FEDERAL COURT OF AUSTRALIA

Ayan v Minister for Immigration & Multicultural Affairs [2002] FCA 470

TAYFUN AYAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 21 OF 2002

EMMETT J

8 APRIL 2002

SYDNEY

THE COURT ORDERS THAT:

1.         the application be dismissed; and

2.         the applicant pay the respondent’s costs of the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant is a citizen of Turkey.  He first came to Australia on 21 August 1976, having been born in Turkey on 27 February 1976.  He was therefore only several months old at the time of his first arrival in Australia.  As at December 2001, the applicant was the holder of a resident return visa under the Migration Act 1958 (Cth)(“the Act”).  On 5 December 2001, the respondent, the Minister for Immigration & Multicultural Affairs (“the Minister”), cancelled the visa.

2                     By application filed in this Court on 9 January 2002, the applicant seeks relief under s 39B of the Judiciary Act 1903 (Cth), quashing the Minister’s decision to cancel his visa.  The Minister acted under s 501 of the Migration Act.  Section 501(2) relevantly provides as follows:

“The Minister may cancel a visa that has been granted to a person if:

(a)       the Minister reasonably suspects that the person does not pass the character test; and

(b)       the person does not satisfy the Minister that the person passes the character test.”

3                     Under s 501(6)(a) person does not pass the character test if the person has a substantial criminal record as defined in section 501(7).  Under s 501(7)(c), for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of twelve months or more.”

4                     It is common ground that the applicant has failed to satisfy the Minister that he passes the character test.  The only question was the exercise by the Minister of his discretion, under s 501(2), to cancel a visa, having reasonably suspected that the applicant does not pass the character and the applicant not having the satisfied the Minister that he does pass the character test. 

5                     The applicant contends in support of his application for prerogative relief under s 39B of the Judiciary Act, that the decision was subject to jurisdictional error and that such error will attract an order of certiorariunder s 39B of the Judiciary Act to quash the decision.  The Minister, on the other hand, apart from disputing that there was any error in the decision, relies on the provisions of s 474 of the Migration Act as a basis for resisting any relief. 

6                     It is common ground that the Minister’s decision is a “privative clause decision” as that term is defined at s 474(2) of the Act.  Under s 474(1), a privative clause decision:

“(a)     is final and conclusive;

  (b)     must not be challenged, appealed against, reviewed, quashed or called in question in any court, and

  (c)      is not subject to prohibition, mandamus injunction, declaration of certiorari in any court on any account.”

            Nevertheless, it is accepted by the Minister that a decision may well be subject to challenge if:

·        it is not a bona fide attempt to exercise power by the decision maker;

·        it does not relate to the subject matter of the legislation conferring the power; or

·        it is not reasonably capable of reference to the power given to the decision maker.

If none of those prerequisites is satisfied however, a provision such as s 474 will be interpreted as meaning that no decision in fact given by a relevant decision maker will be invalidated on the ground that the decision maker has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the provision giving it authority.

7                     So much follows from the decision of the High Court of Australia in The King v Hickman & Ors; Ex parte Fox (1945) 70 CLR 598 at 615-616 (“Hickman’s case”).  A course of subsequent decisions has established that Hickman’s Case is authoritative and exhaustive (see NAAX v The Minister [2002] FCA 263, paragraph [36]).

8                     The applicant contended that jurisdictional error of the kind said to have taken place in the present case gives rise to a conclusion that the decision was made otherwise than bona fide. However, an allegation that a decision-maker acted otherwise than bona fide is a serious allegation and not one to be lightly made (see Kordan Pty Limited v Federal Commission of Taxation [2000] FCA 1807, para [4]).  Proof of bad faith within the meaning of the exception contemplated by Hickman’s case, necessitates proof of extreme circumstances.  It is not enough that the court conclude that the decision-maker had merely made an error.  (See Dan v Federal Commission of Taxation, No 2 [2000] FCA 752 at 34). 

9                     Thus, for the applicant to succeed on the contention advanced, it is necessary to examine the decision making process, insofar as it is before the court, in order to determine whether it could be said that the Minister's decision was not a bona fide attempt to exercise the power conferred upon him by section 501.  It has not been contended by the applicant that the decision did not relate to the subject matter of the Migration Act.  Nor was it contended that the decision of the Minister was not reasonably capable of reference to the power given to him under s 501. 

10                  The decision of the Minister is recorded at the end of a document of eighteen pages addressed to the Minister.  The document might be described as a “briefing paper”.  The document begins with reference to the applicant and his date of birth.  The purpose of the briefing paper is expressed as follows:

“To seek your decision on:

·        whether [the applicant] passes the character test in section 501(6) of the Migration Act:

·        if not, whether his visa should be cancelled pursuant to section 501(2) of the Migration Act.”

Personal details are then set out, including the date and place of the applicant’s birth, his date of first entry into Australia and his absences from Australia for periods of approximately three months in 1989 and 1997. 

11                  After referring the grounds that give rise to the exercise of discretion under s 501(2), the briefing paper contains the following paragraph under the heading “Discretion”:

“If you are satisfied that Mr Ayan does not pass the character test, you must consider the exercise of your discretion to decide whether Mr Ayan should be permitted to remain in Australia.  Section 501 of the Migration Act 1958 provides you with the discretion to cancel a visa.  You have issued directions under section 499 to guide delegates and the AAT in the exercise of that discretion.  It is clear from a number of decisions of the Federal Court that when you decide a case personally, you are not bound by your section 499 directions.  In making a decision on this case, it is open to you to be guided by the factors set out in the direction.  However, in balancing the relevant factors in this case, you are free to place whatever weight you regard as appropriate on those factors.”

12                  Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under the Act, if the directions are about the performance of those functions or the exercise of those powers.  The Minister has, in fact, given written directions pursuant to that provision for the exercise of the power to refuse or cancel visas under s 501 of the Act.  The preamble to the relevant direction (“the Direction”) provides as follows:

“In exercising this power the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.”

13                  The Direction contains a preliminary statement as follows:

“This direction consists of two parts, part 1 provides directions and the application of the character test.  Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the character test .  If the non-citizen does not pass the character test, decision-makers are to exercise the discretion to consider whether to refuse or cancel a visa taking into account primary and other considerations.  Part 2 provides directions on what these considerations are and the weight to be given to them.”

14                  For present purposes only part 2 has any relevance.  Part 2, headed “EXERCISING THE DISCRETION”, begins as follows:

“2.1     If a non-citizen does not pass the character test the decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.”

15                  Under a sub-heading “Weight of considerations”, the following is stated:

“The government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa.  In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations.   Decision-makers must have due regard to the importance placed by the Government on the three primary considerations.  That should also adopt a balancing process which takes into account all relevant considerations.”

16                  The primary considerations are set out in clause 2.3 of the Direction being:

“The protection of the Australian community, the expectations of the Australian community and in cases involving a parental or other close relationship between child or children, the person under consideration, the best interests of the child or children.”

17                  In addition to the primary considerations, the Direction refers to “other considerations” and provides as follows in clause 2.17:

“When considering the issue of visa refusal or cancellation, other matters although not primary considerations may be relevant.  It is the Government’s view that where relevant it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations.”

The Direction then states that the other considerations may include:

“(a)     the extension of disruption to the non-citizen's family, business and other ties to the Australian community.”

There are ten other considerations referred to specifically, which do not have any present relevance.

18                  The briefing paper deals with each of the three primary considerations under headings that correspond with headings in the Direction.  The briefing paper then, under the heading “Other Considerations”, refers to paragraph 2.17 of the Direction and notes that it is the Government’s view that where relevant it is appropriate to take into account other considerations.  The briefing paper then goes on to refer to the applicant's circumstances and comments that were made on his behalf by his parents and comments made by the applicant himself.  The briefing paper the sets out the following:

“[40]  Mr Ayan arrived in Australia when he was 5 months old.  He has spent his formative years here.

 [41]   He has stated that his entire family resides in Australia.  He has no one in Turkey.  He appears to have strong family support in Australia.  He believes that if he were to be removed from Australia, it would affect his mother most.

He further stated in his interview that:

‘…back in Turkey will set his life backwards.  He loves Australia, grown up here.  Never realised the meaning of living in the best country till he visited Turkey.  Wants to make it up to the community.’

In relation to returning to Turkey he further stated that:

‘…Turkey makes gaol look like a preschool.  Turkey is a nice country if you have money but he’s not rich, would be a nightmare.

Would prefer to have a bullet in the head’.

…

 [42]    In Mr Ayan’s additional comments, he put forward the following:

‘-          I don’t(sic) know how to speak the Turkish language.  English is my first and only language I can speak.

-           I don’t(sic) known(sic) how to read or write in Turkish.

-           I or my parents don’t(sic) have Any Friends or family in Turkey because they all migrated here over 20 years ago.

-           I don’t(sic) have anywhere to live or stay in Turkey…

-           I don’t(sic) have any money, assets, or property assist me if I was to be deported.

-           There is no social security, medicare, welfare or department of housing commission or any kind of government assistance of any kind.  I have no medical insurance or money to pay for treatment of my (words unclear) Hepitatise(sic) C if I was to be deported to Turkey.’

 [43]    In Mr Ayan’s mother latest comments, she stated:

‘I have been suffering from depression as a result of years of buildup and arising from my children’s misfortunes.  I have found life unbearable since Tayfun has been imprisoned.  I travelled to Turkey in August 2001, in the hope that my worries would be alleviated… they are in a state of despair as a consequence of the economic crisis and worsened conditions.  Unemployment and poverty would await my son Tayfun Ayan.  As I feel that my son may get worse in Turkey and may be pushed outside the law, I am returning to Australia.’

…

 [44]    Mr Ayan’s parents have both stated that they would be devastated if their son was to have his visa cancelled and be returned to Turkey.  They confirm that he has no family in Turkey to assist him, and have proposed a number of support options to assist their son in the rehabilitation process upon release.

Both have pleaded with the Department to allow their son to remain in Australia.

…”

19                  In addition, under the heading “The Expectations of the Australian Community”, the briefing paper also cited a submission made on behalf of the applicant by his legal representative in the following terms:

“Whereas the Australian community expects non-citizens to respect the laws of Australia, I also expect in my submission that “Australians” will be able to remain in Australia.  Mr Ayan came here when he was six months old, he grew up and is a product of Australia’s society.  He has not imported problems here.  His are local problems which demand a local solution.  It is not solution to the problems of Australia or Mr Ayan to cancel his visa.”

20                  In the final page of the briefing paper, under the heading “Minister’s Decision on Cancellation under section 501(2)”, the following appears:

“I have considered all relevant matters including (1) an assessment of the character test as defined by section 501(6) of the Migration Act 1958, (2) my direction under section 499 of that Act; and Mr Ayan’s comments and have decided that…I reasonably suspect that Mr Ayan does not pass the character test and Mr Ayan has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, So I hereby cancel the visa.”

The final page was signed by the Minister and dated 5 December 2001.

21                  The applicant contends that, in the light of that material, it is possible to identify two jurisdictional errors on the part of the Minister.  First, the briefing paper, including the final page, contain no express statement on the part of the author of the document or the Minister that the Minister should give or had given particular weight to any of the considerations mentioned in the briefing paper.  The applicant contends that, in the absence of any reference to carrying out a weighing exercise by the Minister, an inference should be drawn that no such exercise had been carried out. 

22                  Reliance was placed by the applicant on the provisions of s 501G of the Act.  Section 501G(1)(e) provides that, if a decision is made under s 501(2) to cancel a visa that has been granted to a person, the Minister must give the person a written notice that sets out the reasons for the decision.  It is common ground that no notice has been given to the applicant other than a letter containing a copy of the briefing paper including the final page.  The applicant contends, therefore, that the Court should conclude that the only reasons of the Minister for his decision are to be found in the briefing paper, including its final page.  The applicant says that, in those circumstances, in the absence of any express statement that the Minister weighed various considerations, the Court should conclude that the Minister failed to weigh the various considerations. 

23                  Secondly, the applicant draws attention to a number of paragraphs in the briefing paper as follows:

“18.     On the basis of Mr Ayan’s criminal history it is open to you to find that his conduct against the community is serious.

………………………

 21.      In assessing Mr Ayan’s risk of recidivism, it is open for you to take the following issues into account:

………………………

 30.      In consideration of the above factors it is open for you to find that Mr Ayan is at a low to medium risk of recidivism.

………………………

 33.      The offences committed by Mr Ayan were property related.  It is open for you to find that cancellation of Mr Ayan’s visa would serve as a deterrence factor against others committing similar offences.  The government has a strong interest in deterring others from committing offences of this nature.

………………………

 36.      The offences committed by Mr Ayan are considered by the government to be very serious.  The Australian community expects non-citizens to obey Australian laws while in Australia and therefore it is open for you to find that the character concerns or offence are such that the Australian community may expect that Mr Ayan should be removed from Australia.

………………………

 47.      It is open to you to find from the information given that the cancellation of Mr Ayan’s visa and his removal from Australia may have a detriment effect on his family.”

24                  The applicant contends that each of those statements could be treated as a finding made by the Minister for the purposes of his decision.  There is, however, no paragraph referring to the proposition that it was open the Minister to have regard to the fact that the applicant arrived in Australia when he was five months old, has spent his formative years in Australia, has become totally absorbed into the Australian community and, apart from not being an Australian citizen, is in all other respects “Australian”. 

25                  The absence of such a reference to those considerations is said to give rise to an inference that the Minister failed to have regard to those considerations in making his decision.  Assuming for the moment that those propositions are established, namely that the Minister did not engage in an appropriate weighing exercise and that he failed to have regard to those considerations as relevant considerations, the first question is whether that of itself could be said to be the making of a decision that was not a bona fide attempt to exercise the power conferred by s 501.

26                  Even if there were errors of the nature described, I do not consider that those errors lead to the conclusion that there was no bona fide attempt by the Minister to exercise his power.  The proof of bad faith, as I have said, necessitates proof of extreme circumstances.  Mere error is not sufficient to justify a finding of bad faith or an absence of bona fides.  For that reason alone I do not accept that the applicant has demonstrated a ground for avoiding the operation of s 474 of the Act. 

27                  However, in any event, I do not consider that the briefing paper evidences any error on the part of the Minister of the kind contended for on behalf of the applicant.  As I have said, the briefing paper begins with a reference to the Direction.  It refers expressly to a “balancing process” in respect of all relevant considerations.  Quite apart from the consideration that the Minister is not bound to apply the Direction, there is every reason to conclude from the material before me that the Minister did engage in a balancing process or weighing exercise in making his decision.

28                  In the absence of any statutory indication of the weight to be given to various considerations it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters that are required to be taken into account in exercising a statutory power - see Minister of Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24 at 41.  The matters that are to be taken into account by the Minister and the weight to be given to them are matters for the Minister in the absence of any statutory indication to the contrary. 

29                  Further, the express reference in the briefing paper to the matters relied on by the applicant leads to a clear inference, in my view, that the Minister had regard to those matters.  The briefing paper contains the Minister's initials at the beginning and his signature at the end.  The Minister having said that he considered all relevant matters, an inference should be drawn that he read the briefing paper and that he had regard to the contents of the briefing paper.  I consider the inference should be drawn that the Minister did have regard to the possible consequences to the applicant of his being removed from Australia in circumstances where he had spent virtually the whole of his life in Australia, including all of his formative years.

30                  The applicant himself, and his comments that are reproduced in the briefing paper, said that he did not know how to speak the Turkish language and that English is his first and only language.  The briefing paper refers to the fact that neither the applicant nor his parents have any friends or family in Turkey because they all migrated to Australia over twenty years ago.  It refers to the fact that the applicant has nowhere to live or stay in Turkey and that no social security, medicare or welfare benefits would be available to him in Turkey. 

31                  All those factors may well be powerful reasons why the Minister might have come to a different conclusion.  It is, however, not for the Court to express any view as to whether the Minister’s decision was right or wrong.  The only function of the Court is to determine whether the Minister acted in accordance with the law.  I am not persuaded that there was any relevant error on the part of the Minister of the kind asserted on behalf of the applicant.  It follows therefore that, even if it were open to the applicant to call the Minister's decision into question, notwithstanding the provisions of s 474, the application would fail.  I consider the application should be dismissed. 

Associate:

Dated:              15 April 2002