Re Tevfik Gurleyen v Minister of Immigration and Ethnic Affairs [1984] FCA 27 (24 February 1984)

FEDERAL COURT OF AUSTRALIA

Re: TEVFIK GURLEYEN
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G14 of 1983
(1984) ADMN para 96-001
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fox J.
St. John J.
Beaumont J.

CATCHWORDS

Administrative Law - Deportation - Appeal from Administrative Appeals Tribunal - Whether account taken of relevant or irrelevant considerations - Compliance with requirement that Tribunal set out its reasons and findings on material questions of fact.

Administrative Appeals Tribunal Act 1975 - secns. 43(2B), 44.

Migration Act 1958 - secns. 12, 66E.

HEARING

SYDNEY
24:2:1984

ORDER

1. The appeal be dismissed.

DECISION

This is an appeal under s.44 of the Administrative Appeals Tribunal Act 1975 ("the Act") from a decision of the Administrative Appeals Tribunal in which the learned Presidential Member constituting the Tribunal confirmed an order made by the Minister for Immigration and Ethnic Affairs under s.12 of the Migration Act 1958 for the deportation of the "appellant", or, as he should be known, having in mind that the Court is exercising original jurisdiction, the applicant.

2. Counsel for the applicant has taken us carefully and in some detail through the Tribunal's reasons for decision, and has criticised a number of aspects of them. It was submitted that there had been a failure to mention or discuss adequately, matters which were relevant.

3. The question before us is whether there has been an error of law. Failure to mention a relevant fact is not in itself such an error. The question is whether there has been a failure to consider some matter which the Act expressly or by implication requires to be considered (see Associated Provincial Picture Houses Limited v. Wednesbury Corporation (1948) 1 KB 223 at p 228; Parramatta City Council v. Pestell [1972] HCA 59; (1972) 128 CLR 305 at p 327; Tabag v. Minister for Immigration and Ethnic Affairs [1982] FCA 276; (1982) 45 ALR 705, at p 710). The requirements of s.43(2B) of the Act are doubtless designed to assist in deciding what has been considered. In the present case, a number of matters of fact were mentioned by counsel, rather on the basis, as it seemed to me, that they were all significant, in a factual sense, and that they should have been dealt with expressly in the reasons. This is not the correct approach to the problem. I am not satisfied that any factual matter which ought to have been considered was not considered. On the contrary, the Tribunal appears to me to have dealt with all necessary matters.

4. It was also submitted by counsel that the Tribunal took into account matters which were irrelevant or not supported by evidence. Two questions arise.

5. The first relates to the reliance placed by the Tribunal on the element of deterrence, that is to say, general deterrence affecting what the Tribunal described as "the community from which he comes as part of the total alien or migrant community". I should myself have doubted the significance of this factor in most cases, but it is one of the considerations set out in the policy statement of 31 January 1980, which had the support of the Government of the day, and which apparently has the support of the present Government. In the policy statement the matter is expressed thus: "the necessity to prevent or inhibit the commission of like offences by other persons". The relevance of the statement, in general, has long been accepted by this Court. It does not seem to me in the circumstances that the element mentioned can be excluded from matters the Tribunal was entitled to take into account. There is not a precise list of relevant considerations, and what the Tribunal may take into account is, within some bounds, a matter for its judgment. The weight to be given to a particular element is a matter for it.

6. It was submitted that there had to be some evidence of a need to deter people of the applicant's racial or ethnic background from committing the offence of which he had been convicted (manslaughter of his wife when handling a loaded firearm) or from carrying loaded firearms, before the element of general deterrence could be taken into account at all. In my view this is not so. In the first place, as a matter of logic, deterrence can be operative without overt tendency. The matter is not as a rule one capable of proof, and a logical deduction cannot as a rule be made from known data. What was involved in this case was simply a matter of judgment. The Tribunal in fact referred to deterrence of the migrant or alien community as a whole.

7. A matter of greater difficulty lies in the passage towards the end of the reasons of the Tribunal, which was expressed as follows:

"Further, it is appropriate that weight should

be given to the reasons which the Minister
advanced for making the Order and the Policy
it implements."

8. It has been argued that the passage indicates a reliance upon the Minister's reasons, not because of their rational weight, but because of their origin. For the Tribunal to approach the matter in this way would be contrary to what was decided by the Full Court of this Court in Collins v. Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 36 ALR 598. I do not think that the language used by the Tribunal is to be analysed as if it were an Act of Parliament. It is necessary to find its sense by reference to the whole context of the reasons given, and to determine also, if possible, its materiality to the conclusion reached.

9. The reasons for decision of the Minister were expressed as follows:

"THE REASONS FOR THE DECISION

Policy

23. The policy with respect to the exercise of my
discretion pursuant to sections 12 and 13 of the
Migration Act 1958 has been announced publicly in a
news release dated 31 January 1980, a copy of which is
attached. The policy has the support of the Australian
Government and was tabled in Parliament on 22 April
1980.

24. I reached my decision by applying that policy
and having regard to my findings on material questions
of fact set out above. All policy considerations which
I thought to be pertinent to this case are set out in
the attached policy statement.

25. In deciding whether in all the circumstances
it is in the best interests of Australia that the
applicant be deported, I have taken into account the
following matters:

The nature of the offence

26. The applicant was convicted of the man-
slaughter of his wife, after having been charged with
the murder of his wife and the wounding with intent to
murder of Mr M. Askin. The nature of the offence
committed by the applicant was one of the most
significant factors leading to the decision that he
should be deported.

The circumstances of the commission of the offence

27. The applicant's wife left him and went to
Sydney with another man, Mr Askin, while she and the
applicant were living in Shepparton, Victoria. Later,
the applicant traced his wife and Mr Askin to the flat
of another Turkish man in Kensington, Sydney. As his
wife and Mr Askin were standing on the landing outside
the premises, the applicant produced a sawn-off .22
calibre rifle and fired a number of shots, fatally
wounding his wife and wounding Askin. The applicant
voluntarily surrendered to the NSW Police some twenty
days later.

28. The applicant gave a different version of
events in court, claiming that when he had confronted
his wife and Mr Askin with the rifle he had had no
intention of shooting either of them. He said that he
had only intended to speak to his wife and that he
thought Mr Askin was carrying a gun and would shoot him
and he therefore fired only in self-defence. The
sentencing judge did not accept the applicant's version
of events and I share his conclusions.

The view of the offence expressed by the court before
which the offender appeared

29. Before passing sentence on the applicant, His
Honour Mr Justice Begg expressed the view that this was
a serious case of manslaughter and that the law must
take a serious view of such a killing.

The nature of the penalty

30. The penalty imposed on the applicant was ten
years' imprisonment, with a prescribed non-parole
period of five years. The period of imprisonment was
to run from 2 June 1977 and the non-parole period was
due to expire on 2 June 1982. The sentence imposed on
the applicant was substantial, reflecting the
seriousness with which the offence committed by the
applicant was viewed by the court.

The extent of the rehabilitation of the offender

31. The applicant's conduct and industry while in
jail were described as good and the parole report was
favourable to the applicant. However, there was
insufficient information available to enable me to make
a fair and reasoned assessment of the extent of the
rehabilitation of the applicant.

The prospects for the commission of further offences

32. The applicant is a virtual first offender
and, given the nature of the offence in question, it is
difficult to assess the risk of recidivism. However,
the offence committed by the applicant was grave and
his actions in that matter indicate a reckless
disregard for human life. The applicant's lack of
remorse over the killing of his wife appears
inconsistent with his claim that he had not intended to
kill her. In the circumstances, I concluded that the
risk that he could commit a further violent crime in
similar circumstances could not be entirely excluded.

The previous general record and conduct of the offender

33. The applicant had only relatively minor
breaches of the law recorded against him prior to his
conviction for manslaughter in 1978. It appears on the
evidence before me that he was a hard-working and
conscientious individual. The applicant, at the time
of the commission of the manslaughter offence, had been
in Australia for about nine years.

The circumstances of the offender

34. The applicant has indicated that he is
opposed to deportation, claiming that as he has nothing
to return to in Turkey and that he is too old to find
work there, as he has no skills or educational
qualifications. His only relative in Australia is his
son, while his other child, a daughter, is in Turkey,
where she has been for the last four years. It is
possible that if the applicant were deported his son
would join him in Turkey, but even if this were not to
happen, the applicant may be able to receive some
support from his relatives in Turkey in re-settling
there. The applicant has not much in the way of assets
in Australia. What he owns, a car and furniture, could
be sold here or taken back to Turkey. The degree of
hardship which the applicant would suffer if he were
deported would not, in my view, be severe and would
not, in any case, outweigh other factors in favour of
his deportation.

The circumstances of the other persons whose interests
would be affected by the deportation

35. It is likely that the applicant's son would
suffer some emotional hardship if his father were
deported to Turkey, although it is possible that if
deportation action were taken he may choose to
accompany his father. The applicant has no one in
Australia who is financially dependent on him and the
degree of emotional hardship which may be caused to his
son by the father's deportation was not considered
sufficient to outweigh other factors supporting the
decision to deport him.

The obligations of the Commonwealth under the
convention and protocol relating to the status of
refugees

36. The applicant has not claimed refugee status
and therefore this factor is not relevant.

THE PUBLIC INTEREST

37. After considering the above factors, the
conclusion was reached that in all the circumstances it
is in the best interests of Australia that the
applicant be deported. The Australian community should
not be expected to bear the risk that the applicant
will re-offend if permitted to remain.

38. I decided that the benefit accruing to the
Australian community by removing the risk that the
applicant might re-offend outweighed the hardship that
the applicant and other persons in Australia might
suffer in the event of his deportation.

(signed)
JOHN HODGES
Minister of State for Immigration and Ethnic Affairs
21/9/82."

10. I shall look at these reasons by reference to the numbered paragraphs to see the consideration given to them by the Tribunal. As will have been seen, they were dealt with under nine headings:

23., 24., 25. These are preliminary to the expression
of reasons;

26. The nature of the offence was fully
considered by the Tribunal;

27., 28. These are also dealt with independently
by the Tribunal;

29.-33. The same comment applies;

34., 35. The same comment applies;

36. This was a negative matter which does not
advance the reasons;

37. This states a conclusion related to the
public interest, and places particular
(if not exclusive) weight upon the risk
of recidivism;

38. This balances the risk of recidivism
against hardship, both matters the
Tribunal considered fully, and
independently of any view of the
Minister.

11. In relation to paras. 32., 37. and 38., I should point out that a risk of recidivism (to use a short, but convenient term), is extremely speculative. Moreover, if any risk is in fact perceived, it may be necessary to consider whether the risk has been increased rather than reduced by the sentence of imprisonment imposed.

12. The foregoing examination, although helpful, is not quite conclusive so far as concerns the present problem. The Tribunal, having considered all the matters, might still have been giving weight to the fact that the Minister followed certain lines of reasoning. In the circumstances, this seems to me most unlikely. It appears to me that the Minister's "Reasons" were largely an account of factual matters and, apart from accepting the trial Judge's views on the seriousness of the offence committed, they were short and related to a comparison of hardship and risk of repetition of the offence. The Tribunal arrived at its own view on these matters, and it could hardly have received any material assistance from the fact that the Minister had expressed, much more shortly, similar views. It did not say that its conclusion derived added weight from the fact that the Minister had given some of the same reasons, and I do not think it should be assumed that this is what was meant. I think the Tribunal may have thought that some of the reasoning of the Minister had not already been dealt with by it, but so far as I can see this was not so. Undoubtedly, the Minister tied his reasons to the policy statement. In any event, it is reasonably apparent from what the learned Presidential Member had already said that he had formed a view unfavourable to the applicant.

13. I am of the view that the appeal should be dismissed.

I have had the advantage of reading the reasons for judgment prepared by the Presiding Judge, Fox, J. and Beaumont, J., and I agree with respect with their conclusions on the applicant's submissions, except in one instance. In the reasons of Fox, J., the content of the Minister's reasons for making the order for deportation and a summary those of the Presidential Member for dismissing the application are set out.

2. My disagreement is with their Honours' conclusions is with regard to the statement by the Presidential Member in these terms:-

"Further, it is appropriate that weight
should be given to the reasons which
the Minister advanced for making the
Order and the Policy it implements."

3. As Fox, J. points out, the Presidential Member had, before making that statement, dealt with all the policy considerations which the Minister had taken into account. The Minister's conclusions on each and every consideration (except rehabilitation, on which he formed no view) had, one by one, been endorsed. It would, therefore, be otiose to thereafter give them weight in the sense of expressing agreement with them; agreement had already been expressed. In the context of judicial or quasi judicial reasons for a conclusion, the most appropriate meaning of the word "weight" in the Shorter Oxford Dictionary is "persuasive of convincing power (of utterances, arguments, evidence)". The Presidential Member's use of the word "appropriate" is not consistent with the meaning of being impressed by the cogency of such reasons. In my view, the phrase "appropriate that weight be given" means that the fact of the order is an additional reason for rejecting the application. In doing so, I realise that the true position may be otherwise; interpretation of intention from the written words can easily be astray.

4. For reasons expressed, I would allow the appeal, but as I find myself in a minority, it is unnecessary to formulate orders.

This is an appeal, on a question of law, under s.44 of the Administrative Appeals Tribunal Act, 1975 from a decision of the Administrative Appeals Tribunal under s.66E of the Migration Act, 1958 affirming an order made by the Minister for Immigration and Ethnic Affairs under s.12 of the Migration Act, for the deportation of the applicant.

2. Section 12 provides (inter alia) that where an alien (as the applicant is) has been convicted in Australia of a crime of violence against the person, 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 his deportation.

3. The order for the deportation of the applicant recited that he had been convicted in the Supreme Court of New South Wales of manslaughter for which he was sentenced on 1 March, 1978 to ten years' penal servitude.

4. In his reasons for decision, the learned presidential member constituting the Tribunal, after setting out the facts about which there was no dispute relating to the applicant's career, proceeded to consider in some detail the circumstances surrounding the manslaughter by the applicant of his wife. He then referred to the reasoning of the Minister in ordering deportation, but said that the functions of the Minister and the Tribunal were "quite separate": reference was made to Drake v. Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 2 ALD 60 per Bowen, C.J. and Deane, J. at p 68.

5. The learned presidential member then embarked upon a consideration of a number of matters which, in his opinion, were relevant. He referred to and dealt with, in some depth, the following: the question of hardship, if any, to the applicant and members of his family if he were deported; the risk, if any, of the applicant's being made the subject of a reprisal if he returned to Turkey; the degree of remorse, if any, felt by the applicant in respect of his crime; the nature of the crime and the serious circumstances attendant upon its commission; the evaluation of the prospect of recidivism; the deterrence of others from resort to violence causing death or serious bodily injury even when not intended. Finally, the learned presidential member said:

"Further, it is appropriate that weight
should be given to the reasons which the
Minister advanced for making the Order
and the Policy it implements. I accept
the submissions made on behalf of the
applicant, whether it is regarded as the
ultimate question or not, that one has
to consider whether the decision to
deport will promote 'the best interests
of Australia' but with due regard to
reason and fairness, the Deportation
Order not being regarded as either an
ordinary result of an offence under s.12
of the Migration Act 1958 or any form of
additional punishment. And I have noted
the submission related to the
possibility of breaking up of families,
though, in this instance, there is no
question of a wife and young children or
other dependants being abandoned.

...

I have not referred to all the evidence
nor yet to all the arguments so
competently presented on behalf of the
applicant. Finally, by a consideration
of all evidence, circumstances and
submissions, I am satisfied though, with
due regard to the interests of the
applicant and others affected by the
Order, that the deportation is in the
best interests of Australia."

6. The applicant submits that the Tribunal made a number of errors of law. He argues that the Tribunal not only failed to consider several relevant matters but also had regard to considerations which were, in truth, irrelevant. He also complains of a failure on the part of the Tribunal to set out its reasons and their related findings on material questions of fact as is required by s.43(2B) of the Administrative Appeals Tribunal Act. Finally, he contends that the Tribunal fell into error in relying upon deterrence as a factor requiring deportation.

7. In support of his first submission, the applicant argues that the applicant's rehabilitation is a relevant matter; that the public interest is also a relevant matter and that interest embraces (inter alia) those who would wish the appellant to remain in Australia; but that the Tribunal's published reasons failed to refer to any findings or reasons in respect of any of such relevant matters; consequently, he says, such a failure must lead to the setting aside of the Tribunal's decision (cf. Tabag v. Minister for Immigration and Ethnic Affairs [1982] FCA 276; (1982) 45 ALR 705 at p 710; Minister for Immigration and Ethnic Affairs v. Daniele (1981) 39 ALR 649 at p 662).

8. The statement of Government policy relating to deportation of persons convicted of criminal offences (31 January, 1980) states, as one would expect, that the extent of rehabilitation of the offender is one of the considerations to be taken into account by the Minister when consideration is given by him to whether he should make an order for deportation under s.12 or s.13 of the Migration Act (and see Daniele, supra, at p.653 and at p.656). In this respect, the applicant points to the evidence given to the Tribunal by Mr. D.J. Cuthbertson, a probation and parole officer assigned to the applicant upon his release from prison in May 1982, to the effect that the applicant has "settled reasonably well (into the community)" since his release. But the Tribunal did not overlook this evidence. When discussing the evidence given to the Tribunal as to the degree of remorse felt by the applicant in respect of his crime, the learned presidential member referred to Mr. Cuthbertson as "(a) witness who spoke well of the applicant". Presumably this was intended to refer to the evidence mentioned above and "speaking well" of the applicant is, of course, consistent with an optimistic view of his rehabilitation. The Tribunal thus took this matter into account in a way favourable to the applicant and no error on the part of the Tribunal can be sustained.

9. The applicant also complains of the failure by the Tribunal to refer, in its reasons, to the wishes of those who desire the applicant to remain in Australia as an aspect of the public interest. Their wishes are a relevant matter (se Re Georges and Minister for Immigration and Ethnic Affairs (1978) 1 ALD 331 at p 334; Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at p 638; Re Winthrop and Smith and Minister for Immigration and Ethnic Affairs (1980) 2 ALD 873 at p 874). The applicant relies, in particular, upon the evidence of the fiancee of the applicant's son.

10. However, in considering the question of hardship, the learned presidential member did take into account the matter complained of. In particular, he said that he accepted that the separation of the father and the son would cause a "degree of unhappiness" to the applicant and his son and to the fiancee of the son. Thus no error on this score is established.

11. Then the applicant argues that the Tribunal fell into error by taking into account an irrelevant consideration by giving weight to the report of the Minister in the matter. In this connection, the applicant points to the observations of the Tribunal cited above and relies upon the decision of this Court in Collins v. Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 36 ALR 598. There the Full Court (Fox, Deane and Morling, JJ.), having held that it is unsound in determining the correctness of a decision to treat the decision itself as being probative of its own correctness, said (at pp.602-3):

"As can be seen from the terms of the
deportation order, the Minister's decision
gives no reasons and is a mere statement
to the effect that the Minister has
exercised the power conferred upon him by
the Migration Act The relevance of the
order is, for present purposes, that it
gives rise to a right to invoke the
jurisdiction of the Administrative Appeals
Tribunal. In our opinion it does not have
any further probative significance in the
determination of the question whether, on
the material before the Tribunal, the
decision was the correct or preferable
one.

When his Honour referred in the passage
which we have quoted above to 'the
Minister's decision' he may have been
intending to refer to the reasons given by
the Minister in the statement which he
furnished to the Tribunal pursuant to s 37
of the Act. As we have already indicated,
that statement did include a reference to
the reasons for his decision and to
government policy. Drake's case itself
makes it clear that the Tribunal is
entitled to give weight to government
policy, and in a normal case would be
expected to do so. The Tribunal must,
however, act in accordance with law and
this requires it to form its own view on
the merits of the case. Moreover, we do
not doubt that, in an appropriate case,
the expressed reasons of the Minister may
carry weight with the Tribunal because of
the fact that the Tribunal is impressed
by, or finds itself in agreement with, a
line of reasoning or an analysis of
established fact which those reasons
contain. In such circumstances, the
Tribunal may give weight to the Minister's
reasons in the same way as it gives weight
to the oral argument of the legal or other
representatives of the parties appearing
before it." (Emphasis supplied)

12. The passage in the Tribunal's reasons relied upon by the applicant must, of course, be looked at in its own context. It will be recalled that the learned presidential member had prefaced his consideration of the case by remarking that the functions of the Minister and the Tribunal were "quite separate" and reference was made to Drake at p.68, Drake itself having been adverted to in Collins. In Drake (at p.68) Bowen, C.J. and Deane, J. said:

"The question for the determination of the
Tribunal is not whether the decision which
the decision-maker made was the correct or
preferable one on the material before him.
The question for the determination of the
Tribunal is whether that decision was the
correct or preferable one on the material
before the Tribunal."

13. The learned presidential member thereafter considered the merits of the application for review in considerable detail, expressing an opinion on each of the matters argued by the applicant seriatim. He then made the concluding remarks cited above now under challenge and went on to say that "one has to consider whether the decision ... will promote 'the best interests of Australia' ...".

14. It will be remembered that, in Collins, the Court adverted to the possibility that, in an appropriate case, the expressed reasons of the Minister "may carry weight with" the Tribunal because of the fact that the Tribunal is "impressed by, or finds itself in agreement with, a line of reasoning or an analysis of established fact which those reasons contain" and "give(s) weight" to those reasons accordingly (at p.603). In my opinion, when the Tribunal's reasons are read as a whole and the observations of the learned presidential member now challenged are thus seen in their overall context, no error of law on his part arose. When read in context, it appears, I think, that the remarks in question were intended to do no more than to paraphrase the last mentioned comments made in Collins which I have emphasised: any other view is inconsistent with the entirely independent functions of the Minister and the Tribunal as correctly perceived by the learned presidential member. In my opinion, the applicant has failed to demonstrate any error of law in this respect.

15. Next, the applicant complains of an alleged failure on the part of the Tribunal to observe the requirements of s.43(2B) of the Administrative Appeals Tribunal Act, 1975 which provides:

"Where the Tribunal gives in writing the
reasons for its decision, those reasons
shall include its findings on material
questions of fact and a reference to the
evidence or other material on which those
findings were based."

16. The applicant relied upon observations made, in this connection, by Davies, J. in Daniele, supra, at p.662 and upon some general remarks made by Woodward, J. in Sordini v. Wilcox (unreported - Full Federal Court of April 1983 at pp 26-7). The applicant argues that the absence of proper findings may "conceal" an error of law. He submits that the Tribunal failed to make proper findings and give proper reasons in that behalf in a number of respects. Again he mentions the question of rehabilitation and the question of the public interest said to support the application. These particular matters have already been the subject of specific challenge as involving, it is said, an error of law. For the reasons already given, in my view, no basis for upsetting the decision of the Tribunal on these grounds has been made out. It must follow that the applicant can be in no better position to challenge that decision by invoking s.43(2B). In my opinion, no contra vention of s.43(2B) occurred in either of the areas mentioned for the reasons already given.

17. The applicant further argues that a failure to comply with the dictates of s.43(2B) arose in respect of a finding of fact said to have been made by the Tribunal that the Turkish community has a propensity for carrying and firing guns in crowded places. In his reasons, the learned presidential member expressed the view that "the carrying and use of firearms in a civilian setting and in this community is a grave social problem". He also mentioned the matter when considering the question of deterrence:

"Deterrence should play a part in this
Tribunal's consideration of its review.
It is most important that not only the
applicant but the community from which he
comes as part of the total alien or
migrant community should clearly
understand that the carrying and loading
of firearms particularly semi-automatic
carbines in domestic or closely settled
areas and in a circumstance where hurt
feelings or a desire for revenge may
operate subconsciously or surface or
provoke someone else is to be deprecated;
that such behaviour can seriously imperil
others; and, further, may result in the
commission of a crime of some magnitude.
Migrants or alien migrants should
understand that a crime of this type and
severity may very well attract or be
followed by an order for deportation.
Persons living in this country are
entitled to be protected against the
possibility of there happening such
deplorable violence causing death and
serious bodily injury even when not
intended."

18. (The statement of government policy refers, understandably, to the "necessity to prevent or inhibit the commission of like offences by other persons".)

19. In my view, in this part of his reasons, the
learned presidential member was doing no more than taking into account government policy in this area in a general way: he was making no finding, specific or otherwise, as to the so-called propensities of the Turkish community in this regard. It follows that no contravention of s.43(2B) has been made out.

20. Finally, the applicant submits that the Tribunal erred in relying upon deterrence as a factor requiring deportation. He contends that the potential threat of deportation cannot realistically be said to deter homicide (see Re Collis - unreported - Davies, J. 15 October, 1979 at p 15; Re Kuswardana (No. 2) 4 ALN. para 18; N43; Re Barbaro - unreported - Fisher, J. 18 March, 1981 at pp 26-8). Thus, it is said, deportation would act as a further punishment (see Re Daniele - unreported - Gallop, J. 10 December, 1980 at p 24). It is further submitted that there was no evidence justifying deportation as a deterrent to persons from the same country of origin as the applicant. This last point is merely a restatement of the point previously argued in the context of s.43(2B). As has been stated, the learned presidential member made no specific finding of fact in this connection. Since no such finding was necessary, nothing turns on the point.

21. So far as concerns the general question of deterr ence, it is true that in each of the three cases cited, the Tribunal was inclined to give little weight to the deterr ence aspect of deportation; but it was not discarded as an irrelevant consideration (see, e.g., Re Barbaro, supra, at p 26). It follows that no error of law is involved here in this connection, the matter being only one of weight.

22. In my opinion, the appeal should be dismissed.