FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385

ADMINISTRATIVE LAW – deportation – review of decision to deport pursuant to power under s 200 Migration Act 1958 (Cth) (“the Act”) – policy directions under s 499 of the Act – risk posed by respondent to the Australian community – whether Administrative Appeals Tribunal could go behind the facts upon which respondent previously convicted – policy considerations against administrative decisions being based on findings inconsistent with criminal convictions – whether distinction between convictions which enliven power to make deportation orders and those which do not

ESTOPPEL – issue estoppel – whether issue estoppel best understood as a rule of evidence – whether Administrative Appeals Tribunal bound by issue estoppel

Migration Act 1958 (Cth) s 200

Minister for Immigration & Multicultural Affairs v SRT (1999) 91 FCR 234,  applied

General Medical Council v Spackman [1943] AC 627,  applied

Minister for Immigration & Ethnic Affairs v Daniele (1981) 61 FLR 354,  applied

Minister for Immigration & Ethnic Affairs v Gungor (1982) 63 FLR 441,  applied

Ridley v Secretary, Department of Social Security (1993) 42 FCR 276,  considered

Saffron v Commissioner of Taxation (1991) 30 FCR 578,  discussed

Degerli v Minister for Immigration & Ethnic Affairs (1981) 4 ALN N39,  cited

Hollington v Hewthorn & Co Ltd [1943] KB 587,  distinguished

Hunter v Chief Constable of West Midlands Police [1982] AC 529,  cited

Wiest v Director of Public Prosecutions (1988) 23 FCR 472 (FC),  cited

Ramsay v Pigram (1968) 118 CLR 271,  cited

Minh v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 304,  cited

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

Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409,  cited

Kuswardana v Minister for Immigration & Ethnic Affairs (1981) 54 FLR 334,  cited

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v SHANE ALI

N 60 of 2000

BRANSON J

SYDNEY

29 SEPTEMBER 2000

THE COURT ORDERS THAT:

1.                  The decision of the Administrative Appeals Tribunal be set aside.

2.                  The matter be remitted to the Administrative Appeals Tribunal to be heard and determined again.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     This “appeal” from a decision of the Administrative Appeals Tribunal (“the Tribunal”) constituted by Deputy President Blow involves consideration of when, if at all, an administrative decision maker concerned to determine whether a non-citizen should be deported may look behind the outcome of criminal proceedings.

FACTUAL BACKGROUND

2                     The respondent is a non-citizen.  He is a citizen of Fiji who was granted permanent resident status on 18 March 1992.  On 27 July 1996 the respondent was convicted at Sydney District Court of Break Enter and Steal in Circumstances of Aggravation.  He was sentenced to a minimum term of two years and six months imprisonment with an additional term of two years and six months.  By letter dated 24 November 1998, the respondent was advised that his conviction at Sydney District Court for Break Enter and Steal in Circumstances of Aggravation rendered him liable to deportation pursuant to s 200 of the Migration Act 1958 (Cth) (“the Act”).

3                     On 3 April 1999 a delegate of the applicant made a deportation order against the respondent.  The respondent was advised by letter dated 15 April 1999 of the making of the order.  The respondent was at this time a prisoner in the Goulburn Correctional Centre.

4                     The respondent applied to the Tribunal for review of the decision to make the deportation order against him.  On 24 December 1999 the Tribunal set aside the decision to make a deportation order against the respondent and substituted a decision that the respondent not be deported in consequence of his conviction of 27 July 1996.

5                     Before this Court the applicant has contended that the Tribunal erred in law in going behind certain convictions of the respondent.  For the reasons set out below, I have accepted this contention in part.  I have determined that the order of the Tribunal should be set aside and the matter remitted to the Tribunal for rehearing.

STATUTORY PROVISIONS

6                     Division 9 of Part 2 of the Act (comprising ss 200-206) is concerned with deportation.  Section 200 authorises the applicant to order the deportation of a non-citizen to whom Division 9 applies.  Section 201 has the effect that Division 9 applies to the respondent.  Section 201 relevantly provides:

“201.   Where

(a)               a person who is a non-citizen has … 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; or

(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.”

7                     Where the applicant has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly (s 206).

POLICY DIRECTION

8                     On 21 December 1998, the applicant issued a written direction under s 499 of the Act (“the Policy Direction”).  The Policy Direction is headed:

“MIGRATION ACT 1958

GENERAL DIRECTION UNDER SECTION 499

AUSTRALIA’S CRIMINAL DEPORTATION POLICY

CRIMINAL DEPORTATION UNDER SECTION 200 OF THE MIGRATION ACT 1958

General Direction – Criminal Deportation – No. 9”

9                     The Policy Direction identifies two primary considerations to which a decision maker should have regard in making a decision whether or not to deport a potential deportee.  Those considerations are:

“(a)     the expectations of the Australian community; and

  (b)      in all cases involving a parental relationship between a child or children and the potential deportee, the best interests of the child or children.”

The Policy Direction identifies two aspects to community expectations -

“(a)     the expectation that the community will be protected and not put at risk; and

(b)        the expectation that non-citizens who commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.”

Para 10 of the Policy Direction provides:

“10.     It is the Government’s view that the following factors are relevant to an assessment of the level of risk to the community and the need for its protection:

(a)               the seriousness and nature of the crime;

(b)               the risk of recidivism; and

(c)               the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.”

REASONS OF THE TRIBUNAL

10                  It has never been in dispute that the applicant was empowered to authorise the deportation of the respondent.  The issue before the Tribunal was whether, as a matter of discretion, it was appropriate for an order to be made for the deportation of the respondent.

11                  In its review of the decision to make the deportation order, the Tribunal gave consideration to the Policy Direction and in particular the protection of the Australian community.  In considering the risk of recidivism by the respondent, the Tribunal noted the respondent’s lengthy record of criminal offences.  In relation to three of the respondent’s previous convictions, the Tribunal’s reasons for decision record the following:

“15.     In relation to the charge of motor vehicle stealing dealt with on 15 March 1993, the police alleged, and the applicant did not dispute, that he had been the driver.  However the applicant gave evidence before me that he had been a passenger, had been caught by the police, and had decided to take the blame.  He could well be telling the truth.  From the point of view of the expectations of the Australian community, I do not think it matters whether he was involved in the theft of the vehicle as its driver or as a passenger.  If he lied as to the nature of his involvement at the hearing before the Tribunal, that would be a different matter.  But I am not prepared to make a finding that he lied about the extent of his involvement.  I believe that he might have decided to take all the blame after getting caught.

16.              The charge of 4 September 1995 relates to a ‘road rage’ incident when a motorist was punched up to twenty times.  The applicant was sentenced to 12 months’ imprisonment, with an additional term of 3 months.  The applicant defended the charge, and unsuccessfully appealed against his conviction.  He continues to maintain that he was wrongfully convicted.  He might have been wrongly convicted.  People sometimes are.  Although I have a transcript of the hearing before the magistrate, I do not know enough about the reliability or otherwise of the evidence as to identify to make a finding [sic] that the applicant was rightly convicted, nor a finding that he lied to the Tribunal about his innocence.

17.              ….

18.              ….

19.              On 11 September 1997 the applicant was involved in an incident in a cell at the Bankstown police station.  A number of prisoners were in the cell at the time.  One of them threw wet paper over a security camera.  There was a fight.  One of the other prisoners suffered a broken nose, a badly swollen right hand, and pain to his ribs.  As a result of this incident, the applicant was charged with assault occasioning actual bodily harm.  He pleaded guilty before a magistrate and was sentenced to 9 months’ imprisonment on 2 April 1998.  But at the hearing before me the applicant claimed he was innocent of this offence.  Under cross-examination, he said that his alleged victim had got one of his mates to cover the camera and had started to hit him.  However he said that the police then came to the cell, got the man who covered the camera to uncover it, and was present when the alleged victim started the fight.  He said he pleaded guilty because he knew any sentence imposed by a magistrate would run concurrently with his other sentences and make no difference to the length of time he spent in prison.  It seems he was correct about that.  It was submitted on behalf of the respondent that it was unlikely that the applicant would have pleaded guilty when he believed that the incident was recorded on tape, but I do not think there is any evidence that the applicant believed there was a tape.  The surveillance camera might only have been used to display events in the cells to police officers on a monitor, without anything being videotaped.  The applicant claimed he told the magistrate that he had acted in self-defence, and that the magistrate allowed him to maintain his plea of guilty.  I find that very hard to believe, but I only have the applicant’s version of what was said in court.  It may be that he told the magistrate that he had acted in self-defence; that the magistrate said he would have to treat the plea of guilty as withdrawn; and that the applicant changed his version of events so that the charge could be disposed of.  Once again, I am not in a position to make a finding that the applicant lied to the Tribunal.  … He was certainly involved in a fight in the cells, but beyond that I do not know where the truth lies.”

CONSIDERATON

12                  The applicant has contended that the Tribunal erred in law by taking into account evidence that the respondent had not committed offences of assault occasioning actual bodily harm and had taken a lesser role in relation to an offence of stealing a motor vehicle than that which he had conceded for the purpose of his conviction and sentence.  That is, the applicant has contended that the Tribunal was not entitled, for any purpose, to go behind the facts upon which the respondent had previously been convicted of criminal offences and upon which his sentences for such offences had been based.

13                  The respondent has contended that no error of law resulted from the Tribunal hearing and taking into account evidence which challenged the facts behind or surrounding his earlier convictions.

14                  The applicant places reliances on the decision of the Full Court of this Court in Minister for Immigration & Multicultural Affairs v SRT (1999) 91 FCR 234 (Branson, Lindgren and Emmett JJ).  In SRT the Full Court set aside a decision of the Tribunal and remitted the matter to the Tribunal for decision according to law.  The Tribunal in that case, in reviewing a decision to make a deportation order, had reached conclusions that were consistent only with a view that, at the respondent’s criminal trial, the trial judge had wrongly directed the jury and had sentenced on a factual basis not open to him.  The Full Court at para 25 observed that:

“It is impermissible for the Tribunal to impugn the conviction on which a deportation order is based: Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354; Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441.”

The Full Court went on at para 40 to say:

“… where the decision to be reached [by the Tribunal] depends on there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any inquiry which would impugn the sentence.  Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal.  The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.”

At paras 41 and 45 the Full Court gave consideration to the relevant policy considerations, observing:

“There are good policy reasons why such a principle should prevail.  It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed.  …  It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence.  The policy must be that a conviction, and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures.”

15                  The respondent contends that the decision in SRT should be understood as applying only to the offence on which the power to make the deportation order under s 200 of the Act depends.  He argues first, that extension of the principles discussed in SRT “would involve issue estoppel upon an administrative Tribunal which is contrary to both the relevant legislation and authority”.  Secondly, he argues that the contention that as a matter of public policy an applicant in the Tribunal should not be permitted to re-litigate an issue determined by a criminal court, has been previously considered and rejected by the Full Court in other cases.

16                  The respondent submitted that the decision in SRT is simply an application of the rule that, where a criminal conviction forms the legal basis upon which a discretionary power is founded, then no challenge can be made to the fact of the conviction.  He referred to General Medical Council v Spackman [1943] AC 627.

17                  Spackman concerned the statutory powers of the General Medical Council.  Section 29 of the Medical Act 1858 (UK) relevantly provided:

“If any registered medical practitioner shall be convicted … of any felony or misdemeanour … or shall after due inquiry be judged by the General Council to have been guilty of infamous conduct in any professional respect, the General Council may, if they see fit, direct the registrar to erase the name of such medical practitioner from the register.”

The Lord Chancellor, Viscount Simon, with whom the other members of the House agreed, noted that s 29 drew a significant distinction between a case in which the impeached practitioner has been convicted of a felony or misdemeanour and a case in which the allegation of infamous conduct is not connected with a criminal conviction.  His Lordship at 634-635 observed:

“In the former case, the decision of the council is properly based on the fact of the conviction, and the practitioner cannot go behind it and endeavour to show that he was innocent of the charge and should have been acquitted.  In the latter case, the decision of the council, if adverse to the practitioner, must be arrived at ‘after due inquiry’, and this of course means after due inquiry by the council.”

18                  The Lord Chancellor concluded that the decision of the council was not reached “after due inquiry” when it refused to hear evidence tendered by the medical practitioner with a view to showing that finding of the Divorce Court against him as co-respondent was wrong.  His Lordship stated at 635 that the decree of the Divorce Court “provides a strong prima facie case which throws a heavy burden on him who seeks to deny the charge, but the charge is not irrebuttable.”

19                  The respondent also referred to the decision of the Full Court of this Court (Fisher, Davies and Lockhart JJ) in Minister for Immigration & Ethnic Affairs v Daniele.  In Daniele the Tribunal had reviewed the evidence led at the trial of the respondent and the trial judge’s summing up to the jury.  The Tribunal had concluded that a later decision of the High Court indicated that if the jury had been properly instructed on the basis of the law as then defined by the High Court, the respondent might well have been acquitted by the jury.  Fisher and Lockhart JJ at 358 observed:

“The conviction is the genesis of the Minister’s power to deport.  There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought.  That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal.  However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial.”

The decision of the Tribunal was set aside.

20                  In Minister for Immigration & Ethnic Affairs v Gungor, the Full Court (Fox, Fisher and Sheppard JJ) similarly took the view that the Tribunal erred in departing from the view of the facts necessarily adopted by the jury in reaching its verdict in respect of the offence upon which the Minister’s decision to deport was based.  Fox J at 445-446 observed:

“What does seem to me to be highly improbable is that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source (albeit one functioning in a number of respects like a court, and comprising a judge), should review the conviction on its essential factual basis.  The policy must be that the conviction is a matter for the criminal law and its procedures.  Appeals are there available.  … While it stands, the conviction must be conclusive so far at least as concerns a Tribunal reviewing a decision which takes the conviction and the Minister’s decision as its starting point.  When I say conclusive, I mean conclusive as to the guilt of the accused in relation to the offence charged, and of the sentence imposed.  This is my understanding of the statutory intention.  Quite obviously, serious practical questions arise if the position is otherwise.  The Tribunal could presumably arrive at its own decision as to whether the person concerned did what he was charged with doing, and for that matter, what sentence his offence merited.  It would be doing so on material gathered and considered at what could be a long time after the trial, when some witnesses for the prosecution were unavailable and memories were in any event dimmed.  Accepted trial procedures would be absent.  The Crown, as repository of the function of criminal prosecutions, would not be a party.  The Tribunal might in the end find itself substituting its own view for that of the jury.”

21                  In Gungor Sheppard J at 468 concluded that it was not open to the Tribunal to go behind the conviction or to set at nought the conviction upon which the deportation order was based.  At 469 his Honour said:

“[T]he Tribunal remains entitled, indeed bound to examine for itself what was involved in the entirety of the conduct of the applicant before it.  This examination will include the receiving of evidence to put the Tribunal in a position to weigh and to make its own assessment of the seriousness of the conduct which has led to the conviction.  Nevertheless, I concede that the view I favour may in some cases have an inhibiting effect on the Tribunal.  It may also create a degree of difficulty for it because it will need to determine whether particular evidence sheds light on the way conduct on the part of an applicant for review should properly be viewed or whether its real effect, if accepted, would be to go behind the conviction.

…

I would add that a compensating benefit which results from the adoption of the view which I have proposed is that apparent unevenness between the decisions of the criminal courts of this country and those of the Tribunal will be greatly reduced, if not eliminated.  I am satisfied that that would be in accordance with the intention of the legislature.”

Fisher J agreed generally with the reasons of both Fox and Sheppard JJ.

22                  I am not aware of any decision which turns directly on the issue of whether the Tribunal may go behind the outcome of a criminal proceeding to which the person the subject of the deportation order was a party where the criminal proceeding was not that which resulted in the conviction and sentence that enlivened the power to make the deportation order.  However, it was contended by the respondent that the decisions of the Full Court of this Court in Ridley v Secretary, Department of Social Security (1993) 42 FCR 276 and Saffron v Commissioner of Taxation (1991) 30 FCR 578 are determinative of the issue.

23                  Ridley involved an “appeal” to this Court from a decision of the Tribunal which set aside a decision of the Social Security Appeals Tribunal (“the SSAT”).  At issue before the SSAT and the Tribunal was whether during a certain period Mrs Ridley had been living in a relationship like that of marriage while receiving a pension as a single person.  At a time before the SSAT hearing, Mrs Ridley had pleaded not guilty in a court of petty sessions to charges under the Social Security Act 1947 (Cth) of making false statements and of knowingly obtaining the payment of a benefit that was not payable to her.  She was convicted of the offences and sentenced to prison.  Following a decision by the Department of Social Security to apply the family allowance payable to her to the repayment of the benefits said to have been earlier wrongly obtained by her, Mrs Ridley sought review of the decision by the SSAT.  The SSAT affirmed the decision under review concluding that Mrs Ridley had been living in a de facto relationship at the relevant time and that it was not appropriate to waive recovery of the amount claimed from her.  Mrs Ridley appealed to the Tribunal from the decision of the SSAT.  Before the Tribunal, counsel for the Secretary submitted that Mrs Ridley’s convictions precluded the Tribunal from finding facts contrary to facts essential for those convictions.  The Tribunal did not accept the submission.  Having found that Mrs Ridley was a convincing, consistent and credible witness, it concluded that it was not satisfied that she had lived in a marriage-like or de facto relationship at the relevant time.

24                  On the “appeal” to this Court from the decision of the Tribunal in Ridley, the questions of law for the consideration of the Court were whether the Tribunal erred in admitting evidence contradicting the essential facts underlying Mrs Ridley’s convictions, whether the Tribunal failed to give proper reasons for its decisions in concluding that the convictions did not preclude Mrs Ridley from arguing that she was not living in a de facto relationship at the relevant time, and whether the Tribunal had given any weight to the convictions in determining whether a de facto relationship existed.  The primary judge found that it was not open to the Secretary to submit that Mrs Ridley’s convictions were conclusive proof of the essential facts upon which those convictions were based.  His Honour further held that no abuse of process was involved in permitting the Tribunal to go behind Mrs Ridley’s convictions.  The Full Court did not hear full argument on these aspects of the decision of the primary judge.  However, their Honours (Spender, Gummow and Lee JJ) at 281-282 made the following “limited observations”:

“On the facts of the present case the decision to apply the allowance payable to Mrs Ridley in reduction of an amount claimed to be owed by her to the Commonwealth was founded upon a determination under s 246(2) of the 1947 Act that an amount had been paid to Mrs Ridley by way of pension that should not have been paid.  That determination and the decision to recover that sum by sequestration of the allowance payable to Mrs Ridley was not dependent upon the conviction of Mrs Ridley in the court of petty sessions.  It followed that evidence of Mrs Ridley’s convictions would not have been conclusive of any issue and it was open to Mrs Ridley to challenge the essential facts on which the convictions were based notwithstanding that the convictions may have been relevant to the exercise of the power under challenge.  His Honour neither misunderstood nor misapplied the reasoning of the Full Court in Saffron in [reaching] that conclusion.

With regard to the submission that it was ‘contrary to public policy’ and an ‘abuse of process’ to permit Mrs Ridley to ‘re-litigate’ before the Tribunal an issue determined against her by the convictions recorded in the court of petty sessions, it is necessary to re-state the function of the Tribunal.  The Tribunal has been established to review decisions of administrators and, if necessary in conducting that review, to exercise the powers and discretions of such decision-makers.  The provision of a forum in which a party has an opportunity to present material and make submissions pertinent to the exercise of administrative powers does not make a hearing of that type a proceeding within a federal system for the administration of justice.  The adoption by the Tribunal of [an] adversarial procedure in the conduct of its review does not make that review part of the process of litigation.  It follows, therefore, that review of an administrative decision does not involve consideration of whether the conduct of the review may bring the administration of justice into disrepute.  Whatever procedure the Tribunal may adopt to carry out its statutory duties, it performs solely administrative functions in deciding what administrative decision is appropriate.  The AAT Act provides to a person affected by the exercise under an enactment of an administrative decision-making power the right to seek to have a reviewing authority (the Tribunal) exercise that decision-making power.  That person is entitled to present to the Tribunal any material that ought to be taken into account in the making of that decision.  If that material also challenges facts that were essential for the conviction of that person of an offence, it is not a requirement of law under the rubric of public policy that the review of an administrative decision and the exercise of an administrative discretion or decision-making power be carried out by excluding from the consideration of the reviewing authority material which challenges the grounds on which the prior conviction was based.”

25                  Saffron was decided by the Full Court (Davies, Lockhart and Beaumont JJ) on a special case stated by a judge of the Court.  The question stated for the opinion of the Full Court arose in appeals which were brought by Mr Saffron against decisions of the Commissioner of Taxation on objections to income tax assessments for the income years 1977-1982.  The appeals were instituted well before 1987 when Mr Saffron was charged and convicted of conspiring with another to defraud the Commonwealth.  Many common issues of fact arose on the appeals and in the criminal trial.  The question stated for the opinion of the Full Court was whether it was open to Mr Saffron to give evidence in the appeals before the Court which contradicted one of the matters of fact upon which his criminal conviction was based.  The argument advanced on behalf of the Commissioner of Taxation was that it would be an abuse of process for Mr Saffron to be permitted to give such evidence.

26                  Davies J at 581 said:

“A conviction is a decision in rem which establishes, while it stands, that the person convicted has been convicted of a certain crime.  If the person has been convicted of a felony, it establishes that the person is a felon.  Such a matter is one which the convicted person may challenge only by seeking to set aside the conviction.  In the taxation appeals, the taxpayer may not challenge the fact that he has been convicted of conspiracy to defraud the Commonwealth.  But of course the taxpayer does not seek to do so and the fact of conviction is itself irrelevant.  As is stated by GS Bower & AK Turner, The Doctrine of Res Judicata (2^nd ed, 1969), p 215, a conviction is conclusive merely of that which it establishes, namely, the fact of conviction for the offence, but not of the facts lying behind that conviction.”

27                  His Honour went on to note that the subject matter of the taxation appeals fell outside the first of the two categories enunciated by Viscount Simon in General Medical Council v Spackman and noted further that his Lordship’s first category had been applied by Full Courts of this Court in Daniele, Degerli v Minister for Immigration & Ethnic Affairs (1981) 4 ALN N39 and Gungor and by several decisions of single judges.  His Honour said at 582:

“Those cases establish that, where a conviction is the foundation for the exercise of a power, no challenge can be made to the fact of the conviction or to the essential facts on which it was based.  But by making clear the circumstance in which no such challenge may be made, the cases establish that, where the exercise of the power is not founded on a criminal conviction, then, even if the conviction be relevant, a challenge may be made to the essential facts on which it was based.  In Australia, an example is the decision of the High Court of Australia in Ziems v Prothonotary of Supreme Court of New South Wales (1957) 97 CLR 279.”

28                  Davies J was content to leave open the question of the admissibility of the conviction as evidence in the taxation appeals.  His Honour noted at 582 that the decision of the Court of Appeal in Hollington v Hewthorn & Co Ltd [1943] KB 587 that a conviction is not, in civil proceedings, admissible evidence of the essential facts on which it was based, had attracted much criticism and some legislative intervention.  On the question of abuse of process, Davies J noted at 583 that legal proceedings may not be instituted or carried on for the purpose of challenging by inappropriate means the judgment or order of a court made in either civil or criminal proceedings.  However, his Honour concluded that the taxation appeals in that case did not have such a purpose.

29                  In Saffron, Lockhart J noted at 589 that Hunter v Chief Constable of West Midlands Police [1982] AC 529 is authority from the highest source in England that:

“where a final decision has been made by a criminal court of competent jurisdiction, it is a general rule of public policy that a civil action cannot be used to initiate a collateral attack on that decision; and, if it does, it is an abuse of the process of the civil court”.

His Honour at 590-591 also noted the decisions of the Full Court of this Court in Gungor and Daniele and observed that in those cases the relevant convictions were the necessary bases of the Minister’s deportation orders.  As to Hollington v Hewthorn & Co Ltd, Lockhart J at 591 observed that the case “is recognised as authority for the proposition that a finding of guilt is not evidence in a civil proceeding involving the same factual issues” and that it had not been “universally condemned”.  Lockhart J concluded at 592 that the tax appeals in that case were not being used for the purpose of a collateral attack upon the prior convictions and that Mr Saffron was free to lead evidence which contradicted a matter necessarily decided against him at his criminal trial.  His Honour observed, however, that although the primary judge would have to decide the facts, “the court cannot reach or express a view that the applicant was wrongly convicted of the offence of conspiring to defraud the Commonwealth”.

30                  In Saffron, Beaumont J at 600-601 agreed with Lockhart J that the relevant principle was that the process of the Court was not to be used for the foreign or ulterior object of setting at nought the taxpayer’s conviction.  However, on the application of the principle, Beaumont J differed from Lockhart J.  Beaumont J would not have allowed Mr Saffron to lead the evidence which contradicted one of the matters of fact on which his conviction was based.

31                  It seems to me that Saffron provides only limited guidance in the present context.  The decision in Saffron turned on whether the tax appeals in that case were an abuse of the process of the Court.  The concept of abuse of process is not easily imported into federal administrative law (see Wiest v Director of Public Prosecutions (1988) 23 FCR 472 (FC) esp per Burchett J at 486-487 and Gummow J at 526-528).  In any event, there is no real suggestion in this case, as I understand it, that the respondent sought to use the hearing before the Tribunal for the ulterior purpose of making a collateral attack on his earlier convictions.  His concern appears to have been to give evidence touching on his character and the risk of his re-offending.

32                  Nor do I think that the doctrine of issue estoppel is of assistance in resolving the issues which this case requires to be determined.  The parties before the Tribunal were not the same as the parties to the criminal proceedings and thus no issue estoppel properly arises (Ramsay v Pigram (1968) 118 CLR 271).  Moreover, as issue estoppel is a sub-class of estoppel by record, it is best understood as a rule of evidence (Cross on Evidence Australian ed, Butterworths, at para 5240).  Section 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) relevantly provides:

“In a proceeding before the Tribunal –

(a)               …

(b)               …

(c)               the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.”

The rules of evidence thus do not bind the Tribunal.

33                  For the same reason, the rule in Hollington v Hewthorn & Co Ltd, the effect of which has in any event been largely reversed by s 92(2) of the Evidence Act 1995 (Cth), has no application in a proceeding before the Tribunal.

34                  Although the “limited observations” of the Full Court in Ridley were strictly obiter, I consider that they are entitled to be given considerable weight.  However, like Weinberg J in Minh v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 304 at 319-320, I am satisfied that their Honours did not intend to detract from the longstanding and well established approach taken in deportation cases.

35                  The question ultimately to be decided is one of statutory interpretation.  Section 200 of the Act gives the applicant a discretion in unconfined terms to order the deportation of a non-citizen to whom Division 9 of Part 2 of the Act applies.  If there are any limitations on the matters to which the applicant is entitled to have regard in the exercise of that discretion, they must be able to be gleaned from the subject-matter, scope and purpose of the Act (Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 per Mason J at 39-40).  In this regard it is of significance that the discretion has been conferred on a Minister of the Crown.  The Legislature may be assumed to have intended that a Ministerial discretion might be exercised taking into account quite broad policy considerations (Peko-Wallsend per Mason J at 42).  The Policy Direction reflects just such broad policy considerations.

36                  The Tribunal, when reviewing the exercise of the discretion under s 200 of the Act, is to determine whether the decision made by the applicant or his delegate was the right decision which ought to have been made in the circumstances (Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409).  For the purpose of reviewing the decision, the Tribunal may exercise all of the powers and discretions conferred by the Act on the applicant (AAT Act s 43(1)).  That is, the Tribunal effectively “stands in the shoes” of the applicant.  If there are limitations on the matters to which the applicant is entitled to have regard in the exercise of the discretion vested in him by s 200 of the Act, they will similarly restrict the Tribunal.

37                  In each of Gungor, Daniele and SRT, the Full Court of this Court identified as a policy consideration the undesirability of administrative decisions being based on considerations inconsistent with criminal convictions and sentences.  In none of these cases was it necessary for the Court to explore whether (and if so, why) the policy consideration is of less significance where the relevant conviction and sentence does not provide the basis for the exercise of a statutory power.

38                  The policy considerations which make it undesirable for administrative decisions to be based on factual findings inconsistent with criminal convictions and sentences include, but extend beyond, the desirability of maintaining public respect and confidence in the administration of criminal justice.  Other relevant matters include the following.  A criminal conviction is the result of a complex and expensive judicial procedure calculated to ensure the conviction only of persons whose guilt of the crime with which they have been charged has been demonstrated beyond reasonable doubt.  For this reason, proof of a conviction is, as a matter of logic, highly probative of the truth of factual matters essential to the conviction.  Little public benefit might be thought to flow from the expenditure of time and money involved in the reconsideration of the same issues by an administrative decision maker.  Moreover, particularly where significant time has passed since the events which founded the criminal charge, evidence which was available at the criminal trial might not be available at the time of the administrative hearing.  Matters which were conceded or proved beyond reasonable doubt at the criminal trial might quite easily be denied by a party to an administrative hearing who knows, for example, that a former witness against him has died or is otherwise unlikely to be called to give evidence.

39                  Nonetheless, it is known that there are circumstances in which an individual, for various reasons, may opt to be convicted on his or her plea of guilty although a defence to the charge might be available.  On rare occasions, evidence is found, long after a conviction, that shows that the conviction or sentence involved a miscarriage of justice.

40                  What, if anything, do the subject-matter, scope and purpose of the Act, seen in the light of the authorities, suggest about the way in which the above policy considerations should impact on an administrative decision maker (whether the applicant or the Tribunal) in the exercise of the discretion created by s 200 of the Act?  In this regard it is significant, in my view, that in contrast with the provisions of the Social Security Act 1947 (Cth) with which Ridley was concerned, s 201 of the Act operates by reference to the fact of a criminal conviction.  That is, the section presupposes the significance of criminal convictions.

41                  First, it seems to me to be clear beyond argument that the administrative decision maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based (Spackman, Daniele, Gungor and SRT).

42                  Secondly, the overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested in the applicant by s 200 of the Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or the sentence (Daniele, Gungor and SRT).

43                  Thirdly, although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based (Ridley at 281-282), policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:

(a)                recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences (see Gungor per Fox J at 445-446); and

(b)               limits inconsistency between decisions of the criminal courts and those of tribunals (see Gungor per Sheppard J at 469).

As a consequence, in my view, the Act should be construed as requiring a decision maker under s 200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted (see Spackman at 635).  This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.

44                  Fourthly, although a decision maker under s 200 of the Act may, in a case in which the heavy onus on a person who seeks to challenge the facts essential to a criminal conviction and sentence (other than that on which the power to deport is based) is satisfied, accept evidence which contradicts such facts, he or she is not entitled to reach or express a view that the person was wrongly convicted (see Saffron per Lockhart J at 592).

45                  Fifthly, the above limitations on the matters to which a decision maker under s 200 of the Act is entitled to have regard do not mean that the decision maker is not (subject to such limitations) to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned.

46                  I turn to consider the reasons for decision of the Tribunal.  In considering the risk of recidivism, as the Policy Direction obliged it to do, the Tribunal properly gave consideration to the respondent’s previous convictions.

47                  So far as the “road rage” incident is concerned, the Tribunal noted that the respondent had defended the charge and unsuccessfully appealed against his conviction.  The Tribunal had access to the transcript of the hearing before the magistrate.  The reasons for decision of the Tribunal suggest that it reviewed the transcript for the purpose of determining whether it could make a finding itself as to whether the respondent was rightly convicted by the magistrate, ie for the purpose of assessing the propriety of the conviction.  Not only had the magistrate convicted the respondent after a contested hearing, an appeal court had upheld the conviction by the magistrate.  In such circumstances, the Tribunal was bound, in my view, to treat the conviction as strong prima facie evidence of the essential facts upon which it was based.  The reasons for decision of the Tribunal indicate that it gave no real weight to the fact of the conviction.  On the sole basis that the respondent continued to maintain before the Tribunal that he had been wrongly convicted, the Tribunal concluded that he might have been wrongly convicted.  In my view, the Tribunal erred in law in concluding that the respondent might have been wrongly convicted and in failing to give significant weight to the fact of the respondent’s conviction in respect of the “road rage” incident when considering the matters of fact upon which the conviction was based.

48                  The conviction for assault occasioning actual bodily harm which arose out of the fight in the cell at the Bankstown police station is in a somewhat different category from the “road rage” conviction.  It did not follow from a contested hearing but was consequent upon a plea of guilty.  The respondent gave an explanation for entering a plea of guilty which the Tribunal apparently accepted as credible.  The Tribunal had the benefit of hearing the respondent give this evidence and of hearing him cross examined on it.  Although the fact of the conviction was a matter to which the Tribunal was obliged to give weight, I am not satisfied that the Tribunal’s reasons for decision show that in this instance it failed to do so.

49                  Similarly, in my view, no appealable error has been demonstrated with respect to the conviction for stealing a motor vehicle.  Again this conviction did not follow a contested hearing.  The police alleged, and the respondent did not dispute, that he was the driver of the motor vehicle.  Before the Tribunal, the respondent said that he had been a passenger.  The Tribunal did not regard the difference as material to the issues which it was required to consider.  It was not suggested before me that the difference was material.  The matter which the Tribunal considered important was whether the respondent had lied to the Tribunal.  Whether the respondent had lied to the Tribunal was a matter for the Tribunal’s own determination.  It had the advantage of hearing the respondent give evidence, including evidence under cross examination.  The weight which logic and public policy requires should be accorded criminal convictions does not lead inexorably to the conclusion that any person who gives evidence inconsistent with a conviction is lying.  First, weight is not to be equated with conclusive proof.  Moreover, with the passage of time there is room for errors arising from defective memory whether as a result of self delusion or otherwise.

CONCLUSION

50                  In my view, the Tribunal, in proceeding on the basis that no weight was to be attributed to the fact of the respondent’s conviction in respect of the “road rage” incident, failed to take into account a fact to which it was obliged in the circumstances to give significant weight.

In Kuswardana v Minister for Immigration & Ethnic Affairs (1981) 54 FLR 334 Bowen CJ observed at 341-342:

“There is ample authority for the general proposition that an error of law arises where a Tribunal not exercising judicial power fails to consider a relevant factor in arriving at a decision or misapprehends the matters of which it has to be satisfied in reaching a decision.”

51                  I am also of the view that the Tribunal erred in law in reaching the conclusion and expressing the view that the respondent may have been wrongly convicted in respect of the “road rage” incident.

52                  The decision of the Tribunal will be set aside and the matter remitted to the Tribunal to be heard and determined again.

Associate:

Dated:                                          28 September 2000