Dagli v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant is, it may be inferred, a national of Turkey. It seems he was born there but came to Australia as a migrant with his family on 6 September 1972 or so the officer who advised the Minister ("the Officer") says at par 2 of an Issues Paper. I make that qualification because at par 28 of the same paper, the Officer says that he arrived "in Australia as a migrant with his family on 6 November 1971". However, at par 43 the Officer gives the year 1972 and says that at arrival the applicant was under the age of one year. In responses to a questionnaire which will later be referred to, the applicant gave his date of birth as being "6/11/71" which would suggest that the reference at par 28 in the Issues Paper is a mistake. The applicant is now 31 years of age and in detention. 2 On 23 July 2002 a Mr Robicheau of the New South Wales Character Section of the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") wrote to the applicant, then in a correctional centre in NSW advising him that it had come to the attention of the Department that his Resident Return Visa - sub class 156 might be liable for cancellation under s 501(2) of the Migration Act 1958 (Cth) ("the Act"). The relevant grounds for possible cancellation was said to be "subparagraph 501(6)(a) - Substantial criminal history" and "subparagraph 501(6)(c)(i) - Past and present criminal conduct." The letter noted that the Minister had advised that he would personally make the decision with the consequence that the decision would not be reviewable by the Administrative Appeals Tribunal. The letter said inter alia "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 you information. · The Judge's comments 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. 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 13 August 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." 3 This letter is hereafter referred to as "the information letter". 4 The information letter enclosed a questionnaire of some ten pages ("the questionnaire"). The purpose of the questionnaire was said to be to guide the applicant in making known his personal circumstances and to provide to the applicant the opportunity to put before the Minister any matter which the applicant wished to be taken into account when the Minister considered his case. 5 The applicant duly completed the questionnaire which included a section setting out his attitude to possible visa cancellation and removal from Australia. He attached to it various documents concerning courses he had done. 6 The Officer then prepared an Issues Paper for the Minister ("the Issues Paper") to assist the Minister in his consideration of the possible cancellation of the applicant's visa. It will be necessary to set out in some detail later in these reasons matters that are set out in that Issues Paper. 7 The last part of the Issues Paper (Part E) contains the record of the Minister's decision which was apparently made by the Minister on 15 October 2002. The Minister, after deleting alternative matters on that page, recorded that he had considered all relevant matters, including an assessment of the character test, as defined by s 501(6) of the Act, his direction under s 499 of the Act and Mr Dagli's comments and he had decided as follows: "I reasonably suspect that Mr Dagli does not pass the character test and Mr Dagli 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." 8 On 26 November 2002 the applicant filed with the Court an application for an order to review the Minister's decision, said to have been received by the applicant no earlier than 12 November 2002. It has not been suggested that the application was lodged with the Court out of time. The application brought under s 39 of the Judiciary Act 1903, sought, relevantly, an order of prohibition against the Minister and an order for writ of certiorari quashing the Minister's decision of 15 October 2002. In the alternative declarations were sought that the decision to revoke the applicant's visa was unlawful. 9 Before the Court the applicant was represented by a solicitor. Four matters were relied upon in support of the application, being: (1) That the Minister did not accord to the applicant natural justice. (2) That the Minister had failed to give to the applicant reasons for the decision as required by the Act. (3) That the Minister had, in making his decision, erred in law by applying the wrong test. (4) That the decision was so unreasonable that no reasonable decision maker could have made it and was, for that reason, void. 10 Before considering the first, third and fourth of these grounds, it may be useful to say something about the question of reasons. 11 The applicant did not claim in his application an order for mandamus, requiring the Minister to provide reasons for the decision. It was, however, conceded on behalf of the Minister that the Minister had not provided to the applicant reasons as required by s 501G(1)(e) of the Act. The concession was, no doubt, properly made having regard to the decision of a Full Court of this Court in Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7. 12 There had been correspondence between the legal advisers of each party on the question of reasons. A letter from the Minster's advisors to the applicant's solicitors dated 3 March 2003 confirmed that the Minster's advisors had sought the applicant's consent to an adjournment to enable the Minister to prepare a written statement of reasons, having regard to the Full Court decision in Ayan. The letter noted also that the applicant's solicitors had opposed an application for adjournment. It continued to put the applicant's solicitor on notice that the Minister would oppose any application to amend the original application so as to seek orders in the nature of those sought in Ayan, namely that the Minister furnish a written statement of reasons pursuant to s 501G. 13 After hearing submissions on the matter and noting that the Minister did not really oppose the giving of reasons, subject to the need for an adjournment, and as a matter of case management, I directed the Minister to file and serve reasons for the decision 11 days from the date of the hearing. I formed the view, notwithstanding that the Minister sought yet a further four weeks after the five months that had elapsed since the decision to comply with his obligation, that as the applicant was still in detention the Minister should be required within a relatively short time to provide the reasons and that, for this purpose it appeared that the 11 days should be adequate. I made consequential orders relating to the filing of additional submissions should the applicant seek to rely on any matter contained in those reasons once they were provided. Subsequently the reasons were provided to the applicant and submissions were made in writing which were more addressed to the matters argues before the reasons were provided than to anything in the reasons themselves. 14 Accordingly, I do not need to consider the submission put to me and which, with respect, I would as presently advised disagree, that because no reasons had been given I should infer that the decision was one made without any reasoning process at all. 15 I shall deal now with the remaining three matters. Before doing so, however, it is necessary to set out the factual background against which these matters need to be considered. (a) The Applicant's Criminal History 16 As I have already indicated, there was attached to the information letter a document referring to the applicant's criminal history and a copy of the Minister's Direction No 21. A document which is referred to in the Issues Paper as "The Judge's Comments", being comments made by the Trial Judges at the time of sentence does not appear to have been attached, although it is not suggested that the applicant would be unaware of what was said in that document. 17 I need say little about the criminal history. It is obvious that the applicant had a serious record of offending. The history discloses a number of charges beginning with a charge in 1998 of possessing a prohibited drug, progressing through a number of charges of break and entering buildings for the purposes of stealing and concluding with the matter of robbery armed with an offensive weapon in 2000 which was the subject of the Judge's comments. I would say "concluding", only in the sense that the armed robbery was the most serious offence which the applicant had committed. In fact, postdating the armed robbery were other charges involving goods in possession and furnishing misleading information. If the present case is to be decided for the applicant it could not be because his record of offending did other than support a decision that his visa be terminated. However, the jurisdiction of the Court is not one of merits review. The issue before the Court is rather whether there was some jurisdictional error which operated to vitiate the decision which the Minister made. 18 The offence, the subject of the Judge's comments, resulted in a sentence for a fixed term of 12 months relating to taking and driving a vehicle without the owner's consent to a minimum term of three years for robbery armed with an offensive weapon commencing on 14 October 1999 and an additional term with conditions for three years on release, subject to supervision. A subsequent appeal, which the applicant brought on severity of sentence, was ultimately discontinued. 19 The Judge's comments on sentence were given on 21 March 2000. Briefly, it seems that the applicant robbed an employee of Rothmans Pall Mall Australia Limited of cash in the sum of $8,600.00 and cigarette and tobacco products worth $75,000.00 while armed with a 16 cm bladed folding knife. The applicant pleaded guilty to the charges against him in respect of this offence. Of the two charges before the District Court, the first carried a maximum penalty of twenty years imprisonment and the second a maximum penalty of five years. It seemed that the applicant approached the employee with a folding knife and demanded the key to the vehicle driven by the employee. The knife was held at the employee's throat for a time and this resulted in the employee giving to the applicant the cash. The applicant then took the vehicle and drove off with it leaving the employee behind. He then delivered the cigarettes to a co-offender who agreed to pay him some money. The applicant was ultimately apprehended when the vehicle was seen by the police and was pursued. It seems the applicant swerved directly into the path of the oncoming police vehicle but swerved back to the correct side of the road at the last moment and drove the vehicle over a nature strip. The applicant jumped out and the vehicle collided with a brick wall. The applicant was pursued on foot and arrested after a brief struggle. The police located a box in the vehicle containing $7,000.00 in cash and the knife used by the applicant. The Judge accepted that the applicant did not realise that the money was in the vehicle in a box at the time he stole the vehicle. It seems that the applicant made full admissions and gave assistance to the police in providing the whereabouts of the cigarettes and some details in relation to the co-offender. At the time the offence occurred, 14 October 1999, the applicant was a disqualified driver. 20 Not surprisingly the sentencing Judge regarded the offence of armed robbery as a serious offence and the applicant's actions as a "relatively serious example of such an offence." It appeared that before committing the offence the applicant had used drugs to give him the courage to carry out the offence. This, the sentencing Judge saw as an aggravating factor. At the time the applicant committed the offence in question he was serving an additional term of 21 months for another conviction for break and enter for which he had served a minimum term of three months in prison. (b) Responses to the Questionnaire 21 In the questionnaire the applicant, in explaining his "substantial criminal history", noted that he was supporting his drug habit and expressed regret at what had happened. He noted that he would stay with his family if he kept his visa and would return to employment which he said had been continuous since he left school. In response to a question whether he believed he had been rehabilitated, he responded in the affirmative. He noted that in the last three years he had educated himself in goal in reading, writing and mathematics; had completed drug and alcohol courses on a voluntary basis and was seeing a psychologist regularly. 22 In response to a question asking his attitude to the cancellation of the visa, he said that he had lived in Australia for thirty years. Particularly he said, "All I know is Australia. All my family lives in this country. My family would be devastated if I was to be deported to Turkey, because I don't know the country at all. My Turkish is not that good, and I have never been educated in Turkey. I will have a big problem in employment, and the living conditions in Turkey are very poor. I do not know any of the family" (the underlining is in the original). (c) The Direction 23 The purpose of providing the applicant with a copy of the Direction was obviously so that he could address the comments he wished to make to the Minister to matters that were referred to in the Direction. The Direction, made under s 499 of the Act was prepared for the guidance of decision makers engaged in determining whether visas should be revoked. Such decision makers would include both the delegates of the Minister and the Administrative Appeals Tribunal. It is not suggested that the Direction has any relevance directly to decisions of the Minister and legally it does not bind the Minister himself. However, it could not be suggested that the Minister would act wrongly in considering the matters referred to in the Direction. 24 The Direction is in two parts. The first relates to the application of the Character Test. Reference is made inter alia to "substantial criminal record." The second relates to the exercise of discretion required where the non-citizen does not pass the Character Test. 25 The Direction notes that all relevant considerations should be taken into account in exercising the discretion. It refers to three "Primary Considerations" being "the protection of the Australian Community, and members of the Community," the expectation of the Australian Community and where there is a parental relationship, the best interests of the child or children. Each of these matters is then addressed in the Direction. So for example the risk of recidivism is one of the factors discussed under the head of protection of the Australian Community. Relevant to recidivism is said in the Direction to be the extent of rehabilitation already achieved as well as the prospect of further rehabilitation. 26 The Direction then refers to "Other Considerations" which are to be given less weight than the "Primary Considerations." These include ties to the Australian Community, genuine marriage to an Australian citizen or resident and hardship. Australia's international obligations are also referred to. (d) The Issues Paper 27 The Issues Paper was, perhaps not surprisingly, negative in its comments concerning the applicant. It noted that it was open to the Minister to consider the factors that were set out in the Direction, that he was free to place whatever weight he regarded as appropriate on those factors. It may be said that the Issues Paper made comment on the following matters: · The criminal history with the conclusion that it was open to the Minister to find that the conduct against the community was serious. · The risk of recidivism. · The question of deterrence. · The expectations of the Australian community. · The best interests of the children. · Other considerations. 28 Under the general discussion of recidivism, the Issues Paper noted that it was open to the Minister to take into account whether there had been a previous warning about cancellation, the previous convictions in Australia and the extended rehabilitation either already tried or prospects of further rehabilitation, as well as the positive contribution, if any, to the community that the applicant might make. It noted that the applicant had not been previously warned about cancellation but that he had numerous convictions, as set out in his criminal record. Particularly, it noted that the applicant had been back to Turkey on a number of occasions. It noted that in 1991, he had returned to Turkey and that he had stayed there for three years until 1994. 29 The Issues Paper noted that Mr Dagli had submitted that he had been rehabilitated and referred to what Mr Dagli had said in the questionnaire. Reference was also made to a Probation and Parole Report which was attached for the information of the Minister, although it had not been referred to by the Officer in the Information letter. The Probation and Parole Report was in evidence before me and it can be said was generally favourable to the applicant. 30 The Officer's conclusion by way of recommendation was as follows: "As evident in Mr Dagli's Criminal History, he had committed a number of crimes prior to the commission of the offences bringing him within the scope of section 501(2) of the Migration Act 1958. His offending ways began in 1998, and have steadily risen in number and level of seriousness to culminate in his recent crimes in Australia. Mr Dagli's gaol sentence in June 1999, being twenty-one months for Break Enter and Steal, of which he served a minimum of three months, did not prevent him from committing his current offences. In consideration of the above factors, it is open for you to find that Mr Dagli is at a medium to high risk of recidivism." 31 Under the heading of "General deterrence" the Officer expressed the view that it was open to the Minister to find that cancellation of the visa would serve as a deterrence factor against others committing similar offences. On the question of expectations of the community the Officer noted that the offences were considered by the government to be very serious and that the Australian community expected non-citizens to obey Australian laws while in Australia. The recommendation was that it was open for the Minister to find that the character concerns or offences were such that the Australian community might expect that Mr Dagli should be removed from Australia. 32 Because Mr Dagli had no children, the question of the best interests of the children did not arise. 33 Finally under the heading "Other Considerations" the Officer referred to some historical matters concerning family, education and employment. He referred also to what the applicant had said in the questionnaire about the difficulties of his returning to Turkey. At par 47 the Officer noted that it had been said in the Probation and Parole Report that the applicant intended to request permission from the Parole Board to travel to Turkey with the intention of marrying a girl of a similar cultural origin. On the question of return to Turkey it said also: "Whilst Mr Dagli has referred to Turkey as a country he did not know, he has visited Turkey on a number of occasions and resided in turkey [sic] for three years between 1991 and 1994. He was also a soldier in the Turkish Army for a period and resided with his grandparent there. Furthermore, he has intentions of visiting Turkey with the view of marrying a girl of Turkish origin. Given this, it is reasonable to conclude that Mr Dagli has been able to retain some of his cultural ties even though he has been a resident of Australia for thirty years." 34 It is not clear to me whether the Minister was given the computer printout of movement details which are in evidence before me. However, if he was, he might have had cause to wonder because, despite the suggestion by the Officer that the applicant had been "back to Turkey on quite a number of occasions", the movement details recorded only two such occasions. One was a departure in May 1983 returning in March 1984 when the applicant was twelve and presumably accompanied his family and the other was a departure in June 1991 with a return in February 1994. The records show the applicant was granted a visa to return from Turkey to Australia in February 1993. Nothing in the documentation supports the conclusion that the applicant had visited Turkey more than those two occasions. Whether he resided in Turkey for the whole of those three years between 1991 and 1994 is unclear. It seems that the applicant in that period, although not necessarily in the entirety of it, had been conscripted into the Turkish army for military service. 35 The Parole Board's Report supports the information that the applicant intended to visit Turkey to marry a girl there but gives no details of the circumstances. It is possible, perhaps likely, that the girl in question lived in Australia and that the purpose of the applicant wishing to go to Turkey was to enable the girl's relatives to participate in the wedding ceremony. In other words, if the circumstances were known as to the proposed trip to Turkey it may well be that such a trip disclosed no close connection on the part of the applicant with Turkey as is inferred in the Issues Paper. It could perhaps also be the case that the applicant had met the girl in Turkey before he left there in 1994. The former possibility would however seem more likely. The actual facts are not known.