Haoucher v Minister for Immigration & Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 (7 June 1990)

HIGH COURT OF AUSTRALIA

HAOUCHER v. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS [1990] HCA 22; (1990)
169 CLR 648
F.C. 90/023

Immigration and Aliens - Administrative Law

High Court of Australia
Deane(1), Dawson(2), Toohey(3), Gaudron(4) and McHugh(5) JJ.

CATCHWORDS

Immigration and Aliens - Deportation - Power of Minister - Tribunal empowered to recommend revocation of deportation order - Guidelines for Minister's exercise of power - Minister's policy to depart from Tribunal's recommendation only in exceptional circumstances - Whether duty to give deportee opportunity to make representations before rejecting Tribunal's recommendation to revoke deportation order - Migration Act 1958 (Cth), s. 12.

Administrative Law - Decision - Natural justice - Minister - Order by Minister for deportation - Tribunal empowered to recommend revocation of order - Guidelines for Minister's exercise of power - Minister to depart from Tribunal's recommendation only in exceptional circumstances - Rejection of Tribunal's recommendation to revoke deportation order without giving deportee opportunity to make representations - Legitimate expectations - Migration Act 1958 (Cth), s. 12.

HEARING

Perth, 1989, October 26;
Canberra, 1990, June 7. 7:6:1990
APPEAL from the Federal Court of Australia.

DECISION

DEANE J. The detailed facts and the issues involved in this case appear from the judgments of Toohey J. and McHugh J. It can be said at once that, subject to what is said below, I am in general agreement with the reasons for allowing the appeal contained in those judgments.

2. The notion of a "legitimate expectation" which gives rise to a prima facie entitlement to procedural fairness or natural justice in the exercise of statutory power or authority is well established in the law of this country (see, e.g., F.A.I. Insurances Ltd. v. Winneke [1982] HCA 26; (1982) 151 CLR 342, at pp 348, 351, 361-362, 369, 376, 390-391, but cf. at p 412). The notion is not, however, without its difficulty. For one thing, the word "legitimate" is prone to carry with it a suggestion of entitlement to the substance of the expectation whereas the true entitlement is to the observance of procedural fairness before the substance of the expectation is denied (see, e.g., Salemi v. MacKellar (No. 2) [1977] HCA 26; (1977) 137 CLR 396, at p 452; Kioa v. West [1985] HCA 81; (1985) 159 CLR 550, at p 563). In that regard, there is much to be said for preferring the phrase "reasonable expectation" which has often been used in judgments in this Court. For another thing, the vagueness of the phrase "legitimate expectation", which enables it to be used as a convenient label for a broad category of circumstances which will give rise to a prima facie obligation to accord procedural fairness, may convey an impression of comprehensiveness with the result that the absence of an identified legitimate expectation is wrongly seen as a legal mandate for disregarding procedural fairness in any case where no legal right in the strict sense is involved. Regardless of whether one can identify a right in the strict sense or a legitimate expectation, the requirements of procedural fairness must be observed in any case where, by reference to "the particular statutory framework" (see Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, at p 504), it is proper to discern a legislative intent that the donee of governmental executive power or authority should be bound by them. There is a strong presumption of such a legislative intent in any case where a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in an individual capacity (as distinct from merely as a member of a section of the general public). The rationale of that strong presumption is to be found not so much in sophisticated principle as in ordinary notions of what is fair and just. In that regard, it is important to bear in mind that the recognition of an obligation to observe procedural fairness does not call into play a body of rigid procedural rules which must be observed regardless of circumstances. Where the obligation exists, its precise content varies to reflect the common law's perception of what is necessary for procedural fairness in the circumstances of the particular case. In some cases where the requirements of procedural fairness are applicable, nothing less than a full and unbiased hearing of each affected individual's case will satisfy them. In other circumstances, something less may suffice. Thus, the circumstances of a particular case may be such that procedural fairness does not require that each person affected be accorded an effective opportunity of being personally heard before a decision is made but nonetheless requires that the decision-maker be, and appear to be, personally unbiased (see, e.g., Jackson, Natural Justice, 2nd ed (1979), p 100). Indeed, the law seems to me to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognized as applying generally to governmental executive decision-making (cf. Halsbury's Laws of England, 4th ed (1989), vol 1(1), par 85) and where the question whether the particular decision affects the rights, interests, status or legitimate expectations of a person in his or her individual capacity is relevant to the ascertainment of the practical content, if any, of those requirements in the circumstances of a particular case and of the standing of a particular individual to attack the validity of the particular decision in those circumstances.

3. Kioa v. West establishes that the Minister for Immigration and Ethnic Affairs ("the Minister") is bound to observe the requirements of procedural fairness in deciding to make a deportation order under the Migration Act 1958 (Cth) ("the Act"). The reason why that is so is that such an order adversely and directly affects the rights, interests, status and legitimate expectations of the prospective deportee in his or her individual capacity. In the ordinary deportation case, there is no basis for drawing a line between the actual making of a deportation order and the carrying of the order into effect so as to require observance by the Minister of distinct requirements of procedural fairness at the stage of actual deportation in addition to the observance of such requirements before making the order. The deportation, in such a case, represents no more than the natural consequence of the making of the order (see, in particular, Act, s.63 (formerly s.20)). The position may, however, be different if events intervene between the making of the deportation order and actual deportation to call into play a new and different process of decision-making, such as where the procedure for challenging the justification of the deportation order before the Administrative Appeals Tribunal ("the Tribunal") is invoked. If, in such a case, the challenge to the justification of the deportation order fails and the order is affirmed by the Tribunal, the ensuing deportation will proceed as a matter of course and will ordinarily involve no further decision-making process attracting the requirements of procedural fairness. If, however, the challenge to the justification of the deportation order is successful and the Tribunal recommends to the Minister that the order be revoked, a new and quite distinct stage of decision-making has been reached. At that stage, the Minister is under a statutory obligation to reconsider the order in the light of the Tribunal's recommendation (see Act, s.180 (formerly s.66E); Barbaro v. Minister for Immigration and Ethnic Affairs [1982] FCA 269; (1982) 71 FLR 198, at p 203; [1982] FCA 269; 46 ALR 123, at p 129; and Minister for Immigration and Ethnic Affairs v. Pochi [1981] HCA 58; (1981) 149 CLR 139, at pp 143 and 145). Then, for the first time, the Minister will be required to decide whether he or she should override the recommendation of an independent tribunal and direct that the deportation proceed.

4. The question whether, regardless of the context provided by settled government policy, a person named in a deportation order is entitled to be heard as a matter of course before the Minister rejects a recommendation of the Tribunal that the order be revoked was not fully canvassed in argument in the present proceedings. Clearly enough, such a recommendation by the Tribunal neither destroys the efficacy of the deportation order nor entitles the person named in the order to demand that the whole process begin afresh. On the other hand, there is much to be said for the view that where a person has made the effort and incurred the expense involved in persuading the Tribunal to make findings and recommendations in his or her favour, after a full hearing on the merits in proceedings in which the Minister has been fully heard as an active opposing party, there will arise a new and distinct legitimate or reasonable expectation that the Minister will accept the findings and abide by the recommendation of that Tribunal. If that be so, then quite apart from the context provided by published government policy, the Minister was, in all the circumstances of the present case, under an obligation to observe procedural fairness in determining whether the deportation order made in respect of the appellant should stand. Those requirements of procedural fairness would, if applicable, at least have included the requirement that the appellant be given an appropriate opportunity of being heard in relation to the question whether the circumstances of the case were such that the Minister would be justified either in overriding relevant findings or prognostications of the Tribunal, such as an assessment of the risk of recidivism, or in rejecting the Tribunal's recommendation that the deportation order be revoked. In the absence of full argument, however, it is preferable to decide the appeal on the narrower ground propounded on behalf of the appellant, namely, the effect of a published, considered statement of government policy prescribing procedural steps to be followed in a case such as the present.

5. The proceedings before the Tribunal in the present case were instituted and determined in the context of a government policy relating to the deportation of persons convicted of criminal offences. That policy provided that "recommendations of the ... Tribunal should be overturned by the Minister only in exceptional circumstances and only when strong evidence can be produced to justify (the) decision". It also provided for the publication by the Minister (by tabling in the Parliament) of "a statement of his/her reasons" for overturning such a recommendation. For so long as that published policy was operative, a deportee would reasonably be expected to see it as providing a critical reference point in determining the desirability and effectiveness of an application to the Tribunal for review of a deportation order. It has not been suggested on behalf of the respondent Minister that that policy was treated as inapplicable to the circumstances of the appellant's case. That being so, it is clear that the Minister engaged in a quite distinct and well-defined process of executive decision-making before determining that the Tribunal's recommendation "should be overturned". That decision-making process dealt with issues ("exceptional circumstances"; "strong evidence") which had never before arisen for consideration. It was in the course of the Minister's purported discharge of the statutory obligation to reconsider the deportation order in the light of the Tribunal's recommendation. It directly affected the appellant's rights, interests, status and legitimate expectations in his individual capacity. Indeed, it directly related to him alone and effectively determined the course of his future life. If it had not been challenged in these proceedings, it would presumably have given rise to the publication under privilege of a ministerial statement which would almost inevitably be damaging to the appellant's reputation. In those circumstances, the justice of the common law demanded that the appellant be accorded an opportunity of being heard on the questions whether the "recommendations of the ... Tribunal should be overturned" by reason of "exceptional circumstances" and whether "strong evidence can be produced to justify" such an overturning of the Tribunal's recommendation. The failure to accord to the appellant such an opportunity vitiated the Minister's decision that the deportation order should stand.

6. The appeal should be allowed and orders should be made which will have the effect that the matter is remitted to the Minister to reconsider the deportation order in the light of the Tribunal's recommendation and in accordance with law.

DAWSON J. The appellant, who is not an Australian citizen, was convicted in 1985 of being in possession of cannabis resin with intent to sell or supply it to others. He was sentenced to a term of imprisonment of five years which was reduced on appeal to a term of three years with a minimum period of eighteen months.

2. When he committed the offence the appellant had been in Australia for less than ten years, having arrived from Lebanon in 1977 at the age of twenty-two years. Upon the basis of the conviction, the Minister's delegate made an order for the deportation of the appellant under s.12 (now s.55) of the Migration Act 1958 (Cth). At that time the section provided that the Minister might order the deportation of a non-citizen who was convicted of an offence and sentenced to imprisonment for more than one year if he had been present in Australia for less than ten years.

3. Pursuant to s.66E (now s.180) of the Migration Act, the appellant sought from the Administrative Appeals Tribunal a review of the decision to deport him. Although such a review was upon the merits and was otherwise under the Administrative Appeals Tribunal Act 1975 (Cth), s.66E provided that the Tribunal could, after reviewing the decision, only affirm it or remit the matter for reconsideration in accordance with its recommendations. It could not substitute its own decision for that of the Minister or his delegate.

4. The evidence before the Tribunal consisted of a statement of reasons furnished by the Minister's delegate, together with evidence given by the appellant, three of his brothers, his de facto wife and a medical practitioner. From that evidence it appears that all of the appellant's six brothers and six sisters are now Australian citizens, save for one sister who has remained in Lebanon. It also appears that the appellant returned to Lebanon in 1978 and 1980, remaining there on the first occasion for almost a year.

5. The evidence established that in 1980 the appellant was convicted of the assault of one of his brothers and sentenced to two months' imprisonment. He was also on that occasion convicted of disorderly conduct. In 1981 he was warned by the Department of Immigration and Ethnic Affairs that failure to maintain good behaviour could result in his deportation. In 1982 he was convicted of disorderly conduct and of using a false name. In the same year he was convicted of assault occasioning actual bodily harm and placed upon a good behaviour bond. In 1983 he was convicted of causing damage to property.

6. The Tribunal remitted the matter to the Minister for reconsideration and recommended that the order for deportation be revoked. It took the view that the offence of which the appellant had been convicted in 1985 did not fall within the class of offences with which the government was particularly concerned. The government's criminal deportation policy had previously been announced and set out "(e)xamples of serious offences which may render non-Australian citizens liable to deportation". It included a category relating to drugs and identified those of concern as:
"(the) production, importation, distribution, trafficking or
commercial dealing in heroin or other 'hard' addictive drugs
or involvement in other illicit drugs on a significantly
large scale ...".
in deciding whether a person should be deported or not. These included the nature of the crime, the possibility of recidivism, the person's record, the contribution which he has made or might reasonably be expected to make to the community, and the family and social ties that already existed.

7. The Tribunal considered that cannabis did not constitute a hard, addictive drug and that the appellant's involvement in it was not "on a significantly large scale". It thought that the risk of recidivism, although not to be discounted, was low. It found that the appellant's ties with Lebanon were weak in comparison with his ties to Australia and that the benefit to the Australian community of the appellant's removal would be outweighed by the hardship to him, his de facto wife and his brothers and sisters.

8. The Minister, for reasons to which I shall refer in a moment, rejected the Tribunal's recommendation. Having exhausted his avenue of appeal on the merits, the appellant sought from the Federal Court an order for judicial review of the Minister's decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) upon the ground that he had been denied natural justice. He argued that the recommendation of the Tribunal, in the light of the government's deportation policy, gave rise to a legitimate expectation that his deportation order would be revoked and that the Minister was bound to accord him a hearing before rejecting the recommendation. In particular, he relied upon that part of the policy which stated:

"It is the policy of the Australian Government that
recommendations of the Administrative Appeals Tribunal
should be overturned by the Minister only in exceptional
circumstances and only when strong evidence can be produced
to justify his decision. Furthermore, it is the policy of
the Government that, when the Minister decides to deport
a person contrary to a recommendation of the Tribunal,
the Minister will table in the Parliament at the first
opportunity a statement of his/her reasons for doing so."

9. The Minister furnished the appellant with a statement of the reasons for his decision pursuant to s.13 of the Administrative Decisions (Judicial Review) Act. In that statement he said:

"While I accepted the findings of fact made by the Tribunal,
in some important respects I did not accept the Tribunal's
characterisation of those facts or the weight to be given
to them in the exercise of my discretion. In particular,
my view of the case differed from the Tribunal's view in
respect of the following factors".

The Minister then stated that he considered the latest of the appellant's convictions to be "a serious one in view of the fact that (he) was able to enter and was willing to enter commerce with dealers of prohibited drugs". He said that, in the light of the appellant's record and his failure to heed the warning given to him, the risk of recidivism was serious. He gave weight to the fact that the appellant returned to Lebanon in 1978 and 1980 and he did not consider that the appellant had made, or was likely to make in the future, an appreciable contribution to the community. He took the view that the Tribunal gave excessive weight to the hardship which would be suffered by the appellant and his family if he were deported and thought that the Tribunal had not had sufficient regard to the interests of the Australian community, which might be seriously harmed by allowing the appellant to remain a part of it. The Minister expressed the opinion that these circumstances warranted "the view that exceptional circumstances existed which justified (him) in departing from the recommendation of (the Tribunal)".

10. In making his decision the Minister had before him three departmental submissions which the appellant had not seen, but it does not appear that those submissions contained any new facts or offered any views of a new or different kind.

11. The appellant's application was dismissed at first instance by Forster J. He appealed to the Full Court of the Federal Court (Northrop and Lee JJ.; Sheppard J. dissenting) which dismissed the appeal.

12. The expression "legitimate expectation" was first used in Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch 149, at p 170, to indicate that an interest less than a right may nevertheless warrant the protection of the rules of natural justice or, as it is now more commonly called, procedural fairness. In Attorney-General for New South Wales v. Quin (unreported, 7 June 1990), I endeavoured to explain that when the expression "legitimate expectation" is used in reference to an ultimate benefit, such as the renewal of a licence, it is a convenient one but that when it is put to a wider use it is apt to mislead. To speak, as the cases often do, of the legitimate expectation of a particular procedure or of the legitimate expectation of procedural fairness generally is to speak of something quite different. When the law requires the observance of the rules of natural justice, it does so because it is fair in all the circumstances that they should be observed in the protection of some interest liable to be affected by administrative decision. It is the nature of the interest which is liable to be affected - it may be no more than a legitimate expectation of some particular benefit - which, in all the circumstances, gives rise to the requirement. To speak also of a legitimate expectation of procedural fairness is to confuse the interest which is the basis of the requirement with the requirement itself. It is quite unnecessary to do so.

13. Indeed, Schmidt itself provides an example of the correct use of legitimate expectation which is quite apt in this case - the expectation of an alien holding an unexpired entry permit that he should be "allowed to stay for the permitted time" (at p 171). No doubt the appellant in this case, as a permanent resident, has an expectation of being allowed to remain in Australia and that expectation is reasonable enough to be described as legitimate. That expectation existed before the deportation order was made by the Minister's delegate and will continue unless and until it is defeated, the appellant first having been accorded all the procedures to which he is entitled. In a personal sense, the appellant's anticipation that he would be permitted to remain in Australia must have been lessened somewhat when the deportation order was made and strengthened when the Tribunal recommended that it be revoked, particularly having regard to the Minister's policy of generally following the Tribunal's recommendation. But that is not to the point. The appellant's entitlement to procedural fairness arose because, in an objective sense, his legitimate expectation of being able to remain in Australia as a permanent resident was an interest of which he could, in fairness, only be deprived after being accorded a proper hearing.

14. The requirements of procedural fairness are not, however, confined to the protection of rights or legitimate expectations. A hearing may be required because of a past practice of consultation or a promise or assurance previously given that a hearing would occur: Council of Civil Service Unions v. Minister for the Civil Service [1983] UKHL 6; (1985) AC 374; Attorney-General of Hong Kong v. Ng Yuen Shiu [1983] UKPC 2; (1983) 2 AC 629. But that is because, in all the circumstances, the promise to follow a certain procedure having been made, or the practice of consultation having been established, fairness may require that the public authority should be held to its promise or previous practice. It adds nothing to say that there was a legitimate expectation, engendered by the promise or practice, that a certain procedure would be followed. And in Kioa v. West, although the adult appellants, being prohibited immigrants, had no legitimate expectation of being allowed to remain in Australia, they were entitled to a hearing because of the nature of their application to remain and the reliance by the Minister upon matters prejudicial to them with which they had had no opportunity to deal. It was only fair in those circumstances that they be given the opportunity of dealing with those matters before any deportation order was made.

15. In this case the appellant was given the hearing which his legitimate expectation of remaining in Australia in fairness required: once before the deportation order was made by the Minister's delegate and again before the Tribunal made its recommendation. The question is, therefore, whether there is anything in the circumstances which required the Minister to give him a further hearing. That is to say, the question is not whether he was entitled to a hearing but rather what was the type of hearing, or number of hearings, to which he was entitled in the circumstances.

16. It has long been recognized that the requirements of procedural fairness will depend upon the circumstances of the case, including the nature of the inquiry, the interest at stake and the rules under which the person making the decision is required to operate: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546; National Companies and Securities Commission v. News Corporation Ltd. [1984] HCA 29; (1984) 156 CLR 296. The fact that the decision-making process takes place in stages may also be relevant. This was made evident in South Australia v. O'Shea [1987] HCA 39; (1987) 163 CLR 378, a case in which the respondent, who was undergoing a period of preventive detention for sexual offences against children, claimed that he was denied natural justice by the failure of the Governor in Council to accord him a hearing before declining to follow the recommendation of the Parole Board that he be released on licence. But he had already been given a hearing by the Parole Board and this Court held that one hearing was sufficient to satisfy the requirements of natural justice since no new matters were taken into account at the final stage and the ultimate decision was very much based upon an evaluation of the public interest. Mason C.J. said, at p 389:

"The scheme for which s.77a (of the Criminal Law
Consolidation Act 1935 (S.A.)) provides is not unfamiliar.
It allows a place for the presentation of the offender's
case - before the Board when it is considering whether it
should make a recommendation for release. There are many
illustrations of this legislative model which entails
the holding of an inquiry by a body authorized to make a
recommendation to a Board or Minister which may make a
decision rejecting the recommendation without conducting
any further inquiry: see Taylor v. Public Service Board
(N.S.W.) ((1976) [1976] HCA 36; [1976] HCA 36; 137 CLR 208); Kioa v. West; Minister for
Aboriginal Affairs v. Peko-Wallsend Ltd. ((1986) [1986] HCA 40; 162 CLR
24). The hearing before the recommending body provides a
sufficient opportunity for a party to present his case so
that the decision-making process, viewed in its entirety,
entails procedural fairness."

And Wilson and Toohey JJ. observed, at p 405:

"In the present case ... there has been a hearing attended
by Mr O'Shea and his counsel. The opportunity was there,
and no doubt was availed of, for everything to be said that
could be said in his favour with respect to any risk to the
community that might be involved in his release."

See also Reg. v. Harrow London Borough Council; Ex parte D. (1989) 3 WLR 1239.

17. Of course, for a single hearing to satisfy the demands of procedural fairness in a process which takes place in stages, the initial hearing must itself be adequate. For instance, it may be inadequate if the person affected is "not allowed to say anything except to answer the questions put to him by the official who was interviewing him" as was the case in Attorney-General of Hong Kong v. Ng Yuen Shiu (at p 639) where an order was made by the Director of Immigration that the respondent leave Hong Kong. Had the initial interview provided an adequate opportunity for the respondent to present his case, it appears that the Privy Council would not have found procedural unfairness. This is made clear by its endorsement (at p 639) of the remark made by Baber J. in the Court of Appeal of Hong Kong:

"It is a pity that he was not expressly asked at his
interview on October 29, 1980, 'have you anything to say as
to why you should be allowed to remain in Hong Kong?' and
his answer recorded. This would have been an adequate
opportunity to state his case and had this been done these
proceedings would have been unnecessary."

18. In this case, the appellant was interviewed by an Immigration Officer, as were his de facto wife and a brother. He was asked whether he wished to place any special submissions before the Minister or to draw special attention to any aspect of his case. He indicated that he would send letters expressing his views and letters were received by the Department from the appellant, his de facto wife and his brothers and sisters which were taken into account by the Immigration Officer. The initial interview was not in any way defective nor does it appear that the appellant was hampered in what he wished to say. Moreover, the appellant had a second opportunity to put his case fully when he appeared before the Tribunal.

19. Of course, had the Minister, when the matter ultimately reached him, wished to take into account any matter with which the appellant had not had an opportunity to deal, then he would have been bound to give the appellant a further hearing to enable him to deal with it: Kioa v. West; Barbaro v. Minister for Immigration and Ethnic Affairs [1982] FCA 269; (1982) 46 ALR 123; 71 FLR 198. All that the Minister did, however, was to differ in the interpretation to be placed upon the facts found by the Tribunal. Unlike the Tribunal, he thought that those facts indicated a serious risk of recidivism and that the appellant was unlikely to make an appreciable contribution to the community. He also differed from the Tribunal in that he thought that the interests of the community were better served by the deportation of the appellant and that this consideration was not outweighed by any hardship to the appellant.

20. It was, however, submitted that the Minister was bound to hear the appellant because his decision represented a departure from the established policy that the recommendations of the Tribunal would be overturned by him "only in exceptional circumstances and only when strong evidence can be produced to justify his decision". It was put that the existence of the policy gave rise not only to the legitimate expectation that the deportation order would be revoked, but also to the legitimate expectation of a hearing if the Minister was to depart from the policy. But the only legitimate expectation which entitled the appellant to a hearing was his interest as a permanent resident in remaining in Australia. He was accorded the hearing to which that legitimate expectation entitled him. Nor could it be said that the Minister's rejection of the Tribunal's recommendation otherwise required him in fairness to give the appellant a further hearing.

21. As I pointed out in Attorney-General for New South Wales v. Quin (at p 55), fairness cannot dictate the policy which a Minister must adopt, nor can it preclude him from adopting and giving effect to a change in policy which he considers necessary. It may be different where a particular decision involves, not a change in policy brought about by the normal processes of government decision making, but merely the selective application of an existing policy in an individual case.

22. However, in this case there is no reason to think that the Minister regarded himself as departing from existing policy or that he in fact departed from it. The interpretation and application of that policy were matters ultimately for the Minister and he clearly thought the evidence to be sufficiently strong to justify his taking the exceptional course of overturning the Tribunal's recommendation. The fact that the appellant wishes to dispute the Minister's conclusion does not mean that fairness required the Minister to give him a hearing to enable him to do so. The appellant was given ample opportunity to place before the Minister all those matters which he contends lead to a contrary conclusion and fairness does not require him to be given a further hearing to debate the issue, either that of whether he should ultimately be deported or that of whether the circumstances were sufficiently exceptional to warrant departure from the Tribunal's recommendation. No doubt in South Australia v. O'Shea the respondent disputed the conclusion of the Governor in Council that it was in the public interest that he should not be released, but no further hearing was required to enable him to argue that matter before the Governor in Council.

23. In this case it is not suggested that there is any new material which could be placed before the Minister to lead him to a conclusion contrary to that which he in fact reached, namely, that exceptional circumstances existed which justified him in departing from the Tribunal's recommendation. Any further hearing would result only in the repetition of those matters which were already before the Minister. This is not a case like that of F.A.I. Insurances Ltd. v. Winneke [1982] HCA 26; (1982) 151 CLR 342 where F.A.I. Insurances Ltd. was denied the benefit of which it had a legitimate expectation - the renewal of its licence - without any hearing at all. In this case the appellant had placed before the Minister all the material which he wished to place before him and it is beyond the requirements of procedural fairness that he be given any further hearing. Indeed, to accede to the appellant's argument would be to require the Minister to give a further hearing on every occasion upon which he wished to depart from the recommendation of the Tribunal. To impose such a requirement accords neither with principle nor with authority. I would dismiss the appeal.

TOOHEY J. On 19 August 1986 the Delegate of the respondent Minister made an order for the deportation of the appellant.

2. The order was made pursuant to s.12 (now s.55) of the Migration Act 1958 (Cth) by reason of the fact that the appellant was a non-citizen who had been convicted in Australia of an offence and that at the time of commission of the offence he was not an Australian citizen, he had been present in Australia as a permanent resident for less than ten years and the offence was one for which he had been sentenced to imprisonment for a period of not less than one year. None of the components of s.12 was challenged by the appellant.

3. The appellant arrived in Australia in February 1977. Three of his brothers had preceded him to this country and also in 1977 another brother and three sisters migrated here. All told, the appellant now has six brothers and five sisters who are Australian citizens. Between 1980 and 1983 the appellant was convicted of six offences, all committed on different occasions, two involving assaults. In June 1981 he was warned by the Department of Immigration and Ethnic Affairs that failure to maintain good behaviour could result in his deportation. On 29 May 1985 he was sentenced to imprisonment for five years with a non-parole period of two and a half years, consequent upon his plea of guilty to a charge of being in possession of cannabis resin with intent to sell or supply it to some other person. An appeal against sentence was successful, the Court of Criminal Appeal reducing the sentence to three years imprisonment with a non-parole period of eighteen months. The appellant was released from custody on 5 October 1986; the deportation order was made some two months earlier.

4. The appellant sought a review of the Delegate's decision. There was a hearing before the Administrative Appeals Tribunal which, on 29 January 1987, handed down its decision remitting the matter to the Minister "for reconsideration in accordance with a recommendation that the deportation order dated 19 August 1986 in relation to the Applicant be revoked". The remission was made pursuant to s.66E (now s.180) of the Migration Act. The Minister decided not to accept the recommendation of the Tribunal and notified the appellant of his intention to proceed with the deportation. This prompted an application by the appellant to the Federal Court under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") to review what was described in the application as "the affirmation of an order for Deportation of the Applicant made on 12th May 1987 and communicated to the Applicant on 7th July 1987 by a letter dated 1st July 1987". The application was rejected by Forster J. at first instance and his Honour's decision was affirmed on appeal (Northrop and Lee JJ., with Sheppard J. dissenting).

5. It is important to identify, with some precision, the way in which the appellant's case was presented to this Court. The appellant accepted, as he must, that the deportation order was an exercise of ministerial discretion and that, although the Tribunal's recommendation bound the Minister to reconsider the decision to deport in accordance with the Tribunal's recommendation, the Minister was not bound to give effect to the recommendation that the deportation order be revoked. But, in the appellant's submission, it was a most unusual situation for the Minister not to accept a recommendation of the Tribunal; indeed, Australia's criminal deportation policy was the subject of a substantial statement by the Minister to the Parliament. That statement, as published, contained the following:

"4. It is the policy of the Australian Government that
recommendations of the Administrative Appeals Tribunal
should be overturned by the Minister only in exceptional
circumstances and only when strong evidence can be produced
to justify his decision. Furthermore, it is the policy of
the Government that, when the Minister decides to deport
a person contrary to a recommendation of the Tribunal,
the Minister will table in the Parliament at the first
opportunity a statement of his/her reasons for doing so."

The appellant's primary submission was that, having regard to the matters mentioned above, he had a legitimate expectation that the recommendation of the Tribunal would be implemented, that no sufficient reason had been offered by the Minister for not accepting the recommendation of the Tribunal and that, in so far as any of the reasons offered by the Minister might be thought sufficient to justify non-acceptance of the recommendation, the appellant had been denied an opportunity to be heard in regard thereto.

6. It is appropriate now to turn to the Minister's Statement of Reasons, dated 17 August 1987, for not accepting the recommendation of the Tribunal. Essentially, they were that the Minister took a more serious view of the offence of which the appellant was convicted ("I nevertheless considered the offence to be a serious one in view of the fact that the applicant was able to enter and was willing to enter commerce with dealers of prohibited drugs"); that, although the Tribunal assessed the risk of recidivism by the appellant as "low", the Minister considered the risk to be "serious"; that, although the centre of the appellant's family life was in Australia, it was a fact that he was "willing and able to return to Lebanon in 1978 and 1980"; and that, while accepting the conclusion of the Tribunal that "there is no reason to doubt that he will be capable of contributing to the community by earning his way in it", the Minister did not think that this amounted to an appreciable contribution to the community and was unlikely to amount to an appreciable contribution in the future. The Minister said he took the view that there were exceptional circumstances justifying him in departing from the recommendation of the Tribunal. He ended with these words:

"Although I agreed with the Tribunal in regard to its
findings of fact, I took the view that the Tribunal gave
excessive weight to the hardship which would be suffered by
the applicant and his family if he were deported, and
did not have sufficient regard to the interests of the
Australian community, which may be seriously harmed by
allowing the applicant to remain a part of the community."

7. The relevant decision-making process is evident. It is for the Minister (or a delegate of the Minister) to determine whether to make a deportation order. That is not to say that the discretion is entirely at large. Nor is it to say that there is no need to afford the proposed deportee an opportunity to be heard before making such an order: see Kioa v. West [1985] HCA 81; (1985) 159 CLR 550. The point does not arise for consideration here because the appellant did have an opportunity to be heard through a personal interview with departmental officers before the making of the deportation order; the appellant does not complain in that regard.

8. Once an order is made, the avenue of review on the merits is available through the Administrative Appeals Tribunal Act 1975 (Cth) and of judicial review through the ADJR Act. If, as here, the deportee chooses review on the merits, he cannot expect from the Tribunal a decision which countermands the Minister's decision to deport; at best there will be a recommendation obliging the Minister to reconsider his decision: Migration Act, s.66E(3). In reconsidering, the Minister must have regard to the Tribunal's recommendation but he is not bound "to accept as correct any views as to the facts, or as to the weight of the evidentiary material, expressed by the Tribunal ...": Minister for Immigration and Ethnic Affairs v. Pochi [1981] HCA 58; (1981) 149 CLR 139, at p 143. There is nothing to suggest that the decision-making process begins all over again; indeed, s.66E(1) of the Migration Act expressly excluded from the jurisdiction of the Tribunal review of "a decision made on a matter remitted by the Tribunal for reconsideration". Nevertheless, the provisions of the ADJR Act may still be available.

9. Counsel for the appellant eschewed any argument that a deportee is entitled to be heard as a matter of course when his deportation is being reconsidered by the Minister. Be that as it may. But, in any event, the deportee is entitled to expect that, if the Minister proposes to have regard to material that was not before him or his delegate when the original decision was made and was not before the Tribunal, the Minister will so inform the deportee and give him the opportunity to be heard in regard to that material. Whether that be described in terms of legitimate expectation or simply as springing from an obligation on the part of the Minister to accord procedural fairness, the result is the same. As a general proposition, the manner in which the deportee is to be heard will be for the Minister. A written response may be all that is called for, though, as Smithers J. suggested in Barbaro v. Minister for Immigration and Ethnic Affairs [1982] FCA 269; (1982) 71 FLR 198, at p 204; [1982] FCA 269; 46 ALR 123, at p 130: "Where questions of credibility are involved a procedure appropriate thereto would be essential."

10. I have spoken of "material" that was not before the Minister or the Delegate when the original decision was made and which was not before the Tribunal. Counsel for the respondent, drawing upon what was said by Mason C.J. in South Australia v. O'Shea [1987] HCA 39; (1987) 163 CLR 378, at p 389, submitted that the Minister was free to engage in fresh fact finding provided he did not take into account "new matter". In the way in which the respondent's case was presented, the distinction may not be merely a semantic one. For instance, his counsel argued that, the subject of recidivism already being before the Tribunal, the Minister was free to take a different view of recidivism to that taken by the Tribunal without being obliged to give the appellant an opportunity to be heard, because there was no new matter. In that limited way the submission is unobjectionable. But the Minister would not be justified in taking into account new facts indicating a greater likelihood of recidivism, without putting those facts to the appellant. The Minister could not take refuge in the argument that there was no new "matter" to refer to the appellant.

11. The considerations that led to the Minister not accepting the recommendation of the Tribunal have already been mentioned. Subject to one possible qualification, in no case did they require the Minister to reject facts found by the Tribunal; rather, they involved the Minister in taking a different view of those facts and in the end making a value judgment in terms of his perception of the hardship to the applicant and his family if he were deported, compared with the possibility of harm to the Australian community if he remained. "These are not generally matters of logical proof or evidentiary demonstration", to borrow the language of Brennan J. in Re Drake (No.2) (1979) 2 ALD 634, at p 639. As appears from the Minister's Statement of Reasons, he had before him, at the time he decided to adhere to his Delegate's earlier decision that the appellant be deported, some documents not previously before the Delegate. They comprised memoranda from departmental officers favouring revocation of the deportation order, and an adverse submission from the Deputy Secretary of the Department, the original Delegate of the Minister, which counsel for the appellant described as "a rehash of his earlier view". There was nothing in those documents to which the appellant should have been referred for there was nothing in them calling for comment by him.

12. The possible qualification referred to in the preceding paragraph is that the Minister's reference to the appellant being "willing and able to return to Lebanon in 1978 and 1980" can be read, in context, as indicating that the Minister acted on the basis that the appellant had, at those times, been ready and willing to return to Lebanon permanently as distinct from visiting that country for specific and limited purposes. If that were so, a question might arise as to whether the Minister acted upon the basis of new factual material in relation to which the appellant was entitled to be heard. For reasons which will appear, it is unnecessary to pursue that matter.

13. In the Full Court of the Federal Court, Sheppard J. was of the view that, where the Minister proposed to depart from the announced criminal deportation policy, an opportunity should be given to the deportee to be heard in regard to that departure. It is unnecessary to express a view on that question for the Minister's decision not to accept the recommendation of the Tribunal did not, in my view, involve a departure from that policy. It is true that the Tribunal found that the circumstances of the appellant's 1985 conviction fell outside the category of "hard, addictive drugs" and did not involve "other illicit drugs on a 'significantly large scale'", hence were not within the examples of serious offences in par.9 of the deportation policy. However, these are but examples and the Minister took the view that the offence was a serious one "in view of the fact that the (appellant) was able to enter and was willing to enter commerce with dealers of prohibited drugs". I do not think that either in form or in substance was there a departure from the deportation policy.

14. The decision itself was a proper application of the deportation policy so long as there were "exceptional circumstances" and there was "strong evidence" to justify the decision. In the course of his judgment Lee J. observed: "In the absence of identification of those exceptional circumstances, it is difficult to speculate what they may have been and the Minister appears to have regarded it as an exceptional circumstance that he had formed a view contrary to that of the Tribunal." Whether there were exceptional circumstances and whether there was strong evidence are no doubt debatable questions. But these were matters which the Minister was required to assess for himself; he was engaging in an administrative, not a curial, process. Again, that is not to say that the assessment was immune from any challenge. But it is significant that before this Court the appellant did not argue that the decision complained of was an improper exercise of power (ADJR Act, s.5(1)(e)) or that there was no evidence or other material to justify the making of that decision: s.5(1)(h). In particular, there was no complaint that the exercise of the power was so unreasonable that no reasonable person could have so exercised it: s.5(2)(g). The appeal was argued in terms of the Minister's failure to afford to the appellant the opportunity to be heard further before affirming the order for deportation.

15. The expression "legitimate expectation" has had its critics (see, for instance, Barwick C.J. in Salemi v. MacKellar (No.2) [1977] HCA 26; (1977) 137 CLR 396, at p 404) and it has had its supporters: see, for instance, Lord Fraser of Tullybelton, delivering the advice of the Privy Council in A.-G. of Hong Kong v. Ng Yuen Shiu [1983] UKPC 2; (1983) 2 AC 629, at p 636. There is one aspect of the debate that calls for comment in the present case. Counsel for the Minister submitted that, as the appellant had not deposed to any knowledge of the deportation policy and a fortiori had not deposed to any expectation based on that policy, there could be no "legitimate" expectation that he would be heard before the Minister affirmed his earlier decision. That submission is not well founded. To begin with, although the appellant did not depose to any knowledge of the details of the criminal deportation policy, in par.48 of an affidavit sworn 21 July 1987, he deposed:

"I was advised by my solicitors that the (Minister) would
only not follow the recommendation of the Administrative
Appeals decision in rare circumstances and I expected to be
given an opportunity to be heard if the Minister was minded
not to accept the Tribunal's recommendation."

16. But, more importantly, the notion of legitimate expectation is not dependent upon any principle of estoppel. Whether the Minister can be estopped in the exercise of his discretion is another question; it was not a question raised by the appellant. Legitimate expectation does not depend upon the knowledge and state of mind of the individual concerned, although such an expectation may arise from the conduct of a public authority towards an individual, as in Ng Yuen Shiu. Where legitimate expectation turns on a question of statutory construction, Brennan J. observed in Kioa v. West, at p 618: "It is not the state of mind of an individual but the interest which an exercise of power is apt to affect that is relevant to the construction of the statute." As a matter of construction of the relevant provisions of the Migration Act, the Minister may not have been bound to afford the appellant a further hearing merely because, in reconsidering his earlier decision, he decided to affirm it. However, in the present case, there is another question - whether an entitlement to a further hearing arose as a matter of construction of the criminal deportation policy. (Because the Minister purported to act in accordance with the policy, the issue of whether he would otherwise have been bound to do so does not arise.)

17. A failure to accept recommendations of the Tribunal has important implications for the operation of administrative review in the area of criminal deportation, as Wilcox J. noted in Nikac v. Minister for Immigration and Ethnic Affairs (1988) 20 FCR 65, at p 84. In Barbaro, at p 130, Smithers J. said of the Tribunal: "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." Nevertheless, as Sheppard J. observed in the present case: "Barbaro is not authority for the proposition that the Minister is obliged to invite any person he proposes to deport pursuant to s.12 to make representations to him in every case in which the person has had a favourable recommendation from the Tribunal."

18. But Barbaro was decided before the issue of the criminal deportation policy on 4 May 1983. And, if a recommendation of the Tribunal is now only to be rejected in "exceptional circumstances" and "when strong evidence can be produced", another dimension is introduced into the decision-making process. And that dimension is one that can only arise at the stage of reconsideration by the Minister because, by definition, it is something that has not been before the Tribunal or before the Minister until after the Tribunal's recommendation was made. It is not to the point that the "exceptional circumstances" found by the Minister may lie in facts that were known to the Tribunal; the Tribunal was not required to consider whether those circumstances were "exceptional" and the deportee did not have the opportunity (or the need) to make submissions on that issue. If, as here, the Minister asserts that the reconsideration was in accordance with the criminal deportation policy, the deportee is entitled to know what were the circumstances said to be "exceptional" and what was the evidence said to be "strong", and to be heard in answer. Procedural fairness requires that much.

19. The situation is not necessarily one in which the appellant can do no more than repeat what he had said before the original deportation order was made or reiterate his case before the Tribunal. The situation has changed because the Minister accepted that the Tribunal's recommendation brought par.4 of the criminal deportation policy into operation. The appellant was entitled to an opportunity to be heard if the Minister had in mind to act to the appellant's disadvantage. In particular, the appellant was entitled to be heard as to whether the circumstances were exceptional and the evidence strong. If he were not given that opportunity, the reference to the Tribunal was little more than an empty ritual and the policy statement mere rhetoric.

20. The appellant was not afforded that opportunity and was therefore denied procedural fairness. The appeal should succeed and this matter should go back to the Minister to be dealt with according to law.

GAUDRON J. The facts and legislative background are set out in other judgments. The question that arises by reference to those facts and that background is what, if anything, was required by way of procedural fairness when the Minister for Immigration and Ethnic Affairs ("the Minister") decided, contrary to a recommendation of the Administrative Appeals Tribunal ("the Tribunal"), not to revoke a deportation order in respect of the appellant, Mr Haoucher. That question arises in the context of an announced policy in which it was stated that the recommendations of the Tribunal would be "overturned by the Minister only in exceptional circumstances and only when strong evidence can be produced to justify (the) decision."

2. It was argued on behalf of Mr Haoucher that, by reason of the announced policy, he held a legitimate expectation that, given the Tribunal's recommendation, the deportation order would be revoked. Accordingly, it was put, he should have been afforded an opportunity to be heard before the Minister reached his decision.

3. The notion of legitimate expectation is one to which resort may be had at two distinct stages of an enquiry as to whether there has been a breach of the rules of natural justice. It may serve to reveal whether the subject matter of the decision is such that the decision-making process is attended with a requirement that the person affected be given an opportunity to put his or her case. See, for example, Heatley v. Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487; F.A.I. Insurances Ltd. v. Winneke [1982] HCA 26; (1982) 151 CLR 342. On the other hand, it may serve to reveal what, by way of natural justice or procedural fairness, was required in the circumstances of the particular case. See Kioa v. West [1985] HCA 81; (1985) 159 CLR 550, at pp 617 and 626. It is that latter use which is sought to be made of the notion of legitimate expectation in this appeal.

4. What is required by way of procedural fairness "depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting": Kioa, per Mason J. at pp 584-585, referring to Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546, at pp 552-553, and National Companies and Securities Commission v. News Corporation Ltd. [1984] HCA 29; (1984) 156 CLR 296, at pp 311-312, 319-320. See also Kioa, per Brennan J. at p 626. A legitimate expectation, in the sense in which that expression was used in argument in this appeal, is a circumstance which attends the case. In some situations that expectation, if it exists, may dominate the other circumstances of the case, particularly if it results in the failure to put a case on some aspect of the matter thought not to be in issue.

5. The significant feature of the present case is that the Minister's decision was but the final stage in an entire decision-making process. A similar process was considered in South Australia v. O'Shea [1987] HCA 39; (1987) 163 CLR 378. In the process presently under consideration Mr Haoucher was given an opportunity to put a case in support of revocation of the deportation order in proceedings before the Tribunal.

6. In reaching his decision the Minister was required to reconsider the deportation order "in accordance with (the) recommendations of the Tribunal": Migration Act 1958 (Cth), s.66E(3), as that Act stood in May 1987. See, as to the effect of that sub-section, Minister for Immigration and Ethnic Affairs v. Pochi [1981] HCA 58; (1981) 149 CLR 139. A decision-making process in which the final decision is made after considering a recommendation from a recommending body obliged to comply with the rules of natural justice is not unfamiliar. See O'Shea, per Mason C.J. at p 389 and the cases there cited. In that process a number of possibilities can and do arise. One possibility (and the one that falls for consideration in this appeal) is that the final decision is reached by reference to all the facts, and only the facts, dealt with in the recommendation. In that situation fairness does not require that a further opportunity be given to put a case in respect of those facts. Different considerations arise if regard is had to additional facts or if some fact is disregarded. In that situation the final decision maker is involved in determining a new or different case from that which is the subject of the recommendation.

7. Leaving aside a decision arrived at by a flawed reasoning process or involving fraud or the improper exercise of power, a decision which is contrary to a recommendation but made by reference to precisely the same body of facts as dealt with in the recommendation will most likely be the result of the different evaluation of those facts. A difference of that sort is to be seen in the present case where the Minister, contrary to the Tribunal's view, regarded the offence of which Mr Haoucher was convicted as "a serious one". So too, contrary to the Tribunal's view, the Minister evaluated the risk of Mr Haoucher's recidivism as "serious" and his contribution to the Australian community as not "appreciable" and "unlikely to amount to an appreciable contribution in the future". That difference in evaluation extended to the evaluation of the offence as one which, viewed in the light of Mr Haoucher's history and circumstances, should result in his deportation.

8. A decision-making process which allows for a final decision to be made after considering the recommendation of a recommending body obliged to comply with the rules of natural justice necessarily contemplates that the final decision may differ from the recommendation. It also necessarily imports a degree of freedom of choice or discretion in the evaluation of the facts as found by the recommending body.

9. The process of evaluation, often referred to as the process of making a value judgment, is not one that is susceptible of analysis in precisely the same way as is the process of fact finding or the process of determining whether the facts as found satisfy some identified or identifiable criterion. That is not to say that a decision which is arrived at by the process of evaluating given or undisputed facts is not susceptible of review, whether pursuant to legislative regimes for judicial review or under the general law. However, the process of evaluating given or undisputed facts is one in which the putting of a case assumes less significance than in the process of fact finding or the process of classifying facts according to some particular criterion.

10. Apart altogether from the diminished significance of an opportunity to put a case in the process of evaluating given or undisputed facts, a further consideration attends that process when it is undertaken by reference to a recommendation from a recommending body. A recommendation carries its own persuasive force as to any evaluation of the facts made by the recommending body. It not only speaks for itself on the question of evaluation (whether or not that evaluation is made explicit), but the fact that that evaluation was made by the body entrusted with the duty of making the recommendation is itself likely to be a most significant factor in the further process of evaluation undertaken by the final decision maker. Accordingly, in my view, a decision which results from a difference between the final decision maker and the recommending body as to the evaluation of precisely the same body of facts is not one which will ordinarily be viewed as involving a breach of the rules of natural justice merely because no opportunity was given to put a case that the facts should be evaluated in the same way as they were by the recommending body. That is because, at least ordinarily, it may be said that "the decision-making process, viewed in its entirety, entails procedural fairness": O'Shea, per Mason C.J. at p 389.

11. In a decision-making process in which a final decision is reached only after considering the recommendation of a recommending body, the notion of legitimate expectation may be useful in determining what, by way of fairness, was required in the particular case. An expectation that a final decision will be made by reference to the same body of facts or by reference to the same criterion that produced the recommendation may serve to illustrate that there is a want of procedural fairness involved in a decision which is made by reference to a different body of facts or by reference to a different criterion. However, the same conclusion might well be reached by reference to other considerations, including the consideration that a new or different case had then emerged. But the notion of legitimate expectation does not have the same relevance when the difference between the final decision and the recommendation is solely the result of a difference in evaluation of the same body of facts. As earlier indicated, that possibility is necessarily contemplated by that decision-making process and, thus, there can be no basis for an expectation, legitimate or otherwise, that the facts will be evaluated in the same way as they were in the recommendation.

12. The argument made on behalf of Mr Haoucher by reference to a legitimate expectation must fail in so far as that argument would lead to the result that he should be given an opportunity to be heard on the evaluation of the factual matters upon which both the recommendation and the Minister's decision were based.

13. The remaining question is whether the Minister's decision that the case involved "exceptional circumstances" and, presumably, in light of the announced policy, "strong evidence" involved a consideration of matters upon which, in fairness, Mr Haoucher should have been given an opportunity to put a case. It is conceivable that, in certain circumstances, a conclusion by the Minister that a matter involves "exceptional circumstances" and "strong evidence" may result from the rejection of some fact as found, the consideration of facts not dealt with, or from the adoption of a different criterion from that adopted by the Tribunal. However, that is not the present case. The Minister expressly stated in his reasons for decision that he "accepted the findings of fact made by the Tribunal". No new fact was brought to his attention. And the matter was approached, both by the Tribunal and by the Minister, on the basis that the offence of which Mr Haoucher was convicted fell within the terms of the announced policy, albeit that the Tribunal took the view that the offence was not one covered by the examples given in the policy and that deportation would "give more weight than (was) due to the nature of the offence". It may be noted that the matters, and the only matters, to which the Tribunal had regard were the matters directed by the policy. Thus the only issue was whether, in the light of the policy, Mr Haoucher should be deported.

14. The Minister's reasons for decision do not make explicit the precise basis for his conclusion that the matter involved "exceptional circumstances". His reasons reveal only that that conclusion was reached in view of the earlier conclusions he reached with respect to the evaluation of the facts. One of those earlier conclusions was that "in view of (Mr Haoucher's) prior criminal record and the warning which was given him on 9 June 1981 that should he re-offend he could be deported (which warning he apparently failed to heed) ... the risk of recidivism (was) serious". Once that last-mentioned conclusion was reached (a conclusion which, being supported by convictions, it was open to the Minister to evaluate as justified by "strong evidence"), the question inevitably arose whether there were "exceptional circumstances" in the only sense which the announced policy allows, namely, that the case should constitute an exception to the general rule that the Tribunal's recommendations should not be overturned. The answer to that question involved only a further evaluation of the facts in the light of the primary evaluation already undertaken. The answer to that question involved that step which has already been identified, namely, the evaluation of whether the offence, viewed in the light of Mr Haoucher's personal history and circumstances, should result in deportation. For the reasons already given, on that question the recommendation carried its own persuasive force and considerations of fairness did not require that Mr Haoucher be given an opportunity to put a case in support of the evaluation made by the Tribunal.

15. The appeal should be dismissed.

McHUGH J. The Administrative Appeals Tribunal ("the A.A.T.") recommended to the Minister of State for Immigration and Ethnic Affairs ("the Minister") that he revoke an order deporting the appellant, Majed Haoucher, from Australia. Without seeking any representations from Haoucher, the Minister rejected the recommendation. The appellant applied to the Federal Court for a review of the Minister's decision. Forster J. rejected his application. The Full Court of the Federal Court (Northrop and Lee JJ., Sheppard J. dissenting) affirmed the decision of Forster J. This Court has granted Mr Haoucher special leave to appeal against the order of the Full Court. The issue in the appeal is whether the recommendation of the A.A.T. gave rise to a legitimate expectation that the Minister would revoke the order with the consequence that he was required to give the appellant a hearing before rejecting the recommendation.
The basis of the Minister's decision to deport Haoucher

2. The order for the appellant's deportation was made under s.12 (now s.55) of the Migration Act 1958 (Cth) ("the Act"). That section provided that the Minister may order the deportation of a non-citizen who has been convicted in Australia of an offence for which he or she was sentenced to imprisonment for a period of not less than one year, and who, at the time of the commission of the offence, has been present in Australia as a permanent resident for less than 10 years.

3. The appellant, who is a non-citizen within the meaning of the Act, migrated to Australia in 1977. Between 1980 and 1983 he was convicted of six offences, for one of which (an assault with a knife) he was sentenced to two months imprisonment. In May 1985, he was sentenced to five years imprisonment for possession of cannabis resin with intent to sell or supply to another. He appealed. The Full Court of the Supreme Court of Western Australia reduced the sentence to three years imprisonment with a non-parole period of eighteen months on the ground that the appellant was only a small-time distributor and that it was his first offence of this kind. In August 1986, the Minister made the order for the appellant's deportation.

4. In terms, the discretion to make an order under s.12 of the Act was unfettered. But in May 1983, the Minister gave Parliament details of the policy "which, under this Government, will guide decisions under the Migration Act when considering the possible deportation of non-Australians convicted of specified criminal conduct". Paragraph 8 of the policy declared that deportation might be appropriate when there was a risk that a person "will commit further offences if allowed to remain" or when he or she "has committed a crime so offensive to Australian community standards that the community rebels against having within it a person who has committed such an offence". Paragraph 9 gave as examples of serious offences which might render non-Australian citizens liable for deportation:

"production, importation, distribution, trafficking or
commercial dealing in heroin or other 'hard' addictive drugs
or involvement in other illicit drugs on a significantly
large scale ...".

Paragraph 16 declared that the "most important broad criteria" to be considered in determining whether a person should be deported would be the nature of the crime, the possibility of recidivism, the contribution the person has made to the community or might reasonably be expected to make in the future and his or her family and social ties.

5. Paragraph 3 of the policy noted that a person has a right of appeal to the A.A.T. against a decision that he or she be deported. Paragraph 4 stated that it is the policy of the government that recommendations of the A.A.T. should be overturned by the Minister "only in exceptional circumstances and only when strong evidence can be produced to justify his decision". That paragraph also declared that the Minister would table in Parliament a statement of his or her reasons if he or she decided to deport a person contrary to the recommendation of the A.A.T.
The decision of the A.A.T.

6. The authority of the A.A.T. to review an order made under s.12 derived from s.66E (now s.180) of the Act. The A.A.T. was required either to "affirm the decision or remit the matter for reconsideration in accordance with any recommendations of the Tribunal": s.66E(3). It had no power to review the Minister's reconsidered decision: s.66E(1). If the Minister refused to act upon the recommendation of the A.A.T., however, an application for judicial review could be made to the Federal Court: Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5; Barbaro v. McPhee (1982) 42 ALR 147.

7. In January 1987, after a full examination of the evidence, the A.A.T. recommended that the order for the appellant's deportation be revoked. The A.A.T. found that his crime fell "outside the wording of the example of serious drug offences in the ministerial statement", that "recidivism must be seen as a low risk", and that he had a job and a "positive attitude to life". The A.A.T. also found that he was "capable of contributing to the community by earning his way in it", that he had "deep family ties with Australia", and that his ties with Lebanon from where he migrated to Australia in February 1977 were "weak".
Did the recommendation of the A.A.T. give rise to a legitimate expectation attracting the application of the rules of natural justice?

8. Although s.66E(3) of the Act required the Minister to have regard to the recommendation of the A.A.T., he was not bound to follow either its recommendation or its findings: Minister for Immigration and Ethnic Affairs v. Pochi [1981] HCA 58; (1981) 149 CLR 139, at pp 142-143. Nor in exercising his discretion was the Minister bound by the government's criminal deportation policy. The policy was a representation by the Minister as to the way in which he would exercise his discretion. But it created no estoppel against the Minister. In cases which do not involve the exercise of statutory discretions or duties, a Minister of the Crown may be estopped from denying a fact or promise. But just as a Minister cannot bind himself or herself by contract to exercise a discretion in a particular way (Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth [1977] HCA 71; (1977) 139 CLR 54, at pp 74-76), so a Minister invested with a statutory discretion cannot impair the exercise of the discretion by a representation that he or she will or will not exercise the discretion in a particular way or at a particular time: Southend-on-Sea Corporation v. Hodgson (Wickford) Ltd. (1962) 1 QB 416, at p 424; Brickworks Ltd. v. Warringah Corporation [1963] HCA 18; (1963) 108 CLR 568, at p 577; Rootkin v. Kent County Council (1981) 1 WLR 1186, at pp 1195-1196; (1981) 2 All ER 227, at pp 233-234.

9. Counsel for the appellant accepted that the Minister was not bound to apply the policy in considering whether the recommendation of the A.A.T. should be followed. But he contended that the terms of the policy gave rise to a legitimate expectation that the Minister would act in accordance with it when he considered the recommendation of the A.A.T. Counsel contended that, if the Minister intended to depart from the recommendation of the A.A.T., the rules of natural justice required him to give notice of his intention to the appellant and to specify the matters on which he relied to justify his rejection of the recommendation.

10. Decisions of this Court establish that, subject to any contrary statutory intention, a person is entitled to be heard in opposition to the proposed exercise of a statutory power if its exercise will deprive him or her of a benefit or privilege which that person has a legitimate expectation of obtaining or continuing to enjoy: Heatley v. Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487; F.A.I. Insurances Ltd. v. Winneke [1982] HCA 26; (1982) 151 CLR 342; Kioa v. West [1985] HCA 81; (1985) 159 CLR 550.

11. The concept of "legitimate expectation" was introduced into public law by Lord Denning M.R. in Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch 149. His Lordship said (at p 170):

"The speeches in Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40 show that
an administrative body may, in a proper case, be bound
to give a person who is affected by their decision an
opportunity of making representations. It all depends on
whether he has some right or interest, or, I would add, some
legitimate expectation, of which it would not be fair to
deprive him without hearing what he has to say."

In Breen v. Amalgamated Engineering Union (1971) 2 QB 175, Lord Denning again referred to the concept of legitimate expectation. He said (at p 191):

"Seeing that he had been elected to this office by
a democratic process, he had, I think, a legitimate
expectation that he would be approved by the district
committee, unless there were good reasons against him. If
they had something against him, they ought to tell him and
to give him a chance of answering it before turning him down."

12. Before Lord Denning's judgments in Schmidt and Breen, the common law rules of natural justice only protected a person's existing rights and interests. They did so, inter alia, by implying a right to be heard before a statutory power was exercised in a manner which might prejudice those rights and interests. The introduction of the concept of legitimate expectation into public law extended the range of protection given by the common law rules of natural justice. Prospective, as well as existing, rights, interests, privileges and benefits are now within the domain of natural justice. Just as the common law has traditionally given a person a right to be heard before the exercise of a statutory power prejudices any of his or her existing rights or interests, so the common law now gives a person the right to be heard before the exercise of a statutory power prejudices some right, interest, privilege or benefit which that person can legitimately expect to obtain or enjoy in the future. The common law right to be heard may, of course, be excluded by statute. But an intention to exclude it "is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations": The Commissioner of Police v. Tanos (1958) 98 CLR 383, at p 396.

13. The justice and wisdom of extending procedural fairness to legitimate expectations as well as to existing rights and interests seem obvious. The renewal of licences is a good example. Many statutes have made the right to engage in business, employment, social and other activities dependent on the grant of a licence issued by a government official or public authority. These licences are often granted for fixed periods. They must be renewed from time to time if the activities which they regulate are to continue. Failure to obtain the renewal of a licence may have a devastating effect on a person, disrupting plans for the future, causing economic harm, or jeopardising reputation: cf. de Smith's Judicial Review of Administrative Action, 4th ed (1980), pp 223-224. In many cases, therefore, refusal to renew a licence has the same effect as the revocation of a licence. Unless private rights are to be preferred to public realities, there is no sense, let alone justice, in the common law rules of natural justice giving protection to an existing licence but denying it to a legitimate expectation of the renewal of a licence. This does not mean that the content or operation of the rules of natural justice is the same in relation to the renewal of a licence as it is in relation to the revocation of a licence. The renewal of a licence, like its original grant, will often involve the formulation and application of policy, the allocation of public funds or resources, or the competing claims of others. Public administration would be seriously impaired in some cases if a person, seeking the renewal of a licence, was entitled to be put into possession of all the considerations affecting the renewal of the licence. In such cases, it may not even be possible, consistently with good administration, to give a hearing to the person affected. Nevertheless, many cases involving the legitimate expectation of the renewal of a licence raise issues substantially the same as those involved in cases concerning the revocation of a licence. No valid reason exists, therefore, for applying the rules of natural justice to the revocation of licences but not to their renewal.

14. Cases concerning the renewal of licences are perhaps the most vivid illustration of the need for a doctrine of legitimate expectations. But that doctrine goes beyond the grant or renewal of licences. Subject to any statutory indication to the contrary, the doctrine of legitimate expectations entitles a person to be heard in opposition to a proposed exercise of a statutory power if its exercise will deprive him or her of any right, interest, benefit or privilege which that person has a legitimate expectation of obtaining or continuing to enjoy.

15. A legitimate expectation may arise from the conduct of the person proposing to exercise the power or from the nature of the benefit or privilege enjoyed: Kioa, at p 583. In Attorney-General of Hong Kong v. Ng Yuen Shiu [1983] UKPC 2; (1983) 2 AC 629, the Privy Council held that a policy announcement that illegal immigrants would be interviewed and their cases considered on their merits gave rise to a legitimate expectation that an immigrant would not be deported without the policy being implemented. Ng Yuen Shiu is an illustration of an undertaking giving rise to a legitimate expectation. Heatley v. Tasmanian Racing and Gaming Commission is an illustration of a course of conduct creating a legitimate expectation. In Heatley, this Court held that members of the public had a legitimate expectation that they would continue to receive the customary permission to go on to racecourses upon the payment of the stated fee to the racecourse owner. F.A.I. Insurances Ltd. v. Winneke, on the other hand, is an illustration of the nature of the benefit or privilege enjoyed giving rise to a legitimate expectation. Because an insurer does not set up an insurance business on the basis that it will only last one year, this Court held that, where an insurer had been given approval to conduct an insurance business, there was a legitimate expectation that its approval would be renewed each year unless there was a good reason for refusing it.

16. A legitimate expectation that a person will obtain or continue to enjoy a benefit or privilege must be distinguished, however, from a mere hope that he or she will obtain or continue to enjoy a benefit or privilege. A hope that a statutory power will be exercised so as to confer a benefit or privilege does not give rise to a legitimate expectation sufficient to attract the rules of natural justice: South Australia v. O'Shea [1987] HCA 39; (1987) 163 CLR 378, at p 402. To attract the operation of the rules of procedural fairness, there must be some undertaking or course of conduct acquiesced in by the decision-maker or something about the nature of the benefit or privilege which suggests that, in the absence of some special or unusual circumstance, the person concerned will obtain or continue to enjoy a benefit or privilege.

17. To a person whose conduct attracted the operation of s.12 of the Act, the government's criminal deportation policy gave rise to at least two legitimate expectations of a benefit or privilege. First, that person could legitimately expect that he or she would not be deported under s.12 unless his or her conduct fell within the terms of the policy. Secondly, that person could legitimately expect that a recommendation of the A.A.T. that an order for deportation should be revoked would be followed unless there were "exceptional circumstances and only when strong evidence can be produced to justify" the rejection of the recommendation. These expectations were legitimate because they were founded on a considered statement of policy made by the responsible Minister in Parliament.
The Minister's reasons for not following the recommendation of the A.A.T.

18. In August 1987, the Minister provided reasons for his decision not to accept the recommendation of the A.A.T. The Minister said that he "adopted the findings on material questions of fact made by Deputy President Nicholson". However, he departed from the findings of the A.A.T. in four respects. First, although he accepted that Haoucher's offence did not fall within any of the examples of serious offences in the policy, he "considered the offence to be a serious one in view of the fact that the applicant was able to enter and was willing to enter commerce with dealers of prohibited drugs". Secondly, because of Haoucher's prior criminal record and his failure to heed a departmental warning given to him on 9 June 1981 that he could be deported should he offend again, the Minister considered the risk of recidivism to be "serious" rather than "low". Thirdly, while the Minister accepted that "the centre of (Haoucher's) family life is in Australia" and that he had a "stable and long-standing relationship" with an Australian woman, the Minister "gave weight to the fact that (Haoucher) was willing and able to return to Lebanon in 1978 and 1980". Fourthly, the Minister did not think that Haoucher's contribution to the community was or would be an appreciable one.

19. As I have pointed out, the Minister was not bound either by the findings of fact made by the A.A.T. or by its expressions of opinion: Minister for Immigration and Ethnic Affairs v. Pochi. Moreover, although the Minister departed from the findings of the A.A.T. in respect of four matters, none of them involved a departure from the policy. Whether the four matters to which I have referred constituted findings of fact or expressions of opinion was a matter of much debate in this Court and in the courts below. But the classification of these matters is beside the point. The conclusions of the Minister in respect of the four matters were based on the evidence before the A.A.T. and were within the terms of the policy. The appellant was not entitled to be consulted about them before the Minister rejected the recommendation of the A.A.T. In no relevant sense were they new matters in respect of which the appellant had had no opportunity to be heard. But the Minister's departure from the recommendation itself is in another category.

20. After the recommendation of the A.A.T., the appellant had a legitimate expectation that the Minister would revoke the order for his deportation unless exceptional circumstances existed and strong evidence was produced to justify a decision not to give effect to the recommendation. If exceptional circumstances and strong evidence were alleged to exist, the appellant was entitled to know what was the nature of the material relied upon by the Minister to defeat his legitimate expectation. Rejection of the recommendation of the A.A.T. would result not only in the deportation of the appellant but in the making of a statement in Parliament which would inevitably damage the appellant's reputation. In F.A.I. Insurances Ltd. v. Winneke, this Court held that the insurer was entitled to know what matters were relied on to show that it was not a fit and proper person to have its "licence" renewed. I can see no distinction in principle between that case and the present case.

21. A legitimate expectation of a benefit or privilege is not a right to that benefit or privilege. Consequently, the holder of a legitimate expectation knows or will be held to know that the expectation is liable to be defeated. Nevertheless, as cases like F.A.I. Insurances Ltd. v. Winneke show, he or she is entitled to be informed of the matters which are relied on to defeat his or her expectation.

22. In the present case, the policy expressly spells out the circumstances which are liable to defeat the expectations of a person who has a recommendation from the A.A.T. in his or her favour. Accordingly, the appellant was entitled to know what were the matters which constituted "exceptional circumstances" and "strong evidence".

23. Even with the benefit of the Minister's statement of reasons, it is still not clear what matters he regarded as constituting "exceptional circumstances" or "strong evidence". As Lee J. pointed out in the Full Court, "the Minister appears to have regarded it as an exceptional circumstance that he had formed a view contrary to that of the Tribunal". No doubt the term "exceptional circumstances" is vague. But since the policy declares that recommendations of the A.A.T will be overturned only in exceptional circumstances and only when strong evidence can be produced to justify the Minister's decision, mere disagreement with the findings or recommendation of the A.A.T. does not constitute "exceptional circumstances". The reference in the policy to "exceptional circumstances" and "strong evidence ... produced to justify" a departure from the recommendation of the A.A.T. suggests that the policy contemplated that ordinarily the Minister would not reject a recommendation unless further evidence came into his or her possession. It would be going too far, however, to hold that the Minister will always breach the policy in refusing to follow a recommendation of the A.A.T. unless he or she is in possession of evidence which was not before the A.A.T. The terms of the policy should not be read pedantically. If the critical findings of the A.A.T. were unreasonable, for example, the Minister would be entitled to assert that the case was exceptional and that strong evidence existed to overturn the A.A.T.'s recommendation. In the present case, however, the findings of the A.A.T. were based and reasonably open on the evidence. Whether or not the Minister disagreed with them, they cannot be described as unreasonable. Moreover, it is not easy to see how the four matters to which I have referred constituted "exceptional circumstances" or "strong evidence". In the end, however, it is for the Minister and not for the courts to say whether there were "exceptional circumstances" and "strong evidence" available to justify his decision.

24. Whether or not the appellant could have persuaded the Minister that the recommendation of the A.A.T. should be followed, the doctrine of legitimate expectations entitled him to the opportunity to do so. Accordingly, the appellant was entitled to know what were the matters which constituted "exceptional circumstances" and "strong evidence". The failure of the Minister to provide the appellant with this information and to give him an opportunity to make representations means that his decision to refuse to follow the recommendation of the A.A.T. is void.

25. The appeal must be allowed and the matter remitted to the Minister to be dealt with according to law.

ORDER

Appeal allowed with costs.

Order that the judgment of the Full Court of the Federal Court be set aside and in lieu thereof it be ordered:

(1) That the appeal to that court be allowed with costs.
(2) That the judgment of Forster J. be set aside and that
in lieu thereof the application be allowed with costs
and the matter referred to the respondent to be dealt
with in accordance with the judgment of this Court.