Minister for Immigration & Ethnic Affairs v Pochi (1980) 31 ALR 666

You are here:
< Back

Facts

  • Mr Pochi had lived in Australia for more than two decades, but had not attained citizenship. Instead, he was a citizen of his native Italy.
  • Mr Pochi was involved in some kind of drug operation and convicted of cultivation offences that resulted in a 2 year jail sentence.
  • Overall, the criminal case against him had found he was a “labourer” rather than a ringleader of the drug trade.
  • After he was released from prison, the Minister moved for him to be deported.
  • In the hearing before the tribunal, additional evidence was tendered than what had been allowed at the criminal trial. This included the fact that Mr Pochi had made a $117,000 investment in a winery (despite having limited income) and additional hearsay evidence that was presented to Mr Pochi’s counsel but not Mr Pochi himself. The implication was that Mr Pochi was a bigger player than the criminal trial has found.
  • The Tribunal held that they did not think that the evidence presented was sufficient to deport Mr Pochi. In particular, three principles were stated (that later formed the basis for the appeal):
    • In general, for a person to be deported, their alleged conduct must be proved, not just suspected.
    • If the non-citizen is not allowed to hear a piece of evidence against them and respond fully, that evidence must be particularly probative to be allowed
    • Hearsay evidence is not as cogent and non-hearsay evidence.
  • The Minister appealed, saying these comments showed the Tribunal had made an error in applying these principles of law, as they were not principles of law that the tribunal was bound by.

Issue

  • What standard of evidence was required by the Tribunal?

Held

  • Deane J (with Evatt J agreeing), held that the Tribunal was not actually saying that they were principles of law, but more “general principles of common sense”. While a Tribunal is not bound by precedent, it is preferable that there is consistency so of course there will be uniformity in how the tribunal acts.
  • That said, Deane J stated he did feel that the first point (“alleged conduct must be proved, not just suspected”) was actually a principle of law, as it was what was stated in the Act.
  • They held that the Tribunal was also bound by natural justice, and that natural justice was flexible to respond to the facts. A terrorist imminently threatening life may be subject to less “fairness” than a low-level drug dealer.
  • In this case, the Court held that Tribunal had not erred in law, and that it had reasonably applied standards of natural justice in reaching a decision.
  • Essentially – while a Tribunal is less formal than a Court, and can be more flexible in applying rules of evidence, balance of probabilities, etc, it cannot do so to the point where natural justice goes out of the window and the decision is not rational.
  • The Minister’s appeal was dismissed and Mr Pochi was entitled to stay.

Quotes

  • “On such a review, the Tribunal is not bound by the rules of evidence or procedure applicable in courts of law (s. 33). It is, however, under a duty to observe the requirements of natural justice.”
  • “the precise content of those rules [of natural justice] will vary according to the statutory framework of the particular proceedings and the particular circumstances of the individual case.” [18]

Full text


-- Download Minister for Immigration & Ethnic Affairs v Pochi (1980) 31 ALR 666 as PDF --


FavoriteLoadingSave this case