Firlayis v Minister for Immigration & Multicultural & Indigenous Affairs

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'