0207 Re Drake and Minister For Immigration and Ethnic Affairs (No 2) Ocr

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Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
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634
Re DRAKE and MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

(No 2)
ADMINISTRATIVE APPEALS TRIBUNAL
BRENNAN J (President)
21 November 1979 - Canberra
Immigration - Deportation order - Ministerial policy - Lawfulness of policy -

Desirability of consistency - Function of Tribunal in relation to ministerial policy -
Practice of Tribunal in applying or departing from ministerial policy - Migration Act
1958 ss 12, 13 - Admlnls1ratlve Appeals Tribunal Act 1975 s 43.
Immigration - Deportation order - Drug offences - Gravity of offence - Risk of
recidivism - Countervailing factors - Application of ministerial policy - Best
interests of Australia.
This was a rehearing of application for review following remission of the matter to
the Tribunal by the Federal Court of Australia (Drake v Minister for Immigration and
Ethnic Affairs (1979) 2 ALO 60; 24 ALR 577). The previous hearing by the Tribunal is
reported at (1978) 2 ALN No 4.
The applicant (D) and his son came to Australia in 1968 from the United States of
America. In 1974 D commenced cohabiting with an Australian woman and the two
were married on 2 December 1978, the day after D lodged an appeal to the Federal
Court from the Tribunal's decision.
A deportation order was made against D under s 12 of the Migration Act 1958. The
relevant conviction was for the possession of cannabis arising out of D's involvement
in the cultivation of cannabis planned and carried out with others on a large scale in
the Northern Territory. The Tribunal also found that D had earlier been involved in
growing marihuana on a farm in New South Wales.
The Minister's policy statement provided, inter alia, that every case is decided upon
the basis of its individual circumstances; that the basic question is whether in all the
circumstances it is in the best interests of Australia that a person be deported; that
matters to be taken into account include, inter alia, the nature and circumstances of
the offence and the prospects of recidivism; and that the Minister is less disposed to
exercise his discretion not to deport than would otherwise be the case where offences
involve injury to or corruption of young people. The Minister is particularly concerned
where trafficking in or distribution of drugs has been involved.
Held: Affirming the Minister's order:
(i) It is desirable that the Minister form and promulgate a policy to guide the
exercise of his discretion under ss 12 and 13 of the Migration Act.
K C Davis, 2 Administrative Law Treatise (2nd ed) para 8.8, approved.
(ii) The Minister's policy is consistent with the statute, and the terms of the policy
statement do not purport to limit the range of the statutory discretion.
Murphyores Incorporated Pry Ltd v The Commonwealth (1976) 136 CLR 1;
Drake's case, supra, 2 ALD at 68-69; 24 ALR at 589; Schmidt v Secretary of Stare
for Home Affairs [1969) 2 Ch 149; British Oxygen Co v Board of Trade [1971) AC
610 at 625,631; Sagnata Investments Ltd v Norwich Corpn [1971) 2 QB 614 at 626,
referred to.
(iii) Administration of the power of deportation is to proceed by what is seen to be
good government in the best interests of Australia which has to do with balancing the
AAT Re Drake (No 2) (BRENNAN J) 635
protective effect of a deportation order with those other effects which an order
invariably has upon the person to be deported, upon those directly affected by the
proposed deportation and upon the community at large.
Drake's case, supra, 2 ALO n ff; 24 ALR at 598 ff, considered.
(iv) Gravity of criminal conduct and the risk of recidivism are elements in
quantifying the seriousness of the threat to the Australian community and in
determining whether the continued presence of an offending immigrant or alien is
inimical to the existence or welfare of the Australian community. The risk of
recidivism is ascertained by reference to the circumstances of the case not by reference
to policy; but the gravity of conduct depends on the perception of the best interests of
Australia - a matter of standards and values on which minds might differ.
Inconsistency born of applying different standards and values should be reduced as far
as JY.lSsible, and an appropriate guiding policy is an aid in achieving consistency.
(v) Although the Tribunal is free to apply the Minister's policy or not in reaching
the correct or preferable decision in each case on the material before it, that policy can
furnish assistance in arriving at the preferable decision, and departure from that policy
should be made cautiously and sparingly, particularly if parliament has in fact
scrutinized and approved the policy.
(vi) Reasons for decisions given by the Tribunal spin out threads of policy but these
differ from ministerial declarations of broad policy because they originate from the
need to ensure justice is done in individual cases rather than from a consideration of
the generality of cases. The Tribunal should be reluctant to lay down broad policy,
though decisions on particular cases may impinge on or refine broad policy. Different
considerations might apply if a reviewable discretionary power were not subject to
ministerial supervision.
(vii) The Tribunal, being entitled to determine its own practice in respect of the
part which ministerial policy plays in the making of Tribunal decisions, should adopt
the following practice: When the Tribunal is reviewing the exercise of a discretionary
power reposed in a Minister, and the Minister has adopted a general policy to guide
him in the exercise of the power, the Tribunal will ordinarily apply that policy in
reviewing the decision, unless the policy is unlawful or unless its application tends to
produce an unjust decision in the circumstances of the particular case. Where the
policy would ordinarily be applied, an argument against the policy itself or against its
. application in a particular case will be considered, but cogent reasons will have to be
shown against its application, especially if the policy is shown to have been exposed to
parliamentary scrutiny. The general practice of the Tribunal will not preclude the
Tribunal from making appropriate observations on ministerial policy, and thus
contributing the benefit of its experience to the growth or modification of general
policy; but the practice is intended to leave to the Minister the political responsibility
for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather
than a political policy-maker, and to facilitate the making of consistent decisions in the
exercise of the same discretionary power.
(viii) The Ministerial policy should be applied in the present case. The applicant's
activities in growing marihuana were gravely damaging to the welfare of Australian
society, the prospects of recidivism are not small, and, in the light of the Minister's
policy, the factors favouring deportation clearly outweight the considerations in favour
of the applicant remaining.
J D Traill QC and Dr J Ryan, for the applicant.
Mrs P Fleming, for the respondent.
Cur. adv. vult.

636 ADMINISTRATIVE LAW DECISIONS 2 ALD
Brennan J (President). This is a rehearing of an application by Daniel

Dwight Drake, a citizen of the United States of America, for the review of a
decision by the Minister that he be deported from Australia. After the first
hearing of the application, the Tribunal affirmed the Minister's decision, but
an appeal against that order was allowed by the Federal Court and the matter
was remitted to the Tribunal for rehearing.
The applicant was convicted in Darwin on 3 January 1978 of the offence
which led to the making of the deportation order, and he was fined $400 and
sentenced to 12 months' imprisonment to be released after three months on
his entering into a recognizance of $200 to be of good behaviour for two
years. He served three months of that sentence, and he was released on 1
April 1978. Although the effective period of incarceration was less than 12
months, the sentence enlivened the Minister's power to order deportation
pursuant to s 12 of the Migration Act 1958 (as the Federal Court held: Drake
v Minister for Immigration and Ethnic Affairs (1979) 2 ALO 60; 24 ALR 577
at 585-589). Section 12 provides:
"Where . .. an alien has been convicted in Australia of a crime of violence
against the person or of extorting any money or thing by force or threat, or of
an attempt to commit such a crime, or has been convicted in Australia of any
other offence for which he has been sentenced to imprisonment for one year
or longer, the Minister may, upon the expiration of, or during, any term of
imprisonment served or being served by that alien fo respect of the crime,
order the deportation of that alien."
The Minister signed the deportation order on 21 April 1978, but the order
has not been executed pending the disposition of these proceedings.
The Tribunal's function, when it undertakes a review of a Minister's
decision to deport, is to form its own judgment of what is the correct or
preferable decision in the circumstances of the particular case as revealed in
the material before the Tribunal (Drake's case. supra, at 589). It is a
discretionary judgment, for s 12 confers a discretionary power, and minis-
terial policy may play a part in it. In Drake's case, Bowen CJ and Deane J left it
to the Tribunal to determine the part which ministerial policy should play,
saying (supra, at 590):
"It is not desirable to attempt to frame any general statement of the precise
part which government policy should ordinarily play in the determinations of.
the Tribunal. That is a matter for the Tribunal itself to determine in the
context of the particular case and in the light of the need for compromise, in
the interests of good government, between, on the one hand, the desirability
of consistency in the treatment of citizens under the law and, on the other
hand, the ideal of justice in the individual case."
In the first of the deporation cases, Re Becker and Minister for Immigration
and Ethnic Affairs (1977) 1 ALO 158, I sought to identify the questions falling
for the Tribunal's determination in this way (at 161, 162):
"There are four related but distinct issues which may arise in any
application to review a decision to order deportation under s 13(a) of the
Migration Act 1958. First, is it a case where the Minister may order
deportation under s 13(a)? Second, if the Minister has a policy which governs
or affects his exercise of the power, is that policy consistent with the Act?
Third, if the Minister has such a policy, is any cause shown why the Tribunal
ought not to apply that policy, either generally or in the particular case? And
finally, on the facts of the case and having regard to any policy considerations
AAT Re DRAKE (No 2) (BRENNAN J) 637
which ought to be applied, is the Minister's decision the right or preferable

decision?''
Since that time, the Minister has promulgated a new policy statement with
reference to the powers conferred by ss 12 and 13 of the Migration Act, and it
is desirable to examine that statement and to determine, in the light of the
reasons for judgment of the Federal Court of Australia in Drake's case, what
part that policy statement should play. both generally and in the particular
circumstances of this case.
The Minister's policy statement sets out his approach in determining
deportation cases. Paragraphs 4.01 and 4.02 of the statement read:
"4.01 A decision by the Minister to order the deportation of a person from
Australia is made after consideration by the Minister of all the material
facts and circumstances relating to that person. Every case is decided
upon the basis of its individual circumstances.
"4.02 The basic question considered by the Minister is whether in all the
circumstances it is in the best interests of the Commonwealth of
Australia that the person be deported."
The question whether the best interests of the Commonwealth of Australia
are served by deportation may be simply stated. but the Minister's statement
points to the width and complexity of factors which the endless variety of
human activity exposes for consideration. Paragraph 4.07 reads:
"The following matters are taken into account when a decision is being
made whether to order the deportation of a person from Australia:
The nature of the offence;
The circumstances of the commission of the offence;
The view of the offence expressed by the Court before which the
offender appeared;
The nature of the penalty:
The extent of rehabilitation of the offender;
The prospects of recidivism:
The necessity to prevent or inhibit the commission of like offences by
other persons;
The previous criminal history of the offender:
The public interest;
The circumstances of the offender;
The circumstances of the familv of or other persons having a
relationship with the offender; ·
The obligations of the Commonwealth under the Convention Relating
to the Status of Refugees."
The limits of relevancy can scarcely be defined in advance of particular
cases, and factors which are of central importance in one case may be of
marginal importance in another. The range of relevant factors cannot be
confined by defining Australia's interests in terms of the interests of the
community, excluding the applicant and others affected by a deportation
order. Australia's interests extend to an interest in them, for a nation·s
interests are involved when its government exercises coercive powers to affect
individuals. Australia's interests are affected by the way in which the
deportation power is exercised - by the criteria and procedures which are
adopted in making deportation decisions, as well as by the safeguarding of the
community which deportation of a particular offender may provide: the
former factors affect the liberty of Australian society. the latter its protection.
Thus Smithers J observed in Re Chan and Minister for Immigration and

Ethnic Affairs ((1978) 1 ALO 55 at 56; (1977) 17 ALR 432 at 434):
"The expression 'the best interests of Australia' leaves much open to
judgment. It is my view that in the application of policy as stated that
expression is to be understood not in a narrow and restricted sense, but as
extending to such interests broadly regarded, and embracing, on occasion and
according to circumstances, the taking of decisions by reference to a liberal
outlook appropriate to a free and confident nation."
The way in which executive power is exercised, whether sternly or
leniently, helps to mould the character of society; and the manner in which
the deportation power is exercised is eloquent to reveal, particularly to
Australia's migrant and ethnic communities, an important aspect of this
nation's attitude to immigrants and aliens. The manner of its exercise shows
the security which immigrants and aliens have in their residence here and the
circumstances in which that security is likely to be forfeited; it shows the
security with which an Australian on the one hand, and an immigrant or alien
on the other, may build their relationships and join their lives, and the
circumstances in which the relationship is liable to be ruptured. "Good
government", as I understand Smithers J to use the phrase in his judgment in
Drake's case (supra, at 598 ff), has to do with balancing the protective effect
of a deportation order with those other effects which an order invariably has
upon the person to be deported, upon those directly affected by the proposed
deportation and upon the communily at large. And good government is, of
course, in the best interests of Australia.
The Minister's understanding of the purpose for which the power is
conferred upon him is expressed in paras 4.03 and 4.04 of his policy
statement. The power is to be exercised in protection of the Australian
community against immigrants or aliens "who have revealed by their conduct
that they represent a threat to it or that their continued presence is inimical to
its existence or its welfare". Clearly enough, the power is conferred for such a
protective purpose, but it is left to the Minister to determine what kinds of
conduct reveal the perpetrator to be a threat to the Australian community or
reveal the continued presence of the perpetrator within the Australian
community to be inimical to its existence or welfare. Oftentimes much will
turn upon an estimate of the likelihood that a perpetrator will engage again in
offensive conduct.
Gravity of conduct engaged in and the risk of recidivism are elements in
quantifying the seriousness of the threat to the Australian community or in
determining whether the continued presence of the perpetrator is inimical to
the existence or welfare of the Australian community. The risk of recidivism is
not ascertained by reference to policy, of course. It is to be ascertained in the
circumstances of each case. On the other hand, the comparative gravity of
various kinds of offending conduct depends upon a perception of the best
interests of Australia and of the way in which offending conduct adversely
affects those interests. This is largely a matter of standards and values, upon
which minds may differ, and it is an important factor in making a deportation
decision.
The multiplicity of factors for consideration in each case evidently
precluded the parliament, as it precludes the Minister, from defining
principles of universal application to govern the exercise of the power in every
case. In the absence of such principles, the exercise of the power must depend
upon the circumstances of each case and the weight then to be accorded to the
relevant factors - whether factors emerging from the evidence, or factors
revealed by a perception of the relevant interests of Australia. The factors
which the Minister takes into account in determining what he calls "the best
interests of Australia" are necessarily as wide as the factors to be taken into
account in deciding upon the exercise of powers conferred by ss 12 and 13.
The Minister, in deciding whether to deport or not, looks to his knowledge
of the facts of the case, to his estimate of the risk of recidivism, and to his
perception of the various interests of Australia which have been affected by
the offending conduct or which will be affected by a decision one way or
another.
When such a power is conferred upon more than one decision-maker, a
tendency to inconsistency in making decisions may appear. There may be
differences in the estimates made as to the risk of recidivism although, where
experience in calculating such risks is comparable, variations will be a
function of the known facts. Decisions will not appear to be inconsistent on
that account, if the facts of each case are examined. But to some degree, each
decision-maker will vary from another in his perception of Australia's
interests, the effect of offending conduct, and the effect of a decision, one
way or another, upon those interests. These are not generally matters of
logical proof or evidentiary demonstration. After allowing for the variations
in the facts of particular cases, the degree of inconsistency in decision-making
will depend upon the extent of the disparity in the respective decision-makers'
perceptions of Australia's best interests and the way in which those interests
are affected.
The creation of a jurisdiction in this Tribunal to review the decisions of the
Minister, and the statutory requirement that the Tribunal be constituted by a
presidential member sitting alone, results in the appointment of a number of
presidential members to 'decide the cases brought to the Tribunal from
decisions of the Minister under ss 12 and 13 of the Migration Act. The
procedural advantages which the Tribunal enjoys in the production and
testing of evidence frequently result in the Tribunal's findings of fact
(including its estimation of the risks of recidivism) being different from the
findings of the Minister, and that is an intended consequence of the vesting of
the jurisdiction in the Tribunal. But the possibility of a presidential member
of the Tribunal attributing to a particular kind of offending conduct a gravity
different from the gravity attributed to the same conduct by another
presidential member, or by the Minister, adds to the prospect of inconsistency
in decision-making. In the deportation jurisdiction, the Tribunal (unlike the
Tribunals of some countries) cannot be constituted by members drawn from a
constant panel whose standards and values may provide a constant reference
point for decisions. The Minister and each presidential member may perceive
Australia's interests differently and may differ in their perception of the way
in which offending conduct adversely affects those interests. Such differences
will lead to inconsistency in making decisions.
Inconsistency is not merely inelegant: it brings the process of deciding into
disrepute, suggesting an arbitrariness which is incompatible with commonly
accepted notions of justice. In matters of deportation, which so profoundly
affect the interests of the deportee and his family and which are of relevance
to the community at large, inconsistency born of the application of differing
standards and values should be reduced as far as it is possible to do so.
The possibility of inconsistency in exercising the deportation power arises
from two sources: the Minister's entitlement to change the standards and
values to which he has regard, and the possibility of disparity in the standards
and values adopted by the Minister and by the several presidential members
who constitute the Tribunal to review his decisions. The courses which may
lawfully be taken and which are desirable to diminish the possibility of
inconsistency in making deportation decisions should be examined.
Sections 12 and 13 of the Migration Act require the Minister to determine
whether or not to deport an immigrant or alien whose criminal conviction
exposes him to that jeopardy. The Minister is free to exercise that power
without adopting a policy as to the standards and values to which he will have
regard in deciding particular cases. He is equally free, in point of law, to
adopt such a policy in order to guide him in the exercise of the statutory
discretion, provided the policy is consistent with the statute. In Stringer v
Minister of Housing and Local Government [1970] I WLR 1281, Cooke J (at
1298) held the effect of the relevant authorities to be:
". . . that a Minister charged with the duty of making individual
administrative decisions in a fair and impartial manner may nevertheless have
a general policy in regard to matters which are relevant to those decisions,
provided that the existence of that general policy does not preclude him from
fairly judging all the issues which are relevant to each individual case as it
comes up for decision."
There are powerful considerations in favour of a Minister adopting a
guiding policy. It can serve to focus attention on the purpose which the
exercise of the discretion is calculated to achieve, and thereby to assist the
Minister and others to see more clearly. in each case, the desirability of
exercising the power in one way or another. Decision-making is facilitated by
the guidance given by an adopted policy, and the integrity of decision-making
in particular cases is the better assured if decisions can be tested against such a
policy. By diminishing the importance of individual predilection, an adopted
policy can diminish the inconsistencies which might otherwise appear in a
series of decisions, and enhance the sense of satisfaction with the fairness and
continuity of the administrative process.
Of course, a policy must be consistent with the statute. It must allow the
Minister to take into account the relevant circumstances, it must not require
him to take into account irrelevant circumstances, and it must not serve a
purpose foreign to the purpose for which the discretionary power was
created. A policy which contravenes these criteria would be inconsistent with
the statute (sec Murphyorcs Incorporated Ltd v Thc Commonwealth (1976)
136 CLR I; Drake's case, supra, at 589. and the cases there cited). Also, it
would be inconsistent with ss 12 and 13 of the Migration Act if the Minister's
policy sought to preclude consideration of relevant arguments running
counter to an adopted policy which might be reasonably advanced in
particular cases. The discretions reposed in the Minister by these sections
cannot be exercised according to broad and binding rules (as some discretions
may be: see. eg, Schmidt v Secretary of State for Home Affairs [1969] 2 Ch
149). The Minister must decide each of the cases under ss 12 and 13 on its
merits. His discretion cannot be so truncated by a policy as to preclude
consideration of the merits of specified classes of cases. A fetter of that kind
would be objectionable, even though it were adopted by the Minister on his
own initiative. A Minister's policy, formed for the purposes of ss 12 and 13 of
the Migration Act, must leave him free to consider the unique circumstances
of each case, and no part of a lawful policy can determine in advance the
decision which the Minister will make in the circumstances of a given case.
That is not to deny the lawfulness of adopting an appropriate policy which
guides but does not control the making of decisions, a policy which is
informative of the standards and values which the Minister usually applies.
There is a distinction between an unlawful policy which creates a fetter
purporting to limit the range of discretion conferred by a statute, and a lawful
policy which leaves the range of discretion intact while guiding the exercise of
the power. (See British Oxygen Co v Board of Trade (1971] AC 610 at 625 and
631). Lord Denning referred to the distinction in Sagnata Investments Ltd v
Norwich Corporation (1971] 2 QB 614 at 626, where he said:
"I take it to be perfectly clear now that an administrative body, including a
licensing body, which may have to consider numerous applications of a
similar kind, is entitled to lay down a general policy which it proposes to
follow in coming to its individual decisions, provided always that it is a
reasonable policy which it is fair and just to apply. Once laid down, the
administrative body is entitled to apply the policy in the individual cases which
come before it. The only qualification is that the administrative body must not
apply the policy so rigidly as to reject an applicant without hearing what he
has to say. It must not 'shut its ears to an application': see (1971] AC 610,625
per Lord Reid. The applicant is entitled to put forward reasons urging that
the policy should be changed, or saying that in any case it should not be
applied to him. But, so long as the administrative body is ready to hear him
and consider what he has to say, it is entitled to apply its general policy to him
as to others."
Subject to these limits the Minister may arrive at his decisions by reference
to a policy of his own devising. When the Minister devised his present policy,
he disseminated it through his Department and he advised this Tribunal.
Perhaps I should add that the Tribunal required that the policy be advised
case by case, so that applicants to the Tribunal, whose interests are affected
by decisions made by reference to the policy, should know of its terms.
The policy statement alludes to factors which are relevant for considera-
tion, and identifies the kinds of conduct which the Minister regards as having
a particularly grave effect upon Australia's interests. It does not purport to
preclude the consideration of relevant factors other than those which it lists;
and the factors listed are relevant to decisions under ss 12 and 13 of the
Migration Act. Some parts of the policy statement show the Minister's
perception of Australia's interests and identify the kinds of conduct which he
sees as having a significant adverse effect on those interests. These factors are
referred to principally in para 4.05 and in a letter dated 28 March 1978 under
cover of which the Minister sent his policy statement to the Tribunal.
Paragraph 4.05 reads:
"Such persons will have revealed by their conduct either that they are
prepared to overthrow existing institutions accepted by the Community or
that they are unprepared to accept and adhere to standards by the
Community of its members [sic] as revealed in its laws."
In his letter, the Minister wrote:
" .. .I am less disposed to exercise my discretion not to deport than would
otherwise be the case in respect of people whose offences involved in jury to
or corruption of young people. I am particularly concerned where sex
642 ADMINISTRATIVE LAW DECISIONS 2 ALO
offences against children or trafficking in or distribution of drugs has been

involved . .. "
It was submitted by counsel for the applicant that the statement of policy
unlawfully fettered the exercise of the Minister's discretionary power, and
exceeded the lawful limits of policy. The Minister's policy, as it appears in the
letter and in the statement, does not go beyond the limits charted by the
authorities. It merely identifies factors to which the Minister refers, and the
kinds of conduct which he regards as more gravely affecting Australia's
interests; it does not accord a determinative effect to any factor, or deny the
ability of countervailing factors to lead the Minister in particular cases to
decline to order deportation. The Minister thus maintains the discretionary
power intact, specifying merely the weight which he ordinarily gives to
convictions of the stated kind.
It is perhaps possible to read the policy as though it were affected by a
misconception of the relevant powers. The Minister's letter refers to his
discretion "not to deport", expressing the power negatively where ss 12 and
13 confer the power in positive terms. But I take the Minister merely to be
referring to the power conferred by the statute- a power either to deport or,
reciprocally, not to deport in each case. I do not understand the Minister to
conceive his power to be affected by a presumption either that deportation
should be ordered or that it should not be ordered. There is no such
presumption in the sections, and I do not construe the Minister's letter as
suggesting that there is.
Not only is it lawful for the Minister to form a guiding policy; its
promulgation is desirable, for reasons stated above. Its promulgation is
consistent with the view of the distinguished American writer on administra-
tive law, Professor K C Davis, a view which has received judicial approval in
the United States:
"When legislative bodies delegate discretionary power without meaningful
standards, administrators should develop standards at the earliest feasible
time, and then, as circumstances permit, should further confine their own
discretion through principles and rules."
(See Adminis1ra1ive Law Trealise, 2nd ed vol 2 para 8.8.)
That is a commendable approach. It is not a rule of law, but it is none the
less valuable as a principle of discretionary decision-making.
In Drake's case, supra, at 601, Smithers J expressed the opinion that "no
substantial fault can be found" with the Minister's policy and as that is so
there is no reason why the Minister should not apply it in deciding the cases
before him. Application of a policy of this kind does not mean an
unquestioning adoption of its standards and values, but rather an assumption
that, in the absence of any reason to the contrary, its standards and values are
appropriate to guide the decision in cases falling within its terms. It is in this
sense that I use the term "apply" hereafter with reference to the Minister's
stated policy.
It is one thing for the Minister to apply his own policy in deciding cases; it is
another thing for the Tribunal to apply it. In point of law, the Tribunal is as
free as the Minister to apply or not to apply that policy. The Tribunal's duty is
to make the correct or preferable decision in each case on the material before
it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no
policy at all, in fulfilling its statutory function.
In fulfilling its function, the Tribunal, being independent of the Minister, is

free to adopt reasoning entirely different from the reasoning which led to the
making of the decision under review. But it is not bound to do so. Of course,
the Tribunal would be in error to apply an unlawful ministerial policy to cases
it decides, for an application of unlawful policy vitiates the consequential
decision. That problem does not arise in the present case.
If the Tribunal applies ministerial policy, it is because of the assistance
which the policy can furnish in arriving at the preferable decision in the
circumstances of the case as they appear to the Tribunal. One of the factors to
be considered in arriving at the preferable decision in a particular case is its
consistency with other decisions in comparable cases, and one of the most
useful aids in achieving consistency is a guiding policy. An appropriate
guiding policy should thus be applied, but what policy should it be?
Counsel for the appellant submitted that it would sap the independence of
the Tribunal if it were to apply ministerial policy, and that submission no
doubt grows out of the long and essential resistance of the courts to the
attempts of the executive to influence the course of judicial decisions. The
Tribunal is rightly required to reach its decisions with the same robust
independence as that exhibited by the courts, but there is a material
difference between the nature of a decision of the Tribunal reviewing the
exercise of a discretionary administrative power, and the nature of a curial
decision. The judgment of a court turns upon the application of the relevant
law to the facts as found; a decision of the Tribunal, reviewing a discretionary
decision of an administrative character, takes into account the possible
application of an administrative policy.
The policy which guides the exercise of a discretionary administrative
power may rightly seek to achieve an objective of public significance, and a
balance may have to be struck between the achieving of that objective and the
interests of an individual.
In this respect, the making of a discretionary administrative decision is to
be distinguished from the making of a curial decision. Generally speaking, a
discretionary administrative decision creates a right in or imposes a liability
on an individual; a curial decision declares and enforces a right or liability
antecedently created or imposed. The distinction is too simply stated, but it
suffices to show that the adjudication of rights and liabilities by reference to
governing principles of law is a different function from the function of deciding
what those rights or liabilities should be. The former function rightly ignores
the policies of the executive government; the latter should not. In the course
of making their decisions, courts have formulated rules of law - freely, in
some periods of our history; cautiously, in other periods - but _it does not
follow that, at the present time, general administrative policy should be
formulated by an adjudicative tribunal. The detachment which is desirable for
adjudication is not in sympathy with the purposiveness of policy formation.
Administrative policy of the kind evoked by ss 12 and 13 of the Migration
Act has a wide significance, affecting, as I have said, the character of
Australian society. Such a policy is not conveniently formulated by this
Tribunal.
A policy which the Minister may formulate and adopt to guide himself in
exercising the power conferred by ss 12 and 13 is subject to parliamentary
scrutiny, and ultimately to parliamentary control. Under the Westminster
system of government, a Minister is politically responsible to the parliament
for the policy adopted to guide the exercise of his discretionary power, and he
should be left to formulate that policy in whatever manner he thinks
appropriate from time to time. Administrative policies are necessarily
amenable to revocation or alteration on political grounds, and they are best
formed and amended in a political context.
Where a discretionary power guided by an administrative policy is exposed
to review by this Tribunal, however, the powers with which this Tribunal is
vested by s 43 of the Administrative Appeals Tribunal Act 1975 are wide
enough to permit the sterilization or amendment of policy in its application to
the cases which come here. Although the Tribunal ought not, indeed cannot,
deprive itself of its freedom to give no weight to a Minister's policy in a
particular case, there are substantial reasons which favour only cautious and
sparing departures from Ministerial policy, particularly if parliament has in
fact scrutinized and approved that policy.
If the Tribunal, in reviewing a decision made in pursuit of a lawful
administrative policy, consciously departed from that policy, it would nullify
not only the policy made by the repository of the discretionary power, but
also any mechanism of surveillance which the relevant statute permits or
provides. To depart from ministerial policy thus denies to parliament its
ability to supervise the content of the policy guiding the discretion which
parliament created. On some occasions, reasons may be shown to warrant
departure from ministerial policy; for example, where the intervention of new
circumstances has clearly made a policy statement obsolete.
But in general, it would be manifestly imprudent for the Tribunal to
override a ministerial policy and to adopt a general administrative policy of its
own. Although the practice of giving reasons for decisions inevitably spins out
threads of policy from the facts of the cases, the policy developed in this way
originates in the need to ensure that justice is done in individual cases, and it
is a different development from a ministerial declaration of broad policy
relating to the generality of cases. The Tribunal is no doubt able to refine a
broad policy, but the laying down of a broad policy on deportation is
essentially a political function, to be performed by the Minister who is
responsible to the parliament for the policy he adopts. The very indepen-
dence of the Tribunal demands that it be apolitical; and the creation of its
deportation jurisdiction is intended to improve the adjudicative rather than
the policy aspects of deportation decisions. The Tribunal is not linked into the
chain of responsibility from Minister to government to parliament, its
membership is not appropriate for the formulation of broad policy and it is
unsupported by a bureaucracy fitted to advise upon broad policy. It should
therefore be reluctant to lay down broad policy, although decisions in
particular cases will impinge on or refine broad policy emanating from a
Minister. Different considerations might apply if a reviewable discretionary
power were not subject to ministerial supervision (see, in connection with
ministerial supervision, Ansett Transport Industries (Operations) Pty Ltd v
Commonwealth of Australia (1978) 52 ALJR 254).
If consistency in decision-making is sought, as it ought to be, the standards
and values which a Minister expresses in a statement of lawful policy can be a
constant reference point for each of the presidential members of the Tribunal
in exercising the discretion in particular cases. Ministerial policy can be an aid
to consistency among Tribunal decisions, and to consistency between the
decisions of the Tribunal and those of the Minister. Decisions made under a
statutory power and reviewed by the Tribunal are but a proportion of the
decisions made under that power, and it would be a regrettable anomaly if the
decisions which were not reviewed revealed different standards and values
from those made on review.
These considerations warrant the Tribunal's adoption of a practice of
applying lawful ministerial policy, unless there are cogent reasons to the
contrary. If it were shown that the application of ministerial policy would
work an injustice in a particular case, a cogent reason would be shown, for
consistency is not preferable to justice. Injustice, in the context of ss 12 and
13 of the Migration Act, must mean a disproportion between the detriment
suffered by those affected by the execution of a deportation order and the
benefit which might reasonably be expected to result to the community at .
large or to particular individuals in the community if the order were affirmed.
In my view, the Tribunal, being entitled to determine its own practice in
respect of the part which ministerial policy plays in the making of Tribunal
decisions, should adopt the following practice.
When the Tribunal is reviewing the exercise of a discretionary power
reposed in a Minister, and the Minister has adopted a general policy to guide
him in the exercise of the power, the Tribunal will ordinarily apply that policy
in reviewing the decision, unless the policy is unlawful or unless its application
tends to produce an unjust decision in the circumstances of the particular
case. Where the policy would ordinarily be applied, an argument against the
policy itself or against its application in the particular case will be considered,
but cogent reasons will have to be shown against its application, especially if
the policy is shown to have been exposed to parliamentary scrutiny.
The general practice of the Tribunal will not preclude the Tribunal from
making appropriate observations on ministerial policy, and thus contributing
the benefit of its experience to the growth or modification of general policy;
but the practice is intended to leave to the Minister the political responsibility
for broad policy, to permit the Tribunal to function as an adjudicative
tribunal rather than as a political policy-maker, and to facilitate the making of
consistent decisions in the exercise of the same discretionary power.
The general practice will require the Tribunal to determine whether the
policy is lawful, not in order to supervise the exercise by the Minister of his
discretion, but in order to determine whether the policy is appropriate for
application by the Tribunal in making its own decision on review.
In the present case, no grounds going to the merits of the ministerial policy
on criminal deportation were advanced on behalf of the applicant. Having
regard to the terms in which the present statement of ministerial policy is
couched, the fulness of consideration of relevant circumstances which it
invites, and the unaffected range of discretion which it leaves for exercise in
each case, it appears to me to be right to apply it in this case. It enjoins me, in
arriving at my decision, to regard a conviction for drug trafficking as a graver
factor tending in favour of deportation than convictions for many other kinds
of offences. I propose to do so, because that course applies (in the sense that I
have explained) the Minister's policy. I am bound to say that I do so with
ease, for the Minister's policy on drug trafficking corresponds with my own
opinion and, I apprehend, with the opinion of other presidential members of
the Tribunal (see, for example, the decision of Smithers J in Re Gin and
Minister for Immigration and Ethnic Affairs ( 1978) I ALN No 30.
To apply the policy does not determine the decision, and I must now turn to
the relevant circumstances of the case. The evidence was extensive, and it is
not practicable or desirable to refer to every part of it. It is necessary,
however, to identify the principal features which weigh against deportation,
to consider the features which weigh in favour of deportation, and to
determine, having regard to the Minister's policy, whether the order should
be affirmed or not.
The applicant was born on 12 December 1937 and lived with his mother,
father and four siblings in San Bernardino, California. He left home when he
was 13 or 14 after a row with his father, but he returned home for a period of
recuperation after a motor car accident in which he was injured. His formal
education ceased in the second year of high school. He got some unskilled
labouring jobs on fishing boats and in the blueprint business, and he stayed in
the latter business until he reached assistant manager status. He contracted a
brief and unsuccessful marriage when he was 15, and after a divorce he lost
contact with his first wife and a child born of their union. He married a second
time when he was 20. In 1965, that marriage also ended in divorce, but the
applicant was given custody of the two children of that marriage: a daughter,
Sherry, and a son, Mark.
Sherry and Mark accompanied their father when he left California and
went to Hawaii. When the applicant's second wife remarried, he allowed her
to have Sherry and she returned to the mainland of the United States and has
since remained there with her mother. The applicant and Mark stayed in
Hawaii for approximately five years, and then came to Australia. They
arrived in Sydney on 6 October 1968. By that time the applicant was living
with, but had not married, a woman who came with him and Mark to
Australia. She stayed here until early 1969, and then returned to the United
States. After the applicant arrived in Australia, he declared in his application
for resident status that the woman who came with him was his wife, and that
he had married her in Mexico on 16 September 1968. That statement was
untrue, The couple had gone through a form of marriage ceremony in
Mexico, but it was conducted in Spanish, a language neither of them
understood, and according to the applicant the ceremony was a charade
undertaken to pacify the woman's mother.
The applicant met his present wife, Valerie, in Port Macquarie when he
was working on a property nearby. She comes from Gunnedah. She was born
in September 1954 into a family of eight children, all girls. She left home
when she was 17, seeking secretarial work in Port Macquarie, and later in
Sydney. She went back to Port Macquarie when she was 19, and worked in a
bar. She met the applicant while she was working there and, after a time, they
started to live together. That was in October 1974 or thereabouts. Later, she
took the tenancy of a flat, and he used to stay there frequently at night,
working during the day on a farm at Red Hill. He paid some of the rent, and
she describes their relationship at that time as permanent. "I considered us
married," she said in evidence, ''I had no need for a ceremony I suppose you
would say." She assumed the nall)e of Drake, and Mark took up residence
with them. He had been sent to board at Scots College in Sydney at the
beginning of the 1974 school year, shortly after his father went to Port
Macquarie, but at the end of the first term in 1976, Mark also went to live in
Port Macquarie with Valerie in the flat, attending school locally. The
applicant, Valerie and Mark ultimately left Port Macquarie in late 1976, and
went to Sydney. They lived at Newtown. Mark has lived at home, and he
attended the Sydney Grammar School from the beginning of the 1977 school
year until the end of the 1978 school year. He has a job now, but he would
like to return to school for his final two secondary years. His schooling was
interrupted by uncertainty as to whether the deportation order would be
enforced.
At one stage, a date for the applicant's deportation was set. It was
Wednesday 6 December 1978. He and Mark were to go. On Saturday 2
December, the applicant and Valerie were married at their home in Newtown
in a civil ceremony. Though she was and is close to her family, none of them
attended. Mrs Drake says she "did not want to make a big sort of fuss out of
it". The wedding date had been fixed a month earlier. Mrs Drake says that
she did not know of the impending deportation when she married the
applicant, but I do not believe that. The Tribunal had affirmed the
deportation order on 10 November 1978, a notice of appeal had been filed on
1 December 1978, and an application for a stay of the Tribunal's decision was
argued before the Federal Court on 5 December, and granted on 6 December
1978. It is unlikely" that while a flurry of legal activity to prevent the
deportation was taking place, the bride was unaware of the imminent risk that
the groom was about to leave Australia.
I think it more likely that, at the time of the wedding ceremony, Mr and
Mrs Drake expected that their marriage would strengthen the grounds for
allowing the applicant to remain in Australia, or facilitate Mrs Drake joining
him in the United States or both. That is not to denigrate their motives for
marriage. I am satisfied that there is a genuine affection between them and,
importantly, I am satisfied that Mrs Drake has taken the place of a mother for
Mark.
If the applicant is deported from Australia, Mark will certainly go with him,
and Mrs Drake may well go too. Mark is 17. He has lived in Australia since he
was 6, and remembers nothing of his life in the United States. It would be an
enormous upheaval for him to leave Australia, for his life has been made
here. He was given a good eduction as far as it has gone, and he has both the
aptitude and ambition to become a teacher. A departmental officer, who
interviewed Mark in February 1978, described him as "a fine boy ... 100 per
cent Australian in outlook". The officer questioned him about America "and
he appears to have little affinity with that country". This is an accurate
description of Mark now, as it was no doubt when the report was made. He is
attached to Mrs Drake and is apparently happy in the home environment of
Newtown. Of all the persons affected by the deportation order, Mark would
be the most gravely disturbed by its execution, and he would be a loss to
Australia. He and the applicant have applied for citizenship.
Mrs Drake would be anguished to choose between her husband on the one
hand, and her family and homeland on the other, if the applicant were
deported. For the past five or six years, she has thrown in her lot with him,
and she has developed a maternal affection for Mark. She says that she knew
nothing of the activity for which the applicant was convicted. To be sure, the
convictions have led to a disastrous disruption of her life, but I am not
satisfied that she had no knowledge of his criminal activity. Either he
deceived her cruelly - in which event the prospects of their future together
must be viewed with reserve; or she knew of and tolerated his activities, in
which event her present anguish is a consequence of her unwillingness or
inability to restrain him. For reasons which will appear, I incline to the latter
view. Whatever be the extent of her knowledge or tolerance of his activities, I
do not think that her interests weigh as heavily as Mark's in determining
whether the Minister's order should be affirmed.
It is nevertheless a grave matter for an Australian citizen and permanent
resident to have to leave this country in or4er to maintain a matrimonial
relationship. Australia's interests in Mrs Drake are best served by her
remaining here. She is a member of an Australian family, contributing her
talents and personality to the community of which she is a part. She and the
applicant have undertaken, for several years past, the collection, identifica-
tion and description of old Australian bottles. Their study of old Australian
glassware and ceramics has brought them a well-merited reputation among
others interested in the same pursuits. Their collection was valuable, and
their knowledge profound. The applicant in particular is a popular and
esteemed authority on this branch of Australiana. The threat of deportation
led to the sale of their first collection, and if the order were carried into effect,
his expertise would be, and her expertise may be, lost to Australia. She also
has some skills as a legal stenographer, and she is now employed by a firm of
solicitors practising in the city of Sydney.
These are the principal considerations, in my view, which tend in favour of
allowing the applicant to remain. They are not exhaustive. The applicant's life
in Australia, his activities in bottle collecting and his employment potential
are relevant, but they are not of the same order of importance as the factors
affecting Mrs Drake and Mark. It could be said that the applicant would live
as satisfactory a life in the United States as in Australia, if it were possible to
leave out of consideration his relationship with and concern for his wife and
Mark. He has spent the major part of his life in the United States, and he
would be able quickly to renew his familiarity with its customs and manners.
The considerations which are relied ori by the Minister as warranting
affirmation of the deportation order arise principally out of the conduct of the
applicant which led to his convictions before the Court of Summary
Jurisdiction in Darwin on 3 January 1978.
He was then convicted on three charges relating to marihuana. These were:
(i) using cannabis (for which he was fined $100 in default ten days
imprisonment);
(ii) possessing a small quantity of cannabis on 9 December 1977 for his
own use (for which he was fined $50, in default five days imprisonment);
and
(iii) possessing cannabis at Wollogorang between 28 September 1977
and 9 December 1977 (for which the fine and sentence already
mentioned were imposed).
lt was the last-mentioned offence which enlivened the Minister's power to
deport under s 12 of the Migration Act and which principally concerns this
Tribunal. On the same occasion, he was convicted of offences relating to the
possession of firearms, but those firearms were satisfactorily explained to be
pig-hunting and sporting guns and not to be connected with the venture
shortly to be described. The offences took place at Wollogorang Station in the
Northern Territory, a large pastoral property on the Queensland border then
owned by Mr Bela Csidei and managed by Mr Harold Paech. The offences
arose out of the cultivation of cannabis on a large scale on a part of
Wollogorang Station. The cultivation was revealed when a Mr Neil Trcin was
apprehended in Mount Isa in possession of approximately 140 lbs of
marihuana which had been grown on the Wollogorang plantation and
transported from there by Trcin. The police went to Wollogorang and
arrested the applicant and others on 9 December 1977.
Ultimately Csidei, Paech, Trcin, Michael Bartley, Timothy Hughes and the
applicant were prosecuted for offences relating to or arising out of the
cultivation of cannabis at Wollogorang Station. The extent of the undertaking
there appears from the evidence of Detective Constable Hart and of Mr
Taylor (previously Detective Sergeant in charge of the Drug Squad in the
Northern Territory Police), from records of interview and from a diary which
was kept at a campsite established near the cannabis plantation. Some entries
in the diary were made by Trcin, some by the applicant and others by an
unidentified person. Clearly enough, the cultivation of cannabis was planned
and carried out on a large scale.
According to the applicant, Trcin suggested to him the growing of cannabis
on Wollogorang Station and introduced him to Csidei. The applicant flew
with Csidei to Wollogorang Station from Sydney to inspect suitable sites for
the growing of cannabis. He was driven around the property by Paech and he
decided that a satisfactory site could be found. He returned to Sydney and
drove a transit van provided by Trcin to Mount Isa and from Mount Isa to
Wollogorang, the latter stage of the journey laden with fertilizer and other
requirements for the venture. He said Trcin provided the money for buying
the supplies. Paech met him in Mount Isa and drove another vehicle and
towed him across some rough spots between Mount Isa and Wollogorang. He
arrived in late August or early September 1977. The applicant was furnished
with some marihuana seeds (either by Paech or by Trcin) and planted them in
bags to allow them to germinate. The diary records the planting of thousands
of seeds, with varying success in germination. The applicant says he was by
himself at first, but was joined by other helpers after a few weeks. A tractor
was brought out to him, and he started ploughing a place which appeared
suitable for the plantation of seedlings. But when this area was ploughed the
soil was too shallow and the applicant decided to move the proposed
plantation site to another position which, according to the diary, was known
as the lower plateau. The diary records a number of agricultural details
associated with the planting of seeds, planting out seedlings, watering,
fertilizing and covering the growing plants, the pulling of male plants (a
feature of marihuana cultivation), the fencing of the plantation and the
chasing of trespassing cattle. Some seed planting and some planting out of
seedlings took place at night, according to the diary. It seems that
temperature and moisture control were important for successful cultivation.
The diary records the difficulties that were encountered with a pump motor
and some particulars of the movement of the various people who were living
at the camp and working on the plantation. The applicant left Wollogorang
for a short trip to Sydney in October. He flew back to Mount Isa on 17
October, and arrived at the plantation site on 18 October. Although the
helpers lived in a camp at the plantation site, the applicant said he could not
furnish the surnames of any of the helpers who had not been prosecuted. He
knew only their Christian names. It seems that aliases were used. The
applicant used the name John Blake, and Neil Trcin was evidently known as
Steve.
At the end of November 1977, the applicant was told that Csidei wanted
$30,000 urgently, and he reported this in a letter he wrote to Trcin. He wrote
that Csidei was being pressed by his mortgagee, that Csidei had a note falling
due in February, and that there was a repossession notice out on the
Wollogorang Station truck. Csidei wanted a load of cannabis to be taken to
Sydney on the station truck and sold to provide "15" (presumably $15,000)
for the mortgagee, "15" (presumably $15,000) to take care of the "original
note", and "5" (presumably $5,000) for incidentals. The applicant was not
enthusiastic about letting the station truck go, for the newly arrived
policeman would be suspicious if vehicle tracks were seen after the station
truck left. Nor was he enthusiastic about Csidei's desire to send Paech on
vacation in late December or early January - a proposal which, in the
applicant's view, would leave them with "no one up front for protection, help
or emergency contact in case of trouble or accident".
He said that he was having second thoughts regarding the carrying the
project through to a new phase or on through February. He was cross-
examined about the meaning of this observation, but affected not to
understand the reference to "a new phase" and denied that there was any
intention of having a fresh planting or a fresh plot. He wrote, however, that
"we should not chance the second phase of the project" and it thus appears
that, at least up until the end of November, some further activity beyond the
harvesting of the existing plants was in contemplation.
In the records of interview taken by the police on 10 December 1977, the
applicant acknowledged that there had been five or six thousand seeds, and
something under two thousand cannabis plants. Some cannabis was picked
and dried, and about 140 lbs was packed into canisters for Trcin to take away
and sell. It seems that he got as far as Mount Isa with this load, when he was
apprehended. When the police got to Wollogorang on 9 December after
Trcin was apprehended, there were 727 plants left, some seedlings and some
cannabis hung out to dry. In the course of the police search, they discovered
that the applicant had the radio frequencies for the Queensland and Northern
Territory police, and he claimed that he had these recorded because he
"wouldn't mind listening in on it" and he could call for help in an emergency.
He acknowledged that "it would be handy" if he discovered that the police
had found out about the plantation.
In his records of interview, he admitted that his part in the venture was "to
do everything I could to grow [the crop] and work on the land", but he
denied that he had any prior experience in growing cannabis on plantations.
However, according to the police evidence, when they found a book
recording the applicant's farming activities at Red Hill near Port Macquarie in
earlier years, they showed it to him and taxed him with an entry in it relating
to the pulling of male plants. The entry suggested to the police that marihuana
had been cultivated there. Detective Constable Hart and Mr Taylor each
deposed that the applicant then admitted that he had been involved in
cultivating marihuana in 1974 with Neil Trcin. The applicant strongly denied
that he made any admission of growing marihuana in Port Macquarie, and he
asserted that he had not grown marihuana except in the Northern Territory.
Taylor was the only police witness whom I saw in the witness box. Hart had
given evidence at the first hearing. Taylor impressed me as a truthful witness
on the issue of the alleged admission, and the record of Hart's evidence on
that issue gave no grounds for doubting the truth of their allegations. On the
other hand, I found the applicant frequently to be evasive, and I did not judge
him to be a reliable witness. His denial of the allegation was strong, but
unconvincing. In the conflict of evidence between the police evidence and the
evidence of the applicant as to the making of the admission, I accept the
former evidence as the more likely. Nevertheless, I should not have felt
satisfied as to the truth of the facts admitted, having regard to the gravity of
the issue, had there been no other evidence to give credence to the allegation
that the applicant grew marihuana at Red Hill with Trcin. It seems to me that
the known facts tend to support that allegation. But first, reference should be
made to the conviction for using marihuana on 9 December 1977.
When the police arrived at Wollogorang, they met the applicant and Paech
as they were driving along a bush track. The police allege that the applicant
was then very much under the influence of marihuana and that he
subsequently admitted to having smoked marihuana that day. Although the
applicant pleaded guilty, he said that he had never used marihuana before
going to Wollogorang and denied that he was "stoned" when the police met
them. Although I accept the police evidence, I do not give significant weight
either to this conviction or to the conviction for possessing a small quantity of
marihuana on 9 December 1977.
The applicant's involvement in the Wollogorang plantation was attributed
by him to the desire to make some money quickly. He claimed that this was a
foolish act only once engaged in and never to be repeated. The applicant thus
presents the conduct for which he was convicted as a temporary and much
regretted aberration in an otherwise blameless life in Australia - an
aberration which is not to be given too much weight in comparison with the
useful and Jaw-abiding life which he has Jed since arriving here in October
1968.
But it is difficult to accept that view. If it were true, Trcin (who financed the
purchases of all provisions) entrusted the applicant, a person without any
prior knowledge of cannabis cultivation, to select a suitable plantation site on
Wollogorang Station, to plant seeds, manage the cultivation, harvest and dry
the crop, and pack it in canisters for transport to the market. The same trust
was placed in him by Csidei, the owner of Wollogorang who was or came to
be reliant upon the venture to solve some of his financial difficulties.
Moreover, the applicant must have had great trust in his own ability to bring
the crop to a successful harvest, and to dry and prepare the marihuana for
sale, for he was not to be paid during the time when the crop was being
cultivated. He had to wait until it was sold. Yet, on his own accounting, he
had exhausted his funds when he left Sydney for Wollogorang to start the
cultivation, and he then had left Valerie and Mark with only $1,000 to cover,
inter alia, quarterly mortgage payments on their Newtown house amounting
to $675, and school fees of $400 per term. The risk of failure born of
inexperience was a matter of grave financial importance to the applicant,
Trcin and Csidei.
On the other hand, if the applicant had engaged in the production of
marihuana at Red Hill, his selection to work the Wollogorang plantation and
his undertaking of that work without wages are easily explicable. And the
applicant's earlier life style and financial position are also more understand-
ably explained. To put the applicant's work at Red Hill into some
perspective, it is necessary to follow his activities since he came to Australia.
His recollection of dates is imprecise, but it is possible to fix the time of his
movements with some accuracy by linking them to the places where Mark was
sent to school: to Mosman Primary School until the second term of 1973, to
West Port Macquarie Primary School for the balance of 1973, to Scots
College Sydney, in 1974, 1975 and the first term of 1976, to Port Macquarie
High for the balance of 1976 and to Sydney Grammar School in 1977 and
1978.
The applicant arrived in Sydney in October 1968 with $2000. He spent
$1000 in buying a vehicle and providing bond money for a flat. The balance
of the money was withdrawn from the bank and appropriated by the woman
who accompanied him to Australia. The applicant's first job in Sydney did not
return much more than living expenses, and subsequently he went into
business on his own account as a carpet layer. Because of some bad debts, he
lost money on that business - perhaps $2000. He went from Sydney to the
Port Macquarie area in July 1973 or thereabouts to work on Broken Bit
Station, a property owned by a friend of his, a Mr Wainwright. The applicant
worked on that station and his needs were provided for out of funds drawn on
the station account but he received no salary over and above those needs.
Included in the benefits that he received, however, was the payment of the
boarding school fees for Mark when Mark was sent to board at Scots College
in Sydney at the beginning of 1974. After a time the applicant left Broken Bit
Station and went to farm another property owned by Wainwright. This was
the Red Hill property near Port Macquarie. He did not receive any salary
whilst he was working there and although the evidence is not entirely clear, it
appears that he received payment of Mark's school fees. The applicant had
power to draw cheques on the station account and also on the farm account.
The farm entirely failed. It was said to be a tropical fruits and vegetable
plantation, but for the whole 18 months or more of activity upon it, nothing
was ever sold commercially. Yet the applicant had worked extraordinary
hours, sometimes all night, up at the farm and he had employed others to
work there. The money to maintain the farm, to pay labour and to defray
expenses was provided entirely by Mr Wainwright. The applicant says that
there was too much rain, and that he finally gave up the Red Hill venture
when it was washed out. Had he made a success of it, he says that he would
have earned himself a one-third interest in the property, but as it failed
entirely he simply walked away with no residual financial benefit.
It seems that he went back for a short time to Broken Bit Station and then
went to Sydney with Mark and Valerie towards the end of 1976. He stayed
there until he went to the Northern Territory in the latter half of 1977. He did
not engage in any income-earning activity in Sydney during this time but he
traded in bottles, exchanging them or buying and selling them without making
a pecuniary gain or loss. When he went to the Northern Territory he worked,
he says, without any pay and his arrest spelt the end of any financial
advantage to him in the exercise. After he returned to Sydney in April 1978
he was again unemployed for a period but the bottle collection was sold and a
large sum of money was realized from the sale. Some of this was used to pay
fines and legal expenses.
If this were the full and true account of the applicant's activities from the
second half of 1974 to the beginning of 1978, the applicant received no salary
or wages for three and one-half years other than the amounts drawn to meet
his personal needs and Mark's school fees at Scots College while the applicant
was working on Broken Bit Station and the Red Hill farm. Mr Wainwright,
whom summoned to give evidence, corroborated the applicant as to the

financial basis of the applicant's work at Broken Bit and Red Hill, and he
agreed with the applicant that he, Wainwright, had funded the Red Hill
activities and received nothing in return. Curiously, he never sought to deduct
for taxation purposes the amounts paid to or drawn by the applicant.
The applicant had a trip to the United States in 1976 and when he, Valerie
and Mark went to Sydney from Port Macquarie at the end of that year, the
applicant did not seek work or engage in any income-making activity. In 1977,
Mark was sent to the Sydney Grammar School, and in February 1977 a
contract was signed for the purchase of a house at Newtown. (This contract
was not completed until 1 July 1977.) The applicant explained his ability to
maintain himself and his family during 1977 principally by reference to a sum
of $6000 or $8000 which he said he had on his return to Sydney from Port
Macquarie. This sum, he claimed, was the balance of an amount of about
$15.000 which Wainwright had paid to him at various times since he came to
Australia. The applicant claimed that the $15,000 was his share of the profit
realized on the sale of some really in Hawaii. He had bought some home units
there prior to their construction, paid a deposit and then sold them to
Wainwright, who was a Californian lawyer whom he met in Hawaii. Mr
Wainwright took these units off his hands, paid the balance of the purchase
price and over a period sold the units at a profit which was divided equally
between them. There was never a written agreement between the applicant
and Wainwright, nor any statement of account ever furnished by Wainwright
to the applicant. The payments to the applicant were not said by him to be
related to the time when the profit on the sale of any unit was available, but
rather to the time when the applicant might feel any need for money. The
applicant says that he received the whole of the $15,000 since arriving in
Australia. $5000 or $6000 being received before the applicant finished the
carpet-laying business, and the last before he left Port Macquarie to return to
Sydney. He says that he did not thereafter receive any money from
Wainwright. The circumstances to which the applicant deposed as explaining
how Wainwright came to pay him $15,000 made me doubt the truth of his
story. When Mr Wainwright gave evidence, he agreed that he paid the
applicant $15,000 as his share of the profits on the sale of Hawaiian really, but
he said that he paid the applicant $7000 before the applicant left Hawaii and
the balance. at times which Mr Wainwright was unahle to specify, since he
came to Australia. Mr Wainwright adds that. although he was under no
obligation to the applicant. he had given him some thousands of dollars since
he returned to Sydney after being released from gaol in April 1978.
The versions of these payments, though vague as to dates and amounts, are
contradictory. I do not doubt that Wainwright has provided the applicant with
money from time to time since he has been in Australia, but I do not believe
that the moneys received by the applicant over and above the allowances
provided at Broken Bit and Red Hill are to be accounted for as the proceeds
of sale of Hawaiian really.
I do not wish to comment in an adverse way upon the evidence of Mr
Wainwright, who was not called by a party and who was thus denied the usual
protection accorded to a witness by counsel for a party who calls him, except
to say that I do not find either his version or the applicant's version of the
financial arrangements between them to be convincing. The vagueness of the
arrangements deposed to, and the conflict in their evidence, engenders doubt
as to the truth of the matters in which they are in agreement. But even if their
joint version be true, it cannot fully account for the funds which the applicant
must have had available in 1977 after returning to Sydney from Port
Macquarie.
A second source of funds which the applicant said was available to sustain
himself, Mark and Valerie during 1977 was the price which he obtained on the
sale of his furniture. He claimed that he sold the furniture to an unidentified
purchaser for $2500 in cash. The furniture. with the exception of a
refrigerator and bed bought in 1968, had been salvaged from footpaths where
it had been put out during council clean-ups. This was an incredibly fortunate
sale, but even if it occurred, the proceeds were consumed in paying $2500 or
thereabouts as a contribution towards ·the purchase price of the Newtown
house. This house had been occupied by the applicant and his family as
tenants after coming to Sydney from Port Macquarie, but it was bought and
put in Valerie's name. She contributed her savings of $2500 which, she said,
she brought from Port Macqnarie in a shoe box. The balance of the purchase
price, namely $20,000, was secured by mortgage.
By the time the applicant left for the Northern Territory, he says he had
$1000 left and he gave this to Valerie to support herself and Mark while he
was-away. He did not know whether she had some savings. He said Valerie
had sold a chiffonier for $800, and she says she had maybe $ 100 of her own
when the applicant left Sydney. Accordingly, she says the applicanJ must have
paid the $675 due on the mortgage when he came home in October. She did
not have the funds to pay it, yet it was paid on 11 October 1977. She was so
short of funds that she later sold some bottles to provide money for herself
and Mark.
When the applicant appeared in court on 3 January 1979 after his arrest, his
senior counsel informed the magistrate that" He is not without funds, and has
been able to provide representation for himself and his co-defendant".
I do not believe that he was almost penniless when he left for Wollogorang.
He must have made the October mortgage payment, his counsel's statement
suggests the contemporaneous holding of funds (which he now denies), and he
was sufficiently sanguine about his ability to meet heavy mortgage commit-
ments ($675 per quarter) and school fees ($400 per term), that he sought no
employment between his leaving Port Macquarie and his going to Wollogo-
rang. I am of the opinion that, being faced with the clear suggestion that he
was involved in a marihuana plantation at Red Hill, he chose not to disclose
frankly the sources of his funds. That opinion facilitates, but does not
demand, the acceptance of the allegation of involvement in growing
marihuana with Trcin in 1974.
Trcin was a carpet layer who, according to the applicant, had visited Red
Hill spending "a few days like a vacation, a chance to get away from Sydney".
He agreed that Trcin was at Red Hill on a few occasions, but they were
"holiday occasions" for Trcin. But it emerged from Mr Wainwright's evidence
that the applicant had a close association with Trcin on the Red Hill farm. Mr
Wainwright produced a letter from the applicant dated 14 April 1975 saying
that "Neil left yesterday for two days up north to see a friend of his re:
raising some more capital to do what we want here and to carry us thru the
end of the year. Neil just called from Brisbane and he wiil be back at noon
tomorrow". It transpired that Trcin actually bought the Red Hill property
from Mr Wainwright. that the applicant was involved in the negotiations, and
(if Mr Wainwright's uncertain recollection on the point is accurate) that the

applicant continued to work on Red Hill after Trcin acquired the property.
At all events, the suggestion that Trcin merely visited Red Hill for vacation
is patently false. Trcin's manifest interest in Red Hill coupled with Trcin's
part in the Wollogorang venture tends to a more ready acceptance of the
allegation that the applicant was involved with Trcin in growing marihuana at
Port Macquarie.
In considering the evidence on the question of the applicant's involvement
with Trcin in growing marihuana at Port Macquarie, I approach the finding in
the manner which I expressed in Re Pochi and Minister for Immigration and
Ethnic Affairs (1979) 2 ALD 33 at 40:
"But at the end of the day the decision-maker must be persuaded that
deportation is in the best interests of Australia, and where the consequences
of deportation are grave, he will not be lightly persuaded: see Briginshaw v
Briginshaw (1938) 60 CLR 336 at 362. Except in special cases (to which I
later refer) the conclusion that deportation is in the best interests of
Australia will depend upon adverse findings of provable facts, and before
those findings are made, the decision-maker must be reasonably satisfied of
the occurrence or existence of those facts: Rejfek v McElroy (1965) 112 CLR
517 at 519. The gravity of the consequences of deportation to a particular
deportee does not demand that facts be proved beyond reasonable doubt, but
the significance of an adverse finding to the deportee will obviously affect the
ease or difficulty of persuading the decision-maker that the adverse finding
should be made."
Bearing in mind the gravity of the allegation, and the consequences of an
adverse finding for the applicant and his family, I am satisfied that the
applicant was involved with Trcin in growing marihuana at Port Macquarie,
as well as at Wollogorang. I do not know the extent of the Port Macquarie
venture, but the Wollogorang venture was on a large scale. It was a gross
breach of the criminal law. Conduct of this kind, having regard to the
Minister's policy, must be gravely regarded, and importance must be attached
to the protection of the community against those who have engaged in
production or distribution of marihuana.
The applicant's involvement as a principal in the Wollogorang plantation is
more than sufficient to warrant his deportation, but had it appeared clearly
that there was no real prospect of future drug offences, it would have been
necessary to consider making a recommendation that the order be revoked
in order to save Mark and Mrs Drake from the consequences of his
deportation. But I am not satisfied that there is no real prospect of future
drug offences. Having regard to his earlier involvement in growing marihuana
at Port Macquarie, I do not estimate the prospects of recidivism as small. I
give no more credence to his assurance of lawful conduct in the future than I
give to his denial of involvement in marihuana growing at Port Macquar.ie in
the past.
As to Mrs Drake's knowledge of his Wollogorang activities, it appears that
he wrote to her on 3 December 1977 (though she did not receive it) making
arrangements for Mark's vacation if she should come up to join him, and
informing her that the "February to March possibilities do not stand now as
we have decided against it this time". (The second phase, it seems, was not
then to be pursued.) He sought to explain this letter as something to reassure
her, but the explanation was unconvincing and, in part, inconsistent with
656 ADMINISTRATIVE LAW DECISIONS 2 ALO
what was written. I do not accept his assertions (or those of Mrs Drake) that
Mrs Drake did not know where he was and that she believed that he was on a
cattle property in Queensland.
I have earlier referred to Australia's interest in Mark and Mrs Drake as
weighty factors favouring revocation of the deportation order. However,
their influence on the applicant can give no guarantee in the future ( as their
influence has failed to guarantee in the past) that the applicant will abstain
from lame scale drug offences. The applicant's activities were gravely
damaging to the welfare of Australian society. In the light of the Ministcr·s
policy, I consider that the best interests of Australia will be served by
deporting him from Australia, and thus ensuring that the Australian
community is protected from the risk of his engaging again in large scale drug
offences. That consideration clearly outweighs the considerations in favour of
allowing the applicant to remain.
The decision which the Minister made is, in my view, the preferable one,
and it should be affirmed accordingly.
Decision
The Tribunal affirms the decision of the Minister for Immigration and
Ethnic Affairs dated 21 April 1978 that the applicant be deported from
Australia.
Solicitor for the applicant: J L Aston.

Solicitor for the respondent: Deputy Crown Solicitor.
GD S TAYLOR
BARRISTER

0207 Re Drake and Minister For Immigration and Ethnic Affairs (No 2) Ocr

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Re DRAKE and MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

ADMINISTRATIVE APPEALS TRIBUNAL

21 November 1979 - Canberra

Immigration - Deportation order - Ministerial policy - Lawfulness of policy -

J D Traill QC and Dr J Ryan, for the applicant.

Mrs P Fleming, for the respondent.

Cur. adv. vult.

Brennan J (President). This is a rehearing of an application by Daniel

which ought to be applied, is the Minister's decision the right or preferable

Thus Smithers J observed in Re Chan and Minister for Immigration and

offences against children or trafficking in or distribution of drugs has been

In fulfilling its function, the Tribunal, being independent of the Minister, is

whom summoned to give evidence, corroborated the applicant as to the

(if Mr Wainwright's uncertain recollection on the point is accurate) that the

Solicitor for the applicant: J L Aston.

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