Drake V. Minister for Immigration and Ethnic Affairs1
| Published date | 01 March 1980 |
| Date | 01 March 1980 |
| DOI | 10.1177/0067205X8001100105 |
| Author | A. Robertson |
| Subject Matter | Case Notes |
•
CASE NOTES
DRAKE
v.
MINISTER
FOR
IMMIGRATION AND ETHNIC
AFFAIRSl
Administrative law -Administrative Appeals Tribunal -Function
of
Tribunal in relation to ministerial policy -Application
of
ministerial
policy -Administrative Appeals Tribunal
Act
1975 (Cth)
Background
Daniel Dwight Drake came to Australia from the United States of
America in 1968 and in 1974 was granted permanent resident status.
On 3January 1978 he was convicted in the Court of Summary Jurisdic-
tion in Darwin on three charges relating to marijuana.
For
the offence
of possessing cannabis at Wollogorang between 28 September 1977 and
9December 1977 Drake
was
fined $400 and sentenced to 12 months'
imprisonment to be released after 3months or on his entering int'? a
recognisance of $200 to be of good behaviour for 2years.
On 1April 1978 he was released from prison. On
21
April 1978 the
Minister for Immigration and Ethnic Affairs made an order that Drake
be deported from Australia.2
Drake applied to the Administrative Appeals Tribunal to review
the decision of the Minister.3Mr Justice Davies, then aDeputy President
of the Tribunal, affirmed the Minister's decision on 10 November 1978.4
Pursuant to section 44 of the Administrative Appeals Tribunal Act
1975
(Cth),
Drake then appealed to the Federal Court of Australia
from the decision of the Administrative Appeals Tribuna1.5The appeal
was allowed on 3May 1979 and the matter remitted for arehearing.
On the rehearing the Tribunal was constituted by the then President
Mr Justice Brennan who, on
21
November 1979, affirmed the decision
of the Minister that Drake be deported from Australia.6
The decision
of
the Federal Court
In
appealing to the Federal Court, Drake founded his attack on the
decision of the Tribunal on four distinct heads. Only the fourth, on
1(1979) 2Administrative Law Decisions (A.L.D.) 60; (1979) 24 A.L.R. 577.
Federal Court
of
Australia; Bowen C.J., Smithers and Deane JJ. This case is also
discussed by
Dr
Pearce in "Courts Tribunals and Government Policy" infra p. 203.
2S. 12
of
the Migration Act 1958 (Cth) provides that: "Where
...
an
alien
...
has been convicted in Australia of any
...
offence for which he has been sentenced
to imprisonment for one year
or
longer, the Minister may
...
order the deportation
of
that alien".
3Administrative Appeals Tribunal Act 1975
(Cth),
s.
2S
and Part XXII
of
the
Schedule.
4
Re
Drake and Minister for Immigration and Ethnic Affairs (1978) 2Adminis-
trative Law Notes (A.L.N.)
No.4
.
5(1979) 24 A.L.R. 577.
6
Re
Drake and the Minister for Immigration and Ethnic Affairs
(No.2)
unreported decision No. 78/10017,21 November 1979.
93
To continue reading
Request your trial