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Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Deportation - Migration Act 1958 - conviction for supplying Indian Hemp - Administrative Decisions (Judicial Review) Act 1977 - matter remitted by Administrative Appeals Tribunal to Minister for reconsideration in accordance with recommendation of the Tribunal - natural justice - where findings of Administrative Appeals Tribunal departed from by Minister or credibility in issue - use of findings of Royal Commission - policy of consistency - exercise of discretion - circumstance of involvement as mere labourer - effect upon wife and young children - risk of recidivism - not regard to deterrence - effect of delay.Migration Act 1958 s.12, s.66E
Administrative Appeals Tribunal Act 1974 Part XXII of Schedule
Administrative Decisions (Judicial Review) Act 1977 s.5, 13.
Administrative Law - Deportation order - Recommendation by Administrative Appeals Tribunal that order be revoked - Minister rejects recommendation - Minister reaffirms deportation order - Application for judicial review - Whether deportee has a right to be heard on Minister's grounds for refusing to comply with recommendation before affirmation of deportation order - Natural justice - Whether Minister's decision based on fact - Whether there was sufficient evidence to justify the decision - Whether Minister may exercise his discretion by reference to deportation of other individuals - Migration Act 1958 (Cth), ss 12, 66E - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 13 - Administrative Appeals Tribunal Act 1974 (Cth), Schedule (Part XXII). The deportation from Australia of the applicant was ordered by the respondent in September 1979, the applicant having been convicted in australia and sentenced to one year imprisonment or more. Upon an application by the applicant the Administrative Appeals Tribunal recommended in March 1981 that the order be revoked. In February 1982 the applicant was informed by the Department of Immigration that the Minister had decided to affirm the deportation order. The applicant then applied pursuant to the Administrative Decisions (Judicial Review) Act 1977 for an order to review that decision.
Held, that the decision of the respondent to affirm the deportation order of September 1979 be set aside and that the matter be referred to the Minister for Immigration and Ethnic Affairs for further consideration according to law because:
(1) The nature of the decision was such that the applicant, according to law, should have been given the opportunity to make representations with respect to the considerations which induced the respondent not to comply with the recommendation of the Administrative Appeals Tribunal before the decision was made.
Minister for Immigration and Ethnic Affairs v. Pochi [1980] FCA 85; (1980) 44 F.L.R. 41; R. v. Governor of Brixton Prison; Ex parte Soblen (1963) 2 Q.B. 243; Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch. 149, referred to.
Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1976] UKHL 6; (1977) A.C. 1014, followed.
Minister for Immigration and Ethnic Affairs v. Pochi [1981] HCA 58; (1981) 55 A.L.J.R. 706, applied.
Salemi v. MacKellar (No. 2) [1977] HCA 26; (1977) 137 C.L.R. 396; Durayappah v. Fernando (1967) 2 A.C. 337, considered.
(2) The Minister based the decision on the existence of the fact that the applicant was a member of a criminal organisation known as L'Onorata Societa when that fact did not exist.
(3) Status of finding of fact made by Royal Commissioner considered.
(4) The exercise of the Minister's discretion by reference to the fact that other individuals had been deported was an error in law.
Nevistic v. Minister for Immigration and Ethnic Affairs [1981] FCA 41; (1981), 51 F.L.R. 325, considered.
HEARING
Adelaide, 1982, August 4; October 7, 18-21; December 17. 17:12:1982APPLICATION.1977 for an order of review of the Minister's decision to affirm an order for the deportation of the applicant.Application pursuant to the Administrative Decisions (Judicial Review) Act
P. N. Waye, for the applicant.
J. W. Perry Q.C. and W. A. Mesiti, for the respondents.Solicitor.Solicitors for the applicant: P. N. Wayne & Assocs.
Solicitor for the respondents: B. J. O'Donovan, Commonwealth Crown
E.F.F.
ORDER
It is the order of the Court that the decision of the respondent to affirm the order made by the then Minister on 20 September 1979 be set aside and that the matter to which that decision relates be referred to the Minister holding the office of Minister for Immigration and Ethnic Affairs for further consideration according to law.As to costs, the order of the Court is that the respondent pay the applicant's costs of and incidental to this application.
DECISION
This is an application pursuant to the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) in respect of the affirmation of an order for deportation of the applicant, by a decision of the Minister made on or about 22 February 1982.On 20 September 1979 an order for the deportation of Vincenzo Barbaro was made by the then Minister of State for Immigration and Ethnic Affairs. That order was made pursuant to s.12 of the Migration Act 1958 which provides that where an alien has been convicted in Australia of an 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." On 10 October 1979 Vincenzo Barbaro (hereinafter referred to as the applicant) applied to the Administrative Appeals Tribunal (the Tribunal) for review of the Minister's order. The application came on for hearing before his Honour Mr. Justice Fisher, a Deputy President of the Tribunal. The hearing which commenced on 24 November 1980 extended over nine days and on 18 March 1981 Fisher J. declared that "the proper decision is that the deportation order be revoked and I so recommend to the Minister.".
The applicant heard nothing further from the Department of Immigration until 22 February 1982 when he was informed by letter from the Departmental Regional Director that "after considering the recommendation of the Administrative Appeals Tribunal and after weighing up the factors for and against deportation, the Minister has decided to affirm the deportation order."
On 26 February 1982 the applicant applied, pursuant to the ADJR Act for an order to review the decision of the Minister to affirm the deportation order. The application having come before Mr. Justice Davies, objection on behalf of the respondent, was taken to the jurisdiction of the Court to hear an application pursuant to the ADJR Act in respect of the decision of the Minister to affirm the order for deportation. That issue was decided by Mr. Justice Davies after argument, as a preliminary question arising in this application. He decided that the decision to confirm the order was a decision within the meaning of that expression in s.5 of the ADJR Act, and accordingly the applicant, as a person aggrieved thereby, might apply to the Court for an order of review in respect of that decision on any of the grounds set forth in s.5 (a) - (j) of the ADJR Act. It was thought by Mr. Justice Davies that it was undesirable that he should sit to hear the substance of the application because certain decisions of his own were likely to be referred to and it might be felt that he had formed certain views relevant to the fate of the application. As a result the matter came before me on the 18th day of October 1982.
In this application particulars of the grounds relied upon by the applicant
were given, namely, in substance,
(a) that in making the decision in question the Minister had failed to observe
the rules of natural justice;
(b) that the procedures required by law were not observed;
(c) that the making of the decision was an improper exercise of the powers
conferred by the enactment in pursuance of which it was
purported to be made;
(d) that the decision involved an error of law;
(e) that there was no evidence or other material to justify the making of the
decision;
(f) that the decision was otherwise contrary to law;
(g) that the Minister took into account certain irrelevant considerations and
failed to take into account certain relevant considerations;
(h) that the delay between 18 March 1981 and the notification of the Minister's decision dated 22 February 1982 was excessive.
Pursuant to s.13 of the ADJR Act the respondent, on the 8 October 1982 furnished a statement in writing setting out his findings on material questions of fact, referring to the evidence or other material on which those findings were based and stating the reasons for his decision. The statement of the findings and reasons of the respondent referred to above are set forth in the schedule to this judgment.
At the hearing, on behalf of the applicant submissions were made including
the following, namely:
(1) That the Minister's decision was made by reference to a finding of fact
which was contrary to that made by Fisher J, which there
was no evidence to
support and which was contrary to the evidence. The finding was that the
applicant was a member of a criminal
organization known as "L'Onorata
Societa".
(2) That this finding was the main reason for the affirmation of the order for
deportation of the applicant, and indeed, but for the
finding the Minister's
discretion would not have been exercised against the applicant.
(3) Before exercising his discretion by reference to a finding of fact
contrary to that of the Deputy President of the Tribunal an
opportunity to be
heard should have been afforded to the applicant in compliance with the
requirements of natural justice.
(4) That in exercising his discretion, the Minister applied a doctrine of
consistency in such a way that he failed to decide the matter
on the
particular merits of the applicant's own case.
(5) That although in his reasons, the Minister recognized what was called the
hardship which deportation would impose on the applicant,
his wife and five
children, he did not in reality, assess and take into account or give adequate
weight to the actual nature and
extent of the serious effect that the
deportation would have on the family.
The discretion of the Minister to deport an alien who has suffered the relevant conviction is his alone. The criterion by which he is to exercise it must be his assessment of what in the circumstances is in the best interests of Australia. No doubt it is a discretion, which is to be exercised by reference to all considerations relevant to those best interests. No doubt also those considerations extend to a regard for the person concerned and his family and connections, it being the intention of Parliament that he and they shall be dealt with fairly. The failure to take into account the hardship to be incurred by the applicant and his family in the event of the applicant's deportation would be a failure to have regard to a most significant relevant consideration. Its importance is recognized by the policy statement of the Minister itself and is well established in decisions of the Tribunal. No doubt also any facts by reference to which, as critical facts, the Minister exercises his discretion, should exist or be, at least, satisfactorily supported by evidence. To exercise the discretion on the basis that it was a fact that the applicant was a member of the criminal organization if it were not a fact would be to proceed upon an incorrect basis of fact and would deprive the decision of its validity.
The onus of establishing the errors alleged above is on the applicant. Such an onus may in many cases be difficult to establish, but in this case the basis of fact upon which the Minister proceeded and the reasoning by which he exercised his discretion is known. Both are set out in the statement and departmental memorandum set forth in the schedule. If, then, it is established that the basis of fact by reference to which the Minister exercised his discretion did not exist, or it is shown that he failed to take into account a relevant consideration, such as the nature and extent of the hardship involved, or indeed that he failed for insubstantial reasons, to give appropriate weight to them, the discretion may be said not to have been exercised in accordance with the intention of Parliament.
It is not in conflict with the above that a discretion might not be exercised by reference to a fact not proved, but, one relating to a serious matter in respect of which the Minister considers sufficient suspicion exists to justify the exercise of discretion in the public interest as though it did exist. Compare Pochi v. The Minister for Immigration & Ethnic Affairs [1980] FCA 85; (1980) 31 A.L.R. 666. But that is not this case. In this case the Minister made a finding of the alleged fact and exercised his discretion by reference to what he found to be a fact in existence.
That the Minister's decision may be reviewed where errors of the kind mentioned above have occurred arises from the jurisdiction of the Court to review Ministerial decisions where there is lack of bona fides or where it is apparent that the decision does not accord with the purpose for which the power was conferred or is based upon an incorrect basis of fact or was exercised unfairly. There is of course no suggestion of lack of bona fides in this case. What is in issue is the factual basis of the decision and the matters which were considered or not considered. Thus it was said by Lord Wilberforce in Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1976] UKHL 6; (1977) A.C. 1014 at p.1047, that the Courts will ensure that a discretionary power given to a Minister has not been exercised ". . . unfairly, or upon an incorrect basis of fact." In connection with a discretion conferred in the terms "if the Minister is satisfied", he said, "If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the Court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account". I see no reason to think that the discretion of the Minister under s.12 of the Migration Act, whether, when originally made, or made by way of reconsideration, is not similarly subject to judicial review, or that the ADJR Act does not provide an appropriate procedure.
It is in my opinion, not to be thought that Parliament, conferring that discretion in 1958, would contemplate authorising the Minister to deport persons on any other basis. The relevant considerations are, the drastic nature of deportation so far as it affects deportees and their families, the presumption that a nation with respect for human rights would intend that a sanction so fearsome would only be imposed on a basis of fairness and by reference to existing fact, and the absence of any reason for not so acting towards persons whether Australian citizens or not who are entitled to the protection of, as well as being subject to the laws of Australia.
In addition a question has arisen as to whether by operation of the
Administrative Appeals Tribunal Act 1974 (the AAT Act) and the
ADJR Act, the
situation is that, with respect to a decision directed to reconsideration
pursuant to the AAT Act of an order for deportation,
there is, in certain
cases, at least, a requirement that natural justice be extended to the person
concerned and perhaps to his family.
Audi Alteram Partem
The immediate question is whether the rules of natural justice were applicable in respect of the reconsideration of the order for deportation which the Minister gave to the matter pursuant to the recommendation of the Tribunal dated 18 March 1981.
It would seem that in making an order for deportation under s.12 of the Migration Act in the first instance, the Minister may not be required to observe the rules of natural justice. As contemplated by the Migration Act the deportation of an alien who has suffered the relevant sentence of the Court is a matter in the discretion of the Minister. The question is whether when such an order has been before the Tribunal and when the Tribunal has recommended that the matter be reconsidered and that the order for deportation should be revoked there is a requirement to extend natural justice before the discretion is exercised against the person concerned.
It is said on behalf of the respondent that s.5 of the ADJR Act does not impose upon a person making a decision which is subject to the ADJR Act, a duty to afford natural justice to a person affected by the decision where apart from the Act there is no such duty. There is authority to this effect which I follow; namely, Safadi v. Minister for Immigration & Ethnic Affairs (1981) 38 A.L.R. 399 and Capello v. Minister for Immigration & Ethnic Affairs [1980] FCA 152; (1980) 2 A.L.D. 1014. One must therefore enquire whether apart from the ADJR Act there was a duty in the respondent to extend natural justice to the applicant in relation to reconsideration of the matter by him pursuant to the recommendation of the Tribunal. I assume that that duty arises if at all, as a consequence of the AAT Act and the ADJR Act and the attitude of Parliament underlying the provisions thereof upon the nature of deportation procedures applicable in the administration of s.12 of the Migration Act. So far as is relevant to the deportation order made in this case, the relevant provision of the AAT Act is contained in para 3 of Part XXII of the schedule to that Act which is in the following terms:-
(3) After reviewing a decision referred to in sub-clause (1), the Tribunal shall either affirm the decision or remit the matter for reconsideration in accordance with any recommendations of the Tribunal.
This provision is now to be found in s.66E of the Migration Act.
In Minister for Immigration & Ethnic Affairs v. Pochi [1981] HCA 58; (1981) 36 A.L.R. 561 at p.563, observations were made in the High Court as to the effect in law of this provision of the schedule. For the present purposes the relevant observations were in the following terms:-
"It will be observed that Pt XXII of the Schedule does not empower the
Tribunal, for the purpose of reviewing a decision under s.12 of the Migration
Act, to vary or set aside the decision under review, or to make a decision in
substitution therefor, or to give directions in accordance
with which the
Minister must reconsider the matter. Its only powers are to affirm the
decision or to remit the matter for reconsideration
in accordance with any
recommendations of the Tribunal. Clause 22(3) does not mean that if the
Tribunal makes recommendations the
Minister must, on reconsideration, give
effect to them.
. . .
The effect of a decision of the Tribunal remitting a matter for
reconsideration in accordance with its recommendations is only that
the
Minister is bound to reconsider the matter in the light of the
recommendations.
. . .
. . . a decision of the Tribunal binds the Minister only to the extent that it
may require him to reconsider his decision. If this
Court were to affirm the
dismissal by the Federal Court of the appeal from the Tribunal's decision, the
Minister would remain free,
on reconsideration, to decide that the deportation
should proceed. In other words, a decision of this Court dismissing the appeal
would not bind the Minister to adopt the recommendation of the Tribunal.
Although the Minister would be obliged to reconsider the
matter, he would not
be bound to exclude from his consideration evidence which the Tribunal or this
Court considered was of insufficient
probative value, or to give weight to
material which the Tribunal or this Court considered to be of decisive
importance. He would
not be required to accept as correct any views as to the
facts, or as to the weight of the evidentiary material, expressed by the
Tribunal or the Court; he would merely be required to have regard to the
Tribunal's recommendation."
These observations were made by their Honours, Gibbs C.J. Mason, Aickin and Wilson JJ. Mr. Justice Murphy took a different view, holding at p.566, as his Honour said,
". . . There is no restriction in terms on the number or nature of recommendations of the Tribunal in accordance with which the Minister is to reconsider. It would appear that recommendations may be of law or fact. However, because it is open to the Minister on reconsideration to decide whether or not to deport (providing this reconsideration is otherwise according to law) any recommendation by the Tribunal that he should not order deportation cannot be binding, but advisory only. Subject to that, para (3) above requires that the reconsideration be in accordance with the recommendations; it should not be construed as authorizing a reconsideration which ignores or departs from or is otherwise not in accordance with any recommendation. Whatever the nature of the recommendations which can lawfully be made, the Minister must reconsider in accordance with them. An interpretation that he can ignore the recommendations, that is, reconsider otherwise than in accordance with the recommendations would be a negation of the statute."
It appears therefore that there is a duty in the Minister arising out of the fact that the Tribunal has made a particular recommendation. He must proceed "in the light" of it, he must "have regard" to it. It is not to be thought that this duty is not a real one. It is not to be thought that Parliament did not intend that the recommendation of the Tribunal should be meaningful. The Tribunal is of high status, the review is intended to be thorough and quasi judicial, and the words of the schedule have a positive import. If its recommendation is to be meaningful, and if there is a duty on the Minister to treat it as a meaningful recommendation, then, when it is made, some benefit must accrue to the person in respect of whom it is made. The Minister is not bound to adopt all the findings of fact of the Tribunal or to give to inferences of fact the same weight and direction as was given to them by the Tribunal. But if the recommendation is to be meaningful then it would seem that the least that can be said is that where those findings of fact and inferences are to be departed from, the person concerned should be given the opportunity to make representations. Where questions of credibility are involved a procedure appropriate thereto would be essential. Such questions cannot be decided by any tribunal without seeing and hearing the person whose credit is in issue. I do not read the observations of the High Court in Pochi v. The Minister for Immigration & Ethnic Affairs (supra) as being inconsistent with this.
Although relevant considerations tend to reduce the import of the words of the schedule, "for reconsideration in accordance with any recommendations of the Tribunal", it is apparent, that those words are calculated to convey to people concerned that the recommendation of the Tribunal is something upon which they can rely as a matter of finality, or, at any rate, as not to be departed from without due cause being shown. The history of administration in cases where there have been recommendations made by the Tribunal, either for confirmation of deportation orders or for revocation thereof, is that in all cases except two, and, as is now known, in all cases except one, and that one being this one, the recommendations of the Tribunal have been given effect to by the Minister. It is to be noted also that when the then Minister decided, in respect of the two cases referred to, to depart from the recommendation of the Tribunal, he considered that that step was so unusual as to require that he explain the departure to Parliament. Thus a person concerned, having a recommendation by the Tribunal in his favour would certainly have a real and legitimate expectation that the Minister would act in accordance with the recommendation. And of course when, as in this case, the time from the date when the recommendation was made has lengthened into eleven months, that expectation would be intensified.
Until the decisions of the Minister pursuant to s.12 of the Migration Act were brought within the purview of the AAT Act there were no legislative provisions which could be said in any way to produce a climate in some way affecting the remoteness of the Minister's decision making processes. However it appears that the passage of the AAT Act did introduce a qualification of significance into the deportation power. It was one which could no longer be exercised in secret, it could no longer be exercised without stated reasons. Once a duty to give reasons for a deportation order was introduced the exercise of the discretion had inevitably undergone some kind of qualitative change. No doubt, in particular cases, the reasons might have included considerations of national security into which a Court would not inquire. But with that exception reasons had to be given. There is no national security aspect in this case. Deportations in relation to drugs concern social security rather than national security. It is in this area that Parliament has thought it right that there should be investigation by a quasi judicial authority consisting of a Judge of a Superior Court and that such authority should be able to make recommendations which have weight and significance. When to that development there was added the ADJR Act then, so far as matters of the social security category are concerned, once again, reasons have to be given if on reconsideration of the original decision there is a departure from the recommendation of the Tribunal.
It is apparent therefore, that in matters of social security at least, the discretion of the Minister as something exerciseable in secret has been modified. The implication is that in the whole transaction the discretion of the Minister is subject to modification taking its nature and extent from the duty to act not only fairly and taking account of all considerations which are relevant to the making of a decision in the best interests of Australia, but to do so openly. In these circumstances it is reasonable to consider whether in the exercise of his duty of reconsideration under s.12 of the Migration Act, where he proceeds by reference to findings of fact in conflict with findings of the Tribunal, or where considerations thought important by the Tribunal have not been so regarded by the Minister and contrary considerations have been adopted by him, or where questions of credibility are involved, the rules of natural justice apply so that the applicant may have an opportunity to urge his case in relation to such departures. What has happened is something of a fundamental character. What was formerly a secret exercise of authority, has become an authority required to be based upon stated reasons. The effect may well be that the identification of facts and matters said to be relevant to the exercise of the discretion must be openly made, thereafter the Minister's overall discretion applying in the light of such facts and matters. There is thus a strong indication of Parliament's intention that the facts on which the discretion is exercised should be known to those concerned. The statute implies a change in the nature of the decision making function of the Minister.
As indicated above the AAT Act creates a legitimate expectation that the recommendations of the Tribunal will be implemented, at any rate where considerations of national security do not obtrude. As to the significance of such a legitimate expectation, as supportive of the application of the principles of natural justice, I turn to the judgment of Stephen J., as he then was, in Salemi v. MacKellar [1977] HCA 26; (1977) 137 C.L.R. 396 at p.423. I extract from it the proposition, which does not appear to be in conflict with anything said by the majority of the Court in that case, that whatever may be the position where, as in relation to prohibited immigrants, a deportation provision confers upon the Minister an absolute discretion, so that it is difficult to imply a provision that he should observe the procedures of natural justice, nevertheless, where a provision for deportation is of such a nature that considerations of reasonableness and fairness have been injected into it by the legislature, then the situation is different. It is then that the observations to be found in the speech of Lord Denning in Reg v. Governor of Brixton Prison; Ex parte Soblen (1963) 2 Q.B. 243 at p.298 and in the judgment of Widgery J. in Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch. 149 and of Russell L.J. in that case apply with considerable strength. It would seem that circumstances have arisen where the observations of the Judicial Committee of the Privy Council in Durayappah v. Fernando (1967) 2 A.C. 337 at 349 are in point. It was there observed that the matters to be taken into account when considering whether there is an implied duty to observe the requirements of natural justice are, first the nature of the complainant's interests, secondly, the conditions under which the administrative authority is entitled to encroach on those interests and, thirdly, the severity of the sanction it can impose. In a matter of deportation, rights in property and personal liberty are relevant interests, the sanction which may be imposed is most severe and the observance of natural justice is compatible with the purpose and powers of the Minister particularly in the light of the statutory provisions which result in the disclosure by the Minister of the facts and matters regarded by him as relevant to the exercise to his discretion. I would refer also to the comment of Mason J. in In the matter of an application for prerogative writs against the Aboriginal Land Commissioner; Ex Parte Northern Land Council, 24 December 1981, as yet unreported, at p.44 that:-
". . . the doctrine of ministerial responsibility is not in itself an adequate safeguard for the citizen whose rights are affected. This is now generally accepted and its acceptance underlies the comprehensive system of judicial review of administrative action which now prevails in Australia."
In this case for the purpose of the exercise of his discretion the Minister
departed from the findings of the Tribunal and made inferences
in conflict
with those made by the Tribunal. I conclude therefore, that, in this case,
before the order for deportation was affirmed
there was a duty to extend
natural justice to the applicant and those immediately affected by that
decision. If this looks like piling
Pelion upon Ossa the answer is that
deportation is a sanction of supreme severity and Parliament intends that it
be imposed only
where the Minister's discretion is exercised by reference to
the real facts and the proper considerations.
Weight Not Accorded to Family Disaster
It was urged by Mr. Perry for the respondent that a declaration that natural justice should be afforded to the applicant must necessarily be unproductive. It is to be noted however, that representations pursuant to natural justice would have revealed, for instance, that the considerations put before the Minister in the departmental memorandum, and adopted by the Minister indicated a failure to assess reasonably and give weight to the degree of hardship involved in the deportation of the applicant and that the reasons assigned for not giving effect to that consideration were not in proportion to what was involved. Hardship, was of course a totally inadequate word to describe the consequences to the applicant and his family of his deportation. The applicant is a married and a family man with five young children. At the age of thirty-seven he is at a very important stage of the development of his family. His marriage is a satisfactory one and there is a strong bond between him, his wife and his children. The wife and children are all Australian citizens. According to Fisher J. the children show promise of being good and useful Australians. It seems that the wife and children are unlikely to go to Italy if the applicant be deported. Accordingly, the removal of the applicant from this family of the labouring class is calculated to cause permanent deprivation of association with the husband and father and probably involve total loss of support. The house in which they live is subject to mortgage payments of $185 per month. The loss to the wife the disaster would be appalling. She is shown to be a good Australian of impeccable character. She has performed well in mothering and rearing the family. She has not forborne to work in the field alongside her husband. She assists as interpreter at the school opposite her home and she is well regarded in the neighbourhood. The loss to the children of their father must be incalculable every way. And as to the applicant, whether or not deportation is called a punishment additional to that already inflicted upon him, or called by some other name, it operates as a second punishment and one much worse than that awarded by the Court as appropriate for the crime of which he was found guilty.
It is not as though the Australian woman and her five children whose interests are at stake were persons of no account. The evidence of the teachers, the soccer coach and others concerning the children is impressive. The school principal, Mr. Robert Zorner, stated that the character and conduct of the Barbaro children are "quite impeccable" and that that is the unanimous opinion of his staff. He said:-
"Their behaviour has been such that we have never had any disciplinary incidents with any of them. Their attitude is extremely good. Their general appearance in terms of neatness and general pleasantness leaves nothing at all to be desired."
He was asked,
"What was the unanimous opinion of the teachers in regard to the children leaving Australia and having to live in Italy? --- Quite unanimous, the feeling was that it would be an absolute tragedy, that here was a family which is well received by both the other children and the teachers, they are so well adjusted and so well behaved that even leaving the school under ordinary transfer circumstances would be a matter of regret, but to lose them from the country as part of a process of a deportation order would be a personal tragedy which we would very deeply regret indeed."
Mrs. Kim Young, a teacher said:-
"I know all of the children. Their behaviour is exceptional. They are very good children. They are never any trouble at all and they get on extremely well with other children in the school. They are socially mature children.
Asked what her opinion was as to the extent they are assimilated into Australian society, she said:
"I know their parents are Italian, but I would say the children are what I call Australian children. To me they are Australian children. They mix with the other Australian children at school - no different from the others at all, very well assimilated."
The soccer coach, Mr. Upton said of the eldest boy that he was very well behaved, obedient, always on time at training, popular with the other boys and mixed well with them. He added, "As a coach I cannot ask for any more". The parole officer, Mr. Fletcher was asked what he had gleaned to be the situation between the applicant and his children. He said:-
"I think they all have a very close relationship with him, and I think they are all fond of him."
As to the applicant's home he said:-
"Inside it is fairly sparsely furnished, there is nothing elaborate about the inside of the home. There is adequate furniture around the place, but there are no carpets in the lounge or kitchen, that is a lino floor. It is spotlessly clean and really quite comfortable."
As to the applicant himself he said:-
"I have had no problems with him whatsoever as a parolee, he has been perfect."
Thus it is apparent that the family is of a special kind and entitled to much consideration before it is deprived of the husband and father.
The importance of this aspect is reflected in the remarks of Mr. Justice Brennan in Pochi v. Minister for Immigration & Ethnic Affairs (1979) 26 A.L.R. 247 at p.275:-
". . . it is certain that (his) deportation . . . would destroy or gravely damage a growing Australian family, and that would be a grave detriment not only to them but to Australia. His deportation, separating him from his Australian wife and children or requiring them to accompany him to a country that the children do not know, would be destructive of their prospects in life as well as his . . . I am not persuaded that the applicant's deportation would be in the best interests of Australia."
Mr. Justice Murphy said in Pochi v. The Honourable Ian Malcolm Macphee & Anor 22 October 1982 (unreported):-
"The breaking-up of a family (or forcing the spouse and children to leave
their homeland) is incompatible with the way in which "a
mature and civilized
nation should act" as Mr. Justice Deane said in Nevistic v. Minister for
Immigration and Ethnic Affairs [1981] FCA 41; (1981) 51 F.L.R. 325, at 335). It disregards
"the human aspects of deportations (see Mr. Justice Smithers, Drake v.
Minister for Immigration and Ethnic
Affairs [1979] AATA 179; (1979) 46 F.L.R. 409, at 430,
434-435).
In my opinion s.12 of the Act is valid but does not permit the Minister to
order the deportation of the plaintiff in circumstances
which would either
break-up his family or compel his wife and children, who are Australians, to
leave Australia. To do so would be
a misuse of the power, a breach of the
implied conditions of its exercise."
This last sentence was of course obiter but emphasises the significance, of the family in the deportation scene.
It is a feature of the Minister's decision that the significance of the
inevitable family disaster was disposed of in the departmental
advice to the
Minister in two paragraphs in terms which found their way into the Minister's
statement of reasons in an almost verbatim
lift out. Thus,
Hardship
12. His Honour found that Mr. Barbaro's deportation would result in
considerable hardship and disadvantages to him, his wife and his
five young
children, all born in Australia. His Honour concluded that there is a
substantial disproportion between the detriment
to the Barbaro family and the
benefit of deportation to the Australian community.
13. While the Minister accepted His Honour's findings on the hardship and
disadvantages of deportation in the circumstances of this
matter, he reached a
different conclusion as to the merits of the decision to deport Mr. Barbaro
having regard to his conclusions
as to the gravity of the crime, the risk of
recidivism and the level of acceptable risk, than those reached by the
Tribunal."
There is no mention of the quality and critical situation of the young children or of the quality and vulnerable position of the woman. It is said that all this can be put on one side because of "the gravity of the crime and the risk of recidivism". But of course the gravity of the crime was the subject of the Court's judgment and punishment. The risk of recidivism is described as, "real albeit relatively slight". Thus whatever its reality the risk is assessed as relatively slight. Looked at fairly what is involved in this relatively slight risk is not so much that the applicant will, of his own motion, engage in criminal conduct again, but that the Society may force him to do something illegal in the future, presumably harvest some more marihuana.
So far as the applicant is concerned, he would urge that because of the appalling consequences to himself and his wife and family to which he has been and is exposed, he has had the fright of his life. He knows that on commission of one error he would promptly be in Italy. So far as the Society is concerned, it is no doubt true that nobody knows the limits of its capacity to coerce people to do this or that. But again, the removal of applicant will not remove or diminish the risk to Australia of persons being so coerced. There are plenty of people left who are vulnerable to such coercion. There are some 4000 Calabrians, many from Plati, living in and around Salisbury. From the point of view of Australia the removal of the applicant will achieve nothing in this respect. No doubt also the use by the Society of the applicant for some nefarious purpose is much less likely than use of other persons by it. The applicant is now known to the police. Use of him for some purpose would obviously lead the police to the representatives of the Society itself and its machinations.
That such a disaster to the wife and children could be dealt without any specific reference to its quality and could be regarded as appropriate to be imposed to avoid what has been found to be a slight risk does not fit well with the words of the Minister spoken to Parliament on the introduction of the amendments to the Migration Act. The relevant words are found in the observations of Murphy J. in Pochi v. The Honourable Ian Malcolm Macphee & Anor (supra) as follows:-
The Minister said:-
"(The new law was) . . . the fruit of a long deliberation by the Executive government and a careful examination of the laws of other countries; and was intended to "place Australia in advance of any other country in the world" in its humanitarian and just approach to the individuals concerned. He stressed "the advances in social thinking throughout the world", and the reforms which had taken place. Without doubt one of the reforms to which the Minister referred had occurred the previous year in the United States of America, where amendments to the Immigration and Nationality Act mitigated the power to deport aliens by the humanitarian purpose of preventing the breaking-up of families comprised in part at least of American citizens (see Immigration and Naturalization Service v. Errico [1966] USSC 178; 385 U.S. 214 (1966)). The Minister treated as an important goal the preservation of families by the reunion of internationally separated families, parts of which were in Australia. He presented the law as one which "imparts justice, tolerance, and humanity in accord with liberal principles in their truest sense" (see Parliamentary Debates, House of Representatives, Vol.19, pp.1396-1400)."
See Minister for Immigration & Ethnic Affairs v. Pochi [1981] HCA 58; (1981) 36 A.L.R. 561 also. It is apparent therefore, that, in such a case, deportation should be ordered only where the case for it plainly and convincingly appears.
I accept the submission that, in terms of justice and humanity, the
uncertain and limited possible benefit to Australia of deporting
the applicant
and eliminating such slight risk as exists can hardly stand against the
disaster such deportation will inflict on the
family. Accordingly, it is a
reasonable conclusion that for reasons of policy the Minister accorded
inadequate weight to the effect
of the applicant's deportation on the lives of
the seven members of the applicant's family. But it would seem that what
occurred
was that a severe view was taken rather than that there was a total
neglect to consider the family situation. However, it would be
a matter for
re-assessment on reconsideration.
The Applicant as a Member of L'Onorata Societa
Mr. Perry urged that the finding of Mr. Justice P.M. Woodward acting as Royal Commissioner, to the effect that the applicant was a member of L'Onorata Societa, a society which has been and presumably still is engaged in illegal and infamous activities, was an appropriate base on which to rest rejection of the finding of Fisher J. that the applicant was but a farm labourer. He urged also that the reasoning in the memorandum of the departmental officer advising the Minister and set forth in the schedule hereto was sound and thoroughly supported the decision to confirm the deportation order. However, it is clear that if natural justice were afforded to the applicant there would be forceful submissions to the contrary.
It would, for instance, be brought to the Minister's attention that the finding of the Royal Commissioner was itself made contrary to natural justice, without the applicant being heard or even informed that the allegation of membership was made against him, that the Commission finding was an opinion only, not appropriate to be adopted as legally establishing the fact said to be found, and that it appeared to be made without evidence to support it.
The following observations are appropriate to various aspects of the reasons
of the Minister concerning the alleged relationship
of the applicant with the
Society. It is my opinion that:-
(1) the findings of the Minister, that:-
(a) the applicant "was a member of the organization", and
(b) that the applicant had links to the organization dating prior to his
physical presence at the Euston farm at the time of his arrest
in March 1977.
were not supported by evidence and in my view were contrary thereto.
(2) The finding that the applicant was "a trusted worker" for the organization
was sound, but only in the sense that those who employed
the applicant to
harvest marihuana at Euston were satisfied sufficiently that he would not
disclose the existence of the marihuana
project at Euston or the identity of
persons concerned.
(3) The use by the Minister of the findings of the Royal Commissioner P.M.
Woodward J., as supplying, with the other evidence available,
the vital link
in the evidence to show that the applicant was "a definite member" of the
organization was erroneous in fact and law.
(4) The evidence of seven marihuana seeds having been found in the applicant's suit case did not support the Minister's inference that the applicant had links with L'Onorata Societa before March 1977 or at all.
The concept of L'Onorata Societa is somewhat vague. If membership of the Society is to be relied on a significant and decisive it is basic that the concept of the Society and the criteria of membership be reasonably identified and that there be facts which reasonably and unambiguously give rise to the inference that the criteria are present in relation to the applicant. The sanction in question is most serious. Fact finding therefore must be convincing. Throughout the Royal Commission and Departmental reasons the concept remains vague and the criteria of membership unspecified. Its organization is uncertain. But that those who are members are joined together in a criminal conspiracy to engage in illegal and infamous conduct for their mutual benefit is clear. To say of a man that he is a member of such a Society is to brand him as an active enemy of the community. It follows, that to make a serious finding that a man is a member, a tribunal or administrator should act only on convincing evidence that the person concerned is a person consenting to and ready to participate in such criminal conduct as the society determines upon. He must be shown in some clear way to have "joined" the conspirators and the more heinous the conspiracy the more necessary it is that the evidence of joining it should be unequivocal. There is a great gulf between what is necessary to prove membership, and evidence of participation in the harvesting of a marihuana crop. What will show that a man has "joined", is not that he was regarded as not likely to disclose the existence and conduct of the plantation. Evidence of "joining" might be of various kinds, but in the relevant circumstances, the best evidence would probably be that the person concerned had received substantial financial benefits which were not referrable to his work or business, or that he had business or at least family connections with known members. There is such evidence in the case of various people in the Canberra and Griffith groups discussed in the evidence and plainly involved with criminal activities. There is none in the case of the applicant.
In all of this it is necessary to distinguish between the making of an
essential finding of fact and the use of circumstances to
assist in the
exercise of the discretion to deport when facts have been determined. The
reasons of the Minister indicate that determination
as a fact, that the
applicant was a member of L'Onorata Societa, was essential to his decision. He
made that determination by reference
to:-
(a) the finding of the P.M. Woodward J. Royal Commission which he considered
preferable to the finding of Fisher J. and preferable
the evidence of the
applicant "concerning the degree of his involvement";
(b) the admissions to the police that, before going to the farm the applicant
knew that he would be harvesting marihuana;
(c) an alleged conflict between those admissions and the applicant's later
evidence as to how it came about that he went to the farm;
and
(d) the unexplained presence of seven marihuana seeds in the applicant's
suitcase at his home.
As to (a) above, it was no doubt permissible for the Minister to have regard to the findings of the Royal Commission. But both according to law and to the requirements of natural justice and fairness it was necessary for him to have regard to various considerations. Thus the circumstance that what may be called the findings of the Commissioner are in their very nature not findings in the sense that they legally establish the matters "found" against persons. They do not and are not intended in themselves to render persons in respect of whom they are made subject to any liability, civil or criminal. This is because the Commission is concerned to make conclusions appropriate for advising the Government but not suitable as a foundation for punishment of or other action against persons adversely dealt with.
No matter how serious a finding by a Royal Commissioner may be, if there is to be punishment for a crime found to have been committed, that must await the formulation of charges and proof beyond resonable doubt in a Court. In the making of a decision to inflict a sanction upon persons, more serious than many punishments for crime, this essential difference between the status of the findings of a Commissioner and those of a Court are vital. The nature of the task carried out by Fisher J. was essentially different from that of the Commissioner. As was said by Deane J. concerning the adoption by a Minister of a departmental report made under the National Health Act 1953:-
"In a case where the Minister simply adopts the report and recommendations of the Committee as his own, the result will not be that the decision becomes, for practical purposes, immune from review under the provisions of the Administrative Decisions (Judicial Review) Act 1977. In such a case, the Minister, in simply adopting the report and recommendations of the Committee, will ordinarily also adopt any errors of law, including taking into account irrelevant considerations and failing to take into account relevant considerations, which might vitiate the Committee's report and recommendations with the consequence that the Minister's own decision can be attacked on the relevant ground under s.5 of that Act. Where the Minister does not adopt as his own the whole of the report and recommendations of the Committee but adopts a particular conclusion which the Committee reached, a similar position will obtain as regards any errors of law which might have the effect of vitiating the relevant conclusion."
See Sean Investments v. Mackellar [1932] HCA 22; (1981) 38 A.L.R. 362 at p.371.
Similarly it is necessary in adopting a finding of a Royal Commission to assess the true sense in which words are used. Also if it is intended to use it to found one's own finding it is essential to ascertain whether the person impugned had an opportunity to be heard and to to examine the evidence supporting the finding and the surrounding circumstances. An approach of this nature was adopted by Davies J. in Piscioneri v. The Minister for Immigration & Ethnic Affairs (No. 79/2028) dated 19 December 1980 (unreported), in relation to the very finding which the Minister adopted in this case. In that case the learned Judge made a finding of fact departing from that of the Commissioner, namely, that although Piscioneri had some involvement in the relevant marihuana project and the persons concerned with it he was not, as the Commissioner had found, a member of L'Onorata Societa.
There are particular difficulties about adopting the findings of P.M. Woodward J. that the applicant was a member of L'Onorata Societa. In the first place it was made without observance of the rules of natural justice. While this was acceptable for the purpose of the Commission it really disqualified the finding as a base on which to found a finding of a serious nature against the applicant. It stamps the adoption of the finding by the Minister as itself a finding that would be set aside if it were attempted to be used to inflict any criminal sanction upon the applicant. Therefore, it cannot in fairness, be used as a basis to supplant a finding by Fisher J. where natural justice had been observed.
And there are other difficulties. If one reads the report there is no suggestion in it that more is known of the applicant's conduct than the fact that he was discovered working at Euston, was arrested and admitted that he had been harvesting marihuana for three days for one Vincenzo Ciccarello, the owner of the farm. The report was before Fisher J. and before me in this hearing.
Evidence was given to Fisher J. by police officers of their opinion that the applicant was a member of the society, and not only a member, but a member with considerable responsibilities. One can only say that final suggestion is astonishing. When asked for some facts to support these opinions, none were forthcoming. The following passages ensued in evidence of Constable M.P. Drury:-
"There is no evidence to suggest the applicant in any way financed this
plantation, is there? --- I have seen no evidence to suggest
that.
There is no evidence to suggest the applicant, Vincenzo Barbaro ever knew
Robert Trimboli? --- To my knowledge, that is correct.
You know the man called Sergi, the wine maker? --- yes, Tony Sergi.
He obviously is connected with Robert Trimboli? --- I believe that is the
case.
There is no evidence to suggest that applicant ever knew he was connected in
any way with Tony Sergi, the winemaker? --- It is very
hard to establish.
There is no evidence at all, is there? --- No, there is no evidence.
Most of the people found on these various plantations growing Indian hemp from
Calabria have relatives in Griffith in new South Wales?
--- Yes.
You can trace the family branch and connections and relatives and also close
friends with Griffiths? --- That is correct.
You have no evidence the applicant has one relative in Griffith, although his
family have been Australia for many years, and there
are a lot of them, have
you? --- I have not asked the applicant these matters. I could not ---
You have not any evidence, Mr. Drury, have you? --- Because I have not asked
the applicant such matters.
You have not found any on investigation? --- I have not investigated these
matters.
The fact is you have no such evidence? --- No, I have not."
Further, Detective Sargeant McCloskey who had been seconded to the Woodward Commission agreed that he had no such evidence.
Reference to the report of P.M. Woodward J. indicates that it is quite
possible that when he said that the applicant was a member
of L'Onorata
Societa he was speaking in a very general way. The report contains lengthy
examination of the conduct and the acquisition
of wealth of various persons
connected by some sort of family or business relationship with the Griffith
group of men. They acquired
considerable wealth in a very short time during
the period relevant to the inquiry. So far as the applicant is concerned there
are
no comparable observations. He acquired nothing and as appears has a
mortgaged house, sparsely furnished without even a carpet in
the main room.
The only references to the applicant in the report are as follows:-
(1) the statement of his arrest at Euston on 5 March 1977;
(2) a statement that "With the exception of Luigi Pochi and Francesco Sergi,
both of whom were charged in connection with Coleambally
others arrested
within this state seem to have been nothing more than labourers occuplying a
base position in the organizational
pyramid";
(3) a statement that the applicant was bailed by the lodgment of $10,000 by
one Domiano Barbaro. Domiano Barbaro was a brother of
the applicant and had no
relationship or connection with the Barbaro's of Canberra or other Griffith
people.
(4) a statement in the following terms:-
"I have stated elsewhere (see chapter 7) my conclusion that there did exist in
Griffith a secret organization, probably a cell of
the 'Societa Onorata', and
my reasons for this conclusion. I am satisfied that amongst others and in
addition to those persons who
have been nominated as the owners of 'grass
castles' the following were members:
Giuseppi Agresta
Luigi Pochi
Vincenzo Ciccarello
Vincenzo Piscioneri
Vincenzo Barbaro
Saverio Barbaro
Giuseppe Scarfo
Giuseppe Sergi, Farm 1305"
As to the Society the Commissioner states:-
"Evidence has been received in camera from law enforcement sources of the
existence in Australia, and particularly within New South
Wales, of a secret
Calabrian criminal 'society'. This 'society' is named "L'Onorata Societa' (The
Honoured Society) or 'N'Dranghita'
(Calabrian dialect meaning The Honoured
Society), and it has been engaged in a number of criminal activities within
this State.
However, in dealing with this evidence, it must be borne in mind that it is in
the main untested, rumour-oriented and was not subject
to cross examination.
Nevertheless, it is evidence which has been received and which must be
considered.
. . .
The 'society' in New South Wales is presently arranged on a 'cell' or 'family' system. 'Cells' within New South Wales exist at Woolloomooloo, Leichhardt, Brookvale, Fairfield and Wollongong. The largest 'cell' probably exists in Griffith."
It is apparent that the matters referred to are quite inadequate by the standards of logic and reasonableless to support the inference that the applicant was a member of the secret society. As mentioned above, at the hearing before Fisher J. his Honour repeatedly sought amplification or eluciqation of the matters giving rise to the opinions of the police officers that the applicant was not only a member of the society but indeed a member having considerable responsibility therein. But none was forthcoming. Although the matter was discussed by me with counsel for the respondent, counsel did not refer to me any part of the evidence before P.M. Woodward J. which would support such an inference. He did refer without reading them, to opinions that he said had been tendered to P.M. Woodward J. but there was no suggestion of facts to support them. As a result on an issue of this kind they cannot carry weight. Reliance on the presence of the applicant at Euston when arrested and the suggestion that the applicant's bail was provided by the society were the foundation of the relevant opinions. As found by Fisher J. the bail was not provided for the applicant by anybody who might have represented the society, but by his own family and close friends. It was suggested that after bail was granted the applicant remained for about a month at Euston with certain of the other persons arrested. But this carries no weight. He could do nothing else. It was a condition of bail that he report daily to the Euston police. He could not comply with this if he went home. As soon as possible he arranged for leave to report to the police at Salisbury. That occurred after about a month. As for sustenance he received at Euston during that the month the applicant took the view that to provide that was the least Ciccarello could do.
Unless therefore the words of the finding that the applicant was a member of
the society were used in some special sense, reflecting
merely that the
applicant was assisting in the harvesting of marihuana in March 1977, they are
quite unsupported by evidence. But
in the Minister's reasons P.M. Woodward
J's. words are not used in any limited way. He found that the applicant was
"indeed a member
of the society though a fairly junior member". It is quite
vague what junior membership is supposed to mean but whatever it is it
must
still be membership. And that must involve consent and support for criminal
actions of the society and an interest in the proceeds
thereof. It is a very
serious charge, namely, involvement in a criminal conspiracy to make money by
all sorts of illegal conduct
including murder when thought expedient. It
cannot be regarded as established without convincing proof. The matters relied
on in
the Minister's statement do not support an inference that, beyond being
willing to harvest marihuana at that time and place, the
applicant consented
to or supported or had any interest in the proceeds of the enterprise or in
any other criminal enterprise of
the persons concerned or had in any way
"joined" the society. Indeed they suggest that he was a mere labourer.
As to (b)
The admissions were to the following effect:-
CONSTABLE M.P. DRURY: "Dective Jenkins then said 'How did you come to work on the farm?' He said 'I meet Vince at Grand hotel, Mildura. He ask me if I want to work on his farm and pick marihuana. I say how much pay. He say he give me one hundred and eighty dollars. I say yes and I come to farm'. Detective Jenkins then said 'What have you been doing with the marihuana?' He said "I cut marihuana with tree cutters, put it on a trailer and take to shed and hang up to dry.' Detective Jenkins then said 'Why did you run away?' He said 'I work cutting up dry marihuana and put in bags. I have lunch and start cutting more then somebody yell out 'run' so I run through the bush to road and police catch me'. Detective Jenkins then said 'Where have you been living while you were working on the farm?' He said 'In house, I show you'."
It is clear that the applicant knew when he went to the farm that he was to
work harvesting marihuana. That admission was evidence
of his crime. But it is
not evidence of membership of the society in the sense discussed above and it
carries the suggestion that
he was no further than does his presence on the
property when arrested. So far as it gives rise to any inference on this point
it
tends to point in the other direction. It appears likely that had Det.
Jenkins not terminated the interview, the applicant would
have told him more.
But he did break off the interview to attend to other matters. Before it was
resumed the applicant had been left
in custody in the company of the other
persons arrested at Euston. It is probable that at that stage the applicant
was reminded of
the consequences of making any statements to the police. So it
was that when the interview with Det. Jenkins was resumed he said
"I get into
trouble if I tell you more. I tell you no more.".
As to (c)
The applicant's story of the reason and purpose of his journey to Mildura as stated at the trial and to Fisher J. is no doubt untrue. It is a reasonable inference that this falsity is due to fear. He need not be a member of the organization to understand quite well the consequences of mentioning names. He cannot tell the true story without mentioning at least one name and that he dare not do. It was impossible from the materials before the Minister to do justice to the applicant without recognition of that. But it was ignored. The reality of the danger involved is not to be doubted. As Constable Drury said "If a person talks he only talks once."
There are some thousand of Calabrians around Salisbury. It would be natural and probable that the organization recruited the applicant through some representative visiting at or even living in South Australia. But the applicant cannot name him. When it is sought to treat the non-disclosure of the name by the applicant as giving rise to a particular inference, all reasonable inferences are open. One is, that apart altogether from any question of there being some Society in the background, the mere fact that the enterprise was a large marihuana plantation, would carry its own warning, a few words from those engaged therein would effectively induce silence. From what the applicant said to Det. Jenkins on the resumption of the interview it would seem that those few words were said. He does not have to be a member of any Society to keep silence. The surprising thing is that he told Det. Jenkins so much. Whatever is to be said about the failure of the applicant to disclose satisfactorily how he was recruited for work at Euston in 1977, the notion that it arose out of some earlier sinister association with the Griffith group just could not be supported as a matter of reasonable inference. It would be sheer guesswork. His admissions to Det. Jenkins are really a testimony to his lack of sophistication. No member of the Society, junior or otherwise, would have dreamt of saying what he did to the detective.
And it is in this connection that reference to the applicant's lifestyle
referred to hereafter, really makes it unlikely that the
applicant was a
member of any exotic criminal society.
As to (d)
In the departmental memorandum considerable weight is accorded to the suggestion that adverse inference of some kind has to be drawn against the applicant because of the evidence that in 1977 some seven marihuana seeds were found by a constable in the bedroom of his home. It is important to keep in mind, for current purposes, that it is not some possible past conduct concerning marihuana that is in issue, but whether it can be inferred from the presence of those seeds that the applicant was a member of the Society. It is that fact which was central to the exercise by the Minister of the exercise of his discretion against the applicant. And, of course, it is possible to conjecture all sorts of scenarios which might have led to those seeds finding their way into the suit case. And some would be innocent, some might involve marihuana misconduct of some kind on his part or perhaps on the part of other people, occurring at some uncertain date perhaps years ago. But in such circumstances to connect those few seeds with L'Onorata Societa would be nothing more than unbridled guesswork, unacceptable in logic or law.
Again, in such a matter the failure to give due weight to previous good conduct is a material omission. The offence of 1977 which was proved against him was of course serious, but it does not colour the whole of his past life, so that the worst should always be inferred against him. It is put that the failure of the applicant to give an explanation of the seeds justifies drawing the most stringent of inferences against him. No doubt, it would not be difficult for the applicant to make up a plausible story to account for the seeds. He does not do this. One would think that a member of the society would be equal to the task. But he remains dumb on the point. He is and always has been mystified. He does not attempt to indulge in fiction. This is hardly to be put against him. Accordingly, on the critical matter of the applicant's supposed membership of the Society those seeds cannot reasonably or fairly be regarded as throwing any light.
Mr. Justice Fisher did not say expressly that he accepted the evidence in question. He dealt with the matter on the assumption that it was correct. He rejected the idea that upon it could or should be drawn a conclusion that there was a degree of past criminal association with marihuana production by the applicant. The evidence did not disclose how long the seeds had been in the case. Mr. Justice Fisher took the view that there was no evidence that the applicant had actual knowledge of the seeds being in the case. He considered that over the relevant period and having regard to all the vicissitudes of life there might have been various explanations not involving sinister implications. Certainly, except by substituting imagination for inference they can not support an inference of membership of L'Onorata Societa. And that is the critical point. It is certainly true that to draw such an inference would surpass the bounds of reasonableness. Of course there could be a lot of involvement in marihuana in and around Salisbury even, having nothing to do with the people in Griffith or any society.
And it is in connection with a matter of this nature that the background of life style and general good conduct of the applicant was a most relevant consideration. In an enquiry on any sort of a judicial basis concerning the drawing of inferences of criminal conduct or association on evidence of uncertain significance, past conduct is regarded as most relevant. The applicant at the relevant time had lived a working life in the locality for fifteen years and had never faced a court on any charge. Thorough departmental investigations were made, fairly recently, by law enforcement officers concerning his conduct and life style and they found nothing to his detriment. He was even subjected to personal surveilance which disclosed his associates. Yet these considerations are not mentioned in the departmental memorandum. They are not mentioned in the Minister's reasons. And yet, that which is at stake is what is, in effect, a man's whole life in his adopted country with his family, and the family's possible loss forever of personal contact with the husband and father. Where so much is at stake great care is necessary in drawing incriminating inferences. It would seem that all this man has done is to run a small farm, a concreting business and do other manual work the result of which has been that he acquired a house and an old car. He accumulated an equity with the help of inflation but otherwise there is no indication of any financial gain save from the work of his hands. Wherever he has been he has been well regarded as has his wife and family. There is widespread support for him in the locality. By petition and otherwise a large number of people urge that he not be deported. They do not believe he is a member of a criminal conspiracy. The plain fact is that, looking at the story, the reasonable inference is that he is just a battler and would just not be "up to" being a member of such a body.
I should mention that the evidence of the finding of the seeds is evidence of a class in respect of which it is appropriate to act only with great care in matters of importance. It is the kind of evidence which cannot really be tested. The seeds were said to be the total proceeds of a thorough search of the applicant's premises, house and outbuildings, in his absence by two policemen and a dog. The seeds were not found by the dog. Only one policeman gave evidence. The discovery was never brought to the notice of the applicant while he was in custody. It came to his attention only when he returned home after obtaining bail when his wife told him the policeman had said he had found two marihuana seeds. All he said was that he did not know anything about them. There is no evidence that he did.
But the current problem is whether, in any event, that evidence, gives rise
to the inference that the applicant had some prior involvement
with the
society or its members. The answer to that is clearly in the negative. It is
clear that no inference sufficient to sustain
a charge of any kind, other than
the mere possession of the seeds, could be maintained. Any inference to be
drawn could be but speculation.
Conclusions as to membership as a fact or not a fact
Having regard to the foregoing I am satisfied that the discretion of the
Minister was exercised against the applicant by reference
to a fact which was
not a fact, namely, that the applicant was a member of L'Onorata Societa. That
fact was clearly a fact essential
to the decision and upon which the Minister
based his discretion. As it was not a fact, the ground specified in s.5(1)(h)
of the
Act, namely, that there was no evidence or other material to justify
the making of the decision is established.
Policy of Consistency
In the Minister's reasons the following appears:-
"Consistency of decision-making
14. The Minister also considered the desirability that there should be
consistency in deportation decision-making although not at
the expense of
justice to the individuals affected by a particular deportation order.
15. Three of the four men convicted as a result of the police raid at Euston
on 5 March 1977 have been ordered deported. Those three
(V. Barbaro, S.
Barbaro and Piscioneri) were convicted of the same offence and received
idential sentences. All three applied to
the AAT for review of the decisions
to deport them. Davies J. affirmed the deportation orders in Re S. Barbaro and
Re Piscioneri
whereas Fisher J. recommended that the deportation order be
revoked in Re V. Barbaro.
16. As the Minister considered that Mr. Barbaro's involvement in the enterprise or organization was greater than that found by Fisher J., the general circumstances of his case are similar to those in the S. Barbaro case with some differences of degree only. The personal circumstances of V. Piscioneri can be distinguished on the grounds that he is single."
It is necessary to observe that, as to Piscioneri, he was a single man and was found by Davies J. to have received substantial financial benefits from the entrepreneurs at Euston or persons connected with those persons. In particular he was provided with bail and legal costs which he had not repaid and could not repay and he had access to substantial funds, since coming out of prison. In May 1977 he purchased a Fairlane car for $3,000, paid out $1,000 for reconditioning a truck and was given the use of land in circumstances regarded as significant by Davies J. As regards Saverio Barbaro he was a married man with four children. However, it was found against him by Davies J. that he was knowingly involved in the organization. The learned Judge was not satisfied that his part in the Willra incident was an isolated crime. He was related to certain of the Griffith group who were involved in the entrepreneural side of the Willra and other criminal activities. His Honour found also that there was a financial association between Saverio Barbaro, Rocco and Antonio Barbaro who were found to be principals in the Society, that he had made land purchases when he did not have the resources and prospered swiftly after his arrival in Canberra. His bail and legal costs were provided for him by the group.
From these particulars it can be seen that "the general circumstances" of the applicant's case bear but little similarity to those of Piscioneri or S. Barbaro. The applicant paid his own bail and legal costs, had no association with or relationship to any member of the Griffith or Canberra group, has had no financial advancement or benefit from them directly or indirectly. It is of the utmost importance that he is not shown to have had any association of any kind at any time with the Griffith or Canberra group before the Willra incident or since. At all times he has had his modest mortgaged uncarpeted home and old car. His situation is in sharp contrast to that of S. Barbaro and the other members of the group. On the question of consistency it is not irrelevant that Ciccarello, the owner of the plantation, was arrested with the above mentioned three men on 5 March 1977. He owned Willra and his guilt was manifest and he must have been associated in the activities of the Society. He will not be deported at all, having become naturalized.
It is my opinion that although it may be lawful for the Minister to lay down general principles of policy designed to ensure a general level of conduct which will attract the exercise of the discretion to deport, it is not lawful to exercise the discretion against one person because it has been exercised against another. It is seldom that as between individual persons there is similarity of circumstances which justify applying to the one that which has been applied to another. To exercise the discretion against a person because his case falls within some aspect of general policy is one thing. To exercise it against a person on the ground that it was exercised against another person is to exercise it by reference to a consideration not relevant to the task in hand. It was pointed out by Deane J. in Nevistic v. Minister for Immigration & Ethnic Affairs [1981] FCA 41; (1981) 51 F.L.R. 325 at p.335 dealing with the role of the Tribunal:-
"Decision makers may be consistently wrong and consistently unjust. The
Tribunal is not bound by either its own previous decisions
or by the content
of government policy. There have been and will be cases in which the Tribunal
concludes that it should refuse to
follow a previous decision of the Tribunal
or reject or disregard the dictates of a relevant policy of the Government.
The existence
of such cases serves to emphasize the fact that each applicant
to the Tribunal is entitled to have his or her application for review
decided
on its own particular merits. The desire for consistency should not be
permitted to submerge the ideal of justice in the
individual case.
The content of government policy applied by the Minister and taken into account by the Tribunal in the present matter is plainly controversial. Particularly in its use of the word "compelling" it is unfortunately ambiguous in its wording. . . . By its terms, it deals in a Draconian and, indeed, callous fashion with what I would conceive to be the essential problem in the assessment of the merits of the present matter. That problem relates to the circumstances in which Australia, as a mature civilized nation, should act in a manner which entails depriving four vulnerable and innocent young Australian children either of their father or the opportunity of growing up in their native land."
So far as concerns the entitlement of a person concerned to have his case decided on its own particular merits I would not apprehend that it is any less when it is the Minister who makes the decision.
In the result I am satisfied that:-(a) in making the decision sought to be reviewed the Minister based that decision on the existence of a particular fact, namely that the applicant was a member of the criminal organization known as L'Onorata Societa when that fact did not exist;
(b) that the existence of that fact was essential to the making by the
Minister of the decision in question;
(c) that there was no evidence or other material to justify the making of the
decision;
(d) that the exercise of the discretion by reference to the fact that other
particular individuals had been deported was an error
of law;
(e) the nature of the decision was such that according to law, before it was
made, the applicant should have been afforded the opportunity
to make
representations with respect to the considerations which induced the
respondent not to comply with the recommendation of
the Administrative Appeals
Tribunal that the deportation order be revoked.
Order of the Court
It is the order of the Court that the decision of the respondent to affirm the order made by the then Minister on 20 September 1979 be set aside and that the matter to which that decision relates be referred to the Minister holding the office of Minister for Immigration and Ethnic Affairs for further consideration according to law.
As to costs, the order of the Court is that the respondent pay the
applicant's costs of and incidental to this application. SCHEDULE
REFERRED TO
IN THE JUDGMENT TO HIS HONOUR MR. JUSTICE SMITHERS IN VINCENZO BARBARO V. THE
MINISTER OF STATE FOR IMMIGRATION AND ETHNIC
AFFAIRS, DATED 17 DECEMBER 1982
ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977
I, John Charles Hodges, the Minister of State for Immigration and Ethnic
Affairs, having received a request for reasons for the decision
made on 4
January 1982 by the then Minister for Immigration and Ethnic Affairs, the Hon
Ian Malcolm Macphee (the Minister) affirming
the decision on 28 September 1979
by the Hon Michael John Randal Mackellar, the then Minister for Immigration
and Ethnic Affairs,
that Vincenzo Barbaro (Mr Barbaro) be deported from
Australia upon reconsideration in accordance with the recommendations of the
Administrative Appeals Tribunal dated 18 March 1981, make the following
statement setting out the Minister's findings on material
questions of fact,
referring to the evidence or other material on which those findings were based
and giving the reasons for the
Minister's decision.
THE FINDINGS ON MATERIAL QUESTIONS OF FACT
2. The Minister adopted the findings of Mr Justice Fisher on material
questions of fact, as set out in His Honour's reasons for decision
of 18 March
1981, with the following exceptions:
(a) The Minister was satisfied that Mr Barbaro's involvement with a secret
criminal organisation in the large-scale cultivation of
marijuana was greater
than that of a farm labourer. The Minister concluded that Mr Barbaro was a
trusted worker for the organisation
with links to it dating prior to his
physical presence at the Euston farm at the time of his arrest in 1977, and
was indeed a member
of the organisation itself;
(b) The Minister was satisfied that Mr Barbaro had an earlier involvement in a
marijuana enterprise; and
(c) The Minister was satisfied that there is a real risk of recidivism on the
part of Mr Barbaro. He was further satisfied that that
level of risk is such
that the Australian community cannot and should not accept.
THE EVIDENCE OR OTHER MATERIAL ON WHICH THE FINDINGS WERE BASED
3. In making the above findings the material to which the Minister had regard
was a submission to him dated 18 December 1981 from
the Assistant Secretary,
Control Branch, Department of Immigration and Ethnic Affairs, together with
the Annexures thereto, viz.
(a) Statement of Reasons by the Hon M.J.R. Mackellar, dated 15 November 1979
(b) Decision and Reasons for Decision of His Honour, Mr Justice Fisher, Deputy
President of the Administrative Appeals Tribunal, dated
18 March 1981.
(c) Decision and Reasons for Decision of His Honour, Mr Justice Davies,
President of the Administrative Appeals Tribunal dated 17
December 1980 in the
matter of Saverio Barbaro.
4. The Minister also had regard to the Reasons for Decision of His Honour Mr
Justice Davies, dated 19 December 1980 in the matter
of Piscioneri and to the
Statement of Government Policy relating to deportation of persons convicted of
criminal offences, dated
31 January 1980.
THE REASONS FOR THE AFFIRMATION OF THE DECISION OF 28 SEPTEMBER 1979.
General
5. The Minister agreed with Mr Justice Fisher that if Mr Barbaro's involvement
was likely to have been "more than that of a farm labourer",
the scales were
weighted heavily in favour of deportation. It was mainly on that ground that
the Minister upheld his predecessor's
decision.
Degree of Involvement
6. His Honour said that he was satisfied that the involvement of Mr Barbaro in
the large-scale cultivation of marijuana was probably
merely that of a farm
labourer. He concluded that Mr Barbaro was not a trusted member of the
organisation. The basis for that finding
was fourfold viz.
(a) His presence at 'Willra' Station. Fisher J. held that there was no
evidence to suggest either that Mr Barbaro had any contact
or connection with
the organisers other than as a labourer or that he had received any reward or
benefit except for his wages as
a labourer (p.21 of His Honour's decision);
(b) Association with persons convicted of drug offences. His Honour held that
the crucial evidence before him was that Mr Barbaro
was not related to nor
associating with persons involved in the Griffith organisation, nor was there
any evidence that Barbaro was
a member or an associate of a Mafia type
organisation in South Australia (p.23);
(c) Findings of the Woodward Royal Commission. Fisher J. held that in
considering the findings of the Woodward Commission as to Mr
Barbaro's
involvement in the Griffith organisation, such considerations must be in the
light of the evidence before the Tribunal
and the fact that Mr Barbaro was not
before the Commission (p.23). He held that when sworn evidence was given
contrary to the findings
of such Commissions, he would give weight to this
sworn evidence (pp 15,23). His Honour was not prepared to proceed on the basis
that Mr Barbaro was a trusted member of the Griffith organisation (p.23); and
(d) Opinion of police officers. Fisher J. held that there had been no firm
basis provided, in police evidence before the Tribunal,
to substantiate
allegations that Mr Barbaro was more deeply involved than as a labourer. He
said that there was too much chance of
an injustice if significant weight was
attached to this hearsay and opinion evidence (p.24). He noted that Counsel
appearing on the
Minister's behalf acknowledged that it was proper for any
doubts to be resolved in favour of the applicant (p.25).
7. The Minister considered that other findings of fact of Mr Justice Fisher
were also material to any conclusion as to Mr Barbaro's
involvement. These
were:
(a) the finding that Mr Barbaro's story of how he came to be involved in the
marijuana enterprise was "full of discrepancies and improbabilities"
(p.7);
(b) His Honour found proved several significant admissions by Mr Barbaro to
the police shortly after his arrest. His Honour stated
that these admissions
are "relevant and significant not only in respect of his knowledge of what
work he was to perform on 'Willra'
Station, but also because at this early
stage prior to his close association with the other persons involved, he was
prepared to
tell what I see as the truth" (p.7). The admissions made by Mr
Barbaro to the police are set out at pp 8-9 of the Fisher J.'s decision.
In
essence, they show that Mr Barbaro knew Mr Ciccarello (the owner of 'Willra'
Station) before arrival on the farm, and secondly,
they show that he knew he
was going to harvest marijuana before he arrived at the farm. These admissions
are different from Mr Barbaro's
own story of his involvement, and contradict
Mr Barbaro's sworn evidence before the Tribunal. It is significant that Fisher
J. finds
the admissions proved against the applicant. The above material at
least supports the propositions that Mr Ciccarello or the other
organisers of
the enterprise must have trusted Mr Barbaro to have told him or the nature of
the work before hiring him to do it,
and secondly that Mr Barbaro trusted Mr
Ciccarello or the other organisers sufficiently to agree to do work harvesting
drugs, which
work he knew or ought to have known was illegal.
(c) The finding by police at Barbaro's house of marijuana seeds in a suitcase
was said by His Honour to support an inference of an
earlier involvement by Mr
Barbaro but such interence "is far from irresistible" (pp 10-11). His Honour
said that ". . . neither the
applicant nor his wife could give or made any
attempt to give an explanation for their presence" (p.11). Yet, despite the
lack of
explanation from the Barbaros, His Honour declined to draw the
inference that the seeds support an earlier involvement by Mr Barbaro.
His
Honour said that "There are a number of alternative explanations which are not
as unfavourable to the applicant and to my mind
the presence of the seeds is
merely another factor to place in the scales" (p.11). The Minister was
satisfied that the presence or
marijuana seeds in a suitcase which on the
evidence of both Mr and Mrs Barbaro had not been used for six months (pp
10-11), and for
which they could not or would not attempt to offer an
explanation, was indicative that Mr Barbaro had an earlier involvement in a
marijuana enterprise. This finding was supported by the following evidence,
referred to by Fisher J.;
(i) the finding of the marijuana seeds at the Barbaro house,
(ii) in a suitcase which had not been used for about six months,
(iii) for which no explanation was even attempted by Mr and Mrs Barbaro,
(iv) in a position where the only person who could reasonably be expected to
explain the presence of the seeds was Mr Barbaro himself.
(v) Whilst there may have been a number of "alternative explanations" in the
words of Fisher J. (p.11), not one of these explanations
was offered by anyone
on behalf of Mr Barbaro.
(d) Fisher J. held that the conduct of Mr Barbaro should be judged against the
background of the local community in which Mr Barbaro
lived as one beset by
tensions and pressures imposed by the "Mafia" (pp 17-18). His Honour referred
to evidence that Mr Barbaro was
one ". . . who could have been manipulated and
used by the organisation and would be terrified to name any other person
involved
in it. He would furthermore be terrified to give further information
in respect of the happenings at Euston and any other persons
involved."
(p.19). His Honour adopted that evidence as the background against which Mr
Barbaro's conduct should be judged. (p.17).
From this, His Honour held that ". . . in all the circumstances there is much
justification for judging the applicant against the
background and in the
context of the community . . . rather than as a possible member of the
Griffith organisation. Particularly
this is the case when there is so little
evidence linking him with the Griffith group, apart from his presence on the
Euston farm".
(p.19)
Apart from the finding of the Woodward Royal Commission, there may not be
sufficient evidence to link Mr Barbaro as a definite member
of the
organisation. However, there is sufficient material to justify a finding that
he was a trusted worker for the organisation
with links with the group dating
prior to his physical presence at the Euston farm. This conclusion is
supported by the following
material from Fisher J's reasons:
(i) the admissions to the police concerning his knowledge of the work to be
done prior to going to the farm;
(ii) the lack of credibility of Mr Barbaro's story of his involvement as
contrasted to the admissions made to the police after his
arrest; and
(iii) the evidence of the unexplained marijuana seeds found at the Barbaro
home in a suitcase which had been unused for about six
months.
(e) The Report of the Woodward Commission was received into evidence by Fisher
J. The Woodward Commission made an express finding
that Mr Barbaro was a
member of the organisation (p.20). However, Fisher J. did not give as much
weight to the findings of the Woodward
Commission where there was sworn
evidence to the contrary before him (p.15). The findings of the Woodward
Commission are preferable
in the Minister's view to the sworn evidence of Mr
Barbaro himself concerning his involvement with the Euston enterprise. This
conclusion
is supported by the following material from Fisher J's reasons:
(i) Fisher J's finding that Mr Barbaro's own story to the Tribunal was "full
of discrepancies and improbabilities" (p.7).
(ii) Fisher J's finding that the admissions made by Mr Barbaro to the police
were true and disclosed that Mr Barbaro knew of the nature
of the work to be
done before going to Euston (pp 7-8).
(iii) the evidence of the finding of the marijuana seeds at the Barbaro house
and the inference which Fisher J. himself finds may
be drawn that Mr Barbaro
had an earlier involvement (p.11).
Hence the Minister gave greater weight to the findings of the Woodward
Commission wherever those findings contrasted with the sworn
evidence of Mr
Barbaro himself concerning the degree of his involvement.
(f) Fisher J. held that the failure of Mr Barbaro to assist in telling all he
knew of the Euston operation was a fact to be taken
into account (p.25).
However, his Honour held that ". . . one must not assume he knows more than
the evidence warrants, and it is
quite likely he knows little more than the
names of the other labourers." (p.25)
However, the unexplained possession of marijuana seeds and secondly the
inference of Barbaro's prior involvement based on this possession
does support
the conclusion that Barbaro has withheld knowledge of relevant circumstances
of the Euston operation and that Barbaro
does know more about the operation
than just the names of the other labourers.
8. On the same facts and evidence that were before Fisher J., the Minister
reached the conclusion that the extent of Barbaro's involvement
in the
enterprise was deeper than that of a mere labourer. Mr Barbaro was a trusted
worker for the organisation with an involvement
in the Euston enterprise
predating the few days prior to his arrest, and was indeed a member (though
fairly junior member) of the
organisation itself.
Recidivism and Degree of acceptable risk
9. Flowing from the Minister's conclusion as to the deeper involvement of Mr
Barbaro than that found by His Honour, the Minister reached
a different
conclusion as to the risk presented by Mr Barbaro and as to the level of
acceptability by the Australian community of
such a risk.
10. The failure of Mr Barbaro to assist the authorities in telling all he
knows of the Euston operation in NSW and of "a Mafia type
organisation in
Salisbury" in South Australia, for whatever reason, indicates a greater
vulnerability to pressures by a powerful
criminal organisation than that
allowed by His Honour, and hence a greater risk to the Australian community.
11. Moreover, Mr Barbaro has at no time claimed that he was coerced into
working on the marijuana plantation at Euston. In fact, he
has denied his
culpability and all knowledge of an organisation. The Minister concluded that
Mr Barbaro's involvement in the enterprise
was voluntary. He considered that
the Australian community cannot and should not accept a real risk, albeit
relatively slight, of
recidivism by Mr Barbaro moved by pressures of a
powerful criminal organisation.
Hardship
12. His Honour found that Mr Barbaro's deportation would result in
considerable hardship and disadvantages to him, his wife and his
five young
children, all born in Australia. His Honour concluded that there is a
substantial disproportion between the detriment
to the Barbaro family and the
benefit of deportation to the Australian community.
13. While the Minister accepted His Honour's findings on the hardship and
disadvantages of deportation in the circumstances of this
matter, he reached a
different conclusion as to the merits of the decision to deport Mr Barbaro
having regard to his conclusions
as to the gravity of the crime, the risk of
recidivism and the level of acceptable risk, than those reached by the
Tribunal.
Consistency of decision-making
14. The Minister also considered the desirability that there should be
consistency in deportation decision-making although not at
the expense of
justice to the individuals affected by a particular deportation order.
15. Three of the four men convicted as a result of the police raid at Euston
on 5 March 1977 have been ordered deported. Those three
(V. Barbaro, S.
Barbaro and Piscioneri) were convicted of the same offence and received
identical sentences. All three applied to
the AAT for review of the decisions
to deport them. Davies J. affirmed the deportation orders in Re S. Barbaro and
Re Piscioneri
whereas Fisher J. recommended that the deportation order be
revoked in Re V. Barbaro.
16. As the Minister considered that Mr Barbaro's involvement in the enterprise
or organisation was greater than that found by Fisher
J., the general
circumstances of his case are similar to those in the S. Barbaro case with
some differences of degree only. The personal
circumstances of V. Piscioneri
can be distinguished on the grounds that he is single.
Deterrence
17. The Minister did not place much weight upon deterrence. He agreed with His
Honour's observations in that regard on pp. 27-28.
The Public Interest
18. The decision and the recommendation of the Tribunal was reached after
hearing in open court before a presidential member of the
Tribunal who is a
Judge of a superior court in Australia. The decision is, as required by law,
in the nature of a recommendation
to the Minister.
19. General considerations of public policy would suggest that the
recommendations of the Tribunal be accorded considerable weight,
out of
deference to the integrity of the statutory appeal process and to the judicial
status of the Tribunal members. Nonetheless,
each matter remitted by the
Tribunal for the consideration of the Minister must, by law, be reconsidered
by him on its merits, after
taking into account all relevant facts and
considerations.
20. In this case, the Minister differed from the Tribunal as to the
conclusions to be drawn from the evidence before it, as to the
nature of Mr
Barbaro's crime, the degree of his involvement, the risk of his recidivism,
and the level of community acceptance of
that risk. Hence, the Minister
reassessed a fresh the detriment to Mr Barbaro, his wife and children in
relation to the benefit of
deportation to the Australian community. He did
that in the light of the Government's policy in relation to the deportation of
criminal
offenders who had been involved in the production of illicit drugs,
and the findings of the Tribunal which he adopted.
21. The Minister concluded that the public interest in Mr Barbaro's
deportation outweighed the detriment and distress to him and his
family.
Accordingly, he affirmed his predecessor's decision to deport Mr Barbaro.
JOHN HODGES
Minister of State for Immigration and Ethnic Affairs
11/8/82
LEGAL/MP MINISTER VINCENZO BARBARO - RECONSIDERATION OF DEPORTATION DECISION
IN ACCORDANCE WITH AAT RECOMMENDATION
PURPOSE
The purposes of this submission are
(a) to place before you the matter of V. Barbaro remitted by the
Administrative Appeals Tribunal (AAT) for your reconsideration in
accordance
with its recommendation that the order for the deportation of Vincenzo Barbaro
be revoked; and
(b) to recommend that, following consideration of the Tribunal's reasons for
decision, you affirm the deportation order in this matter.
BACKGROUND
2. On 20 September 1979 your predecessor, Mr MacKellar, or the deportation of
Mr Vincenzo Barbaro. (A copy of his statement of reasons
is attached at 'A'.)
3. Mr Barbaro was convicted with others, on 17 March 1978 of "supply Indian
Hemp". The circumstances of the offence were that on 5
March 1977, Mr Barbaro
and others were working on a property at Euston NSW on which a large marihuana
crop was under cultivation.
4. Three other men were charged and convicted together with Mr Barbaro. They
were:
Saverio Barbaro (no proved relationship) - 3 years imprisonment, non-parole 18
months;
Vincenzo Piscioneri - 3 years imprisonment, non-parole 18 months;
Vincenzo Ciccarello (property owner) - 3 years imprisonment.
5. Vincenzo Ciccarello is an Australian citizen. The other two men were
ordered deported at the same time an order was issued against
V. Barbaro. Both
applied for review to the AAT which subsequently affirmed the deportation
orders.
6. Mr Barbaro applied to the AAT for a review of the deportation decision. On
18 March 1981, the Tribunal, constituted by Mr Justice
Fisher, handed down its
decision remitting the matter to you for reconsideration in accordance with
the recommendation that the order
for the deportation of Mr Barbaro be
revoked.
FACTS AND CONSIDERATIONS
7. The Tribunal's decision and statement of reasons for the decision are
attached for your consideration at 'B'.
8. The statement of reasons for the decision sets out the findings of Mr
Justice Fisher on material questions of fact and the reasons
for his decision
to recommend revocation of the deportation order. Those findings on material
questions of fact and the reasons for
the decision speak for themselves.
9. In summary, and without attempting to be exhaustive, the salient findings
of Mr Justice Fisher were:
(i) that very careful scrutiny must be given to the nature of the crime
because of the suspicion and contention that the applicant
was a member of a
secret criminal organisation. He noted that the Woodward Royal Commission had
made an express finding that V. Barbaro
was such a member. He held that if
such involvement existed and if Barbaro was more than a farm labourer then the
scales would be
weighted heavily in favour of deportation (p.21).
(ii) that the allegations of Barbaro's involvement as a member of the Griffith
organisation were based on four circumstances:
(a) His presence at 'Willra' Station. Fisher J. held that there was no
evidence to suggest either that Barbaro had any contact or
connection with the
organisers other than as a labourer or that he had received any reward or
benefit except for his wages as a labourer
(p.21);
(b) Association with persons convicted of drug offences. His Honour held that
the crucial evidence before him was that Barbaro was
not related to nor
associating with persons involved in the Griffith organisation, nor was there
any evidence that Barbaro was a
member or an associate of a Mafia type
organisation in South Australia (p.23);
(c) Findings of the Woodward Royal Commission. Fisher J. held that in
considering the findings of the Woodward Commission as to Barbaro's
involvement in the Griffith organisation, such consideration must be in the
light of the evidence before the Tribunal and the fact
that Barbaro was not
before the Commission (p.23). He held that when sworn evidence was given
contrary to the findings of such Commissions,
he would give weight to this
sworn evidence (pp 15,23). His Honour was not prepared to proceed on the basis
that Barbaro was a trusted
member of the Griffith organisation (p.23); and
(d) Opinion of police officers. Fisher J. held that there had been no firm
basis provided, in police evidence before the Tribunal,
to substantiate
allegations that Barbaro was more deeply involved than as a labourer. He said
that there was too much chance of an
injustice if significant weight was
attached to this hearsay and opinion evidence (p.24). He noted that Counsel
appearing on your
behalf acknowledged that it was proper for any doubts to be
resolved in favour of the applicant (p.25).
After considering these circumstances his Honour was satisfied that Barbaro's
involvement was probably that of mere farm labourer
and that this was the
nature of the crime relevant to the review (p.24).
(iii) Fisher J. considered both rehabilitation and recidivism together and
held that the evidence indicates that prima facie these
ought to be resolved
in favour of the applicant. He said that Barbaro represented a relatively
slight risk to the Australian community
of re-offending and that he appeared
to have been rehabilitated (p.25).
(iv) Admissions made by Barbaro after his arrest probably
were the true extent to his involvement and supported his denial of any deeper
involvement than that of farm labourer (p.8).
(v) His association with other co-accused after arrest was not seen as
involvement in the enterprise itself and an acceptable explanation
had been
given of how Barbaro's bail money had been raised (pp 9-10).
(vi) There was no evidence of any relationship with other Barbaros. His Honour
held that there was a danger in placing emphasis on
mere associations with
others (p.16).
(vii) Barbaro and his family were well assimilated into the local community
(p.17).
(viii) There was evidence before the Tribunal of immense pressure on local
market gardeners to grow marihuana in the local area. This
pressure was
exerted by an organisation which victimized ill-educated and poor countrymen
and which made them fearful of disclosing
information (p.18).
(ix) There was therefore justification for judging Barbaro against this
background in which he lived rather than as a possible member
of the Griffith
organisation, particularly when there was so little evidence linking him with
the group apart from his physical presence
on the farm when arrested (p.19).
(x) The failure of Barbaro to assist in revealing all he knew of the Euston
operation should be taken into account. However, it was
quite likely on the
evidence that he knew little more than the names of the other labourers
(p.25).
(xi) Barbaro's story of how he came to be involved on the farm was full of
discrepancies and improbabilities. However, Barbaro did
not dispute that he
had committed the offence for which he was convicted. (p.7)
(xii) The Woodward and Williams Royal Commission reports were accepted into
evidence. His Honour noted that, as Barbaro had not been
called to give
evidence at those Commissions and had not been represented, he gave weight to
sworn evidence called on behalf of Barbaro
when this evidence was contrary to
the Commissions' findings (p.15).
(xiii) To apply the Government's policy on drug offenders in this case on the
ground of deterrence is unduly harsh and not necessarily
productive of benefit
to the Australian community in the light of the lack of evidence that
deportation inhibits migrants from succumbing
to temptation (p.27).
(xiv) When a person is to be deported for the purpose of influencing the
behaviour of others, it seems proper that this be in circumstances
where there
is minimal detriment to innocent parties (pp 27-28).
(xv) There would be great hardship, both material and financial to the Barbaro
family if Mr Barbaro were to be deported (p.29).
(xvi) Mr Barbaro's rehabilitation would be impaired if removed alone to Italy
(p.30).
(xvii) The finding by police of marihuana seeds at the Barbaro house supported
the inference that Mr Barbaro had an earlier involvement.
However, because of
a number of alternative explanations for the presence of the seeds not as
unfavourable to Mr Barbaro, the presence
of the seeds is merely another factor
to place in the scales (p.11).
10. These findings were open to Fisher J. on the evidence presented. From the
findings of Fisher J. two courses are open to you. Firstly,
you may accept the
findings and the conclusions flowing from them. To do so would be to acquiesce
in the Tribunal's recommendation.
Secondly, it is open to you to rely on the
same facts and evidence as presented before the Tribunal whilst in certain
important respects
drawing conclusions from those facts different from those
of Fisher J.
Mr Justice Fisher's reasons turned on the consideration of several issues.
These are as follows:
The nature of the crime:
11. His Honour said that he was satisfied that the involvement of Mr Barbaro
in the large-scale cultivation of marihuana was probably
merely that of a farm
labourer. He concluded that Mr Barbaro was not a trusted member of the
organisation. (p 24) The basis for this
finding has been discusse at paragraph
9(i) and (ii) above. Whilst it is axiomatic that the criminal involvement of a
mere labourer
in such organized criminal activity is not as serious as that of
a "trusted member" of the organisation, further consideration of
the evidence
as set out by Fisher J. in his reasons may justify a more serious view of Mr
Barbaro's involvement than that found by
Fisher J.
12. It is suggested that in considering the four circumstances set out at
paragraph 9 (i) and (ii) above concerning the degree of
Mr Barbaro's
involvement, Fisher J. omitted to include several of his own additional
findings in this consideration. These are:
(i) the finding that Mr Barbaro's story of how he came to be involved in the
marijuana enterprise was "full of discrepancies and improbabilities"
(p.7);
(ii) his Honour found proved several significant admissions by Mr Barbaro to
the police shortly after his arrest. His Honour stated
that these admissions
are "relevant and significant not only in respect of his knowledge of the work
he was to perform on Willra
Station, but also because at this early stage
prior to his close association with the other persons involved, he was
prepared to
tell what I see as the truth" (p.7). The admission made by Mr
Barbaro to the police are set out at pp 8-9 of the judgement. In essence,
they
show that Mr Barbaro knew Ciccarello (the owner of Willra Station) before
arrival on the farm, and secondly, they show he knew
he was going to harvest
marijuana before he arrived at the farm. These admissions are different from
Barbaro's own story of his invovlement,
and contradict Barbaro's sworn
evidence befor the Tribunal to this effect. It is significant that Fisher J.
finds the admissions
proved against the applicant, yet does not consider this
contradiction in crucial evidence as a circumstance supporting a deeper
involvement than merely labourer in the enterprise. It is suggested that the
above material at least supports the propositions that
Ciccarello or the other
organisers of the enterprise must have trusted Barbaro to have told him of the
nature of the work before
hiring him to do it, and secondly that Barbaro
trusted Ciccarello or the other organisers sufficiently to agree to do work
harvesting
drugs, which work he knew or ought to have known was illegal.
(iii) Fisher J. failed to include in the four factors he considered when
determining Barbaro's degree of involvement, the very piece
of evidence of
which his Honour himself said supports the inference of earlier involvement by
Barbaro i.e. the finding by police
at Barbaro's house of marijuana seeds in a
suitcase (pp 10-11). His Honour said that " . . . neither the applicant nor
his wife could
give or made any attempt to give an explanation for their
presence" (p 11). Yet, despite the lack of explanation from the Barbaros,
his
Honour declines to draw the inference that the seeds support an earlier
involvement by Mr Barbaro. His Honour said that ". .
. There are a number of
alternative explanations which are not as unfavourable to the applicant and to
my mind the presence of the
seeds is merely another factor to place in the
scales" (p.11).
It is suggested that, based on the above evidence, it is open to you to find
that the presence of marijuana seeds in a suitcase that
on the evidence of
both Mr and Mrs Barbaro had not been used for six months (pp 10-11), and for
which they could not or would not
attempt to offer an explanation, is evidence
that Mr Barbaro had an earlier involvement in a marijuana enterprise than that
found
by Fisher J. In summary such a finding by you would be supported by the
following evidence as referred to by Fisher J.;
(a) the finding of the marijuana seeds at the Barbaro house,
(b) in a suitcase which had not been used for about six months,
(c) for which no explanation was even attempted by Mr and Mrs Barbaro,
(d) in a position where the only person who could reasonably be expected to
explain the presence of the seeds is Mr Barbaro himself.
(e) Whilst there may have been a number of "alternative explanations" in the
words of Fisher J. (p 11), not one of these explanations
was offered by anyone
on behalf of the applicant Mr Barbaro.
(iv) Fisher J. held that the conduct of Barbaro should be judged against the
background of the picture of the local community in which
Barbaro lived as one
beset by tensions and pressures imposed by the "Mafia" (pp 17-18). His Honour
found that Mr Barbaro was one
. . ." who could habe been manipulated and used
by the organisation and would be terrified to name any other person involved
in it.
He would furthermore be terrified to give further information in
respect of the happenings at Euston and any other persons involved."
(p. 19)
From this, his Honour held that . . . " in all the circumstances there is much
justification for judging the applicant against the
background and in the
context of the community . . . rather than as a possible member of the
Griffith organisation. Particularly
this is so when there is so little
evidence linking him with the Griffith group apart from his presence at the
Euston farm". (p 19)
It is suggested that, apart from the finding of the Woodward Royal Commission,
there may not be sufficient evidence to link Barbaro
as a definite member of
the organisation. However, there is sufficient material to justify a finding
that he was a trusted worker
for the organisation with links with the group
dating prior to his physical presence at the Euston farm. This evidence is the
following
(from the material contained in Fisher J's judgement):
(a) the admissions to the police concerning his knowledge of the work to be
done prior to going to the farm (discussed at paragraph
12 (ii) above);
(b) the lack of credibility of Barbaro's story of his involvement as
contrasted to the admissions made to the police after his arrest
(discussed at
paragraph 12(i) above);
(c) the evidence of the unexplained marihuana seeds found at the Barbaro home
in a suitcase which had been unused for about six months
(discussed at
paragraph 12(iii) above).
(v) The Report of the Woodward Commission was received into evidence by Fisher
J. The Woodward Commission made an express finding
that Barbaro was a member
of the organisation (p.20). However, Fisher J. did not give as much weight to
the findings of the Woodward
Commission where there was sworn evidence to the
contrary before him (p.15).
It is suggested that it is open to you to come to the conclusion that the
findings of the Woodward Commission are preferable to the
sworn evidence of Mr
Barbaro himself concerning his involvement at the Euston enterprise. It is
suggested that such a finding by
you would be supported by the following
material from Fisher J's reasons:
(a) Fisher J's own finding that Mr Barbaro's own story to the Tribunal was
"full of discrepancies and improbabilities" (p.7).
(b) Fisher J's own finding that the admissions made by Barbaro to the police
were true and disclosed that Barbaro knew of the nature
of the work to be done
before going to Euston (pp 7-8).
(c) the evidence of the finding of the marihuana seeds at the Barbaro house
and the inference which Fisher J. himself finds may be
drawn that Barbaro had
an earlier involvement (p 11).
In short terms, it is suggested that it is open to you for the above reasons,
to give greater weight to the findings of the Woodward
Commission wherever
those findings contrast with the sworn evidence of Mr Barbaro himself
concerning the degree of his involvement.
(vi) Fisher J. also held that the failure of Barbaro to assist in telling all
he knows of the Euston operation is a fact to be taken
into account (p.25).
However, his Honour held that " . . . one must not assume that he knows more
than the evidence warrants, and
it is quite likely that he knows little more
than the names of the other labourers." (p.25)
However, the evidence also shows the unexplained possession of marijuana seeds
and secondly the inference of Barbaro's prior involvement
based on this
possession In other words, it is suggested that the totality of evidence does
support the conclusion that Barbaro has
withheld knowledge of relevant
circumstances of the Euston operation and that Barbaro does know more about
the operation than just
the names of the other labourers. Because of the above
additional considerations, it is suggested that it is open to you to reach
this conclusion on the same evidence that was before the Tribunal and which
has been cited by Fisher J. in his judgement.
13. In summary, concerning the nature of the crime, it is suggested that the
evidence above referred to supports a conclusion by you
based on the same
facts and evidence that were before Fisher J., that the extent of Barbaro's
involvement in the enterprise was deeper
than that of a mere labourer Based on
the evidence referred to above, it is suggested that you may find either that
Barbaro was a
trusted worker for the organisation with an involvement in the
Euston enterprise pre-dating the few days prior to his arrest, or,
if you
accept the finding of the Woodward Commission in preference to the evidence of
Mr Barbaro himself, you may find that he was
a member of the organisation
itself.
14. As Fisher J. himself pointed out in his judgement (p.21): "If . . . I am
satisfied his involvement is more than that of a farm
labourer, the scales are
weighted heavily in favour of deportation." It is suggested that these words
from Fisher J's judgement would
adequately justify affirming the deportation
order against Mr Barbaro if you were to be satisfied of his greater
involvement in the
enterprise or the organisation behind it.
The risk to the community
15. His Honour considered that Mr Barbaro's conduct in prison and whilst under
parole, the community's support, his contrition as
expressed to other
witnesses and his concern for the prejudice of his family all tend to suggest
that he is rehabilitated and probably
no risk to the Australian community. His
Honour also observed that Mr Barbaro was vulnerable to and could perhaps be
imposed upon
again by a powerful criminal organisation to repeat his criminal
activity. However, his Honour considered the latter risk as relatively
slight,
and after weighing up the various matters concluded that the Australian
community can and should accept whatever risk there
is of recidivism on the
part of the applicant.
16. It is suggested that, if you find that Barbaro's involvement is greater
than that of a mere uninvolved farm labourer, it is open
to you to reach a
different conclusion as to the risk presented by Mr Barbaro and as to the
level of acceptability by the Australian
community of such a risk.
17. You may consider the failure of Mr Barbaro to assist the authorities in
telling all he knows of the Euston operation in NSW and
of "a Mafia type
organisation in Salisbury" in South Australia, for whatever reason, indicates
a greater vulnerability to pressures
by a powerful criminal organisation than
that allowed by his Honour, and hence a greater risk to the Australian
community.
It should be noted that Mr Barbaro has at no time claimed that he was coerced
into working on the marijhuana plantation at Euston.
In fact, he has denied
his culpability and all knowledge of an organisation. You would be justified
in concluding that Mr Barbaro's
involvement in the enterprise was voluntary.
In addition or in the alternative, you may consider that the Australian
community cannot
and should not accept a real risk, albeit relatively slight,
of recidivism by Mr Barbaro moved by pressures of a powerful criminal
organisation.
Humanitarian and compassionate considerations
18. His Honour found that Mr Barbaro's deportation would result in
considerable harship and disadvantages to him, his wife and his
five young
children, all born in Australia. His Honour concluded that there is a
substantial disproportion between the detriment
to the Barbaro family and the
benefit of deportation to the Australian community.
19. While you may accept his Honour's findings on the hardship and
disadvantages of deportation in the circumstances of this matter,
it is open
to you to reach a different conclusion as to the merits of the decision to
deport Mr Barbaro if you attach different weight
to and reach different
conclusions as to the gravity of the crime, the risk of recidivism and the
level of acceptable risk than those
reached by the Tribunal.
Prospects of Rehabilitation
20. Fisher J. found that return to Italy could not assist Mr Barbaro's
rehabilitation and that it would be impaired if Mr Barbaro
was forced to
return without his family. (p.30)
21. It is a matter for your judgement as to whether you concur with this
assessment. It is also a matter for you as to how much weight
you attach to
the possible impairment of Mr Barbaro's rehabilitation in the event of his
deportation.
The need for consistency in decision making
22. It is desirable that there should be consistency in deportation decision
making although not at the expense of justice to the
individuals affected by a
particular deportation order.
23. Three of the four men convicted as a result of the police raid at Euston
on 5 March 1977 have been ordered deported. Those three
(V. Barbaro, S.
Barbaro and Piscioneri) were convicted of the same offence and received
identical sentences. All three applied to
the AAT for review of the decisions
to deport them. Davies J. affirmed the deportation orders in Re S. Barbaro and
Re Piscioneri
whereas Fisher J. recommended that the deportation order be
revoked in Re V. Barbaro.
If you consider that V. Barbaro's involvement in the enterprise or
organisation is greater than that found by Fisher J., it would
be fair to say
that the general circumstances of his case are similar to those in the S.
Barbaro case with some differences of degree
only. The personal circumstances
of V. Piscioneri can be distinguished on the grounds that he is single.
Consequently, it is relevant to examine the circumstances of S. Barbaro. A
copy of the decision of Davies J. in Re S. Barbaro is attached
for your
consideration.
Policy considerations
24. The decision of your predecessor was made having regard to the former
statement of policy. Subsequently, and before the matter
of V. Barbaro came on
for hearing, the Government's policy on the deportation of criminals was
announced.
Fisher J. admitted the new policy into evidence and considered it to be a
relevant factor to be taken into account ". . . in like
manner to evidence of
other matters which have occurred since 15 February 1979". (p.15)
25. After consideration of the policy, Fisher J. endorsed earlier criticism of
the policy by Davies J. in that the policy was said
to place too much emphasis
on deterrence (pp 26-27). Fisher J. added that the application of the
Government's policy in the circumstances
would be unduly harsh and not
necessarily productive of benefit to the community (p 27). Fisher J. was not
satisfied that the deportation
of Mr Barbaro would inhibit other migrants or
aliens from succumbing to temptation or persuasion.
26. It is suggested, however, that the present case is one which comes
squarely within the area of deterrence accepted by Davies J.
in Nevistic
(referred to by Fisher J. himself at p.27) i.e. that Barbaro is "a member of
an ethnic community particularly involved
with the particular type of
offence". Davies J. made similar comments in the case of S. Barbaro (see pp
51, 54 of that decision,
attached).
27. It is suggested that it is open to you to put similar weight on the
deterrent aspect of the Government's policy in the present
case. You may find
that, whilst accepting that the hardship to the Barbaro family is a relevant
consideration in this case, as in
the case of S. Barbaro, nevertheless it is
open to you to give greater weight to the deterrent aspect of the policy in
this case
as Davies J. did in S. Barbaro, particularly if you find that V.
Barbaro's degree of involvement is greater than that accepted by
Fisher J.
28. However, it is recommended that deterrence of others should not be
considered as a purpose of deportation. Whilst deterrence is
always a possible
and desirable consequence of deportation, the goal of deportation is
protection of the community by removing persons
whose presence in Australia is
seen by you as a risk to the community.
29. While the Government's statement of policy as it relates to drug producers
and the like does single out deterrence, its main thrust
is to emphasise the
Government's intolerance of persons involved in the drug trade.
30. It is a matter for your judgement as to whether the application of the
Government's policy in the circumstances of this case would
work an injustice
by placing such an onerous hardship on the Barbaro family that deportation
would be against the public interest.
GENERAL CONSIDERATIONS
31. The decision and the recommendation of the Tribunal was reached after
hearing in open court before a presidential member of the
Tribunal who is a
Judge of a superior court in Australia.
32. The decision is, as required by law, in the nature of a recommendation to
you. You have the discretion to finally decide the matter
upon reconsideration
in accordance with the Tribunal's recommendation. The decision you make would
most likely constitute a new decision
and could be subject to appeal to the
Federal Court under the Administrative Decisions (Judicial Review) Act 1977.
33. General considerations of public policy would suggest that the
recommendations of the Tribunal be accorded considerable weight,
out of
deference to the integrity of the statutory appeal process and to the judicial
status of the Tribunal member. Nonetheless,
each matter remitted by the
Tribunal for your consideration must, by law, be reconsidered by you on its
merits, after taking into
account all relevant facts and considerations.
34. In this case, your task is to consider the findings of facts and the
conclusions to be reached from those facts.
RECOMMENDATIONS
35. If you differ from the Tribunal as to the conclusions as to the nature of
Mr Barbaro's crime, the degree of his involvement, the
risk of his recidivism,
the level of community acceptance of that risk, it is open to you to reassess
afresh the detriment to Mr
Barbaro, his wife and children in relation to the
benefit of deportation to the Australian community. You may do so in the light
of the Government's policy in relation to the deportation of criminal
offenders who had been involved in the production of illicit
drugs. 36. For
the reasons referred to above and summarised in paragraph 35, and based on the
considerations referred to above in
paragraphs 10 - 30 and 34, I recommend
that you affirm your predecessor's decision to deport Mr Barbaro
notwithstanding the recommendation
of the Tribunal.
P. JUDD
Assistant Secretary
Control Branch
18/12/1981
RECOMMENDATION APPROVED
4/1/1982
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