FEDERAL COURT OF AUSTRALIA

MIGRATION – appeal from AAT – deportation order of non-citizen – previous convictions – whether deportation order invalid on ground of uncertainty – whether time served in a youth training centre corresponds with time served in a prison.

ADMINISTRATIVE LAW – denial of procedural fairness – documents produced under subpoena excluding certain pages – confidentiality order made by Tribunal – whether Tribunal read these documents prior to making of Order – whether excluded pages contained material adverse to applicant – inferences to be drawn.

Migration Act 1958, ss 200, 201

Administrative Appeals Tribunal Act 1975, s 44

Federal Court Rules, O 53 r 3(3)

R v Percerep [1993] 2 VR 109

Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93

Maiorana v Minister for Immigration, Local Government and Ethnics Affairs  (1993) 42 FCR 119

The Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64

The Queen v Glennon (1992) 173 CLR 592

Minister for Immigration and Ethnic Affairs v Guo (1997) 71 ALJR 743

Holloway v McFeeters (1956) 94 CLR 470

Trade Practices Commission v Allied Mills Industries Pty Ltd (1981) 60 FLR 1

Servos v Repatriation Commission (1995) 56 FCR 377

Stefanovski v Murphy [1996] 2 VR 442

Victorian WorkCare Authority v Hillgrove (unreported, McDonald J, Supreme Court of Victoria, 29 August 1997)

Waterford v Commonwealth (1987) 163 CLR 54

Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483

David Jones Finance & Investments Pty Ltd v Commissioner of Taxation (1991) 28 FCR 484

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300

R v Metropolitan Fair Rents Board; ex parte Canestra [1961] VR 89

Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523

Montague v Ah Shen [1907] VLR 458

Parker v Churchill(1985) 9 FCR 316

Kioa v West (1985) 159 CLR 550

Kanda v Government of Malaya [1962] AC 322

Claro v Minister for Immigration, Local Government and Ethnic Affairs (1993) 46 FCR 494

Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103

Alister v The Queen (1983) 154 CLR 404

Jackson v Wells (1985) 5 FCR 296

Moore v Guardianship and Administration Board [1990] VR 902

Ousley v R (1997) 148 ALR 510

Re Thomason v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 795

Maxwell v Murphy (1957) 96 CLR 261

Rodway v R (1990) 169 CLR 514

Minister for Immigration and Ethnic Affairs v Petrovski (1997) 154 ALR 606.

Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178

Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Gogebakan v Minister for Immigration and Ethnic Affairs (1987) 6 AAR 544

Re Ameri v Minister for Immigration, Local Government and Ethnic Affairs (1989) 10 AAR 62. 

Gumus v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 145

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24

 

 

 

 

 

 

 

 

 

 

 

SLAVKO PERCEREP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 740 of 1997

 

WEINBERG J

MELBOURNE

4 SEPTEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 740 of 1997

 

BETWEEN:	SLAVKO PERCEREP Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	WEINBERG J
DATE OF ORDER:	4 SEPTEMBER 1998
WHERE MADE:	MELBOURNE

 

THE COURT ORDERS THAT:

 

1.                  The decision of the Tribunal is set aside.

2.                  The matter is remitted to a differently constituted Tribunal for reconsideration according to law.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 740  of 1997

 

BETWEEN:	SLAVKO PERCEREP Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

 

JUDGE:	WEINBERG J
DATE:	4 SEPTEMBER 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The applicant, Slavko Percerep, appeals against a decision of the Administrative Appeals Tribunal (“the Tribunal”) constituted by a Deputy President delivered on 28 November 1997.  The Tribunal, in its reasons for decision, determined that a deportation order made by a delegate of the Minister on 2 March 1997 under s 200 of the Migration Act 1958 should be affirmed.  The application to this Court is made pursuant to s 44 of the Administrative Appeals Tribunal Act (the AAT Act) 1975.  It is confined therefore to raising questions of law arising from the decision of the Tribunal.

The power to order the deportation of a non-citizen in circumstances where that person has committed certain offences resulting in imprisonment for a period of not less than one year is to be found in ss 200 and 201 of the Migration Act.  These sections provide as follows:

“200.   The Minister may order the deportation of a non-citizen to whom this division applies. 

201.         Where:

(a)                a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;

(b)                when the offence was committed the person was a non-citizen who:

(i)                  had been in Australia as a permanent resident:

(A)                    for a period of less than 10 years; or

(B)                     for periods that, when added together, total less than 10 years;

            (ii)…; and

(c)        the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year,

 section 200 applies to the person.”

Section 204 of the Migration Act provides that when determining whether a person has been in Australia as a permanent resident for a period of less than ten years any time spent while imprisoned is to be disregarded.  I shall return to this provision later in my reasons for judgment.

The deportation order made by the delegate reads as follows:

“WHEREAS SLAVKO PERCEREP is a non-citizen who arrived in Australia on the twenty-fifth day of August 1971. 

AND WHEREAS the said SLAVKO PERCEREP was convicted at the Melbourne County Court on the second day of December 1985 of an offence, namely Armed Robbery (3 counts), which was committed on the twenty-sixth day of July 1985, and for which he was sentenced to eight year’s imprisonment on each count.

AND WHEREAS at the time of the commission of the said offence the said SLAVKO PERCEREP was not an Australian citizen and had been present in Australia as a permanent resident for less than ten years.

NOW I, MARK SULLIVAN a Delegate of the Minister responsible for administering the Migration Act 1958 DO HEREBY ORDER in the pursuance of the power conferred upon me by section 200 of the Migration Act 1958 that the said SLAVKO PERCEREP be deported from Australia.”

Background

The applicant was born in Belgrade in the former Republic of Yugoslavia on 28 September 1960.  In August 1971, together with his parents and a younger brother, he migrated to Australia.  He left school in Year 9, at the age of 16.  Shortly thereafter he began committing offences involving dishonesty, including minor thefts and handling stolen goods.  He spent some time in various Youth Training Centres in relation to these matters.  He progressed from the use of marijuana to injecting heroin.  By the age of 18 he had developed a significant addiction to that drug.

By 1985 the applicant had accumulated a lengthy list of criminal convictions, and had been imprisoned for various periods, including one term of imprisonment which exceeded twelve months.

In July and August 1985 the applicant committed three armed robberies.  The first occurred on 26 July 1985 when, acting alone, and armed with a gun and wearing a balaclava, he threatened staff and elderly customers at the Malvern branch of the National Australia Bank, and escaped with a sum of money.

The second and third armed robberies were committed in August 1985 within five days of each other.  The applicant and another man robbed a licensed supermarket in Balwyn, and then a bank in North Sunshine.  In both robberies a gun was produced, staff and customers were threatened, and a substantial sum of money was stolen.  In one of the robberies a gun was levelled at the head of one of the persons present.  On 29 November 1985 the applicant was convicted in the County Court at Melbourne of three counts of armed robbery and two counts of theft of motor vehicles.  He was sentenced on 2 December 1985 to a total effective sentence of nine years’ imprisonment with a minimum of seven years before becoming eligible for parole.

In March 1988 the applicant was informed by the Department of Immigration that, as a result of the conviction and sentence for armed robbery committed on 26 July 1985 the matter of his possible deportation was being considered.  In an interview with a departmental officer on 7 April 1988 the applicant stated that he had overcome his drug problem which, he contended, was a prime factor in his having committed so many offences over the years. 

It should be noted that the applicant had earlier been warned, in a letter dated 2 March 1983, that deportation action would not be pursued at that time but that further offences would lead to a reconsideration of that decision.  That earlier warning related to a string of theft convictions, and one for armed robbery, for which the applicant had already, by that date, been sentenced to a term of twenty months’ imprisonment. 

On 1 September 1989 a deportation order was made against the applicant.  This order was based upon the three 1985 armed robbery convictions.  As at the date of commission of the first of the armed robberies (26 July 1985) the applicant had acquired, so the Minister contended, nine years and five months’ lawful permanent residence in Australia, i.e. less than the ten years which would have rendered him ineligible for deportation.

The applicant sought review by the Tribunal of the deportation order.  On 20 June 1990 the Tribunal, then constituted by Deputy President Thompson, in a decision which was subsequently reported – see (1990) 20 ALD 669, recommended that the deportation order be revoked.  Deputy President Thompson found the balance of all relevant factors for and against deportation to be substantially even, with slightly greater weight being given to the factors against deportation.  Shortly thereafter, the applicant was released on parole.

On 25 April 1991, whilst still on parole, the applicant was arrested and charged with a number of offences arising out of an armed robbery at a service station in Ferntree Gully earlier that day.  On 13 August 1992 he was convicted by a County Court jury of one count of armed robbery, one count of recklessly causing serious injury and one count of damaging property.  The applicant had pleaded not guilty at his trial, and had stood mute.  The case against him was wholly circumstantial, but obviously of sufficient strength to have persuaded the jury of his guilt.

The circumstances surrounding the 1991 armed robbery were particularly serious.  The applicant had gone to a BP service station wearing a balaclava and rubber gloves, and carrying a high calibre revolver.  He had ordered the attendant and another man, a friend of the attendant, inside and demanded money from them while menacing them with the weapon.  Whilst they were endeavouring to comply with the applicant’s demands, he fired two shots both of which went close to the men.  The friend intervened, and sought to wrestle the weapon from the applicant.  In the course of that struggle the applicant fired a third shot.  The bullet entered the body of the attendant’s friend, behind his left knee, and travelled some six to eight inches up his thigh.

The applicant was sentenced to a total effective sentence of nine years and six months’ imprisonment with a minimum of seven years before being eligible for parole.  He sought leave to appeal against the conviction, maintaining his innocence.  The Court of Criminal Appeal, in a judgment reported as R v Percerep [1993] 2 VR 109 dismissed his application for leave to appeal.

A new deportation order was made against the applicant on 7 August 1996.  That order was based upon the 1992 convictions for armed robbery and recklessly causing serious injury.  The Tribunal, by consent, on 18 December 1996 set aside that deportation order.  The 1992 convictions were not capable of forming the basis for such an order.  At the date he committed the offences in 1991, the applicant had acquired ten years’ permanent residence in Australia.  Section 200 of the Migration Act could not, therefore, be invoked against him.

The Minister did not, however, let the matter rest.  On 2 March 1997 another deportation order was made.  It was that order which formed the subject of the instant application for review to the Tribunal, and which forms the basis of the appeal to this Court.  The Minister, no doubt, relied upon the decision of the Full Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93 as authority for the proposition that he had power to make a fresh deportation order on the same, or similar facts as those which had previously led to the making of such an order.  The relevant principles were explained by Gummow J at 119:

“…the power to make a deportation order is exercisable from time to time, so as to revoke or revive a deportation order previously made, whether on the same facts as before or otherwise.  Even if the facts upon which the original decision was based remain constant, it may be the policy of the donee of the power which changes and thus requires a reconsideration of decisions previously made … if a deportation order is revoked, there is power to make another deportation order in reliance upon the same facts as those upon which the previous deportation order was based.”

The fact that the 1991 offences are not themselves capable of forming the basis of a deportation order because, as at the date of commission of those offences, the applicant had acquired permanent residence in Australia does not mean that those offences may not be taken into account when considering whether or not a deportation order which is based upon the 1985 convictions should be made.  The 1991 convictions are likely to be highly relevant when considering the question whether the applicant is likely to re-offend in the future.  Those offences may, therefore, properly be taken into account when considering the level of risk which the applicant poses to the community if permitted to remain in Australia – see Maiorana v Minister for Immigration, Local Government and Ethnics Affairs  (1993) 42 FCR 119 at 123 per Einfeld J.

The proceedings before the Tribunal

Before the Tribunal the applicant contended that the respondent had no power to deport him because, in calculating his period of permanent residence in Australia, the time which he spent in a Youth Training Centre (some fifteen months between June 1978 and September 1979) should not be disregarded.  The applicant’s submission, if accepted, meant that as at 26 July 1985, the date of the commission of the first of the three armed robberies relied upon by the delegate when ordering the applicant’s deportation, the applicant had acquired more than ten years’ permanent residence in Australia.  The Tribunal considered and rejected this submission.  It was raised again in the course of the proceedings before the Court.  I shall return to it later in my reasons for judgment.

The Tribunal also considered a series of other contentions advanced on behalf of the applicant.  It concluded that deportation was appropriate.  It did so after giving careful consideration to the evidence, and to the other material placed before it.  The Tribunal found that in the particular circumstances of this case the protection, safety and welfare of the Australian community outweighed any hardship to the applicant and his family. 

Notwithstanding a substantial body of evidence which tended to suggest that the applicant had come to terms with his heroin addiction, and that he was finally on the path to rehabilitation, the Tribunal found that there was a real risk that the applicant, if permitted to remain in Australia, would re-offend.  The Tribunal concluded that having regard to the applicant’s extensive criminal history, and to the seriousness of the offences which he had committed, that risk was, in all the circumstances, unacceptable. 

The Tribunal noted that the applicant had, on previous occasions, been given warnings about the risk of deportation.  It noted also that he had claimed previously to have been rehabilitated, a claim which had been shown to be false.  The Tribunal stated, in its reasons for decision, that it did not discount the applicant’s recent efforts at drug rehabilitation.  It also stated that it took into account the length of time the applicant had spent in Australia, the fact that members of his immediate family were Australian citizens, and that there would be considerable personal hardship in resettling in a country which he had left as a child.  The Tribunal concluded, however, that the order that he be deported should be affirmed.

 

The proceedings before the Court

(a)                Ground 1

Ground 1, excluding those parts expressly abandoned by the applicant, reads as follows:

“The Tribunal’s handling of certain documents produced under summons by the Office of the Correctional Services Commissioner, Department of Justice of Victoria constituted:

(a)               a denial of procedural fairness to the applicant in connection with the decision;

…

PARTICULARS

1.1              At some time prior to 26 August 1997 on the application of the respondent the Tribunal issued a summons returnable on 27 August 1997 for the production of documents relating to the applicant under section 40(1A) of the Administrative Appeals Tribunal Act 1975 to the Office of the Correctional Services Commissioner, Department of Justice of Victoria.

1.2              On the return of the summons on 27 August 1997, the applicant’s representative was allowed to peruse the documents produced on the summons, except for 21 pages of the documents within the scope of the summons which the Office of the Correctional Services Commissioner did not produce at that time. 

1.3              On 27 August 1997 the Tribunal, through an officer, informed the applicant’s representative that the 21 pages referred to would be obtained by the Tribunal and that they would be dealt with at a later date.

1.4              The Tribunal did not, to the applicant’s knowledge, make any further direction in relation to the 21 pages referred to.

1.5              Neither the applicant nor his representatives were shown the 21 pages referred to.

1.6              If the Tribunal had regard to the 21 pages referred to, in the circumstances the applicant was denied procedural fairness.”

In order to understand the sequence of events which is said to give rise to the claim that the applicant was denied procedural fairness, it is necessary to refer to a number of documents which came into existence in August and September of 1997, some months before the Tribunal heard the application to review the decision to order deportation. 

On 8 August 1997, a summons to produce documents was issued by the Tribunal, at the request of the respondent, and served upon the Office of Correctional Services.  That summons required the production to the Tribunal of all files in that Office’s possession “relating to the imprisonment” of the applicant.  It was made returnable on 27 August 1997. 

On 21 August 1997 a letter was written by Adam Levy, a Legal Officer attached to the Office of the Correctional Services Commissioner, and addressed to the Registrar of the Administrative Appeals Tribunal.  That letter reads as follows:

“Subpoena to Produce

Enclosed please find documents tendered to the Tribunal in response to a summons to produce documents issued in relation to the above matter. 

The subpoena (attached), issued on 8 August 1997, requested all prison files and documents in respect of Prisoner Slavko Percerep.

Enclosed is a copy of Prisoner Percerep’s Individual Management Plan File (2 parts), and the original of the Department of Justice “Head Office” file. 

Some documents have been removed from the latter file.  These documents, totalling 21 pages, contain material that if released is almost certain to jeopardise the safety of prisoners (other than Prisoner Percerep) mentioned in the documents.  Mr Russell Rigby, for the Department of Immigration and Multicultural Affairs, has indicated that he does not object to the removal of these documents. 

Should the Tribunal have any concerns regarding the documents removed, please contact Ms Odette Bear, Assistant Manager, Sentence Management in this Office, on 9627 6610.

Signed, Adam Levy,

Legal Officer.” (emphasis added)

On 26 August 1997 an internal minute was prepared by a person designated as an “Associate” who was attached to the Tribunal.  That minute was handwritten, and signified that a message had been sent to both parties (Mr Rigby for the respondent, and Mr McQuillen for the applicant).  The body of the file note reads as follows:

“Documents summonsed by R are in – R from Canberra & HSUM (hearing summons) listed for 9.30 tomorrow.  R has no objection to A inspecting the docs tonight.  Any objections can then be dealt with at the HSUM (hearing of the summons) tomorrow, if any.  If none, R can inspect at leisure – docs very voluminous.  Ok’d re protocol … in that no objection by respondent.”

Also on 26 August 1997, a letter was sent by a Deputy Registrar of the Tribunal to the applicant, care of his solicitor at Victoria Legal Aid.  Copies of that letter were sent to the respondent and to the Office of Correctional Services.  The letter reads as follows:

“Dear Sir/Madam,

Re:  Mr S Percerep & Minister for Immigration & Multicultural Affairs V97/539

I refer to the above matter and the issue of a summons to produce documents to:-

Commissioner, Office of the Correctional Services 6^th Floor 452 Flinders Street, Melbourne Vic.

Documents arrived today 26^th August 1997, by hand delivered relating to Mr S Percerep, excluding 21 pages. 

Please accept this as receipt for the file.

Yours faithfully”

 

It was common ground before me that the twenty-one pages which had been excluded from the material provided to the Tribunal by the Office of Correctional Services pursuant to the summons, and to which reference was made in the correspondence set out above, were never at any stage seen by Mr Rigby, who represented the respondent, or by the legal representatives of the applicant.  Neither Mr Rigby nor those legal representatives of the applicant were shown the letter of 21 August sent by Mr Levy to the Registrar of the Tribunal, ie the letter which provided an explanation by the Office of Correctional Services for withholding the twenty-one pages from production.

On 27 August 1997 another internal minute in handwritten form was prepared by the “Associate” on behalf of the Tribunal.  That file note recorded a message from Ms O Bear (Correctional Services).  The body of the text reads as follows:

“Rang Ms Bear re folio 26 where it is stated that 21 pages of documents have been retained by the Dept of Justice.  Ms Bear will hand deliver the documents directed to Forrest Chambers and marked “highly confidential”.”

This file note was written at 3.00 p.m. on the 27 August 1997, after the time stipulated for the return of the summons before the Tribunal at 9.30 that morning.  There is nothing to indicate that the contents of this communication were passed on, either to Mr Rigby, or to the legal representatives of the applicant.

However, on 28 August 1997 a third internal minute, prepared by the same “Associate” records in a handwritten note:

“R rang to advise that Gail from the Dept of Immigration is coming to Registry to photocopy the flagged summonsed documents, and send them to him in a sealed envelope marked “confidential only to be opened by Mr R. Rigby”.  Registry so advised.”

It is common ground between the parties that this file note refers not to the twenty-one pages, but rather to other documents which had been flagged within the larger bundle which were considered relevant.  It was those other documents which were passed on to Mr Rigby.

Nothing of any consequence then appears to have occurred until 9 September 1997 when Deputy President Forrest made an order bearing that date, and in the following terms:

“Being satisfied that it is desirable to do so by reason of the confidential nature of the material, the Tribunal, pursuant to s 35(2)(c) of the Administrative Appeals Tribunal Act 1975 (“the Act”) and until further order, prohibits the disclosure of the 21 pages of summonsed documents lodged on 27 August, 1997, by the Department of Justice in a sealed envelope and marked “Confidential”, to any person whatsoever, other than the Presidential member of the Tribunal constituted to hear this matter.”

On 10 September 1997 copies of that order were sent to the respondent and to the legal representatives of the applicant.  The order was accompanied by a covering letter which was short, and to the point.  That covering letter stated:

“Dear Sir/Madam,

Re:  Mr Slavko Percerep & Minister of Immigration and Multicultural Affairs – V97/539

Please find enclosed an ORDER of the Tribunal dated 9 September 1997 in the above matter.”

The covering letter was signed by a Deputy Registrar of the Tribunal. 

The Tribunal heard the application to review the deportation decision on 10 and 11 November 1997.  There appears to have been no mention throughout those two days of proceedings of the order of 9 September, or of the twenty-one pages which were the subject of that order.  Deputy President Forrest delivered his reasons for decision on 28 November 1997.  There is no mention, in those reasons, of the order of 9 September 1997, or of the twenty-one pages which were the subject of that order.

 

It appears that the order of 9 September 1997 together with the letter of 10 September 1997 were received by the solicitor responsible for handling the applicant’s case.  Regrettably that solicitor did not at that time read either the order or the letter.  He swore an affidavit which was filed before me in which he acknowledged that the order and the covering letter had been received by Victoria Legal Aid, shortly after 10 September, it would seem, and had been placed in the applicant’s file, but that those documents had not been read until some time in May 1998.  Mr Gray of counsel, who appeared before the Tribunal on behalf of the applicant, and who also appeared before me, gave a similar assurance from the bar table that he had been unaware of the existence of the order and the covering letter until May 1998.  No explanation was proffered by the applicant’s solicitor as to how the existence of those documents in the applicant’s file had been overlooked.  It can be fairly concluded, however, that this oversight was the result of some laxity on the part of the solicitor.  That conclusion was not disputed by Mr Gray.

When the matter was scheduled to commence before me, a subpoena which was directed to the Office of Correctional Services, was called on.  The subpoena required the production to the Court of the twenty-one pages which had previously been withheld from the Tribunal in August 1997.  The subpoena was answered by Mr Levy, who, it will be recalled was the author of the letter of 21 August 1997.  He had made the original decision to withhold those pages from production for the reasons stated in that letter.  Mr Levy informed the Court that the Office of Correctional Services could not produce the twenty-one pages sought by the subpoena.  It was possible, but not certain, that those pages had been retrieved from the Tribunal.  If those pages had been retrieved they may have been placed within the voluminous files concerning the applicant which the Office of Correctional Services had maintained, but that could not be ascertained with any certainty.  In short, the twenty-one pages could not now be located, let alone identified, with any precision.

After Mr Levy explained his inability to comply with the subpoena, he was asked some questions by each of the parties.  Having heard what he had to say, it was accepted by the parties that, as a matter of practical reality, it was now impossible to ascertain with any certainty the identity or the contents of the twenty-one pages in question.  Both parties then invited me to proceed with the hearing of this application upon that basis.  Neither party requested that I adjourn the matter to enable further enquiries to be made.  No request was made to have Deputy President Forrest, or some member of the staff of the Tribunal, called to give evidence in order to see whether any further light could be thrown on the contents of the twenty-one pages.  I assume for present purposes that it would have been open to either party to call such evidence had that party wished to do so.

It was this sequence of events, as set out in the documents described above which gives rise to the matters which are the subject of complaint in ground 1.

The letter of 26 August 1997 which was sent by the Deputy Registrar of the Tribunal to the legal representatives of the applicant, and to the respondent, would have conveyed to the reader no more than that twenty-one pages of material which might otherwise fall within the terms of the summons of 8 August 1997 had been excluded from the documents provided in answer to the summons by the Office of Correctional Services.  It is now known by the applicant that those twenty-one pages were in fact provided to the Tribunal on 27 August 1997.  It is also now known by the applicant that those pages were made the subject of the order of 9 September 1997.  These matters were not known, however, during the course of the hearing before the Tribunal, because the applicant’s solicitor had not read the correspondence addressed to him which concerned the applicant.

What is not resolved directly by the evidence before the Court is whether the Deputy President at any time prior to the hearing of the matter in November 1997 read, or even glanced at, the twenty-one pages which were the subject of his order of 9 September 1997.  What is also unresolved by the evidence is whether, included within those twenty-one pages, there was material which was adverse, in any relevant respect, to the applicant.  These are important questions of fact.  They must be addressed before any consideration can be given to the applicant’s contention that he was denied procedural fairness by reason of the “the Tribunal’s handling” of the material in question.

It should be noted that particular 1.3 of the applicant’s ground 1 asserts that “On 27 August 1997, the Tribunal, through an officer, informed the applicant’s representative that the 21 pages referred to would be obtained by the Tribunal and that they would be dealt with at a later date”.  There was no evidence before the Court that the version of events set out in that particular describes correctly the events which occurred on 27 August 1997.  The respondent sought to rely upon what is set out therein as, in effect, an admission against interest by the applicant.  The effect of that admission was said to be that on that date, the applicant’s legal representative was alerted by the Tribunal to the fact that the twenty-one pages referred to were to be provided to the Tribunal.  It followed, so the respondent contended, that the applicant was put on notice that the matter of the twenty-one pages could be the subject of submissions by the applicant prior to, or during the hearing, if the applicant were minded to make such submissions. 

I am not prepared to treat the matters set out in particular 1.3 of the notice of appeal as an admission against interest in this way.  Even if I were minded to do so, however, and I found that an intimation of the type set out in that particular had been given to the applicant’s representative on 27 August 1997, that finding would not meet the entirety of the case now advanced by the applicant before me.

The information which was critical, so far as the applicant was concerned, was that the twenty-one pages had been provided to the Tribunal, and may possibly have been read by the Deputy President prior to making the order of 9 September 1997.  Had the applicant’s solicitor read the covering letter of 10 September 1997, together with a copy of that order, the strength of the applicant’s contention that he had been denied procedural fairness by reason of the Tribunal’s handling of the twenty-one pages would have been considerably reduced.  It is common ground, before me, however, and established by the evidence, that the applicant’s legal representatives were not aware of the existence of the order until it was discovered by them when they perused his file in May 1998. 

The applicant submitted that I should infer that the Deputy President read, or at least perused, the twenty-one pages at some time prior to making the order of 9 September 1997.  There is no direct evidence that the Deputy President did any such thing.  The applicant submitted, however, that it would be unlikely that an order pursuant to the provisions of s 35(2) of the AAT Act would be made without the material the subject of the order having been first inspected.

Section 35(2) provides as follows:

“Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:

…

(c)        give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.”

The applicant invited me to conclude that the Deputy President could hardly have been satisfied in accordance with the terms of sub-s (2) that directions as to confidentiality should be made in relation to the twenty-one pages without having first examined those documents for himself.  The applicant contended further that it should not be assumed that the Deputy President would simply “rubber stamp” the views of Mr Levy, (as expressed in his letter of 21 August 1997) and make an order of such a serious nature without satisfying himself independently that there was a proper basis for Mr Levy’s professed concerns.

The respondent, on the other hand, submitted that I should not engage in speculation, surmise, or conjecture as to whether the Deputy President had indeed read, or perused, the twenty-one pages before making the order of 9 September 1997.  The respondent submitted further that it was likely that this order was made without inspecting the documents in question because they had been provided to the Tribunal by the Office of Correctional Services under conditions of strict confidentiality, and in a sealed envelope.  The purpose of the order was likely, therefore, to have been merely to ensure the security of those documents pending the hearing of the application for review. 

The respondent also submitted that it was unlikely that the Deputy President would have read documents, prior to the hearing and determination of the application to review, which were produced to the Tribunal pursuant to a summons addressed to a third party.  The respondent submitted, by analogy, that no judge would be likely to inspect material produced to a court pursuant to a subpoena directed to a third party without one or other of the parties to the case having expressly invited him to do so. 

The respondent submitted that even if the Deputy President had read or perused the documents for the purpose of satisfying himself that an order under s 35(2) of the AAT Act should be made, this would have occurred at least two months prior to the hearing of the application before the Tribunal.  It was scarcely likely that the Deputy President would have any recollection of the contents of those documents by the time he came to prepare his reasons for decision.  Moreover, had the Deputy President read, or perused the twenty-one pages, the strong probability was that he would have drawn that fact to the attention of the parties during the course of the hearing.  He would then, in all likelihood, have invited them to make any submissions they considered appropriate concerning that material.  These submissions might include an application, by counsel, upon appropriate undertakings as to confidentiality, to be permitted to inspect those documents.  The respondent contended that the Deputy President’s failure to mention the order of 9 September 1997, or the twenty-one pages, during the two days of the proceedings before him, or in his reasons for decision, supported the conclusion that the material had been neither read nor perused.  Alternatively, if it had, it had been forgotten.  Certainly, the respondent submitted, there was nothing to suggest that whatever might have been contained within the twenty-one pages had in any way influenced the Tribunal in arriving at its ultimate decision.

I am, of course, conscious of the care which must be taken to avoid speculation and conjecture, and the need to ensure that findings of fact are made only upon the basis of evidence properly before the Court.  There are many instances of Courts having cautioned against such speculation and conjecture in areas as diverse as quantification of damages – The Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83; assessing the likelihood by poll results that a jury had been made aware of an accused’s previous conviction for a similar offence – The Queen v Glennon (1992) 173 CLR 592 at 602; and more recently, determining refugee status in immigration matters – Minister for Immigration and Ethnic Affairs v Guo (1997) 71 ALJR 743.  There is no reason, however, why a Court should not be prepared to find facts upon the basis of inferences which may be drawn from primary facts which are found to have been proved – see Holloway v McFeeters (1956) 94 CLR 470; Trade Practices Commission v Allied Mills Industries Pty Ltd (1981) 60 FLR 1 at 17 per Sheppard J.

It is, no doubt, rare for the Court when hearing an application in the nature of an appeal pursuant to s 44 of the AAT Act to receive evidence which was not before the Tribunal.  In Servos v Repatriation Commission (1995) 56 FCR 377 at 385 Spender J expressed the view that the jurisdiction of the Federal Court pursuant to s 44 of the AAT Act does not permit the reception of further evidence which was not before the Tribunal, a proposition which is generally unassailable.  The very limited circumstances in which such evidence will be received must, however, include those cases where it is contended that the applicant has been denied procedural fairness before the Tribunal, and evidence is required to make good that claim. 

A contention of that type seems to me to “raise a question of law” within the meaning of s 44 of that Act.  An appeal to the Supreme Court of Victoria on a question of law from the Magistrates’ Court pursuant to either s 92 or s 109 of the Magistrates’ Court Act 1989 (Vic) may encompass matters which might otherwise fall within the ambit of judicial review pursuant to O 56 of the Rules of the Supreme Court – Stefanovski v Murphy [1996] 2 VR 442 at 451.  A contention that an inferior Court has demonstrated bias against a party has been held to raise a “question of law” for the purpose of grounding a statutory right of appeal – Victorian WorkCare Authority v Hillgrove (unreported, McDonald J, Supreme Court of Victoria, 29 August 1994).  I can see no reason why an “appeal” under s 44, which is itself a misnomer since the Court is exercising original rather than appellate jurisdiction when that section is invoked, should not encompass a claim of denial of procedural fairness.  A claim of that type is quite different from an attempt to adduce fresh evidence merely in order to demonstrate an error of fact - Waterford v Commonwealth (1987) 163 CLR 54 at 77-8.

Moreover, in Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 it was held that an application brought under the Administrative Decisions (Judicial Review) Act 1977 to review a decision of the Tribunal was misconceived, and s 44 of the AAT Act was the appropriate avenue of appeal.  Davies J, at 484 observed:

“The words “question of law” in s 44 encompass matters concerning not only the interpretation of a federal enactment or the enunciation of the principle of the common law or equity, but also the breach of any duty which the Tribunal was bound by law to perform and the failure of which to perform may lead to the setting aside of the decision.  The words “question of law” encompass grounds enunciated in s 5 of the ADJR Act such as the failure to take into account a material consideration … and the failure to provide natural justice” (emphasis added).

Cf.  David Jones Finance & Investments Pty Ltd v Commissioner of Taxation (1991) 28 FCR 484.

The grounds of judicial review of decisions made by the Tribunal arising out of the operation of s 200 of the Migration Act are not subject to the limiting provisions of Part 8 of that Act.  Section 476(2) (which restricts the grounds upon which the Court may be asked to review decisions of the Immigration Review Tribunal and the Refugee Review Tribunal) has no application therefore to a deportation decision of the type presently under review.  The problem considered by the Full Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 does not arise in the present case.

I accept the applicant’s contention that I should infer that the Deputy President read, or at least perused, the twenty-one pages before making the order of 9 September 1997.  I find it difficult to accept that the Deputy President, of his own initiative, and without prior consultation with the parties, would have made an order in the terms which he did on that date merely on the basis of what Mr Levy had stated in his letter of 21 August 1997.  Such orders should not be made lightly.  It should not be thought that such an order would be made solely on the basis of what was contained in that letter.  No claim for public interest immunity would be upheld on such scanty material, falling short even of identifying with precision the nature of the public interest which is said to require protection.  I think the likelihood is that, at some stage after 26 August 1997, when the documents were received by the Tribunal, the Deputy President examined them, and satisfied himself that “by reason of the confidential nature of the material” contained in those documents, they should be accorded the special protection of an order under s 35(2) of the AAT Act. 

I am fortified in this view by the fact that the Tribunal, unlike a court, is expressly permitted to inform itself on any matter in such manner as it thinks appropriate – s 33(1)(c) of the AAT Act.  I appreciate that a provision of this type is not a licence to a Tribunal to act upon material that is not disclosed to the parties – R v Metropolitan Fair Rents Board; ex parte Canestra [1961] VR 89 at 91.  It does, however, make it more probable that an individual member might examine documents of the type lodged with the Tribunal in this case, prior to ordering their suppression.

I an conscious of the fact that this matter could perhaps have been clarified had either of the parties sought to call the Deputy President to give evidence before me.  See generally Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523 at 550; Montague v Ah Shen [1907] VLR 458; and Parker v Churchill (1985) 9 FCR 316 at 325.  There are no doubt many good reasons why neither party sought to do so.  That leaves me, however, in the position of having to make an important finding of fact based upon inference alone.  I am prepared, for the reasons set out above, to draw that inference in favour of the applicant. 

The applicant also contends that I should conclude that contained within the twenty-one pages there was material likely to have been adverse, in relevant respects, to the applicant. 

The primary facts from which I am asked to draw this inference are as follows.  In Mr Levy’s letter of 21 August 1997, it was asserted that the twenty-one pages “contain material that if released is almost certain to jeopardise the safety of prisoners (other than the Prisoner Percerep) mentioned in the documents”.  If that description was accurate (and no argument was advanced by the respondent to suggest that it was not) the implication is that, contained within the twenty-one pages is what may fairly be regarded as material which would tend to identify persons who were informers within the prison system.  They might, of course, be informers against the applicant, or against other prisoners.

It is not without significance that the twenty-one pages were produced to the Tribunal at the behest of the respondent.  Those pages were part of the files which related to the applicant’s conduct while a prisoner, and to his progress through the prison system.  Also contained within those files, but not excluded at the instigation of Mr Levy, were many documents which contained material which, in some respects, was plainly adverse to the applicant.  In particular, I refer to a report dated 31 January 1997 prepared by Mr Shane Kelly, Assistant Manager of Sentence Management of the Office of Correctional Services, which stated:

“It would seem Percerep made a significant change to his lifestyle after completing the Drug Treatment Unit.  Given his last nine years in Prison have been marred with constant incidents, Percerep has remained incident free (not including the unsubstantiated incident in ‘D’ Division) for approximately the last twelve months which is quite an achievement in its self.” (emphasis added)

The Tribunal referred to Mr Kelly’s report in its reasons for decision, noting as follows:

“The incident in D Division referred to by Mr Kelly was an allegation that, when the applicant was returned to Pentridge Prison in February 1996 for medical reasons he approached a prison officer to traffic in drugs.

There was a veiled suggested proffered as a possible explanation for a recent prison report of alleged subversive activities involving the applicant at Bendigo Prison and of the incident referred to by Mr Kelly, that some prison officers had a grudge against him.  The incidents referred to have apparently not been substantiated, and in the circumstances I do not take them into account as matters adverse to the applicant.”

The material obtained from the Office of Correctional Services which was tendered by the applicant before the Tribunal also included a minute dated 30 March 1996, prepared by Ms Bear.  She noted:

“Percerep has now been accommodated in separation unit accommodation for some twenty months, following beliefs that he was conspiring to introduce heroin into Pentridge and indeed there existed the opinion that this prisoner was the most likely “major player” in the movement of drugs in Pentridge. 

The prisoner’s history is certainly well documented and you would very well recall that he has accrued a notorious history of disruptive and violent activities in prison custody; of particular concern during previous years have been his suspected involvement in a number of “fire lighting” incidents, alleged “standovers”/assaults and clearly his apparent overwhelming desire to obtain drugs over many years.  His prior history suggests that he has the potential to be a danger to both staff and prisoners when he becomes active in his desire to obtain drugs, and certainly his similarly volatile history is acknowledged.” (emphasis added)

Other documents produced by the Office of Correctional Services included a prisoner’s application form in which the applicant himself noted that he had spent lengthy spells in maximum security during his term of imprisonment and had been involved with drugs at various times in prison.  There was also reference to his behaviour having “improved greatly”, after negative experience with prison in the past, and other like references.

Moreover, Mr Kelly’s report (to which I referred earlier) described an incident where the applicant had walked into the Chief Prison Officer’s office, produced a knife, and stabbed himself in the stomach.  Mr Kelly went on to say:

“Between the years 1988 to 1995 Percerep has accumulated some 43 incidents as a result of his inappropriate behaviour, this has also resulted in Percerep spending approximately 34 months in management units between 1986 and 1990. … Percerep was returned to ‘D’ Division in February 96 for medical reasons, during this time it was alleged that Percerep approached a Prison Officer and attempted to coerce the Officer to traffic in drugs, reports were written but to date no further action has been taken except for transferring Percerep to ‘B’ Division.”

An Addendum Sentence Management Unit report of 29 January 1997 referred to an incident leading to the applicant being returned to D Division Pentridge from Loddon Prison on 13 December 1996.  The report observes:

“The relocation followed an incident on 8 December 1996 when a female intending to visit this prisoner was found to be in possession of a quantity of white powder, thought to be narcotics, and a modified (i.e. “cut down”) syringe.”

No charges followed this matter.  The police documents relating to the investigation into this incident were before the Tribunal.

In short, I am satisfied that it is likely that the twenty-one pages which cannot now be located contained at least some material which was, in relevant respects, adverse to the applicant.  As I indicated earlier, I am also satisfied that the likelihood is that those twenty-one pages were read, or at least perused, by the Deputy President prior to making the order of 9 September 1997.  It is on the basis of these findings of fact that I proceed to consider the relevant legal principles which govern this matter.

The Tribunal made no reference to the twenty-one pages in the course of the two day proceeding before it.  Nor did it refer to that material in its reasons for decision.

Counsel for the applicant submitted that the Tribunal’s silence in relation to the twenty-one pages should lead the Court to conclude that the Tribunal may have been influenced by the material contained therein.  This submission was based in part, upon the fact that the Deputy President had stated in terms that he had not taken into account other material which was before him, having heard argument by counsel for the applicant as to why he should  follow that course.  The failure by the Tribunal to raise the twenty-one pages specifically with the parties during the course of the hearing meant, so it was contended, that the applicant had been denied the opportunity to be heard in relation to their contents.  Had the opportunity presented itself, the applicant could have sought access to that material (under appropriate safeguards eg such access being limited to his counsel, upon appropriate undertakings).  Alternatively, the applicant could have invited the Tribunal to ignore the twenty-one pages entirely.  He would then have had the reassurance of a statement by the Tribunal, in its reasons for decision, that the material had not, in any way, been taken into account. 

Counsel for the respondent submitted that the Tribunal was constituted by an experienced Deputy President.  He submitted that even if the Deputy President had read the twenty-one pages prior to making the order of 9 September 1997 it should not be assumed that he would do anything other than disregard entirely whatever was contained in those pages without giving the applicant an opportunity to be heard in relation to them.  He contended that the Tribunal had done all that could reasonably be expected of it to accord procedural fairness to the applicant.  By a letter dated 10 September 1997, the Tribunal had informed the applicant’s solicitor expressly, and in terms, of the fact that the twenty-one pages were considered to contain material of such a confidential nature that they warranted the granting of an order under s 35(2) of the AAT Act.  The fact that the applicant’s solicitor had not read the correspondence which had been sent to him should not, in any way, be permitted to impugn the fairness of the processes followed by the Tribunal. 

Counsel for the respondent also contended that the applicant had waived any rights to be heard in relation to the twenty-one pages by not seeking access to that material during the course of the proceedings before the Tribunal, or at least by not asking the Tribunal to disregard it entirely.  He submitted that the Court should conclude from the manner in which the Deputy President had dealt with other material which contained unsubstantiated allegations adverse to the applicant, (namely the allegations concerning the D Division incident) that he must also have put to one side any adverse comments, or any unsubstantiated allegations, which may have been contained within the twenty-one pages.  He submitted again that the Court should not speculate about the contents of those missing pages which could not be assumed to contain material adverse to the applicant.  The applicant had been given, so he contended, a fair hearing, and a reasonable opportunity to meet all relevant matters raised against him.

There is considerable force in a number of the respondent’s submissions.  In the end, however, I have come to the view that the applicant’s submissions on this point should be accepted.

The starting point in any legal analysis of the issues which are raised in this first ground of appeal is the judgment of the High Court in Kioa v West (1985) 159 CLR 550.  The case involved a challenge to deportation orders made against two Tongan citizens.  One of the issues which fell to be determined was whether the Minister’s delegate had given the appellants a fair opportunity to answer prejudicial statements affecting them.  The appellants contended that they had been denied an opportunity to respond to two particular statements contained in a submission made to the delegate.  Those statements took the form of comments by Departmental officers on the material put before the delegate on behalf of the appellants.  One of the statements referred somewhat disparagingly to Mr Kioa’s “active involvement with other persons who are seeking to circumvent Australia’s immigration laws”.

The High Court, by majority, held that the appellants had been denied procedural fairness because they had not been permitted to deal with matters prejudicial to them that had been put to the Minister’s delegate.  The principal judgment among those justices who were in the majority was that of Brennan J, as his Honour then was.  His Honour observed at 628:

“However, there was one allegation – that contained in par. 22 of the Department’s submission – which was damaging to the prospects of Mr and Mrs Kioa being allowed to stay in Australia.  That information was never put to Mr and Mrs. Kioa for their comments.  Evidently the delegate did not rely on this allegation in making his decision, for his statement of the reasons for his decision provided under s 13 of the AD(JR) Act did not refer to it.  That statement should be taken to be a true and complete statement of the delegate’s reasons unless there is evidence to the contrary:  see per Stephen J in R v MacKellar; ex parte Ratu (1977) 137 CLR 461 at 474.  Although it is right to conclude that the allegation in par. 22 formed no part of the delegate’s reasons, it was contained in the material before him which he proposed to consider in coming to a decision. 

A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v Government of Malaya [1962] AC 322 at 337; Ridge v Baldwin [1964] AC 40 at pp. 113-114 per Lord Morris; De Verteuil v Knaggs [1918] AC 557 at 560-561.  The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance.  Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision of which are of little significance to the decision which is to be made.  Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed …

Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.  It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it.  Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information.  He will be neither consoled nor assured to be told that the prejudicial information was left out of account.  The allegation in par. 22 was apparently credible, relevant and damaging.  The failure to give Mr Kioa an opportunity to deal with it before making an order that Mr and Mrs Kioa be deported left a risk of prejudice which ought to have been removed.  There was nothing in the circumstances of the case – neither in the administrative framework created by the Act nor in any need for secrecy or speed in making the decision – which would have made it unreasonable to have given Mr and Mrs Kioa that opportunity.  The failure to give Mr Kioa that opportunity amounts to a non-observance of the principles of natural justice.  The result is that the condition governing the power to make the deportation orders was not satisfied and the orders must be set aside.  If the Minister chooses to do so, a fresh decision may be made.  There is nothing in these reasons which affects the merits of the decision made or of any decision which may be made in the future.”

The effect of paragraph 22 of the department’s submission was dealt with in similar terms by Mason J (as his Honour then was) at 588, and by Deane J at 634.  It is significant that the justices in the majority did not rest their conclusion upon the basis that the Tribunal had acted upon the adverse comment contained within paragraph 22.  Their Honours relied rather upon the need, as a matter of principle, to ensure that there was a proper opportunity to controvert any material that was apparently credible which was, in fact, before the decision-maker.

The Chief Justice, Sir Harry Gibbs, dissented.  His Honour observed at 569 that the mere fact that the Minister or the delegate had received material which the appellants wished to put before him did not require that they be permitted to see and comment on the department’s adverse comments on that material.  His Honour noted that the statement of reasons given by the delegate had made no reference to the matters stated in paragraph 22 of the submission.  No attempt had been made to put before the Court evidence that the delegate had in fact considered matters other than those he mentioned in his reasons.  It should therefore be accepted that the matters referred to in paragraph 22 did not affect the delegate’s decision (referring to Ratu (1977) 137 CLR 461 at 474 per Stephen J). 

Ratu was, of course, also cited with approval by Brennan J at 628.  However, unlike Gibbs CJ, his Honour did not consider the reasoning in that case to operate against the interests of Mr and Mrs Kioa.

 

Support for the approach authoritatively laid down by the majority in Kioa may be found in Kanda v Government of Malaya [1962] AC 322, to which reference was made by Gibbs CJ in Kioa at 569, and by Brennan J at 628.  In Kanda an officer conducting disciplinary proceedings had read a report which contained allegations of serious misconduct against the person accused in the proceedings.  The accused had not had any opportunity to correct, or contradict, the report.  The courts in Malaya (as it then was) had concluded that the question was whether there was any real likelihood of bias.  The Judicial Committee of the Privy Council held, however that the complaint of the accused was not that the Tribunal was biased, but that he had not been given a reasonable opportunity to be heard.  Lord Denning said at 337:

“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him.  He must know what evidence has been given and what statements have been made affecting him:  and then he must be given a fair opportunity to correct or contradict them …It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations for one side behind the back of the other.  The court will not inquire whether the evidence or representations did work to his prejudice.  Sufficient that they might do so.  The court will not go into the likelihood of prejudice.  The risk of it is enough.” (emphasis added)

Gibbs CJ in Kioa concluded that it could not be said that there was a risk of prejudice once it was accepted that the comments in paragraph 22 did not in fact form one of the reasons for the delegate’s decision.  Brennan J did not, however, consider the principles in Ratu to be an answer to the contention that there had been a failure to accord procedural fairness.  Wilson J at 603 and Deane J at 633 approached this issue in the same way as did Brennan J.  That approach is one which I consider I am bound to follow.

Further support for the applicant’s position is to be found in Claro v Minister for Immigration, Local Government and Ethnic Affairs (1993) 46 FCR 494.  In that case, Burchett J stated at 505:

“I turn to the issue of natural justice.  The matters not disclosed to Mr Claro, which had been alleged against him by his wife, were relevant to the question whether there had been a complete and permanent end to the marital relationship.  In so far as there were allegations of “pestering”, unwanted entry into Mrs Claro’s home and bed, and the leaving of a mess in her bathroom, the allegations were also plainly harmful to the applicant on the issue of discretion.  …

But the argument for the Minister was that none of the matters not disclosed to Mr Claro played any part in the reasons that grounded the decision.  This is always a difficult argument.  Particularly where a discretion is involved, if a harmful allegation is concealed from a party, how can there be confidence that it in no way influenced an adverse decision?”

His Honour then quoted with approval the remarks of Brennan J in Kioa (supra) at 629, set out above.

In Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 Merkel J considered the principles laid down in Kioa in the context of a case where it was contended that non-disclosure to the applicant of information received by a departmental officer in relation to certain enquiries made by Embassy officials in Armenia constituted a breach of the rules of natural justice.  His Honour concluded that the information in question, which was adverse to the applicant, was critical to the decision which was ultimately taken to refuse the applicant a protection visa on humanitarian grounds.

Merkel J observed at 123:

“Was the failure to bring that information to the applicant’s attention a breach of the rules of natural justice? …

An applicant is entitled to know the case against him or her and be given the opportunity of replying to it.

But procedural fairness does not necessarily require disclosure of all of the details of the case against the applicant; it is sufficient if the substance or the gravamen of the information intended to be relied upon is brought to his or her attention: …

But, as the decision in Kioa itself demonstrates, the disclosure is not limited to the matters intended by the decision-maker to be relied upon.  Quite often the decision-maker will only determine those matters in the course of preparing or making a decision.

Rather, at least in a case such as the present, the issue is whether the applicant has had brought to his attention “the critical issue or factor on which the administrative decision is likely to turn” (Kioa, at CLR 587 per Mason J) or “relevant matters adverse to” the interests of the applicant which are “credible, relevant and significant to the decision to be made” (Kioa, at CLR 629 per Brennan J) or “the matters raised against them” (Kioa, at CLR 634 per Deane J).

Where the information in question is prejudicial to the applicant or to the case he or she is putting it is not necessary to show that it did work to the prejudice of the applicant; it is sufficient to show that it was open to it to do so:  see Kanda v Government of Malaya [1962] AC 322 at 337-8.”

His Honour concluded that the applicant had, in the circumstances, been denied procedural fairness.

 

Counsel for the respondent in the present case contended that the observations of the majority in Kioa are inapplicable to the situation which presents itself in the present case.  The contents of the twenty-one pages were confidential, unknown, and cannot therefore be said to be “apparently credible”.  These are powerful considerations.  They do not, however, alter the operation or effect of the broad statement of principle which was endorsed by the majority of the High Court. 

The fact that the contents of the twenty-one pages were confidential did not necessarily mean that some intimation could not be given to the applicant of their general nature.  This would have enabled submissions to be made concerning the material contained therein.  Courts have, in some circumstances, deemed it appropriate to permit counsel to inspect documents which might be the subject of a claim for public interest immunity, upon the giving of appropriate undertakings, in order that submissions can be made concerning the contents of those documents – Alister v The Queen (1983) 154 CLR 404; Jackson v Wells (1985) 5 FCR 296. 

 

The fact that the contents of the twenty-one pages are not now known is of no relevant consequence given that I am prepared to infer that they are likely to have contained material which was adverse, in relevant respects, to the applicant. 

As regards the “apparent credibility” of the documents, it is true that there is a difficulty here.  It is not easy to make any meaningful evaluation of those documents when their contents cannot now be ascertained.  Nonetheless, the material contained within them was considered sufficiently “credible” to warrant being placed upon the applicant’s Office of Correctional Services file.  While some of the material may not have been “apparently credible”, I am not prepared to say that none of what was contained in the twenty-one pages was capable of being so regarded.

It is, of course, theoretically possible that each and every matter adverse to the applicant within the twenty-one pages had been thoroughly investigated by the Department of Justice, and dismissed as being without foundation.  It that were so, there might be a case for saying that there was no relevant prejudice to the applicant in that material.  I do not believe that it would be consistent with the principles which underlie the reasoning of the majority in Kioa to approach the matter in that way.  It would truly involve speculation and conjecture, and not inference.  In circumstances where the effects of a deportation order upon the applicant are extremely serious, I am not prepared to approach the matter upon the basis of any such theoretical possibility.

There is a relative paucity of authority dealing with the question of waiver in relation to the operation of the rules of natural justice.  There are cases where courts have held that failure to give due notice is immaterial if, in fact, the person affected has had a proper opportunity to be heard.  These cases suggest that minor aspects of the rule may be impliedly waived.  In other cases courts have refused discretionary relief where there has been breach of the requirements of natural justice.  The relevant principles are set out in M Aronson and B Dyer, Judicial Review of Administrative Action (1996) at 576-578.  None of the authorities referred to by the learned authors suggests that the applicant should be treated as having waived his right to be accorded procedural fairness because his solicitor, through an oversight, failed to read correspondence which had been addressed to him. 

In cases involving matters which may be compensable in monetary terms, such an oversight by a legal representative may be treated as some form of waiver, or perhaps as disentitling the applicant as a matter of discretion to relief for denial of procedural fairness.  The possibility that the applicant may have an effective remedy against his legal representative will provide some justification for that approach.  It will be of little comfort to the applicant in the present proceedings, however, to be told that the deportation order made against him must stand because, through no fault of his own, but rather through the fault of his solicitor, important correspondence was not read and, as a result, no submissions were addressed to the Tribunal on what may have been an important issue.

Where a decision-maker has received material which is, or may be, adverse in a material respect to a party, it is not unreasonable to expect that the fact that this material had been received will be emphasised during the course of the hearing, and the party adversely affected invited to be heard in relation to it.  If the material has been previously read, and sealed, because of its sensitive or confidential nature, the party who may be adversely affected by it should, in my view, be given an opportunity to be heard in relation to any such confidentiality orders.  That opportunity should be given clearly, and unequivocally, or to put the matter another way, there must be “meaningful disclosure” - Moore v Guardianship and Administration Board [1990] VR 902 at 912 per Gobbo J.  If the decision-maker has concluded that the material will, in any event, be disregarded that fact should, ordinarily, be communicated to the parties.  Even if that is not done it may, in a given case, be appropriate for the decision-maker to state in his reasons for decision that certain documents which contained material of a confidential nature were received, and read, but disregarded when it came to making the final determination. 

 

There can be no fixed rules in relation to these matters.  For example, the fact that the decision-maker may have read unfavourable newspaper accounts, or seen adverse television reports, concerning the applicant would not ordinarily require anything specific to be done to inform the parties of that fact.  Nor would it require that fact to be revealed in the reasons for decision.  The existence of such adverse material will be generally known, and even if not known, Tribunals (as distinct perhaps from jurors) are assumed to be aware of the need to disregard material of that nature.

Documents such as those which were subpoenaed from the Office of Correctional Services seem to me to fall into a different category.  They have an official status, and the risk of their influencing a person who reads them, whether consciously or subconsciously, is inherently greater.  The Tribunal should have reminded the parties of the fact that these pages had been received and, as I have found, read by the Deputy President before being ordered to be sealed.  The principles which I consider applicable are those same principles which led Gobbo J, in the Supreme Court of Victoria to quash a determination of the Guardianship and Administration Board in Moore (supra).

The Tribunal’s obligation to bring this matter squarely to the attention of the parties during the course of the hearing was, in my opinion, greater by virtue of the fact that the Deputy President made the decision to make the confidentiality order without having heard first from the parties.  That was a course which may well have been open to him, but, in my view, when adopted, imposed corresponding obligations to ensure that all matters concerning the relevant documents were properly aired.  This the Deputy President did not do.  The letter of 10 September 1997 was sent to the parties setting out the terms of the order made on the preceding day was not, in the circumstances, an adequate alternative.  It was not “meaningful disclosure” of the fact that the Deputy President had received and read the material the subject of the order, and it was not calculated to induce the applicant to take the matter further, even if his solicitor had read that letter.

Though it cannot be said that the Tribunal took into account in a manner adverse to the applicant anything contained in the twenty-one pages, there is a  risk that it may have done so, even subconsciously.  The fact that the applicant was denied the opportunity to be heard in relation to that material leads me to conclude that he must succeed in his claim that he was denied procedural fairness.

The effect of my judgment will be that the decision under review will be set aside.  The matter will be remitted to the Tribunal, differently constituted, to be reconsidered.

There were a number of other grounds of appeal which were fully argued before the Court.  It is appropriate that I deal with them because they may well arise again when this matter is dealt with by the Tribunal. 

(b)        Ground 2

Ground 2 of the Notice of Appeal reads as follows:

“The deportation order affirmed by the Tribunal is invalid on grounds of uncertainty.

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2.1              The deportation order refers to and relies upon convictions on 2 December 1985 and three counts of armed robbery committed on 26 July 1985.

2.2              The applicant was not convicted on 2 December 1985 and was not convicted of three counts of armed robbery committed on 26 July 1985.”

There is, in my opinion, no substance in this ground.  The material before the Tribunal demonstrates that the applicant was convicted on 29 November 1985 but sentenced on 2 December 1985.  The misstatement concerning the date of conviction is of no consequence.  Nor is the misstatement concerning the dates upon which the three counts of armed robbery were committed.  The first of these was indeed 26 July 1985, but the other two were committed in August 1985.  Such an error can scarcely be said to vitiate a deportation order which is otherwise valid. 

There may be circumstances where a deportation order may be invalid on grounds of uncertainty.  If, for example, it is impossible to tell what offences formed the basis of the delegate’s decision to order deportation, the order might well be invalid.  It would fail to show jurisdiction on its face.  Assuming that such a requirement exists, it might thereby fail to satisfy the requirements for this particular exercise of statutory power – see generally Ousley v R (1997) 148 ALR 510 at 516-518, 535-538 and 553.

In this context the applicant relied upon a decision of the Tribunal in Re Thomason v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 795.  There the applicant had been convicted on four counts of breaking and entering a dwelling house with intent to commit an indictable offence.  He had been admitted to probation for a period of two years.  In the following month, the applicant was convicted of further offences.  Having breached the probation order, the applicant appeared again for sentencing on each of the four counts in respect of which the probation order had been made.  On 9 July 1991 he was sentenced to twelve months’ imprisonment on each count. A delegate of the Minister purported to order the deportation of the applicant pursuant to the provisions of the Migration Act.  The “deportation order” referred to the applicant’s conviction on 9 July 1991 “of the offence of breach of probation for which he was sentenced to one year’s imprisonment and which offence he committed on 15 May 1991”.  The applicant sought review by the Tribunal of the decision to order his deportation.  The Tribunal held that the “deportation order” was so clearly defective that no valid order had been made.  It seems that the Tribunal recognised that there was no offence known to the law of breach of probation.  It followed that the purported order was so uncertain in its terms that it could only be regarded as a nullity.

The deportation order in the present case is imperfectly drafted.  However, in my view, it cannot be said to be invalid by reason of uncertainty.  The confusion between the date upon which the applicant was convicted and the date upon which he was sentenced is, as I have indicated, of no consequence.  Moreover, the three offences of armed robbery which form the basis of the order are correctly designated save that the first of them only was committed on 26 July 1985.  It is obviously desirable that deportation orders be drafted with care and precision.  This is not, however,  a case in which such errors as appear in the document should be taken to vitiate it.  I would reject ground 2.

(c)        Ground 3

Ground 3 is in the following terms:

“The Tribunal erred in law in deciding that a Youth Training Centre was a “prison” within the meaning of section 204 of the Migration Act 1958.  The Tribunal dealt with this contention in its reasons for decision.  If time spent in a Young Training Centre is not time served in a prison, the applicant would, as at 26^th July 1985, the date of the commission of the first offence of armed robbery, have acquired more than ten years permanent residence in Australia, and would be ineligible for deportation.”

The Tribunal noted that s 204 of the Migration Act relevantly provides:

204. (1)  Where a person has been convicted of any offence (other than an offence the conviction in respect of which was subsequently quashed) the period (if any) for which the person was confined in a prison for that offence shall be disregarded in determining, for the purposes of section 201 and subsection 202(1), the length of time that that person has been present in Australia as a permanent resident or as an exempt non-citizen or a special category visa holder.

…

(3)         For the purposes of this section:

(a)               a reference to a prison includes a reference to any custodial institution at which a person convicted of an offence may be required to serve the whole or a part of any sentence imposed upon him or her by reason of that conviction; and

(b)               a reference to a period during which a person was confined in a prison includes a reference to a period:

(i)                 during which the person was an escapee from a prison; or

(ii)               during which the person was undergoing a sentence of periodic detention in a prison.”

Counsel for the applicant repeated the submission which he had made to the Tribunal below that, because pursuant to s 92 of the Community Welfare Services Act 1970 (Vic) (since subsumed under the Children and Young Persons Act 1989 (Vic) (s 249)) a Youth Training Centre may serve purposes for young persons in need of special supervision, adjustment or training in addition to Court imposed detention following conviction for crimes, it is not a “prison” for the purposes of the Act. 

The Tribunal rejected this submission, correctly in my view.  In determining the length of permanent residence in Australia, subs 204(3) of the Act provides that “a reference to a prison includes a reference to any custodial institution at which a person convicted of an offence may be required to serve the whole or part of any sentence imposed upon him by reason of that conviction”.  The applicant had, in 1978, been ordered to be detained in a Youth Training Centre following convictions for theft of motor cars, robbery and burglary.  A Youth Training Centre is, in my view, a “custodial institution” within the meaning of that expression in subs 204(3).  The Tribunal was correct in holding that the fact that a Youth Training Centre may serve purposes other than detention as punishment is no basis for holding that it is not a “custodial institution” for the purposes of subs 204(3).  There is no substance in ground 3.

(d)        Ground 3A

The applicant was given leave pursuant to O 53 r 3(3) of the Federal Court Rules to amend his grounds of appeal to raise a point not taken before the Tribunal in the present proceeding.  Ground 3A of the Grounds of Appeal reads as follows:

“The Tribunal erred in law in applying section 204 [of the Migration Act] with retrospective effect.”

In essence, the applicant contended that s 204 (and its legislative forerunner, s 14A of the Migration Act, which came into operation on 2 April 1984) should not have any effect upon the applicant’s position in relation to achieving ten years’ permanent residence prior to committing the relevant deportation offences because the expanded definition of prison contained therein does not apply to time served in a Youth Training Centre prior to 2 April 1984.  In the present case, the applicant had, of course, served his sentence in a Youth Training Centre some years prior to that date, in 1978 and 1979.

The applicant conceded that both s 201 of the Migration Act, and its legislative forerunner,

s 12 (which also came into operation on 2 April 1984) operate retrospectively.  That concession was properly made.  The language of s 201 makes it plain that the deportation scheme encompassed within that section is intended to apply to any person who has been convicted of a crime which resulted in a sentence of imprisonment for one year or longer irrespective of whether that conviction occurred before, or after, the new regime came into effect.  The applicant submitted, however, that neither s 204 of the current Migration Act (nor its legislative forerunner, s 14A) manifests any such legislative intent.  He submitted that this was in stark contrast to s 201 (and s 12).  He contended that where Parliament intends a provision to operate retrospectively, to the detriment of the rights of an individual, a clear expression of legislative intent is required – see Maxwell v Murphy (1957) 96 CLR 261; Rodway v R (1990) 169 CLR 514 and Minister for Immigration and Ethnic Affairs v Petrovski (1997) 154 ALR 606.  He referred in this connection to s 8 of the Acts Interpretation Act 1901, and in particular to paragraph 8(c).

Somewhat curiously, this argument was not advanced before the Tribunal in the present proceeding.  I say curiously because this argument had been advanced before Deputy President Thomson in the Tribunal which dealt with the present applicant’s liability to deportation in 1990.  In that matter, Deputy President Thomson held that the fact that prior to the introduction of s 14A into the Migration Act by the Migration Amendment Act 1983 the Act had contained no such provision did not mean that s 14A was intended only to have prospective effect.

Deputy President Thomson noted that in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 182 the High Court had observed that s 12 of the Act operated retrospectively, as is clear from its terms.  The High Court referred to s 14A in a manner which suggested that it regarded that section too as having retrospective effect.  That question was not, however, before the Court, and the observation concerning s 14A was plainly obiter.

Deputy President Thompson analysed the position under the Migration Act prior to its amendment on 2 April 1984.  He concluded that s 14A had the effect, in combination with

s 12, of imposing a specific time limit on the liability for deportation of a person who had previously been an “alien”, and therefore subject to deportation, for so long as that alien status subsisted.  He characterised the new scheme, introduced in 1984, as one which was “beneficial” to persons who would previously have been classed as “aliens”, and therefore liable indefinitely to deportation.  He concluded that there was no reason why s 14A should not apply in accordance with its terms, so that any period during which a person had been confined in a prison for an offence, whether that confinement occurred before or after 2 April 1984, should be disregarded in determining the length of time that he had been present in Australia as a permanent resident. 

This analysis seems to me to be correct.  It is strengthened by the obvious and direct links between ss 200 and 201, and s 204 of the Act.  It would be somewhat strange for Parliament to have made retrospective the provisions which deal with convictions, but to have confined the prison sentences which flow directly from those convictions to those served after 2 April 1984.

 

Section 8 of the Acts Interpretation Act seems to me to have no application in this regard.  That section is to be read subject to Parliament manifesting “the contrary intention” .  The language of s 204 of the Migration Act, and the legislative context in which that section appears, makes it plain that Parliament intended to include time served in prison prior to 2 April 1984 when calculating permanent residence for the purposes of s 201.  Ground 3A should be rejected.

(e)        Ground 4

Ground 4 of the Notice of Appeal is in the following terms.

“The Tribunal erred in law in that it misinterpreted the policy so as to apply a test which excluded its proper consideration of the merits of the case.

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4.1              The Tribunal decided that the policy required the applicant to be deported if there was a “real risk” of recidivism. 

4.2              The test adopted by the Tribunal excluded the proper assessment of recidivism.

Ground 4 relied, in substance, upon certain observations in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189.  The applicant relied upon a passage at 208 in the joint judgment of French and Drummond JJ which is as follows:

“The question arises whether a misapplication or misconstruction of the Ministerial policy by the Tribunal gives rise to error which is reviewable on appeal to this Court as an error of law.  It must be accepted, as counsel for the Minister submitted, that Ministerial policy is not to be construed and applied with the nicety of a statute.  Policies are not statutory instruments.  They prescribe guidelines in general, and not always very precise, language.  To apply them with statutory nicety is to misunderstand their function.  On the other hand, where the existence and content of such a policy is to be regarded as a relevant fact which the Tribunal is bound to consider, a serious misconstruction of its terms or misunderstanding of its purposes in the course of decision-making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power.  If a decision-maker, not bound to apply policy, purports to apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error.”

The applicant contended that the Tribunal misconstrued the relevant criminal deportation policy by failing to appreciate that, when considering what amounts to an acceptable level of risk, the question of rehabilitation must be taken into account at that first stage, and not merely when referring to the risk of recidivism after having arrived at that “acceptable level”. 

He referred to the fact that, in Gray, the Tribunal was found to have failed to have considered the relevant factors separately in determining whether or not there was a benefit to the community arising from the deportation, to be weighed against hardship to the applicant and his family.  The Tribunal there had determined the benefit to the community flowing from the deportation solely by a judgment made on the risk of recidivism. 

The trial judge who, in Gray, had ordered that the Tribunal’s decision be set aside, had concluded that the Tribunal had erred in failing to take into account the extent of rehabilitation already achieved, the prospects of future rehabilitation, and the positive contribution to the community that the applicant might reasonably be expected to make as a role model of rehabilitation.  All of these were said to be factors relevant to a determination of whether a higher level of acceptable risk ought to have been fixed by the Tribunal.  The Tribunal had erred in failing to attempt to make a quantitative and qualitative assessment of the risk, and to identify its true nature and extent, once it accepted that there was a risk which exceeded a very minimal level.  To determine a level of acceptable risk by reference only to factors which were adverse to the applicant, and to exclude factors favourable to him, was said to be manifestly unreasonable. 

The Full Federal Court in Gray held that the trial judge had correctly characterised the Tribunal’s approach as being vitiated by an error of law.  Their Honours French and Drummond JJ observed at 211:

“Further, we consider that his Honour was substantially correct when he held the determination of the level of acceptable risk by reference to factors adverse to the applicant and without reference to the level of rehabilitation achieved and potential as a role model, involved error.”

The observations of both the trial judge, and of the Full Court in Gray must, of course, be read in the context of the particular issues in that case.  I do not detect in the judgment of the Full Court a determination to lay down a series of inflexible rules as to the steps which must be followed by the Tribunal whenever it has regard to the relevant criminal deportation policy.  Nor should the language in which any Tribunal’s reasons are expressed be subjected to over zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which those reasons are expressed – Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291.

In its reasons for decision in the present case the Tribunal stated:

“In considering the risk of recidivism the task of the Tribunal is to determine what is the acceptable level of risk and to assess whether an applicant in his particular circumstances, poses an unacceptable level of risk to the Australian community: Re Salazar-Arbelaez v Minister for Immigration and Ethnic Affairs (1997) 1 ALD 98 at 100.  Mr Gray conceded, that in the present circumstances given the applicant’s criminal history the risk of re-offending must be low.  He submitted that there is ample evidence to enable a low risk assessment to be made.”

The Tribunal then referred to that evidence in detail.  After doing so, the Tribunal stated:

“I have come to the conclusion in the instant case that the protection, safety and welfare of the Australian community outweighs the hardship to the applicant and his family.  The applicant has a long criminal record extending over fourteen years, with lengthy periods of imprisonment.  The criminal history covers a range of offences including four offences of armed robbery, one of maliciously causing injury, one of recklessly causing injury, one of robbery, three of burglary and twenty-two of theft …

In my view the applicant presents as a real risk of re-offending and that is unacceptable in the circumstances.  He has known since 1983 that he faced the prospect of deportation but a warning followed by a reminder in a previous successful review by the Tribunal, have had little tangible effect.  At the previous hearing, the Tribunal thought that the applicant’s best chance of rehabilitation would result if he were able to remain in Australia … in hindsight we know the applicant was not rehabilitated, and that the assurances he gave the Tribunal on that occasion that he had given up involvement with drugs were false. … In arriving at this conclusion I do not discount his recent positive efforts at drug rehabilitation.”

I see nothing in the Tribunal’s reasons for decision to persuade me that it has misunderstood or misapplied the relevant criminal deportation policy.  That policy, contained in a ministerial statement dated 24 December 1992, was included in the documents lodged with the Tribunal pursuant to s 37 of the AAT Act.  It states in paragraph eight that most weight should be given to the need to protect Australian society.  Paragraph nine provides that, consistent with Australia’s obligations under international law, there must be a balancing of a number of important factors, especially the need for community protection against criminal behaviour, the requirement to take into consideration the legitimate human rights of an individual, the need to protect the rights of other persons including the family of the person concerned, and the need to avoid discrimination when making deportation decisions. 

In my view the Tribunal understood and applied the relevant policy in accordance with the principles laid down in Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.  All matters which could fairly be regarded as being favourable to the applicant were taken into account when assessing what might be an acceptable level of risk.  Having regard to the extremely serious nature of the offences which he had committed, and to his long criminal history, that acceptable level of risk was fixed as being low.   The applicant was found, however, to present a risk which was real.  The term real was used advisedly, and obviously in a sense designed to distinguish it from the term low.

 

The Tribunal concluded that the real risk posed by the applicant exceeded the low risk which would be acceptable.  The language used by the Deputy President in expressing his reasons for affirming the decision to deport, though necessarily imprecise, is both rational and meaningful.  I am not persuaded that it is appropriate to subject the Tribunal’s reasoning in this regard to any close philosophic or linguistic analysis with a view to seeing whether some error of law, semantically based, can be discerned.  In my opinion ground 4 should be rejected.

(f)         Ground 5

Ground 5 is as follows:

“The Tribunal erred in law in that it failed to take into account a relevant consideration, namely the content of the policy, by applying a test which did not accord the applicant the consideration required by the policy due to the circumstance that the applicant migrated to Australia in his childhood.”

Counsel for the applicant submitted that the Tribunal had misunderstood or failed to apply correctly a line of authority which suggested that the fact that the applicant had arrived in this country as a minor should be given greater weight than the Tribunal had acknowledged.  The basis for this contention was said to be the likely harm which might be done to Australia’s international reputation if it persistently returned to other countries persons who had been corrupted within Australia during their formative years.  In support of this submission the applicant relied upon Re Gogebakan v Minister for Immigration and Ethnic Affairs (1987) 6 AAR 544 and Re Ameri v Minister for Immigration, Local Government and Ethnic Affairs (1989) 10 AAR 62.  The applicant acknowledged, however, that in Gumus v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 145 Keely J had criticised the reasoning in Gogebaken and Ameri and observed that it was difficult to reconcile with the approach adopted by Brennan J in Re Salazar-Arbelaez.  

Certainly the applicable criminal deportation policy recognises that the fact that a person arrived here as a minor does not act as a bar to the making of a deportation order.  The Tribunal accepted that the applicant’s arrival as a minor was a relevant consideration which, in the particular circumstances of this case, militated against the making of such an order.  It concluded, however, that on balance, the considerations in favour of deportation outweighed those against not adopting that course.  I am not persuaded that the Tribunal erred in approaching this question in the manner which it did.  It follows that ground 5 is rejected.

(g)        Ground 6

Ground 6 was abandoned in part.  The balance of the ground was confined essentially to a contention that the Tribunal had not taken into account the circumstance that the applicant’s various addictions were contributed to by the administering of prescription drugs by Youth Training Centre authorities in 1976 and 1977.  In my view there is no substance in this ground.  The matter which was said to have been ignored by the Tribunal could not, realistically, have affected the Tribunal’s decision.  It follows that in accordance with the principles laid down in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 this ground must be rejected.

(h)        Grounds 7 and 8

Grounds 7 and 8 were, in essence, abandoned.  They were, in any event clearly untenable.

Conclusion

It follows, that in my opinion, this application must succeed.  The decision of the Tribunal to affirm the deportation order must be set aside, and the matter remitted to a differently constituted Tribunal for reconsideration according to law.  I propose to hear the parties on the question of costs.

I certify that this and the preceding thirty-eight (38) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg

Associate:

Dated:              4 September 1998

Counsel for the Applicant:	Mr P Gray
Solicitor for the Applicant:	Victoria Legal Aid
Counsel for the Respondent:	Mr R Downing
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 July 1998
Date of Judgment:	4 September 1998