Drake v Minister for Immigration and Ethnic Affairs

46 FLR 409

---

(Judgment by: Bowen CJ, Deane J)

Drake
vMinister for Immigration and Ethnic Affairs

Court:

Judges:
Bowen CJSmithers J

Deane J

Legislative References:
Migration Act 1958 - s 12
Administrative Appeals Tribunal Act 1975 - s 44; The Act
Migration Act 1958 - s 12
Judiciary Act 1903 - s 78B
Nationality and Citizenship Act 1948 - The Act
Crimes Act 1914 - s 20(1)
Criminal Appeal Act 1912 (NSW) - The Act
Dairy Industry Stabilization Act 1977 - s 11A; s 24A
Criminal Appeal Act 1912 (NSW) - s 2

Case References:
Shell Company of Australia v Federal Commissioner of Taxation - [1931] AC 275
Federal Commissioner of Taxation v Munro - (1926) 31 CLR 153-179
R v Trade Practices Tribunal ; Ex parte Tasmanian Breweries Pty Ltd - (1970) 123 CLR 361; [1970] ALR 449
R v Quinn ; Ex parte Consolidated Food Corporation - (1977) 16 ALR 569
R v Carngham - (1978) 22 ALR 183
Water Conservation & Irrigation Commission v Browning - (1947) 74 CLR 492
R v Cotham - [1898] 1 QB 802
Randall v Northcote Corp - [1910] 11 CLR 100
Shrimpton v Commonwealth - (1945) 69 CLR 613
R v Anderson ; Ex parte Ipec-Air Pty Ltd - (1965) 113 CLR 177; [1965] ALR 1067
Finance Facilities Pty Ltd v Federal Commissioner of Taxation - (1971) 127 CLR 106
Sullivan v Department of Transport - (1978) 20 ALR 323
Winsor v Boaden - (1953) 90 CLR 345
Horne v Locke - [1978] 2 NSWLR 88
Paramac Printing Co Pty Ltd v Federal Commissioner of Taxation - (1964) 111 CLR 529
R v District Court ; Ex parte White - (1966) 116 CLR 644

Hearing date:
Judgment date: 3 May 1979

Sydney

---

Judgment by:
Bowen CJ
Deane J

This is an appeal from a decision of the Administrative Appeals Tribunal affirming a decision of the Minister of State for Immigration and Ethnic Affairs (the Minister) made on 21 April 1978 under s 12 of the Migration Act 1958 (Com) that the plaintiff, Daniel Dwight Drake, be deported from Australia: see (1978) 1 ALN No 42. In accordance with the provisions of para 4 of Pt XXII of the Schedule to the Administrative Appeals Tribunal Act 1975 (Com) (the Act) the Tribunal was constituted by Mr Justice Davies who is a Deputy President of the Tribunal.

The appeal to this court is pursuant to s 44 of the Act and is, by the express provisions of that section, limited to an appeal on a question of law. The proceedings are not an appeal in the strict sense in that they lie within the original jurisdiction of the court. It is, however, convenient to adopt the nomenclature of the Act and to refer to them as an appeal.

The essential facts for the purposes of the appeal may be shortly stated.

The plaintiff was born in December 1937, in Los Angeles, United States of America. In 1968 he was issued an entry permit as a visitor, entered Australia, registered as an alien and applied for resident status. On 23 September 1974, he was granted permanent resident status. He has a teenaged son, a child of a former marriage, who lives with him in Australia. There is some confusion as to the plaintiff's precise marital status as a result of uncertainty as to the validity of a Mexican ceremony to which the plaintiff and a woman, who was subsequently described as his wife, were parties. The association between the plaintiff and this woman ended in 1969. If, as the plaintiff contended, this Mexican ceremony did not constitute a valid marriage, the plaintiff was, at the time of the hearing before the Tribunal, unmarried but planning to marry an Australian citizen. He and this lady have since been parties to a marriage ceremony.

On 3 January 1978 the plaintiff was convicted in the Court of Summary Jurisdiction at Darwin of the offence that between 28 September 1977 and 9 December 1977 at Wollogorang in the Northern Territory he did possess a prohibited drug, to wit, cannabis. The facts of the offence involved the plaintiff in the attempted production, on a substantial scale, of cannabis which was clearly intended for subsequent sale. On 1 April 1978 the plaintiff, having entered into the stipulated recognizance, was released from prison. On 21 April 1978 the order for his deportation was made by the Minister.

As has been mentioned, the deportation order which the Minister made was purportedly made pursuant to the provisions of s 12 of the Migration Act 1958. That section provides:--

Where (whether before or after the commencement of this Part) an alien has been convicted in Australia of a crime of violence against the person or of extorting any money or thing by force or threat, or of an attempt to commit such a crime, or has been convicted in Australia of any other offence for which he has been sentenced to imprisonment for one year or longer, the Minister may, upon the expiration of, or during, any term of imprisonment served or being served by that alien in respect of the crime, order the deportation of that alien.

The plaintiff placed a large body of evidence before the Administrative Appeals Tribunal aimed, inter alia , at establishing that, on the general merits of the matter, the preferable decision was that a deportation order should not be made and that, in those circumstances, the matter should be remitted to the Minister for reconsideration. By consent the material before the Administrative Appeals Tribunal and the reasons for decision of the Tribunal were admitted into evidence on the proceedings before this court. Much of this material is not strictly relevant to the consideration of the questions of law to which the plaintiff is restricted to this court.

The plaintiff's attack upon the decision of the Tribunal is founded on four distinct heads of argument. The first of these heads of argument involves a matter "arising under the Constitution or involving its interpretation". Notice was given to the Attorney-General of the Commonwealth and the Attorney-General of New South Wales in compliance with the requirements of s 78 B of the Judiciary Act 1903 (Com). The Attorney-General of the Commonwealth intervened, through the Solicitor-General, to make submissions in respect of that matter. The court was informed that the Attorney-General of New South Wales did not desire to intervene.

The plaintiff's four heads of attack are:--

(i)

It was not competent for Mr Justice Davies to constitute the Administrative Appeals Tribunal to hear and determine the appeal;

(ii)

The Tribunal was in error in law in proceeding on the basis that the plaintiff was an alien within the meaning of s 12 of the Migration Act 1958;

(iii)

The Tribunal was in error of law in proceeding on the basis that the plaintiff was a person who had been sentenced to imprisonment for one year or longer within the meaning of s 12 of the Migration Act 1958;

(iv)

The Tribunal attached such importance to a policy statement of the Minister on the question of considerations relating to the deterrence of others as to result in a failure by the learned Deputy President of the Tribunal to exercise his own independent judgment.

We shall deal with these four separate heads of attack in the order in which we have mentioned them.

(i)

It was not competent for Mr Justice Davies to constitute the Tribunal to hear and determine the appeal .

The Tribunal was established by Pt II of the Act. It consists of a President, and such number of Deputy Presidents and other members as are appointed in accordance with the Act (s 5). A person shall not be appointed as a presidential member (ie the President or a Deputy President) unless he is or has been a judge of a court created by the Parliament or has certain other specified qualifications (s 7(1) and the definition of "judge" contained in s 3). Mr Justice Davies' qualification for appointment as a Deputy President of the Tribunal was and is that he is a judge of this court.

The Tribunal's jurisdiction to review the decision of the Minister that the plaintiff be deported is to be found in the combined operation of s 25(4) and s 26(2) of, and Pt XXII of the Schedule to, the Act. By virtue of those provisions, the Tribunal is given power to review a decision of the Minister under s 12 of the Migration Act upon application being made to it in that regard. Clause 4 of Pt XXII of the Schedule provides that, for the purposes of reviewing a decision of the Minister under s 12, the Tribunal shall be constituted by a presidential member.

The submission that it was not competent for Mr Justice Davies to constitute the Tribunal to hear and determine the application for review was based on two independent but related arguments, the first general, the second particular. The first argument was that it simply is not permissible, under the Constitution, for a person who is a judge of a court created by the Commonwealth Parliament to be appointed to an office, such as Deputy President of the Tribunal, which involves the exercise of administrative functions which are quasi judicial in character. The second was that the provisions of s 7, the definition of "judge" in s 3, and the provisions of cl 4 of Pt XXII of the Schedule, to the extent that they purport to authorize what occurred in the present matter, namely that the Tribunal be constituted by a judge of a court created by the Commonwealth Parliament, are beyond the legislative competence of the Parliament for the reason that the result of the Tribunal being so constituted is that the functions purportedly conferred upon the Tribunal include what is, in the strict sense, the exercise of judicial power.

The general argument that it was constitutionally impermissible for Mr Justice Davies to be appointed a Deputy President of the Tribunal confuses the appointment of a person, who has the qualification of being a judge of a court created by the Parliament, to perform an administrative function with the purported investing of a court created under Ch III of the Constitution with functions which are properly administrative in their nature. Mr Justice Davies' appointment as a presidential member was a personal appointment. Before he could be validly appointed as a presidential member, it was necessary that he hold one of a number of designated qualifications. It so happened that the qualification which he held was that he was a judge of this court. The appointment was of him to the office of Deputy President of the Tribunal and not a conferring of functions or duties on the court of which he was already a member.

There is nothing in the Constitution which precludes a justice of the High Court or a judge of this or any other court created by the Parliament under Ch III of the Constitution from, in his personal capacity, being appointed to an office involving the performance of administrative or executive functions including functions which are quasi judicial in their nature. Such an appointment does not involve any impermissible attempt to confer upon a Ch III court functions which are antithetical to the exercise of judicial power. Indeed, it does not involve the conferring of any functions at all on such a court. The attack on the validity of the appointment of Mr Justice Davies as a Deputy President of the Tribunal must be rejected.

The plaintiff's second argument did not involve a general attack on the establishment of the Tribunal on the ground that the functions entrusted to it constituted part of the judicial power of the Commonwealth. Plainly, the plaintiff would derive no assistance from such an attack since the provisions of the Act providing for an appeal to this court could hardly survive a successful attack on either the establishment of the Tribunal itself or the conferring of functions upon it. The argument was that certain of the quasi judicial functions purportedly conferred on the Tribunal would, if exercised by a Tribunal constituted by a presidential member who was a member of a court created by the Parliament, assume the identity of judicial power in the strict sense. To the extent that the relevant provisions of the Act produced this result, they were, it was submitted, beyond the legislative competence of the Commonwealth Parliament in that they purported to confer part of the judicial power of the Commonwealth upon an administrative tribunal which was not a court created pursuant to the provisions of Ch III of the Constitution. In our view, there is no substance in this argument.

The general functions conferred upon the Tribunal are plainly administrative in character. This is particularly so in the case of the function of reviewing decisions of the Minister under s 12 of the Migration Act where the Tribunal has no power to set aside the Minister's decision but may either affirm it or remit the matter for reconsideration in accordance with any recommendations which it might make (Schedule, Pt XXII). Neither the fact that the Tribunal possesses certain procedural powers ordinarily enjoyed by courts nor the fact that the Tribunal is authorized to decide questions of law arising in proceedings before it means that, in performing these administrative functions, it is exercising judicial power: see, Shell Company of Australia v Federal Commissioner of Taxation [1931] AC 275-298 at 296; Federal Commissioner of Taxation v Munro (1926) 31 CLR 153-179 at 174; and R v Trade Practices Tribunal ; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 411 ; [1970] ALR 449 at 478 Such procedural powers and the power to decide such incidental questions of law are commonly conferred on administrative tribunals. The fact that the Tribunal for the hearing of the review in the present matter was constituted by a single presidential member whose qualifications happened to be that he was a judge of this court may perhaps be thought to add to the Tribunal a superficial "trapping" of curial decision-making. The trappings of judicial decision-making are not however necessarily indicative of the existence of judicial, as distinct from administrative, power (see generally, R v Quinn ; Ex parte Consolidated Food Corporation (1977) 16 ALR 569-576 at 574). Many tribunals whose functions are purely administrative are under a duty to act judicially, that is to say, with judicial detachment and fairness. The trappings of judicial decision-making are, in some cases, no less appropriate to such a tribunal than they are to a court concerned with the exercise of the judicial power of the Commonwealth.

In the result, the plaintiff has failed to make good the attack based on the fact that the Tribunal was constituted by Mr Justice Davies.

(ii)

The Tribunal was in error in law in proceeding on the basis that the plaintiff was an alien within the meaning of s 12 of the Migration Act 1958 .

It was submitted on behalf of the plaintiff that the provisions of s 12 of the Migration Act were not applicable to him for the reason that he was not an "alien" for the purposes of the section. The basis of the argument in support of that submission was that a person who, like the plaintiff, has lawfully made his permanent home in Australia cannot properly be classified as an alien.

Section 5 of the Migration Act provides that, in the absence of a contrary intention, the word "alien" when used in the Act means a person who is not a British subject, an Irish citizen or a "protected person" (ie a protected person under the Nationality and Citizenship Act 1948 (Com)). There is nothing in the provisions or context of s 12 of the Migration Act which would justify the conclusion that the word "alien" when used in the section should be interpreted as having other than its defined meaning. The plaintiff is not a British subject, an Irish citizen or a "protected person". Plainly, he is an "alien" for the purposes of s 12 of the Migration Act.

(iii)

The Tribunal was in error of law in proceeding on the basis that the plaintiff was a person who had been sentenced to imprisonment for one year or longer within the meaning of s 12 of the Migration Act 1958 .

The deportation order which was made by the Minister in respect of the plaintiff was expressly stated to be made pursuant to the power conferred by s 12 of the Migration Act. The basis upon which the order was made is stated, in the order, to be that the plaintiff "was convicted in the Court of Summary Jurisdiction holden in Darwin in the Northern Territory on the third day of January, 1978 of an offence for which he has been sentenced to imprisonment for one year or longer". It is common ground between the parties that, unless the result of the sentence imposed upon the plaintiff on 3 January 1978 was that the plaintiff was, for the purposes of s 12 of the Migration Act, "sentenced to imprisonment for one year or longer", the deportation order was not validly made.

The sentence imposed upon the plaintiff was not, as has been mentioned, an unqualified sentence of imprisonment for one year. It was a sentence of imprisonment with hard labour for 12 months accompanied by a direction that the plaintiff be released after three months on entering into his own recognizance of $200 to be of good behaviour for two years. That direction was given pursuant to the provisions of s 5(1)(b) of the Northern Territory Criminal Law (Conditional Release of Offenders) Ordinance 1971. Section 5(1) of the Ordinance provides, for present purposes, as follows:--

5(1) Subject to this section, where a person is convicted of an offence against a law of the Territory, the court by which he is convicted may, if it thinks fit, by order --

(a)

release the person without passing sentence upon him upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court that --

(i)

he will be of good behaviour for such period as the court specifies in the order;

....

(b)

sentence the person to a term of imprisonment but direct that the person be released, upon his giving a like security to that referred to in the last preceding paragraph, either forthwith or after he has served a specified part of the sentence imposed upon him.

It would seem clear that the sentence referred to in s 12 of the Migration Act is the sentence of imprisonment imposed and not the term of imprisonment actually served. The fact that a person who had been sentenced to be imprisoned for a term of one year was, by reason of remissions or release on parole, not required to serve the full term of imprisonment imposed would not affect the fact that he had been sentenced to imprisonment for one year for the purposes of s 12 of the Migration Act. In such a case, the remissions could not properly be regarded as part of the sentence imposed. They are the result of the context in which the sentence imposed operates. Similarly, in the case of premature release on parole, the release itself -- even when consequent upon the fixing of a minimum non-parole period -- cannot properly be regarded as altering the character of the sentence of imprisonment imposed. The fixing of a non-parole period neither confers any right of premature release upon the person sentenced nor qualifies the nature or term of the sentence of imprisonment actually imposed. In the event that the person sentenced is prematurely released on parole, the residue of the sentence of imprisonment is not extinguished. If the conditions of parole are broken, the person released can be returned to prison to serve the residue of the term imposed.

On the other hand, a direction that a person sentenced to a term of imprisonment be prematurely released pursuant to s 5(1)(b) of the Ordinance is part of a composite sentence and operates as a qualification or condition upon the sentence of imprisonment imposed. Such a direction confers upon the person sentenced the right to be released at the nominated time upon his giving the security specified by the sentencing court. Upon such release, the residue of the sentence imposed does not remain unextinguished in the sense that, if the conditions of release are broken, the person released can be required to serve it. The release, upon the giving of the specified security, brings the sentence to an end. Breach of the conditions of release will not revitalize that sentence. Such breach is punishable under a separate section (s 6 of the Ordinance) which provides for the possible imposition of a new independent sentence.

In R v Carngham (1978) 22 ALR 183 it was held by the Full High Court that a direction that a person sentenced to imprisonment for a period of two years be released after six months upon entering into a recognizance under s 20(1) of the Crimes Act 1914 (Com) was subject to review, as part of the sentence imposed, in an appeal under the Criminal Appeal Act 1912 (NSW). For present purposes, there would appear to be no relevant distinction between a direction under s 20(1) of the Crimes Act 1914 (Com) that a person be released upon entering into a recognizance and a similar direction under s 5(1)(b) of the Northern Territory Ordinance. In the course of his judgment in R v Carngham , supra Gibbs ACJ (with whose reasons for judgment Stephen J expressed his agreement) made the following comments ( ibid at 187): "... the sentence of imprisonment itself would have a materially different effect if it were not for the order for release. In these circumstances it seems to me that the order for release must be treated as a qualification of the sentence of imprisonment and that it is right to regard it as part of the sentence itself. Although there is some ambiguity in the concluding words of s 20(1), the phrase "after he has served any portion of his sentence" in my opinion qualifies "release", not "order". That is to say, the order must be made at the same time as the sentence is imposed, and not after portion of it has been served. From the moment when sentence is pronounced the convicted person is entitled to release after he has served portion of his sentence if he complies with the condition of the order. A sentence of two years' imprisonment simpliciter is quite different in its incidence and severity from a sentence of two years' imprisonment coupled with an order for conditional release after some months. The true nature of the sentence imposed can only be ascertained by looking at the order as a whole."

It was submitted on behalf of the plaintiff that the above comments of Gibbs ACJ lend clear support for the contention that the effect of the direction under s 5(1)(b) of the Ordinance was that the plaintiff could not properly be said, for the purposes of s 12 of the Migration Act, to have been sentenced to a term of imprisonment of one year. In our view, that is not so. The question to which the Acting Chief Justice was directing his attention in the extract from his judgment was the question whether the direction for release on entry into a recognizance constituted part of the sentence imposed. That question is relevant to, but distinct from, the question now under consideration. The fact that a composite sentence that a person be imprisoned for one year but be released on entering into a recognizance after three months is different in both its incidence and severity from a sentence of imprisonment unaccompanied by the order for release does not, in itself, provide a compelling answer to the question whether, for the purposes of s 12 of the Migration Act, the person sentenced under such a composite sentence can properly be said to have been sentenced to a term of imprisonment of one year. That question is essentially a question of the proper construction to be given to the words "sentenced to imprisonment for one year or longer" in s 12 of the Migration Act. If those words fell to be construed in isolation and not in their context of that section, we should have no hesitation in reaching the conclusion that the composite sentence imposed upon the plaintiff satisfied their requirements. The words cannot, however, properly be so construed. They must be construed in the context of the section in which they appear.

The making of a deportation order pursuant to s 12 of the Migration Act can involve drastic interference with the liberty of an individual. The powers conferred upon the Minister by the section should be strictly construed. Plainly, it was the intention of the magistrate who sentenced the plaintiff that he should serve but three months in prison. In the ordinary course it was to be expected that he would enter the recognizance and be released from prison after he had served three months. In fact, at the time the deportation order was made, it was known that the plaintiff had entered into the recognizance and had served no more than three months in prison under the sentence imposed. The fact that he had served no more than three months in prison was the direct result of the terms and operation of the composite sentence itself.

It is unfortunate that the liability of a person to be made the subject of a deportation order with all its consequences should depend upon verbal niceties of the type involved in the present matter. There is, indeed, much to be said for the view that a finding that the plaintiff was, for the purposes of s 12 of the Migration Act, sentenced to a term of imprisonment of one year involves a preference for the shadow of verbalism over the substance of reality. In our view, however, this is not so. The fact that the learned magistrate directed that the plaintiff be entitled to be released upon recognizance after he had served three months in prison does not alter the fact that the magistrate determined that the appropriate sentence to be imposed for the offence of which the plaintiff was guilty was a term of imprisonment of one year. The magistrate in fact imposed that sentence of imprisonment. True it is that, by entering into a recognizance and undertaking obligations which, if breached, would render him liable to be sentenced to a new term of imprisonment, the plaintiff was entitled to secure his release after he had served three months of the term imposed and that, on such release, his liability to serve the balance of the term imposed was extinguished. None the less, in our view, the plaintiff was, under the composite sentence imposed, sentenced to a term of imprisonment of one year. We are unable to read the relevant words of s 12 in a sense which would warrant the conclusion that their requirements were not satisfied by the sentence which was imposed upon the plaintiff.

(iv)

The Tribunal attached such importance to a policy statement of the Minister on the question of considerations relating to the deterrence of others as to result in a failure by the learned Deputy President of the Tribunal to exercise his own independent judgment .

The function of the Tribunal is, as we have said, an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. Except in a case where only one decision can lawfully be made, it is not ordinarily part of the function of a court either to determine what decision should be made in the exercise of an administrative discretion in a given case or, where a decision has been lawfully made in pursuance of a permissible policy, to adjudicate upon the merits of the decision or the propriety of the policy. That is primarily an administrative rather than a judicial function. it is the function which has been entrusted to the Tribunal.

The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. The Act offers little general guidance on the criteria and rules which the Tribunal is to apply in the performance of its task of reviewing administrative decisions which are subjected to its surveillance. Even in a case such as the present where the legislation under which the relevant decision was made fails to specify the particular criteria or considerations which are relevant to the decision, the Tribunal is not, however, at large. In its proceedings, it is obliged to act judicially, that is to say, with judicial fairness and detachment. In its review of an administrative decision, it is subject to the general constraints to which the administrative officer whose decision is under review was subject, namely, that the relevant power must not be exercised for a purpose other than that for which it exists ( Water Conservation & Irrigation Commission v Browning (1947) 74 CLR 492498, 499-500, 504 at 496,), that regard must be had to the relevant considerations, and that matters "absolutely apart from the matters which by law ought to be taken into consideration" must be ignored: R v Cotham [1898] 1 QB 802 at 806; Randall v Northcote Corp [1910] 11 CLR 100-110 at 109; Shrimpton v Commonwealth (1945) 69 CLR 613 at 620; R v Anderson ; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189 ; [1965] ALR 1067 at 1071.

There are circumstances in which an administrative officer is precluded from taking into account the dictates of general government policy in the exercise of a power conferred upon him by virtue of his office. Examples can readily be found among cases where the particular officer is charged with the exercise of a power by reference to defined criteria or considerations: R v Anderson ; Ex parte Ipec-Air Pty Ltd , supra, at 204-205 (CLR) ; 1081-1083 (ALR) and see, for example, Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106. Ordinarily, however, an administrative officer charged with the exercise of discretionary power will be entitled, in the absence of specifically defined criteria or considerations, to take into account government policy. The propriety of paying regard to general policy considerations is most evident in a case such as the present where there are no specified statutory criteria for the exercise of the discretionary power and where the power is entrusted to a Minister of the Crown responsible to Parliament. Clearly, in considering whether a deportation order should be made in respect of the plaintiff in the present matter, the Minister was entitled to be guided by any general relevant government policy which was not inconsistent with the provisions or the objects of the Migration Act. Indeed, the consistent exercise of discretionary administrative power in the absence of legislative guidelines will, in itself, almost inevitably lead to the formulation of some general policy or rules relating to the exercise of the relevant power.

In some cases, the Tribunal may be expressly required by the Act conferring the right of appeal to regard itself as bound by the principles formulated by the Minister in administering some aspect of the Act: see, for example, Dairy Industry Stabilization Act 1977 ss 11 A and 24 A. But that is not the case here. There was not, in the present matter, any express statutory provision either requiring or authorizing the Tribunal to determine the matter in accordance with relevant government or ministerial policy.

In a matter such as the present where it was permissible for the decision-maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision. It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. If the original decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.

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 interest 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. It may be that the Tribunal concludes, on the material before it, that a particular government policy which had been applied by an administrative officer in making a decision which the Tribunal was reviewing was, in itself, unobjectionable and that the need for consistency in the particular area of administrative decision-making was such that, in the circumstances of the case, the correct or preferable decision was that which resulted from the application of that policy to the facts of the matter before it. An example of an area of decision-making where such an approach might, in the particular case, be appropriate is that involving the discretionary grant of statutory licences in circumstances where no statutory guidelines are laid down and the personal qualifications or characteristics of the prospective licensee are unimportant. Such a decision, even though it involves the application of government policy to the relevant facts, is the outcome of the independent assessment by the Tribunal of all the circumstances of the particular matter. It is to be contrasted with the uncritical application of government policy to the facts of the particular matter which represents an abdication by the Tribunal of its functions. In practice, the borderline between the two classes of decision may well be blurred and it is inevitable that there will be cases in which it is difficult to discern, from the published reasons of the Tribunal, on which side of the border the particular decision of the Tribunal lies. It is, however, desirable that, in any case where the Tribunal reaches the conclusion that the particular circumstances are such as to make the correct or preferable decision that which results from an application of some government or ministerial policy to the particular facts, the Tribunal makes it clear that it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion. This is particularly so in matters such as the review of a deportation order where no two cases will be identical and where personal liberty will commonly be involved.

Examination of the reasons for decision of the learned Deputy President in the present matter indicates that the decision which he reached was the result of the application by him of ministerial policy to his careful assessment of the factual material before him. We have experienced considerable difficulty in deciding whether that application of policy was the result of an independent assessment of its propriety and an independent determination that the circumstances of the case were such that the correct decision was that resulting from the application of that policy to the relevant facts. Smithers J has analysed the reasons for decision of the leanred Deputy President. The matters to which he has pointed have ultimately led us, on balance, to conclude that the published reasons of the Tribunal indicate that the Tribunal failed to make such an independent assessment and independent determination and that, in the result, it failed properly to perform its function of reviewing the Minister's decision that a deportation order be made in respect of the plaintiff.

Conclusion

The appeal should be allowed and the matter should be remitted to the Tribunal for a rehearing. Lest there should be any doubt on the matter, we expressly indicate that nothing in what we have written should be taken as indicating any view as to whether, in all the circumstances of the case, the decision of the Minister that the plaintiff be deported should be affirmed by the Tribunal. The defendant Minister should pay the plaintiff's costs of the appeal.