FEDERAL COURT OF AUSTRALIA

Firlayis v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 725

MIGRATION – cancellation of Resident Return visa under s 501 of the Migration Act 1958 (Cth) – whether denial of natural justice

Federal Court Rules Order 51A r 5

Migration Act 1958 (Cth) s 499, 501, 501A, 501(2), 501(6), 501(7), 501G

Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82

South Australia v O’Shea (1987) 163 CLR 378

Local Government Board v Arlidge [1915] AC 120

ALI FIRLAYIS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 371 OF 2003

HELY J

17 JULY 2003

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     On 18 December 2002 the applicant instituted proceedings in the High Court of Australia by means of an application for an order nisi seeking an order quashing the Minister’s decision made on 15 October 2002 to cancel the applicant’s permanent residence visa and an injunction restraining the applicant’s removal from Australia.  In fact, the decision to cancel the applicant’s visa was made on 24 October 2002.

2                     On 6 February 2003 Gaudron J ordered that further proceedings in the application be remitted to the Federal Court of Australia.  When an application for an order nisi is remitted to this Court, the normal procedure is for the Court to hear the parties as if on an application for final relief: Order 51A r 5.  Neither party sought any departure from that procedure.

3                     The applicant was born in Turkey on 15 March 1966, and first arrived in Australia on 29 November 1978 with his parents, when he was 12 years old.  Apart from three short absences on holidays, he has been in Australia ever since.  His most recent visa was a “Resident Return” visa, which was granted to him on 15 March 2001.  The applicant has been convicted of many offences.  Most are of a relatively minor nature, but his convictions include cultivation of prohibited plants in a commercial quantity (for which he was sentenced to three years four months imprisonment on 26 November 1993), larceny and obtaining money by deception (for which he received several sentences of six months imprisonment on 3 May 2002).

4                     On 13 September 2002 a departmental officer gave to the applicant a Notice of Intention to Consider Cancelling a Visa under subs 501(2) of the Migration Act 1958 (Cth) (‘the Act’).  The notice was given to the applicant whilst he was in Long Bay Correctional Centre.  The notice incorrectly asserted that the applicant was currently the holder of a Permanent (Transitional) visa.  The notice continued:

‘It has come to the attention of the Department that this visa may be liable for cancellation under section 501 of the Migration Act 1958 (the Act).  The relevant grounds are:

·                    Subparagraph 501(6)(a) – Substantial criminal history

·                    Subparagraph 501(6)(c)(i) – Past and present criminal conduct

I have attached the full text of section 501 for your information.

The Minister has advised that he will be personally making the decision whether to cancel your visa under subsection 501(2).  This will mean that should the decision be to cancel your visa, you will not be entitled to have this decision reviewed by the Administrative Appeals Tribunal (AAT).

Before the Minister considers whether to cancel your visa under subsection 501(2), you are provided with an opportunity to comment.  Matters to be taken into account include the following:

·                    Your criminal history.  A copy is attached for your information.

·                    The Judge’s comments

·                    Sentence Administration report.  A copy is attached for your information.

In reaching a decision whether to cancel the visa the Minister will have regard to the matters noted above and the attached Minister’s Direction No 21 titled “Direction under Section 499 – Visa Refusal and Cancellation under Section 501 Migration Act 1958”.  I have included a copy of this direction.

In preparing your comments please read fully and carefully the contents of the Minister’s Direction.  You should address each and every topic that you feel applies to you and is relevant to your circumstances.

I have attached a standard questionnaire that you may wish to use as a guide in providing your response.  You may also wish to provide any further information in written form that you feel the Minister ought to be aware of and take into account.

If you and/or anyone who wish to provide comments and information that you feel the Minister ought to be aware of and take into account, please provide them to this office by mail or facsimile no later than 4 October 2002.

If you do not respond by the above date, a decision will be made on whether your visa will be cancelled using information already held by the Department.

Please also sign on the attached Receipt Confirmation to acknowledge the receipt of this letter and the attachments.  You may wish to send in your questionnaire, the Receipt Confirmation and your other comments using the self-addressed envelope.’

5                     The applicant signed a Receipt Confirmation in which he acknowledged the receipt of the following documents sent by the Department of Immigration & Multicultural & Indigenous Affairs (‘DIMA’) on 13 September 2002:

·                    Notice of Intention to Consider Cancelling a Visa under Subsection 501(2) of the Migration Act;

·                    the section 499 Minister’s Direction No. 21;

·                    my criminal history;

·                    my sentence administration report;

·                    full text of section 501 of the Migration Act 1958; and

·                    a standard questionnaire.

6                     A second Notice of Intention to Consider Cancelling a Visa under Subsection 501(2) of the Act was sent to the applicant on 24 September 2002.  This notice correctly described the applicant as currently the holder of a Resident Return visa.  Otherwise, the letter was in the same terms as the letter of 13 September 2002 including the recitation of documents said to be attached or included.

7                     The applicant signed a receipt confirmation acknowledging the receipt of the following documents sent by DIMA on 24 September 2002:

·                    Notice of Intention to Consider Cancelling a Visa under Subsection 501(2) of the Migration Act; and

·                    the full text of s 501 of the Migration Act 1958. 

The inference that I draw is that although the letter of 24 September 2002 stated that various documents were sent with it, DIMA did not forward a second copy of documents sent under cover of the letter of 13 September 2002 other than the full text of s 501 of the Migration Act.

8                     The Receipt Confirmation in relation to the documents forwarded on 13 September 2002 is dated 24 September 2002.  On 3 October 2002 a welfare officer at the Long Bay Correctional Complex forwarded various documents to DIMA.  The documents sent included the Receipt Confirmations in relation to the documents sent by DIMA both on 13 September 2002 and on 24 September 2002.  They also included the completed standard questionnaire which was forwarded to the applicant on 13 September 2002.  The applicant signed the questionnaire and dated it 2 October 2002.  The inference which I draw from this transmission is that the applicant still had the documents sent to him on 13 September 2002 when the amended notice was sent to him on 24 September 2002. 

9                     Thereafter, and apparently on 24 October 2002, DIMA provided a document entitled ‘Issues for Consideration of Possible Cancellation of Resident Return Visa under s 501(2) of the Migration Act 1958’ (‘the Issues Paper’) to the Minister.  The Issues Paper described its purpose as being to seek the Minister’s decision on:

·                    whether the applicant passes the character test in s 501(6) of the Act; and

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

10                  On 24 October 2002 the Minister decided to exercise his discretion under subs 501(2) of the Act to cancel the applicant’s visa, and did so.

11                  Well after the institution of these proceedings, the Minister provided a statement of reasons dated 4 July 2003 pursuant to s 501G of the Act.  It is apparent from a consideration of that statement that the Minister took into account in reaching his decision the matters referred to in the s 499 Minister’s Direction.  Those matters included the seriousness and nature of the conduct and the expectations of the Australian community.  Under the heading ‘Expectations of Australian Community’ in the Statement of Reasons the following appears:

‘19.      I also gave primary consideration to the expectations of the Australian community.  In accordance with the Government’s view that is expressed in the Direction, I considered that the Australian community expects non-citizens to obey Australian laws while in Australia.

20.       I also accepted, however, that the Australian community may have some compassion for Mr Firlayis’ situation.  Mr Firlayis had entered Australia as a 12 year old and had resided in Australia since that time.

21.       In view of Mr Firlayis’pattern of criminal offending and the seriousness of those offences, I believed that the Australian community would expect Mr Firlayis’visa to be cancelled and for him to be removed from Australia.  I found thatMr Firlayis’criminal conduct was of a most serious nature.  The nature of his conduct was such that I gave this consideration great weight.’

12                  Under the heading ‘The Best Interests of the Children’ the following appears:

‘22.      I gave primary consideration to the best interest of the children in line with article 3.1 of the Convention on the Rights of the Child (CROC).  I noted that Mr Firlayisis the father of three children, [1] DOB: 28.08.1988, [2] DOB: 26.12.1992, and [3] DOB: 30.09.1997.

23.       When making my decision to cancel Mr Firlayis’visa I also gave consideration to the fact that Mr Firlayis’children are all Australian citizens, the possible impact of Mr Firlayis’prior conduct on the children, and any possible hardships that may be faced by the children if Mr Firlayiswere to leave Australia.  I also gave consideration to any hardships which might be faced by the children if they were to be removed to Turkey.  I found that the cancellation of Mr Firlayis’visa and his removal from Australia would not be in the best interests of his children.  I also found that it would not be in the best interest of the children should they be removed to Turkey.

24.       I also noted Mr Firlayis’statement, at page 12 of the issues paper, Attachment B, that his children would be adversely affected by a decision to cancel his visa.  I gave this consideration significant weight.’

13                  Under the heading ‘Other Considerations’ the following appears:

‘25.      In reaching my decision to cancel Mr Firlayis’visa I also took into account other considerations and in particular Mr Firlayis’wife, Meryen Firlayis, and family.

26.       I accepted that it would be difficult for Mr Firlayis’family if Mr Firlayis was removed from Australia.  I also accepted that there would be further difficulties if part or all of Mr Firlayis’immediate family moved to Turkey to be with him.  I noted his statement regarding his wife and his desire to reconcile the marriage.  I accepted that Mrs Meryen Firlayis and Mr Firlayis’three children would experience significant and on-going hardship as a result of a decision to cancel Mr Firlayis’visa.  I gave this considerable weight when making my decision.’

14                  The Minister concluded that the nature and seriousness of the applicant’s crimes, the disruption these crimes had caused others, the expectations of the Australian community and the need to protect the Australian community from such conduct, outweighed all of the other considerations referred to in the reasons for decision.

15                  On 1 July 2003 the applicant filed an amended application.  Grounds 1 and 2 of that application were expressly abandoned when the matter was called on for hearing.  Ground 3 is as follows:

‘3.        The respondent denied the applicant natural justice as the respondent did not provide the applicant with the opportunity to address matters taken into account by the respondent but adverse to the applicant.

            Particulars

            Document entitled “Issues for Consideration of Possible Cancellation of Resident Return Visa under s 501(2) of the Migration Act 1958” [RD 53]

            Document styled “Questionnaire” and addressed by the applicant at the invitation of the respondent’  [RD 42]

I gave leave to the applicant to further amend the amended application by adding a further ground.  That ground is as follows:

‘4.        The respondent failed, or constructively failed, to attain and/or to exercise jurisdiction.

            Particulars

            Paras 19-21 of Statement of Reasons

            El Boujaidi v France (2000) 30 EHRR 223

            Mehemi v France (2000) 30 EHRR 739’

Natural justice

16                  Counsel for the applicant, Mr Killalea, submits that I should conclude that the applicant did not have before him in relation to the cancellation of the Residents Return visa the Minister’s Direction No 21.  As a result he did not have the opportunity of addressing the matters referred to in that direction, and in particular the matters considered by the Minister under the heading ‘Expectations of Australian Community’.  Had the applicant known that the Minister proposed to consider these matters, the applicant would have had the opportunity of drawing to his attention the decisions of the European Court of Human Rights particularised in relation to ground 4.

17                  Had the applicant known that the Minister proposed to take into account the seriousness of the offences which he had committed, the applicant would have had the opportunity of drawing to the Minister’s attention the circumstances in which the offences of obtaining money by deception and larceny were committed.  Those circumstances were that the applicant used his parents’ Westpac Handycard and pin number to withdraw money from the parents’ bank account.  It would not have been apparent to the Minister, from the material put in front of him, that the offences consisted of taking money without permission from his parents’ account.

18                  No direct evidence was forthcoming from the applicant that he did not have before him a copy of Direction No 21 when considering his response to the Notice of Intention to Consider Cancelling the Resident Return visa.  The notice sent to the applicant on 24 September 2002 states, in terms, that in reaching a decision whether to cancel the visa the Minister will have regard to Direction No 21.  The applicant was invited to read fully and carefully the contents of the Minister’s Direction.  He was instructed to address each and every topic that he felt applied to him and which was relevant to his circumstances.  The inference which I draw from the materials referred to above is that at the time of preparing his response to the notice of 24 September 2002, the applicant did have the copy of Ministerial Direction No 21 which had been sent to him under cover of the letter of 13 September 2002.  I am able to draw that inference with all the more confidence by reason of the failure on the part of the applicant to adduce any specific evidence on the point.

19                  Paragraph 2.12 of the Ministerial Direction states under the heading ‘Expectations of the Australian Community’ as follows:

‘2.12    The Australian community expects non-citizens to obey Australian laws while in Australia.  Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person.  Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.  Decision-makers should have due regard to the Government’s views in this respect.’

Thus the applicant was on notice that this was an issue which the Minister would take into consideration.

20                  In Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82at par [101] McHugh J said:

‘One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided.  It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.’ [164]

21                  The Ministerial Direction also makes it plain that primary considerations to be taken into account include the protection of the Australian community as well as the seriousness and nature of the conduct in question.  The letter of 24 September 2002 specifically notified the applicant that matters to be taken into account included his criminal history.  The applicant was warned that the Minister would take into account the seriousness of the offences which the applicant had committed, and, in any event, it was necessarily inherent in the issue that the Minister was deciding that the seriousness of the offences would be the subject of consideration.

22                  Finally, on the issue of natural justice, the applicant submitted that the failure to provide him with the Issues Paper constituted a denial of natural justice.  Except in one minor respect to which I will return, it was not submitted that the Issues Paper was in any sense inaccurate or deficient.  One of the attachments to it was the completed questionnaire provided by the applicant giving his reasons why his visa should not be cancelled.  Where (as here) there is a single process involving the gathering and consideration of material by officers, the preparation of a report summarising that material, and a decision based on that report by the Minister, the issue is whether the process as a whole is fair.  Fairness is achieved if an affected person has had a proper opportunity to make submissions on all relevant issues at the report writing stage: South Australia v O’Shea (1987) 163 CLR 378.  The applicant had that opportunity.

23                  The one minor respect in which the Issues Paper was said to be inaccurate or deficient is that par [18] of the Issues Paper states:

‘In his submission to the Department dated 2 October 2002 [the applicant] did not acknowledge that he has a substantial criminal history but added:

            “I take responsibility for the crimes I had committed.  I have done the wrong thing.”’

24                  The questionnaire sent to the applicant under cover of the letter of 13 September 2002 enquired whether the applicant agreed that he had a ‘substantial criminal history’ in terms of s 501(7) of the Act.  Provision was made for that question to be answered either yes or no, but the applicant did not delete either alternative.  In fact, s 501(7) of the Act refers to the applicant’s substantial criminal record, hence whilst the Issues Paper correctly reflects the questionnaire, the questionnaire misquoted the provisions of s 501(7).  In my view, this is an utterly immaterial misquotation.

25                  In the ordinary case, where the decision-maker acts on the basis of a report by a subordinate, natural justice does not require that an interested person be given a copy of the report and an opportunity to comment on it: Local Government Board v Arlidge [1915] AC 120.  The issues is whether fairness was accorded to him at the report writing stage.  In my view, it was.

Constructive failure to exercise jurisdiction

26                  The applicant’s complaint is that when considering the expectations of the Australian community, the Minister engaged in an incomplete balancing exercise.  He did not take account of the fact that the Australian community may have compassion for the applicant’s situation having regard to the position of his family.  The Minister should have assessed the expectation of the Australian community against the whole of the applicant’s private interest, including the position of his family.

27                  There is no substance in this complaint.  That is essentially for three reasons.  First, it is clear that the Minister had in mind the best interests of the applicant’s children and his family situation as he referred to them under other headings which I have quoted.  Second, par 2.12 of the Ministerial Direction specifies what the interests of the Australian community are, and requires the interest so identified to be taken into account along with other considerations.  Third, there is nothing in the statute which obliges the Minister to take into account the expectations of the Australian community.  It is not a matter which the Minister is required by law to take into account.  It therefore follows that even if the Minister failed properly to address the question, that would not give rise to a jurisdictional error.

28                  The application should be dismissed with costs.

Associate:

Dated:              17 July 2003