Ayan v Minister for Immigration and Multicultural and Indigenous Affairs

Federal Court of Australia (Full Court)|2003-02-14|Before: Jacobson JJ, Allsop J

1 The facts and the procedural history of this case have been set out fully by Allsop J. The circumstances of the case make it impossible not to feel sympathy for the appellant and his family. Whatever view one takes of the appellant's criminal conduct, it might be thought difficult to resist the proposition that in every respect, except citizenship, he is an Australian. But the question for this Court to decide is not whether we think that the Minister's decision to cancel the appellant's visa is correct or even fair. It is whether the appellant is entitled to the relief he now seeks. 2 The appellant seeks a direction that the Minister give him the written notice required by s 501G(1)(e) of the Migration Act 1958 (Cth) ("Migration Act"), setting out the reasons for the decision made on 5 December 2001 to cancel his visa. This is said to be an ancillary order that can be made in the appeal in furtherance of the just and effective exercise of the judicial power of the Commonwealth. 3 Mr Henry, who appeared for the appellant, at first sought leave to amend the notice of appeal to substitute a single ground, namely that the Minister had failed to comply with the duty imposed by s 501G(1)(e) of the Migration Act to give a written notice setting out the reasons for cancelling the visa. The proposed amended notice of appeal sought a writ of mandamus requiring the Minister to provide such a notice. Mr Henry made it clear that he did not intend to press the grounds in the current notice of appeal challenging the primary Judge's dismissal of the proceedings brought by the appellant. 4 In the course of argument on the appeal, Mr Henry changed course. He did so because an apparent concession volunteered in the Minister's written submissions was drawn to his attention. The Minister accepted that the Court has jurisdiction in the appeal to make a direction requiring him to furnish a written notice complying with s 501G(1)(e), setting out the reasons for the decision to cancel the appellant's visa, if the Court finds that such an order would otherwise be appropriate. The Minister's written submissions did not identify the source of the Court's jurisdiction and power to make such a direction. However, Mr Johnson, who appeared on behalf of the Minister, pointed out that the Court has jurisdiction to determine the appeal and identified the source of power as s 23 of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act"). Mr Henry adopted Mr Johnson's suggestion. 5 In Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, a case involving s 23 of the Federal Court Act, a submission was made to the High Court that the jurisdiction to grant so-called Mareva orders pending a trial had been exercised "flexibly". The joint judgment (at 403) observed that "[t]here is a temptation to use the term 'flexible' to cloak a lack of analytical rigour and to escape the need to find a doctrinal and principled basis for orders that are made." In my opinion, care must be taken in the present case to ensure that there is a sound doctrinal and principled basis for the grant of any relief, whatever sympathy one might feel for the appellant. 6 Section 23 of the Federal Court Act provides as follows: "The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate." It will be seen that the power conferred on the Court is "in relation to matters in which it has jurisdiction". The Court may make such orders, including interlocutory orders, as it thinks appropriate. 7 The power in s 23 may be exercised in any proceeding in which the Federal Court has jurisdiction, unless the jurisdiction is conferred in terms which expressly or impliedly deny the power to the Court in that class of proceeding: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1, at 29, per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ. There is no reason to doubt that the power is available to the Federal Court in the exercise of the jurisdiction conferred by s 24(1) of the Federal Court Act to hear and determine appeals from a single Judge of the Court. The present is such an appeal. Indeed, even in the absence of s 23, the Court would have power to make orders in relation to matters properly before it as an incident of the general grant of jurisdiction to deal with such matters: Jackson v Sterling Industries Ltd (1987) 162 CLR 612, at 623, per Deane J (with whom Mason CJ, Wilson and Dawson JJ agreed). 8 It is important, however, to note the limitations on the power conferred by s 23 of the Federal Court Act. In Jackson v Sterling Industries Ltd, Deane J said (at 622): "Wide though that power is, it is subject to both jurisdictional and other limits. It exists only 'in relation to matters' in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to the making of the 'kinds' of order, whether final or interlocutory, which are capable of properly being seen as 'appropriate' to be made by the Federal Court in the exercise of its jurisdiction." (This passage has since been endorsed by joint judgments of the High Court: see Patrick Stevedores v MUA, at 32; Cardile v LED Builders, at 400.) Brennan J in Jackson v Sterling Industries observed (at 620-621) that the "relief which the Court is authorized to give does not extend beyond the grant of remedies appropriate to the protection and enforcement of the right or subject-matter in issue". 9 In Patrick Stevedores v MUA, the joint judgment identified (at 32-33) a limitation on the powers of the Federal Court to grant interlocutory injunctions, namely "that those powers must be exercised for the purpose for which they are conferred. In a later passage of the judgment of Deane J in Jackson v Sterling Industries Ltd [at 623], his Honour said a power to prevent the abuse or frustration of a court's process should be accepted 'as an established part of the armoury of a court of law and equity' and that 'the power to grant such relief in relation to a matter in which the Federal Court has jurisdiction is comprehended by the express grant to that Court by s 23 of the Federal Court of Australia Act'. But, his Honour observed [at 625], orders must be framed 'so as to come within the limits set by the purpose which [the order] can properly be intended to serve'. The Mareva injunction is the paradigm example of an order to prevent the frustration of a court's process but other examples may be found. … The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked. [See Tait v The Queen (1962) 108 CLR 620.]" See also Cardile v LED Builders, at 401. 10 The application filed in this Court invoked s 39B of the Judiciary Act 1903 (Cth). Section 39B(1) of the Judiciary Act confers original jurisdiction on the Federal Court with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. The application merely sought orders that the decision of the Minister cancelling the appellant's visa be set aside and the matter be remitted for determination according to law. The primary Judge treated the application as one for prerogative relief including relief in the nature of certiorari quashing the Minister's decision, presumably as ancillary to a writ of prohibition: Ayan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 470, at [5]. 11 At no stage in the proceedings at first instance did the appellant seek a writ of mandamus against the Minister. In particular, the appellant did not seek an order compelling the Minister to provide a notice setting out his reasons for cancelling the appellant's visa. It is true that the affidavit accompanying the application claimed that the Minister's decision involved an error of law in that he failed to give the appellant a written notice as required by s 501G(1)(e) of the Migration Act. Butthe appellant's then legal representative conducted the trial on the express basis that the decision record given to the appellant constituted a statement of the Minister's reasons in conformity with the requirements of s 501G(1)(e). The appellant's legal representative clearly made a forensic decision that it would advance the appellant's case for judicial review of the cancellation decision as if the decision record was taken to be the statement of the Minister's reasons. 12 In order for the Federal Court to exercise appellate jurisdiction, there must be a "matter" in the constitutional sense (that is, a matter referred to in s 75 or s 76 of the Constitution) in the appeal itself: Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529, at 541, per Dixon CJ, McTiernan, Williams, Webb, Fullagar and Kitto JJ. The constitutional concept of a "matter" has been the subject of much jurisprudence, and was revisited by the High Court in Abebe v Commonwealth (1999) 197 CLR 510. In that case, Gleeson CJ and McHugh J observed (at 524) that "[c]entral to the notion of a 'matter' is the determination of rights, duties, liabilities and obligations in a legal proceeding. In In re Judiciary and Navigation Acts (1921) 29 CLR 257, at 265, a majority of this Court pointed out that the term 'matter' in s 76 (of the Constitution) did not mean 'a legal proceeding, but rather the subject matter for determination in a legal proceeding'." Later, their Honours said this (at 527-528): "A 'matter' cannot exist in the abstract. If there is no legal remedy for a 'wrong', there can be no 'matter'. A legally enforceable remedy is as essential to the existence of a 'matter' as the right, duty or liability which gives rise to the remedy. Without the right to bring a curial proceeding, there can be no 'matter'. If a person breaches a legal duty which is unenforceable in a court of justice, there can be no 'matter'. Such duties are not unknown to the law. … The existence of a 'matter', therefore, cannot be separated from the existence of a remedy to enforce the substantive right, duty or liability. That does not mean that there can be no 'matter' unless the existence of a right, duty or liability is established. It is sufficient that the moving party claims that he or she has a legal remedy in the court where the proceedings have been commenced to enforce the right, duty or liability in question. It does mean, however, that there must be a remedy enforceable in a court of justice, that it must be enforceable in the court in which the proceedings are commenced and that the person claiming the remedy must have sufficient interest in enforcing the right, duty or liability to make the controversy justiciable." 13 The notice of appeal in its current form appeals from the judgment of the primary Judge dismissing the appellant's claim for prerogative relief. The relief sought does not include a writ of mandamus. Three grounds are identified. One of the three is foreclosed by the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48. Mr Henry has stated unequivocally that, on the material presently available to the appellant, he does not intend to press the remaining two grounds of appeal. In other words, as Mr Henry frankly acknowledged in argument, he accepts that the appeal must fail unless any statement of reasons prepared by the Minister discloses a jurisdictional error. (As to the significance of jurisdictional error in the face of s 474 of the Migration Act, see Plaintiff S157/2002 v Commonwealth [2003] HCA 2.) 14 The fact that a federal claim is dismissed or is no longer pursued does not deprive this Court of jurisdiction to deal with the proceedings, at least in the absence of any suggestion that the claim was merely "colourable": Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212, at 219, per curiam. Thus the fact that the appellant no longer presses the grounds of appeal does not mean that there is not a matter before the Court in the exercise of its appellate jurisdiction. The question remains, however, whether a direction that the Minister provide a statement of reasons for his cancellation decision can be said to be an order "in relation to matters in which [the Court] has jurisdiction" for the purposes of s 23 of the Federal Court Act. 15 In my view, the answer to that question is no. This is not a case where the Court is asked to make an order on an interim basis that it has been asked to make on a final basis at the trial. An example of such a case is where the Court orders the release of a person held in immigration detention pending trial, on the basis that it has power to make a final order for the person's release should his or her claim succeed: Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169; Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390. Nor is the present appeal one in which the direction is required to prevent the abuse or frustration of the Court's process or to ensure that the jurisdiction invoked is exercised effectively. The first class of case is illustrated by asset preservation orders (cf Jackson v Sterling Industries; Cardile v LED Builders). The second is illustrated by Tait v The Queen, to which the joint judgment in Patrick Stevedores v MUA referred. Tait is a very stark example of an order being required to ensure that the court's jurisdiction can be exercised effectively, since the order made was to stay the execution of a convicted murderer pending the determination of an application for special leave to appeal to the High Court. 16 The direction sought by the appellant cannot, in my opinion, be characterised as interim relief pending the determination of issues raised by the notice of appeal. The appellant seeks the statement of reasons, as Mr Henry acknowledged, to determine whether he might have a ground for establishing jurisdictional error on the part of the Minister. Mr Henry accepts that the primary Judge was correct in dismissing the arguments put to him. He also accepts that the present grounds of appeal are untenable unless something emerges from the Minister's statement of reasons that happens to support them. Mr Henry apparently wishes to reserve the right to apply to file an amended notice of appeal should the statement reveal some other jurisdictional error. In this respect, he relies on the fact that the appeal is by way of rehearing: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, at 533, per Gleeson CJ and Gummow J. 17 In essence, the direction is sought not to vindicate or protect the exercise of the Court's appellate jurisdiction, but to explore the possibility that the appellant might have a ground to challenge the Minister's decision that has not previously been raised, either at first instance or on the appeal. It is an attempt to obtain, in a different form, a writ of mandamus which was not only never sought before the primary Judge, but could not have been sought given the way the appellant's case was conducted. 18 The only "matter" before the Court in the exercise of its appellate jurisdiction is the appellant's claim that the appeal should be allowed because of the grounds set out in the notice of appeal. The appellant has acknowledged that those grounds do not entitle him to any relief on the appeal. He also acknowledges that he has no basis at present for amending the grounds of appeal. The appellant wants a direction that the Minister prepare a statement of reasons so that he can see whether he might have a basis for pursuing his appeal, whether on the existing grounds or some other grounds. In my opinion, if the limitations on the power conferred by s 23 of the Federal Court Act, as explained in Jackson v Sterling Industries and subsequent cases,mean anything, they must mean that the proposed direction is not sought in relation to matters in which the Court has jurisdiction. 19 I appreciate that if Mr Henry is right, the Minister has never complied with his statutory duty to provide a statement of reasons. But until now, the Minister has never been asked to provide such a statement, the appellant hitherto having relied on the decision record as the statement. It is conceivable that even now fresh proceedings might be instituted in the original jurisdiction of the Court to enforce the Minister's statutory duty, although an application for a writ of mandamus might face obstacles by reason of the time limits imposed by ss 477 and 486A of the Migration Act. In any event, in my view, the Minister's duty to provide reasons cannot now be enforced by an order said to be made in aid of an appeal which is admitted to lack any foundation. 20 If I am wrong in my view that the direction sought by the appellant is not an order in relation to matters in which the Court has jurisdiction, I would not regard it as "appropriate" to make the direction. I take that view for the reasons I have given, coupled with the obvious prejudice to the Minister in having to reconstruct the reasons for a decision made personally long after the trial and even longer after the decision itself. 21 Finally, I should note that I did not understand Mr Johnson to concede any of the matters on which I have relied. 22 I would refuse to make the direction sought by the appellant. Since the appellant does not wish to put any argument in support of the existing grounds of appeal, I would dismiss the appeal. 23 I agree with Allsop J's reasons for declining to grant the application for release of the appellant pending the hearing.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

ONAPPEALFROMASINGLEJUDGEOFTHEFEDERALCOURTOF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

ALLSOP J 24 The appellant is a non-citizen of Turkish nationality. He was born in Turkey on 27 February 1976. He migrated to Australia with his family a little under six months later. Since then, apart from two brief visits to Turkey, the appellant has grown up and lived in Australia. Notwithstanding his having grown up in Australia from infancy, the appellant is an alien for the purposes of the Migration Act 1958 (Cth) (the Act) and s 51(xix) of the Constitution: Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48. 25 The application in respect of which these reasons are concerned is unusual. The Court is seized of a matter in the appellate jurisdiction. In aid of that jurisdiction the appellant seeks an order that the respondent Minister provide reasons for the decision impugned by the original application in this Court, which application was dismissed by a Judge of this Court and against which orders of the primary judge the appeal before us lies. 26 It is necessary to set out the history of the matter to understand the nature and relative merits of the application before the Court. 27 On 5 December 2001, the Minister made a decision (not through a delegate, but personally) to cancel the visa of the appellant under subs 501(2) of the Act. The effect of such cancellation was to render the appellant liable to deportation. There has never been any dispute about the fact that the appellant did not, at the relevant time, pass the "character test" as contemplated by s 501 of the Act. The appellant has a "substantial criminal record" within the meaning of subs 501(7) of the Act. I will refer to the nature of those crimes in due course. The inability of the appellant to pass the character test under s 501 of the Act enlivened a discretion in the Minister under s 501 to cancel the appellant's visa. The Minister exercised that discretion to cancel the appellant's visa. 28 Being a decision made personally by the Minister, there was, and is, no merits review provided by any legislation. 29 On 9 January 2002 the appellant, by his solicitors, filed an application for an order for review of the decision of the Minister, claiming the following: On the grounds stated in the accompanying affidavit the applicant claims 1. that the decision be set aside 2. that the matter be remitted to the Respondent to be redetermined in accordance with the law by a different decision maker 3. Costs 30 The affidavit in support set out a number of grounds with particulars. The particulars raised: (a) an alleged breach of the rules of natural justice; (b) an alleged failure to have any, or any real, regard to certain matters said to be relevant; (c) certain errors of law, including the alleged failure of the respondent "to give the applicant a written notice as required by s 501G" of the Act; and (d) the question of the exercise of the power being so unreasonable that no reasonable person could have exercised the power in that manner. 31 Subsection 501G(1) provides, relevantly, as follows: If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person; the Minister must give the person a written notice that: (c) sets out the decision; and (d) specifies the provision under which the decision was made and sets out the effect of that provision; and (e) sets out the reasons (other than non-disclosable information) for the decision;… 32 There could not have been any doubt that the appellant was given documents which stood as a written notice supplying the information contemplated by pars 501G(1) (c) and (d). I take the reference in [30(c)] above to be a claim that the Minister failed to give reasons as contemplated by par 501G(1)(e) of the Act. 33 When the matter was called on before the primary judge, the solicitor appearing for the appellant relied on submissions contained in a handwritten document entitled "Applicant's Outline of Submissions". In this document, it was expressly submitted that the documents given to the appellant constituted a setting out of the reasons for compliance with par 501G(1)(e). This, in effect, was a withdrawal of the complaint referred to at [30(c)] above. The submission provided the foundation for the primary written submissions put forward to the primary judge on behalf of the appellant that the Minister had failed to undertake a balancing process of all relevant considerations, had failed to ask himself the right question, being the question as to what weight should be applied to each relevant criterion, and had given no "real regard" to how long Mr Ayan had been in Australia. 34 The primary judge dealt with the matter on the basis submitted by the appellant that the material sent to the appellant, which included a briefing paper that had been signed by the Minister, incorporated the reasons of the Minister. 35 On that basis, the primary judge concluded that there were no errors of the kind submitted by the appellant. The primary judge also dealt with the matter by reference to s 474 of the Act on the understanding of the effect of that provision then obtaining in decisions such as that of Gyles J in NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263; see now, of course, Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2. 36 A notice of appeal was filed on 29 April 2002. The three grounds of appeal were: 1. His Honour erred in finding that the Minister carried out a balancing process in respect of the relevant considerations as found by the Minister. 2. His Honour erred in finding that the Minister had given any, or any real, consideration to the Appellants [sic] circumstances in arriving in Australian [sic] as an infant and growing up as an Australian. 3. His Honour erred in finding that the Appellant was not an "Australian" and, therefore, by inference, that he was an alien. 37 The third ground raised the Constitutional question of the absorption of the appellant into the Australian community and whether, if absorption had occurred, that meant that the appellant ceased to be an alien, within the reach of the Act, supported, as it relevantly was, by the aliens power in s 51 (xix) of the Constitution. That matter can now be considered settled by the High Court decision in Te. The appellant remains an alien, within the reach of the Act, and relevantly s 501, despite circumstances which would lead to the conclusion, that he had, since his arrival as an infant, been absorbed into the community (so as to satisfy, for instance, the notion of absorption as it affects the immigration power under s 51(xxvii)) and despite the fact that, from a social and human point of view, the appellant could be described as an Australian. 38 The appeal was called on for hearing on 5 November 2002. At that time Te had been argued in the High Court, but was reserved. Also, the challenges to s 474 in S157 had been argued and reserved. On that day, argument was heard on the application of the appellant to amend his notice of appeal. A notice of motion had been filed on 31 October 2002 seeking such leave. It is unnecessary, for reasons which will become apparent, to identify all the matters sought to be raised by way of amendment. However, one of the fresh grounds was that, as an incident of the failure of the Minister to afford natural justice to the appellant, the Minister: …failed to give any or adequate reasons for the decision as he was required to do under the Migration Act 1958 [s 501G(1)(e)]. To give such reasons is, in the premises, a necessary incident of according the Appellant natural justice in the making of the decision; … 39 This new ground sought to reverse the basis upon which the matter had been approached by the parties and the Court at first instance and revivify that which had appeared in the original application. 40 On 5 November 2002, after argument, the notice of motion to amend, and the appeal generally were stood over to a date to be fixed after the handing down of the High Court's judgment in Te. The High Court's judgment in Te was delivered on 7 November 2002. The appeal was set down for hearing on 6 February 2003 (which was the first date suitable to counsel then appearing and the Court). 41 Counsel who appeared on 5 November 2002 did not appear on 6 February 2003. Mr Henry, of counsel, appeared for the appellant on 6 February 2003. He did not wish to pursue the arguments propounded by previous counsel. Nor did he seek to press the notice of motion to amend the notice of appeal. Rather, he wished to press the claim that no reasons had been given as required by par 501G(1)(e), not, however, as an incident of the failure to afford the appellant procedural fairness and so as a ground for an attack on the validity of the decision of the Minister, but as a vindication of the appellant's statutory entitlement to such reasons. 42 Initially before the Court on 6 February 2003, Mr Henry indicated that he would be abandoning all grounds of appeal and seeking to amend the notice of appeal to claim an order in the nature of mandamus under subs 39B(1) of the Judiciary Act 1903 (Cth)requiring the giving of reasons. After some debate, Mr Henry withdrew from that course and requested the Court to follow a course, the possibility of which had been adverted to in submissions of the Minister. In those submissions Mr Johnson, of counsel, put the Minister's position that in the exercise of the appellate jurisdiction of the Court, there was jurisdiction or power under s 22 or s 23 of the Federal Court of Australia Act 1976 (Cth) to make such an ancillary order in furtherance of the effective and just exercise of the judicial power of the Commonwealth, in this case, in dealing with a matter in the appellate jurisdiction of the Court. Madgwick J (in the exercise of original jurisdiction) made such an order in Ooi v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 133. 43 The parties were thus agreed that the Court had power to make such an order if (a) it were in connection with, or ancillary to, the exercise of the appellate jurisdiction of the Court, (b) if no reasons had been given by the Minister, and (c) if, as a matter of discretion, the order ought to be made. 44 In the absence of argument, I am prepared to proceed on this basis. Further, I have had the advantage of reading the reasons of Sackville J. I agree with his Honour's exposition of principle in [5] to [9], [12] and [14]. I agree with, and have given careful consideration to, Sackville J's comments in [5] that: …care must be taken in the present case to ensure that there is a sound doctrinal and principled basis for the grant of any relief, whatever sympathy one might feel for the appellant. 45 His Honour's exposition of principle demonstrates the correctness of the concession of the Minister that a direction or order of this character can be made if the three matters set out in [43] above are present. 46 I have the misfortune to disagree with Sackville J on at least two of those matters: the connection with the appellate process and the exercise of the discretion. It is therefore necessary to turn to the three matters.

Connection with the appellate process 47 The first question is the connection of the order sought with the appellate jurisdiction of the Court. The submissions of Mr Henry are relevant to this question. As presently advised, he does not wish to put any submissions in support of the grounds of appeal and he seeks to raise no other grounds of appeal, before an examination of the Minister's reasons, when (or if) provided; nor does he submit that any particular aspect of the decision is more likely to be vulnerable after the receipt of the reasons. Thus, he does not seek to propound submissions as to any error of the primary judge, on the basis of the agreed approach before his Honour that reasons were provided to the appellant. It was put by Mr Johnson that this meant that the order should not be seen as ancillary to the appellate process in this Court; rather, he submitted, the frankness and clarity of Mr Henry's submissions exposed the application as a surrogate application in the original jurisdiction to obtain the reasons, in order to see whether there was anything which could be propounded in the appellate jurisdiction. 48 I do not think, with respect, that that is the appropriate way to look at the matter. There is a notice of appeal filed. The appellate jurisdiction of this Court has been invoked. If reasons are provided, that may assist Mr Henry and his solicitors in concluding that no error can in fact be shown in either the approach of the Minister or that of the primary judge, and thus may lead to the disposition of the appeal without further argument. Alternatively, it may assist Mr Henry and his solicitors in assessing that the Minister arguably committed a reviewable error and that this Court should now permit the appeal process (by way of rehearing: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [20]) to continue, in order to correct the position, even if that involves a departure from how the matter was conducted before the primary judge in accordance with principle: Branir at [34] to [39]. 49 No application has been made to strike out the notice of appeal. No submission was made that the request now made by the appellant was an abuse of process. It is to be borne in mind here that if the appellant lacks reasons, which it is found that he should have been given, that has its origins in the failure (on this hypothesis) of the Minister to comply with his statutory duty under s 501G. The appellant is not seeking to employ an interlocutory procedure of the Court, and so the considerations expressed by the Court in Minister for Immigration and Multicultural and Indigenous Affairs v Wong [2002] FCAFC 327 at [28] to [36] are not apposite. The appellant seeks (though late, and in the context of litigation) something to which he says he is entitled by statute of the Parliament of the Commonwealth, through the medium of an order under s 23 of the Federal Court of Australia Act to enforce compliance. If Mr Henry had submitted that he wished to attack the decision even if reasons were not ordered, but that the existence of reasons was likely to make his attack more focussed, that might be said to reveal a stronger connection with the appellate process. 50 There must be a relationship with a "matter" in the appellate jurisdiction. I agree with the conclusion of Sackville J at [14] that there remains a "matter" within the appellate jurisdiction of the Court. 51 I also agree that this is not a case where the Court is asked to make an order on an interim basis that it has been asked to make on a final basis at trial. I also agree that the present appeal is not one in which the order is sought to prevent the abuse or frustration of the Court's process. However these do not exhaust the types of connection of the order with the appellate process to give a relevant connection. The order is connected with the appellate process in that its making will assist in the finalisation of the appeal process; in that sense it is connected with the effectuation of the appeal process. It will assist by enabling the appellant's legal advisers to inform the Court that the appeal is to be abandoned or that there is an arguable basis for demonstrating error in a particular manner. That the same result could be brought about by an order in the original jurisdiction does not lead to the conclusion that the order must be characterised as not connected to the appeal process and thus not within the appellate jurisdiction. 52 In the circumstances of the appeal being on foot and there being a "matter" in the appellate jurisdiction before the Court, the connection of the order with the final disposition of the appeal is real. I respectfully disagree that this conclusion is one which falls outside what was said in Jackson v Sterling Industries Ltd (1987) 162 CLR 612, especially by Brennan J (at 620-21) and Deane J (at 622).

Were reasons given? 53 The briefing paper that was presented to the Minister contained no recommendation for any particular course of action. At the end of the document there appeared the following statement: I have considered all relevant matters including (1) an assessment of the Character Test as defined by s 501(6) of the Migration Act 1958, (2) my Direction under s 499 of that Act and Mr Ayan's comments, and have decided that: … 54 The phrase "all relevant matters" was left undefined and otherwise unexplained. The extent of "Mr Ayan's comments" (whether his or those made on his behalf) was not clear. 55 The Minister was then given four alternatives from which to choose. He excised the first three and signed and dated the document under the fourth which read: (d) I reasonably suspect that Mr Ayan does not pass the character test and Mr Ayan has not satisfied me that he passes under 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. [capitalisation in original] 56 In Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281 Branson J, Goldberg J and I were all of the view that the briefing paper in that case was not the giving of reasons and that whether or not something amounts to the expression of reasons is a question of fact. The briefing paper there dealt with the relevant material and put forward the alternative causes of action available. The essence of the reasons in W157 was that the document did not explain why the Minister had reached the decision he had. The document there identified the universe of material to which the Minister may have had regard, but it did not express why theMinister thought one of the alternatives, over the others, should be adopted. 57 Mr Johnson did not seek to draw any particular distinction between the briefing paper here and in W157. Having read the briefing paper here, I think Mr Johnson's approach to be justified. The document sent to the appellant here did not explain why the Minister exercised the discretion in the way he did, what he took into account and what weight he gave matters, beyond what appears at [53] above. Its adoption by signing and choosing the fourth available alternative did and does not illuminate the reasons for that choice. Given the circumstances of his position, that leaves the appellant in a very difficult position demonstrating jurisdictional error in a matter of such gravity.

Discretion 58 Mr Johnson submitted that the following matters suffice to weigh against the exercise of discretion. First, he emphasised that the approach now adopted by the appellant was a complete reversal of how the matter had proceeded below. Secondly, he put that the inability of Mr Henry presently to identify submissions as to error of the Minister or the primary judge weighs in the discretion as to whether an order of this kind should be made. Thirdly, he emphasised that it was now some fourteen months since the decision was made and that delay meant that it was significantly more difficult for the Minister to reach back in time and provide reasons for a decision taken so long ago. Fourthly, he submitted that not only was there such delay, but also that the appellant had actively contributed to that delay by the late claim for reasons. Fifthly, he emphasised the importance of holding parties to the case propounded at trial and the protection of the integrity of the appellate process, referred to in Branir at [30] and [38]. Sixthly, he put that the reversal of position was, in effect, the withdrawal of an admission of fact made before the primary judge and should not be allowed. Seventhly, he put that the absence of the reasons hitherto was as much a fault of the appellant as the Minister. 59 Whilst I accept the force of Mr Johnson's carefully articulated submissions, and not without real hesitation, I have come to the view that this Court should exercise its discretion to order the Minister to provide reasons for his decision on 5 December 2001. 60 There has been a reversal of argument by the appellant (twice). There was an agreement about a fact before the primary judge. However, unusually, the question about a fact below - as to whether what was provided were reasons - cannot be touched by any evidence. The briefing paper was, in my view, plainly not a body of reasons. Just as the briefing papers in W157 did not, the briefing paper here did not, set out why the Minister chose the course that he did. In these circumstances, nothing in the principles governed by such cases as Coulton v Holcombe (1986) 162 CLR 1, 7-8 prevents the change of course: cf Branir [34] to [39]. It may be the case that the reasons, if ordered, throw up a request by the appellant to amend his notice of appeal in a way which would raise a ground which could have been affected by evidence, or by the course of the hearing, before the primary judge. If that were to occur, on established principles, the application would be dismissed, if opposed. However, that is for the future. In allowing this departure from how the matter was dealt with below, I am particularly mindful of the nature of the decision and the gravity of its effects on the appellant and his family, being matters to which I will refer in a moment. 61 Without doubt, there has been delay in pursuing the course now adopted. I accept that it may now be more difficult than it would have been fourteen months ago for the Minister to cast his mind back and to write down what moved him to come to the conclusion that the appellant should be taken from Australia where he has lived with his family since infancy and sent to the country of his birth, which country is no longer his home or the home of his family. However, he has a full and detailed briefing paper. Further, to the extent that the Minister can, from the briefing paper, and his recollection, describe those reasons, the content of the reasons would need to be judged in the recognition that they were written some fourteen months or more after the decision was made. The appellant will have to be satisfied with the reasons able to be provided in the circumstances. Such will amount to compliance with any order. I do not think that these matters therefore amount to prejudice. 62 Reasons should have been provided. The fact that they were not was a result, at least initially, of the Minister (no doubt unintentionally) failing to comply with his statutory duty. However, a powerful countervailing argument to this is the fact that the appellant has not, until now, asked for the reasons. It may be that previous legal advisers took the view that the appellant's position was best propounded by accepting what the Minister himself thought to be the case: that a signed briefing paper was a body of reasons. 63 Up to this point the factors affecting the exercise of the discretion would lead me to conclude that the discretion should not be exercised in favour of the appellant. The appellate process, should not be seen as just one stage in a stately saraband in which the rhythm of the display and disposition of issues is governed by the unrestricted choice of those involved from time to time. However, ultimately, the Court must deal with the interests of justice. The manner of the conduct of proceedings is one, and an important, factor in that assessment. 64 Justice has been described as the "first virtue of social institutions": J Rawls A Theory of Justice (Oxford 1986 reprint) p 1. It is shaped and sculpted in a curial context by legal principle and rules of procedure. Procedure enables justice according to law to be executed predictably and consistently, both being important elements in a fair system of the administration of justice. If one accepts that the order here is within jurisdiction and has a connection with the appellate process, the discretion whether to order it involves significant procedural questions. They weigh, in my view, powerfully against the exercise of the discretion. However, any judicial discretion has a human context which generally it is necessary to understand before the exercise of the discretion can be made. Here, the human context involves the decision itself, and its consequences. 65 The need to examine the decision and its consequences is not a matter of sympathy. Feeling sorry for, or sympathetic to, the appellant is not part of the judicial process in deciding whether to exercise this discretion. Nevertheless, the decision and its effects have an important place in the weighing of the interests of justice in connection with the exercise of the discretion. For this reason one looks to the decision. Central to my consideration of the matter, indeed a permeating and powerful consideration, is the nature and likely effect of the decision of the Minister and the consequences of the dismissal of the application by the primary judge on the appellant and his family. It is not hyperbole to say that the deportation of this young man will, in all likelihood, affect profoundly and tragically his life, and the lives of the citizen and non-citizen members of his family. 66 I thus turn to the decision. What I am about to say should not be understood as a criticism of the Minister. The judgmental difficulty of decisions of this kind can be readily recognised. Nor should I be taken as expressing, gratuitously, my views on the merits of the case. Subject to legal principle, the merits of the case are a matter for the Executive, in this case embodied in the Minister personally. 67 As I have said, the appellant came to Australia as an infant. His parents have raised him in Australia. He attended school in Australia, leaving high school in year 10. The members of his immediate family live in Australia. He is the younger of two sons. 68 Unfortunately, from the age of about fourteen, the appellant came into contact, unfavourably, with the criminal law of this country. It is unnecessary to list the various offences which he has committed and been convicted of since 1990. It is sufficient to say that he has committed a number of offences of theft, including break enter and steal. Whilst serious, none of the crimes for which the appellant was convicted was a crime of violence. They were property offences, albeit serious. 69 From a time unspecified, these crimes were apparently related to a heroin addiction to which the appellant had succumbed. Such a story is, unhappily, not rare in this society in which many children of citizens and non-citizens have succumbed to the plague of heroin addiction. There was material before the Minister to indicate that the appellant has been able, in prison, to learn to live without heroin, and that there may be some significant basis for hope that the addiction, which may have driven him to commit some of the illegalities, has been, or can be, conquered. Further, there was material before the Minister to indicate that, in prison, his behaviour was worthy of commendation. There was material which indicated that he had been, at some personal risk to himself, prepared to give evidence in connection with a murder which occurred in Goulburn gaol. 70 There was also material before the Minister to explain, in human terms, his heroin addiction. He suffered the loss of a close friend in the mid-1990s and his mother and father separated during this period. They have since been reconciled and once again live as husband and wife. 71 Some of the appellant's family, including his mother, are now Australian citizens. 72 On the material before the Minister it would appear that the appellant has little extended family in Turkey. It was said by Mr Henry that he could neither read nor speak Turkish. There is some material that was before the Minister which would indicate that he had some facility in Turkish, but that his grasp of Turkish was less than his fluency in what is, in effect, his native tongue, English. 73 There was material before the Minister to the effect that there was an employer who was apprised of the appellant's position and circumstances, and who was prepared to give him employment. 74 The appellant and his family appear to be people of modest means. The appellant's removal from Australia, permanently, would mean that to see him, his family, including his parents, would need to travel to Turkey or elsewhere, whether temporarily or permanently. 75 The family of the appellant appears, on the material which was before the Minister, to be close. There are expressions of deep fear and grief on the part of the father and the mother should their son be deported. I note that whilst some of the appellant's mother's most recent comments were extracted in the briefing paper for the Minister, her cri de coeur as to the effect of the effective banishment of her son from this country was not fully extracted (although the relevant statement was appended as an annexure to the briefing paper). Mrs Ayan concluded her statement with the following: I do not have the strength to cope with such an event. ["such an event" being her son getting worse in Turkey and being pushed outside the law there] God forbid, if anything happened to my son there would be no meaning left in my life. I am a mother, a mother. 76 The risk to the appellant in his removal to Turkey was, or should be taken to have been, before the Minister. Not only would it involve hardship in being returned to a country in which his family is absent, but also, such a wrench and such a forced and permanent removal from the support of a loving family of someone with a history of heroin addiction may, conceivably, place him in significant personal jeopardy. 77 Finally, it should be noted that at no time had the appellant been warned during the 1990s of the danger in which his anti-social behaviour was placing him, in terms of his possible removal from this country. 78 From the above, the gravity of the consequences of the decision is apparent. Also, from the above and the briefing paper before the Minister, it is not clear to me how the decision was made by the Minister conformably with a careful and humane balancing of the effects of the decision with other relevant matters. That is not to say, and I emphasise this, that such did not occur. It is sufficient to say that I find it difficult, on the material in, and appended to, the briefing paper, to appreciate the considerations which could dictate, or lead to, the decision that was made. This highlights, it seems to me, the need to understand the Minister's reasons. 79 It is not my place, as a Judge of this Court exercising the judicial power of the Commonwealth in a matter involving s 39B of the Judiciary Act, to take it upon myself to advise the Minister of what I think the appropriate decision on the merits should be. It is the Minister who is charged with the heavy burden of a decision such as this. Such a decision is, of its nature, one about which minds, and emotions, will differ, possibly strongly. I have not sought to express any view on the merits of the decision. Nor, I repeat, should anything that I have said be taken as a criticism of the Minister. However, as I have said, the reason for identifying these matters is the need to identify the nature and effect of the decision and the consequent importance to the appellant of understanding, with such precision as the law entitles him to have,why the Minister took the course that he did. 80 It may be that after the provision of reasons, the appellant's advisers will reach the view that the appeal has no merit in terms of arguable legal principle. That will be a matter for them. 81 In all the circumstances, which I accept are exceptional, in the interests of justice, in aid of the confident administration of this Court's appellate jurisdiction, and in the absence of irremediable prejudice, I think it to be important that the consequences of the decision not be visited upon the appellant or his family until those now advising the appellant as to whether the appeal is with or without legal merit have before them all that the relevant statute of the Commonwealth Parliament says should have been given to the appellant. On balance, I do not think that questions of procedure (of themselves important) and how the appellant's legal advisers have hitherto conducted the case should outweigh the considerations that arise out of the decision itself and its consequences. I would exercise the discretion to order the Minister within a reasonable period of time to provide reasons for his decision on 5 December 2001. What is a reasonable period of time may need to be assessed by reference to the Minister's commitments and the fact that the appellant is in immigration detention. 82 Subject to what I am about to say, the orders that I would propose are as follows: (1) That within twenty-eight (28) days the respondent give to the appellant reasons for his decision on 5 December 2001 to cancel the appellant's visa as required by par 501G(1)(e) of the Migration Act 1958 (Cth). (2) That the respondent have liberty to apply on three (3) days' notice to vary the time for the provision of reasons in order (1) above. (3) Reserve for future argument the question of costs. 83 There is a matter that I wish to raise concerning the orders to be made. It may be that, given the time since the decision in question and the process involved in reaching back to recall what his reasons were, the Minister may himself prefer to take the course of reconsidering the position of the appellant. I would not wish to see an order made by this Court fetter or impede the availability of such choice for the Minister. For that reason, my preference in relation to orders would be to stand over the application and the appeal to allow the Minister to consider these reasons and the course which, in the light of the reasons of the members of the Court, he thinks is preferable. If it be the case that the Minister does not wish to revisit afresh the appellant's position, orders as set out at [82] above can then be made. 84 For these reasons, the orders which I propose at this time are: (1) That the appeal stand over to a date to be fixed for the making of further orders. (2) Liberty to apply on two (2) days' notice for directions before one Judge of the Court before whom the appeal and application have been heard. (3) Reserve for future argument the question of costs. 85 Penultimately, I wish to express my gratitude to counsel and solicitors for both parties for the frank, clear and open way in which they approached the matter in submissions. If I may respectfully say so, the submissions of the Minister, through Mr Johnson and his solicitors, in particular in pointing out to the appellant, and to the Court, an alternative course, less fraught, perhaps, with procedural pitfalls, reflected every proper element of the role of the Executive in litigation referred to by Griffith CJ in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333, at 342 and by Mahoney J in P & C Cantarella v Egg Marketing Board [1973] 2 NSWLR 366 at 383-84, especially at 383 E-F. 86 Finally, at the hearing of this matter in November 2002, an application was made for the interim release from immigration detention of the appellant pending the hearing of the appeal. The Court rejected the application and said that it would provide reasons later. My reasons for rejecting that application were as follows. 87 There have been a number of decisions of the Court dealing with the operation of s 23 of the Federal Court of Australia Act and its employment in founding an order to release persons from immigration detention. See for example Minister for Immigration and Multicultural Affairs and Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390. Opinion has varied as to the scope for the Court to order release in the face of the terms of s 196 of the Act. 88 For my part, I considered it inappropriate on what I had heard of the argument from then counsel, on both the existing grounds of appeal and the proposed amended grounds, to make any such order. Any error had to be jurisdictional for it to be concluded that the decision of the Minister was not a decision at all: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598 at 606 [51] per Gaudron and Gummow JJ, 608 [63] per McHugh J, 624-25 [152] per Hayne J; 187 ALR 117, 129, 131 and 154-55; and see also Plaintiff S 157, supra at [76]. If the decision to cancel the appellant's visa was not a decision, he could be seen to retain a visa and thus not be an unlawful non-cititzen. 89 My view at the time, in particular in view of the decision of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449, was that there were sufficiently slim prospects of successfully challenging the decision to warrant any order for release, even assuming that there was no debate about power to make the order. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

ONAPPEALFROMASINGLEJUDGEOFTHEFEDERALCOURTOF AUSTRALIA

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

JACOBSON j: 90 I have had the advantage of reading the reasons in draft of Sackville J and Allsop J. I agree with the orders proposed by Allsop J, for the reasons given by him. I certify that the preceding paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Solicitor for the Appellant: Yandell Wright Stell Lawyers

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 474, 477, 486A, 501, 501G(1)(e), 501(2), 501(7)

Judiciary Act 1903(Cth)s 39B(1)

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (23)