrative Law - Statutes

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN 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 - significance of warning about commission of offence - right of Tribunal to draw inferences from course of conduct - possibility of further punishment overseas - whether deportation order in breach of Racial Discrimination Act 1975 - admissibility of fresh evidence on appeal.

Administrative Appeals Tribunal Act, 1975 s.44

Migration Act, 1958 ss.5(1), 12 and 20

Racial Discrimination Act, 1975 s.10(1)

Australian Citizenship Act, 1948 s.5(3A)

Australian Citizenship Regulations, r.5

Administrative Law - Deportation order - Appeal from Administrative Appeals Tribunal - Whether there was material upon which Tribunal's conclusion could be based - Whether question of adequate weight given to evidence by Tribunal is "a question of law" - Whether conflict between Migration Act and Racial Discrimination Act - Whether Court should consider fresh evidence - Administrative Appeals Tribunal Act 1975 (Cth), s. 44 - Migration Act 1958 (Cth), ss. 12,20 - Racial Discrimination Act 1975 (Cth), s. 10(1) - Australian Citizenship Act 1949 (Cth), s. 5(3A) - Australian Citizenship Regulations, reg. 5.

Statutes - Interpretation - "A question of law" - Whether question of adequate weight given to evidence is a question of law - "Alien" - "National origin" - Whether Migration Act and Racial Discrimination Act conflict - Administrative Appeals Tribunal Act 1975 (Cth), s. 44 - Migration Act 1958 (Cth), ss. 12,20 - Racial Discrimination Act 1975 (Cth), s. 10(1) - Australian Citizenship Act 1948 (Cth), s. 5(3A) - Australian Citizenship Regulations, reg. 5.

HEADNOTE

The Administrative Appeals Tribunal having affirmed the Minister's order to deport the appellant, he appealed to the Full Court of the Federal Court of Australia pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975 against the Tribunal's decision.

Held per curiam, that the appeal should be dismissed because: (1) The word "alien" in s. 12 of the Migration Act 1958 refers to the present legal status of a person whereas the phrase "national origin" in s. 10(1) of the Racial Discrimination Act 1975 is concerned merely with past circumstance. It follows that s. 10(1) of the Racial Discrimination Act 1975 does not operate to deny effect to s. 12 of the Migration Act 1958 since s. 10(1) is conceptually unrelated to s. 12.

Dimic v. Minister for Immigration and Ethnic Affairs, unreported, Fed. Ct of Aust., 23 June 1982; Ealing L. B. C. v. Race Relations Board (1972) A.C. 342, referred to.

(2) The Administrative Appeals Tribunal was justified in finding that the appellant "was prepared to engage in the importation of drugs as a money making operation which was ongoing . . .".

Collins v. Minister for Immigration and Ethnic Affairs (1981) 58 F.L.R. 407, followed.

(3) Fresh evidence ought not to be taken into consideration by this Court in the instant case.

Per Keely and Jenkinson JJ. - (4) On a proper construction of s. 44(1) of the Administrative Appeals Tribunal Act 1975 it is not open to this Court to allow this appeal on the basis that in the Court's opinion the Tribunal attached "undue" importance to a matter or failed to have "due" regard to another matter.

Tabag v. Minister for Immigration and Ethnic Affairs, (1982) 70 F.L.R. 61 followed.

HEARING

Melbourne, 1982, November 17, 18; December 23. #DATE 23:12:1982

APPEAL.

Appeal to the Full Court of the Federal Court of Australia pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975 against a decision of the Tribunal (Fisher J.) affirming the respondent's decision to deport the appellant.

A. Bonnici, for the appellant.

R. K. R. Alston, for the respondent.

Cur. adv. vult.

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

E.F.F.

ORDER

The appeal be dismissed.

Appeal dismissed.

JUDGE1

In this case I have had the advantage of reading the reasons for judgment of Jenkinson J. I agree with his conclusions and substantially with his reasons. I adhere to what I have said in Tabag v Minister for Immigration and Ethnic Affairs as to whether the weight to be attached to considerations affecting the exercise of a discretion can amount to a question of law.

I would dismiss the appeal.

JUDGE2

In this appeal I have had the advantage of reading the reasons for judgment prepared by Jenkinson J.. I agree with his conclusion that the appeal should be dismissed and with his reasons for judgment subject to one qualification. In my opinion, for reasons given by me in Tabag v Minister for Immigration and Ethnic Affairs (Full Court: unreported: 23 December, 1982), the question of what weight should be given to a relevant consideration is a matter for the Tribunal. It is not open to this Court to allow an appeal from the Tribunal on the basis that in the Court's opinion the Tribunal attached "undue" importance to a matter or failed to have "due" regard to another matter.

JUDGE3

Appeal pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 against a decision of that Tribunal which affirmed the respondent's decision that the appellant be deported.

The appellant was born in Turkey on 1 January 1946. He is of Turkish nationality. He married in 1964 and presently lives with his wife and the two children of the marriage in Melbourne. The elder daughter was born in Turkey in March 1967; the younger daughter was born in this country in December 1975. The appellant, his wife and his elder daughter arrived in Australia as assisted migrants in April 1970 and have resided here ever since, except during visits to Europe and Turkey.

On 28 November 1979 the appellant was convicted by the Magistrates' Court at Melbourne of importing into Australia a prohibited import, cannabis, and sentenced to be imprisoned for 18 months. A minimum term of 12 months was fixed, during which the appellant should not be eligible to be released on parole, in respect of that sentence and another sentence of 18 months' imprisonment imposed at the same time upon conviction of the appellant of possession of the same material. The latter conviction and sentence were quashed on appeal on 11 February 1980 by the County Court of Victoria.

The former conviction and sentence exposed the appellant to the exercise by the respondent Minister of the power conferred by s.12 of the Migration Act 1958 to order deportation of the appellant, who is an alien. The power was exercised on 29 September 1980. On 3 October 1980 the appellant applied, pursuant to Part IV of the Administrative Appeals Tribunal Act 1975 and s.66E of the Migration Act 1958, for review by the Administrative Appeals Tribunal of the respondent's decision that the appellant be deported. Review was made by the Honourable Mr. Justice Fisher, a judge of this Court, as a presidential member of the tribunal alone. His decision, made in writing on 28 April 1982, was that the respondent's decision for deportation be affirmed.

On 29 January 1975 the appellant was convicted by the Magistrates' Court at Coburg of having published an obscene article and of having exhibited an obscene article. On the former conviction he was fined $100 and on the latter he was fined $200. The persons in whose presence these offences were committed were adolescent girls.

There was evidence that the appellant and his wife were warned, after he sustained those convictions, by an officer of the Department of Immigration (the officer who gave the evidence) that the appellant faced "the very real risk of deportation" if he were again convicted. The reasons for the decision of the Tribunal include the statement that the appellant "did not dispute that he was told unequivocally that if he committed another offence against the law he would be deported". In a later passage reference is made by the Tribunal to "the warning and his inevitable awareness that if caught he would be deported together probably with his wife and children".

It was submitted by Mr. Bonnici, who appeared for the appellant on the hearing of the appeal, that the evidentiary material before the Tribunal was consistent with a finding - if it did not demand a finding - that the warning was understood by the appellant as a warning of the consequences of a further conviction in respect of sexual misconduct, rather than conviction of any offence. If that were so, it was an error to speak of an unequivocal warning and of the appellant's inevitable awareness of the consequences of a further conviction, according to Mr. Bonnici's submission.

In Collins v. Minister for Immigration (1981) 36 A.L.R. 598 at 601 the Full Court of this Court (Fox, Deane and Morling J J.) observed:
"A number of authorities was cited by counsel for the appellant in support of the propositions that the making of a decision against the evidence or the weight of the evidence and the making of an unreasonable decision are errors of law. We find it unnecessary to examine these authorities for the reason that, in our opinion, there is no factual basis to found those propositions. We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they do not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses: see s.33(1)(c) of the Administrative Appeals Tribunal Act 1975. An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based."

The submission under consideration might, perhaps, be subsumed under the sixth of the grounds of appeal:
"That His Honour erred in law in that he relied on material not supported by the evidence".

The appellant was questioned on oath more than once before the Tribunal. He did not suggest then that he understood the warning to be limited to further conviction of an offence involving sexual misconduct. His various answers to questions about the warning and its effect on his mind justify, in my opinion, a finding that the appellant believed, at all relevant times, that if he were convicted of another offence he would probably be deported. I cannot therefore accept the submission.

The third ground of appeal reads:
"That His Honour erred in law in giving the warning by an officer of the Department of the Minister a qualitatively different value from that attributed to other relevant considerations".

In the reasons for the Tribunal's decision the following statement appears:
"A crucial aspect of this matter is that the applicant was duly warned and his wife was at least aware of the possibility of deportation. Notwithstanding the warning and in complete disregard thereof the applicant entered upon a close and quite lengthy association with a person in Europe whom he was at all tiems aware was a professional drug dealer. He was in no way deterred by the warning and in fact said that he did not remember it. Such behaviour, whether or not he remembered the warning, must count strongly against a favourable view of the applicant's conduct and the prospects of recidivism. One can not state with any confidence that the probabilities are that he will become a worthwhile citizen of this country".

Although the expression "qualitatively different" in the third ground of appeal may be hyperbole, it does appear from the passage quoted and from other passages in the reasons for the Tribunal's decision that the failure of the appellant to abstain from a serious breach of the criminal law of this country after he had received the warning exerted a substantial influence in the formation of the Tribunal's decision to affirm the order for deportation. If I thought that more influence was allowed those circumstances than ought to have been allowed, a question would arise as to whether the error thereby imputed to the Tribunal was an error of law and whether this appeal, in so far as it asserts that error, is on "a question of law", within the meaning of s.44(1) of the Administrative Appeals Tribunal Act 1975. I refer to and repeat what I said on that subject in Tabag v. Minister for Immigration and Ethnic Affairs (1982) 70 FLR 61. Within the limits indicated in that case, the attribution of weight to relevant considerations - as those considerations which arose in consequence of the warning and the appellant's subsequent conduct plainly were - is for the Tribunal, not for this Court. In any event the very substantial significance those considerations were allowed by the Tribunal seems to me justified in all the circumstances.

Another submission on behalf of the appellant might be treated as made under the sixth ground of appeal. The Tribunal found:-

(i) that the prohibited importation of which the appellant had been convicted "was not a spontaneous and isolated incident";

(ii) that it was "more likely that the meeting with" the supplier of the cannabis "was pre-arranged to the knowledge of" the appellant; and

(iii) that the appellant "was prepared to engage in the importation of drugs as a money-making operation which was on-going and not limited to one venture".

It was submitted that those findings lacked a ground of "logically probative material" and that, when judged as the mere speculations they were, the findings could not provide for the Tribunal's decision the substantial basis which Mr. Justice Fisher treated them as supplying. Reliance was placed upon the reasons for judgment of Deane J., with which Evatt J. agreed, in Minister for Immigration and Ethnic Affairs v. Pochi (1980) 31 A.L.R. 666 at 683-690.

The conviction and sentence upon which the appellant became liable to deportation related to his carrying on a commercial airline flight from Rome to Melbourne a packet which appeared to contain cigarettes and in which was 1.6 kilograms of hashish. The substance was discovered by a Customs Officer at Melbourne Airport on 9 September 1979. The appellant's evidence before the Tribunal was that he had travelled to Turkey in May 1979 in order to visit his mother in that country, and with the intention of returning home after about 6 weeks abroad. He said that he had borrowed about $2600 from a brother to defray part of the expense of the journey. He said that after about a month in Turkey his mother's health, which had been a cause of concern, improved; and that he travelled to Germany in order to see something of that country, which he had previously visited in 1973. He travelled from Istanbul to Frankfurt where, according to his evidence, he met by chance in a night club a man previously unknown to him and whom he came to know only as Hassan. During the next few days Hassan spent a lot of money entertaining the appellant and proposed that the appellant carry hashish from Europe to Australia where Hassan's friends would collect the drug. The appellant said that he returned to Turkey where he remained for two weeks and that he then went again to Frankfurt. He and Hassan then toured Germany, France and Italy for about a month in Hassan's car and at Hassan's expense. He believed Hassan to be a dealer in the illicit drug traffic. He returned again to Istanbul where he stayed for several weeks. He then travelled to Rome, where Hassan gave him the packet which he took to Melbourne. He expected, according to his evidence, to receive perhaps as much as $7000 when the packet was collected in Melbourne by Hassan's friends. His stay in Europe had been extended, he said, because he had lost his passport in France and was unable to return to Australia until fresh travel documents were issued to him.

The following evidence was given by the appellant:
"You travelled for that 4 week period in Hassan's car? . . . Yes.

And did he pay for the cost of your accommodation at various hotels? . . . Yes.

And did he pay for petrol? . . . He was paying everything.

What I was paying for is sometimes for my meal.

Why did you think he was doing that? . . . As I am thinking now it was he wanted to use me.

But you had already agreed to do what he had asked you before you set out on the trip? . . . Yes.

Why did you think that he was going to this additional expense? . . . I think now that he might have had in his mind to maintain contact with me for the future.

And did that thought not run through your mind during the 4 weeks that you travelled with him? . . . I would get a profit from him and he would get a profit from me.

And that was your thinking at the time? . . . Yes.

That there may have been future deals? . . . Yes.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Did you ever ask him why he was spending all this money on you? . . . Yes, I asked him.

And what did he say? . . . We will make jobs together and we will make profits one from the other.

And did you agree with that? . . . Yes.

So if you had not been caught on this occasion would you have continued to deal with him? . . . It is possible because his friends here would have seen me.

You told us that you did not pay him any money at all, is that right? . . . Yes.

The Tribunal disbelieved the appellant's evidence that it was by chance he met the drug dealer in Frankfurt. The appellant was shown by evidence and, in a number of instances, by his own admission to the Tribunal, to have lied on other occasions. Further, even the bare transcript of the appellant's evidence before the Tribunal suggests that the Tribunal may have found itself unable to attach much weight to his evidence. But, it was submitted, if the appellant be disbelieved, there remains no evidence logically probative of the Tribunal's finding that the meeting "was pre-arranged to the knowledge of" the appellant.

In straitened financial circumstances and bent, as he said, on visiting his mother in Turkey when he left this country, the appellant nevertheless chose to travel to Germany, as he said to view the country, and he could say no more of his reason for visiting Frankfurt rather than any other place in Germany than that it was Frankfurt which entered his mind, he knew not why. Upon those circumstances and upon the admitted acts of the appellant from the time he reached Frankfurt until the time he left Rome a rational inference might in my opinion be based that more probably than not the meeting with Hassan was pre-arranged to the appellant's knowledge.

The evidence by the appellant which I have quoted, together with his admitted acts while he was abroad, justify the Tribunal's finding that he "was prepared to engage in the importation of drugs as a money-making operation which was ongoing and not limited to one venture", in my opinion.

As to the finding that the importation of the packet "was not a spontaneous and isolated incident": the facts show that there was no spontaneity, but ample time for reflection before the appellant took the packet from Hassan in Rome. The incident became, in the event, an "isolated" incident, but the use of that expression should, I think, be understood in its context as a reference, retrospectively, to the appellant's close association over a period of weeks with a man he believed to be a dealer in illicit drugs and, prospectively, to the appellant's admitted consideration of future unlawful dealings between Hassan and himself.

There were other findings of fact for which, it was submitted, no basis could be found in the evidentiary material. It was said that there was no evidence that the appellant had sent his elder daughter for a sojourn in Turkey to ensure that she was fluent in Turkish. It is true that the appellant did not say that was his purpose, but his wife swore that it was hers. There was also criticism of the Tribunal's finding that the two purchases which the appellant made in this country of dwellings were incidental to money making ventures and not indicative of a desire "to put down his roots" here. Whether or not that was a finding which the evidentiary material justified may be a question, but in my opinion not a question which it is necessary to resolve, for the finding was only one of a number of findings which led to the Tribunal's conclusion that the appellant had not been "effectively absorbed into the Australian community"; and for that conclusion the Tribunal demonstrated in its reasons for decision its reliance on those other findings. Further, there is no reason to think, upon a consideration of those reasons for decision that the Tribunal attributed very substantial weight to its conclusion, about the "absorption" of the appellant into the Australian community, in the determination the Tribunal made that the respondent's order for deportation should be affirmed.

The ninth ground of appeal reads:
"That His Honour erred in law in not giving any or any adequate weight to the evidence of further prosecution and trial of the Applicant in Turkey".

The Tribunal set out in its reasons for decision certain evidence of opinion concerning Turkish law, and without any comment which would suggest that the evidence had not been accepted. In substance, the evidence was that the exportation of the hashish by the appellant from Italy was a criminal offence under Turkish law with which the appellant would be charged in Turkey if he were within that country and had not been tried for the offence in Italy, and if "the crime . . . should be reported to Turkish authorities by Italian or Australian authorities". The reasons then continue thus:
"Each of these conditions must be taken into account in assessing the likelihood of further proceedings in Italy and thus in assessing the weight to be attached to this factor. If the consequence of consideration of other factors was that the question of deportation or not was finely balanced, this factor could well tilt the scales in favour of the applicant. In this matter I have given consideration to this factor and the weight to attach to it in all the circumstances. I am still of the opinion that it is appropriate that the preferred decision is that the Minister's deportation order be upheld as proper in this matter".
In my opinion the word "Italy" in that passage is a slip and should be understood as "Turkey".

It was submitted that since the cause of the appellant's deportation to Turkey would be communicated by the Australian Government to the Turkish Government, it was reasonably certain, or at least very probable, that the appellant would be prosecuted in Turkey for having exported the hashish from Italy, and that inadequate weight had been attributed to that circumstance by the Tribunal. The opinion evidence which the Tribunal quoted and apparently accepted does not specify what kind of communication would be within the conception expressed by the reference to "reporting" of the crime by a governmental authority. I do not think that it appears either that the Tribunal was mistaken in its perception of the degree of risk of a prosecution of the appellant in Turkey or in its evaluation of the weight to be accorded the circumstance that such a prosecution would, or might, be launched against the appellant.

It was submitted that by reason of the provisions of s.12 of the Migration Act 1958 persons who are of a national origin other than those within one of the descriptions contained in paragraphs (a), (b) and (c) of the definition of "alien" in s.5(1) of the Migration Act did not enjoy a right that is enjoyed by persons who are of a national origin within one of those descriptions. That being so, s.10(1) of the Racial Discrimination Act 1975 operated to deny effect to s.12 of the Migration Act, it was submitted, and thus to deny to the respondent Minister the power he had purported to exercise in ordering the deportation of the appellant.

Section 10(1) of the Racial Discrimination Act 1975 provides:
"If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the firstmentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin."

Section 12 of the Migration Act 1958 reads:
"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".
The word "alien" is defined in s.5(1) of the Migration Act to mean, in that Act, "a person who is not -

(a) a British subject;

(b) an Irish citizen; or

(c) a protected person."

Section 5(1) further provides that in that Act the expression "protected person" has the same meaning as in the Australian Citizenship Act 1948. Section 5(3A) of the latter Act provides:
"For the purposes of this Act, a protected person is a person declared by the regulations to be, for the purposes of this Act, under the protection of the Australian Government or of the Government of a country, or of a part of a country, to which section 7 applies."
Regulation 5 of the Australian Citizenship Regulations provides:
"(1) In this regulation, "Australian protected
person" means -

(a) a person -

(i) who, immediately before 16 September 1975, was an Australian protected person within the meaning of the Australian Citizenship Regulations as in force immediately before that day; and

(ii) who has not acquired the citizenship of any country (including Australia or the Independent State of Papua New Guinea);

(b) a person -

(i) who was born on or after 16 September 1975;

(ii) who has not acquired the citizenship of any country (including Australia or the Independent State of Papua New Guinea); and

(iii) one of whose natural parents was, at the time of the person's birth, an Australian protected person; or

(c) a person who -

(i) was, on or after 16 September 1975, registered under sub-regulation (4) as an Australian protected person; and

(ii) has not acquired the citizenship of any country (including Australia or the Independent State of Papua New Guinea).

(2) It is declared that -

(a) an Australian protected person is, for the purposes of the Act, under the protection of the Australian Government; and

(b) a person who is, under the law of a country, or a part of a country, to which section seven of the Act applies, a British protected person or a protected person of that country or of that part of that country is, for the purposes of the Act, under the protection of the Government of that country or of that part of that country.

(3) Where a woman, being an alien who is not a citizen of any country, has, whether before or after the commencement of these Regulations, married a person who, at the time of the marriage, was an Australian protected person, she may, at any time, apply to the Minister, in a form approved by the Minister or by an authorized officer, for registration as an Australian protected person.

(4) The Minister may, in his discretion, if he is satisfied that it is desirable so to do in all the circumstances, cause an applicant under the last preceeding sub-regulation to be registered as an Australian protected person".

There may be several answers to this submission. The President of the Administrative Appeals Tribunal gave one answer to a similar submission in the reasons for his decision in review of a Ministerial decision to order pursuant to s.12 of the Migration Act the deportation of an alien (Dimic v. Minister for Immigration and Ethnic Affairs; unreported; 23 June 1982). In my opinion it is sufficient to say that any discrimination which s.12 of the Migration Act makes between those who are "aliens" and those who are not is by reference merely to present legal status, whereas "national origin", whatever the expression means, is concerned merely with past circumstance. Although the definitional criteria within Regulation 5 of the Australian Citizenship Regulations include past circumstances, it is the present legal status which those Regulations maintain which excludes from the category of alien. It may be that the exposition by Lord Cross of Chelsea, in Ealing L.B.C. v. Race Relations Board (1972) A.C. 342 at 364-367, of the meaning of the expression "national origins" in the English Race Relations Acts of 1965 and 1968 is applicable to the expression "national origin" in s.10(1) of the Racial Discrimination Act 1975. It is, I think, unnecessary to go further than to insist that the latter expression has regard to what has happened to a person in the past and that the definition of "alien" has regard to a present state of affairs. Therefore any discrimination worked by s.12 of the Migration Act between persons who are aliens and persons who are not aliens is a discrimination conceptually unrelated to "national origin", and s.10(1) of the Racial Discrimination Act 1975 speaks not of s.12 of the Migration Act.

In my opinion there was no substance in any other ground of appeal.

During the hearing of the appeal Mr. Bonnici brought to the attention of the Court information concerning the health of the appellant's wife which he submitted should be regarded as "fresh" evidence relevant to the question whether the appellant should be deported, and he sought to pursuade the Court that it should adopt in relation to that information procedures analogous to those adopted when on an appeal from a curial order a "fresh evidence" ground of appeal is advanced.

Section 20 of the Migration Act 1958 expressly contemplates what would in any event be implied: a power in the respondent to revoke such an order as he has made for the appellant's deportation. Other considerations aside, the existence of that power differentiates so radically the situations which are created by a contention that fresh evidence has been discovered, on the one hand after judgment upon trial in a court and on the other hand after administrative decision in favour of deportation, that the appeal to analogy made on the appellant's behalf cannot be accepted. The information submitted by Mr. Bonnici ought not in my opinion to be taken into consideration by this Court. As was pointed out to Mr. Bonnici during the hearing of the appeal, the pendency of the appeal did not hinder any application which the appellant might wish to make to the respondent Minister in relation to that information.

I would dismiss the appeal.