Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs

CIRCUMSTANCES LEADING TO THE DECISION 11 On 27 July 2001, in the District Court of New South Wales sitting at Campbelltown, Judge Payne sentenced the appellant to imprisonment for three years and four months for robbery when armed with an offensive weapon. In addition, on 29 August 2001, in the Local Court of New South Wales, the appellant was sentenced to imprisonment for twelve months for making a false instrument. The appellant thereafter commenced his term of imprisonment. 12 By letter of 13 March 2002, a delegate of the Minister informed the appellant that, as a result of his criminal conviction, he was 'liable for consideration of cancellation of [his] visa under section 501 of the… Act'. The letter went on to say that, in considering whether to cancel the appellant's visa, the Minister would have regard to the matters outlined in Direction No. 21, a copy of which was attached to the delegate's letter. The letter also indicated that the Minister would have regard to the appellant's criminal history and any other information that the appellant felt the Minister ought to be aware of and take into account. The letter said that, closer to the date of his release from imprisonment, he would be interviewed by a case officer and would be given an opportunity to provide any additional information that he wished to have considered. 13 By letter of 28 March 2002 in response to the delegate's letter of 13 March 2002, the appellant said that he wished to draw attention to the following points pertinent to his visa: '1. I have lived in Australia continuously for thirty years, since I was 6 years old. 2. I have elderly parents who have also resided in Australia for thirty years, and will continue to do so. 3. My younger brother, Volkan Tuncok, currently 18 years, is also an Australian citizen. 4. This is my first term of imprisonment. 5. My father is currently suffering from a terminal illness. 6. I have no relatives or means of supporting myself should I be repatriated to Turkey.' 14 On 8 July 2002, a delegate of the Minister wrote to the appellant again, saying that his visa may be liable for cancellation under s 501(2) of the Act on the ground of his 'Substantial criminal record'and his'Past and present criminal conduct'. The letter stipulated that the Minister would be personally making the decision whether to cancel the appellant's visa and consequently that, if a decision were made to cancel the appellant's visa, he would not be entitled to have the decision reviewed by the AAT. 15 The letter went on to say that, before the Minister considered whether to cancel the appellant's visa, he was to be provided with an opportunity to comment. The letter indicated that the matters to be taken into account included the appellant's criminal record, a copy of which was attached, and the 'the Judge's comments'. The letter informed the appellant that, in reaching a decision whether to cancel the visa, the Minister would have regard to those matters and to Direction No. 21, a copy of which was also attached to the letter. 16 The letter invited the appellant to read fully and carefully the contents of Direction No. 21 and to address each and every topic that the appellant felt applied to him or was relevant to his circumstances. A standard questionnaire was also attached for use as a guide in providing the appellant's response. The questionnaire invited views as to possible visa cancellation and removal from Australia and asked 'Why should your visa NOT be cancelled?'. The questionnaire also asked whether there were any difficulties envisaged in returning 'to your country of origin'. 17 The appellant was invited by the letter to provide any further information in written form that the appellant felt the Minister ought to be aware of and to take into account. The letter said that any comments and information should be provided no later than 31 July 2002 and that, if there was no response by that date, a decision would be made on whether the visa would be cancelled, using information already held by the Department of Immigration & Multicultural & Indigenous Affairs ('the Department'). 18 By letter of 12 July 2002, the appellant responded to the delegate's letter of 8 July 2002. The appellant's letter was relevantly in the following terms: ' I refer to your letter of 8/7/02, enclosing the 'Visa Refusal and Cancellation under Section 501 - No. 21'. This letter enclosed an explanation of the Act, and detailed the grounds upon which the Minister may exercise his discretion, as to whether or not to cancel or refuse a visa. The first ground encompassed 'The seriousness and nature of conduct'. In my case, despite a number of charges, there remains only one charge of a serious nature - Robbery whilst armed with an offensive weapon. This matter is the charge for which I am currently serving my first term of imprisonment, and I can assure the Minister that it, along with other reasons detailed below, will ensure a complete absence of recidivism. The second ground upon which discretion may be exercised is 'Likelihood of repetition, or recidivism'. I think the likelihood of this eventuality is adequately dealt with in the above paragraph, and in the cultural material below. The third criterion mentioned was 'General deterrence - the likelihood that visa cancellation or refusal would prevent similar offences by others'. While cancelling my visa may well achieve this, I would respectfully suggest to the Minister that on this occasion, such action would be a little excessive. I am certain that simply the threat of visa cancellation on the occasion of any further transgression would be more than adequate to maintain my behaviour entirely within lawful constraints, and to demonstrate to others that there are severe penalties for such misbehaviour. I would respectfully suggest that, for reasons detailed below, the cancellation of my visa would constitute excessive punishment, both upon myself, and my family. My circumstances are such that I arrived in Australia at Kingsford-Smith aerodrome, aged 6, in 1972, in the company of my parents, and my next youngest brother. My family settled here, and currently reside at 6/15 Manchester Street, Merrylands. My mother, [name], has only very recently lost her husband, [name], and the blow of my visa cancellation, and resulting deportation, would be a bitter one for her. I am her eldest son, and in the Turkish culture, this is a significant family role. Our culture places a heavy responsibility of parental care upon me, and since my father's recent passing, serous responsibilities have come upon me. As mentioned above, despite there being some matters relating to petty theft, and I do not seek to minimise the gravity of these offences, there is only one which could not be referred to in that classification. This has resulted in my first, and last, term of imprisonment. By way of explanation, though not amelioration, my suffering a car accident in 1986 placed me in a position of financial hardship where I was vulnerable to improper suggestions by people who I would have preferred, in hindsight, not to have met. I include this last detail by way of explanation of the larceny and false instrument charges against me. I can assure the Minister that the passing of my father has placed me in a position I have not hitherto found myself in, and placed upon me a responsibility which makes inconceivable the idea the relinquishing my mother's care for any length of time. Thus the concept of recidivism is out of the question. Finally, I have no relatives living in Turkey, and no history there, so deportation there would render undue hardship, not only to me, but to my loved ones here. Hoping my explanations reach a sympathetic outlook, I remain…' The questionnaire enclosed with the delegate's letter of 8 July 2002 was also completed and returned to the Department. 19 By letter of 22 October 2002, a delegate of the Minister, after referring to the correspondence summarised above, informed the appellant that the Minister had, after exercising his discretion, decided on 15 October 2002 to cancel the appellant's visa pursuant to s 501(2) of the Act. The letter stated that the appellant did not pass the character test upon the particular ground stated in s 501(6)(a) of the Act. The letter went on to state the consequences of the cancellation of the appellant's visa. 20 The letter also informed the appellant that, because the Minister decided the case personally, the appellant was excluded from appealing to the AAT from the decision of the Minister. The letter informed the appellant that he was thenceforth an unlawful non-citizen and was subject to the detention and removal provisions of the Act. However, the letter stated that the appellant had been granted a bridging visa E to allow him to remain in Australia to complete the custodial portion of his sentence but that visa would expire on the day prior to his release.

OBJECTION TO COMPETENCY 21 The objection to competency is based on the contention that the decision of the primary judge was interlocutory, as consisting of only the refusal of an order nisi, and that leave to appeal is necessary under s 24(1A) of the Federal Court of Australia Act 1976. The Minister contends that leave to appeal should not be granted. The appellant, however, contends that the order for dismissal made by the primary judge was a final order. 22 The 'matter' remitted to the Federal Court of Australia was, or at least included, the question of whether:

• a writ of prohibition should be issued directed to the Minister prohibiting from proceeding further with any action in respect of the Decision;
• a writ of certiorari should be issued removing the Decision into the High Court to be quashed;
• the High Court should declare the Decision is invalid and void. 23 Order 51A rule 5(1) of the Federal Court Rules relevantly provides that, when the Court or a judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the court or judge:
• will at the same time hear the parties on whether, if the order nisi were made, it should not be made absolute; and · if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute. While, under rule 5(2), in a particular case, the court or judge may order that rule 5(1) does not apply, no such order was made in the present proceeding. 24 The primary judge observed in his reasons that, when an application for an order nisi is remitted to the Court, the normal procedure is for the Court to hear the parties as if on an application for final relief. His Honour observed that neither party sought any departure from that procedure. Thus, it clear that his Honour was dealing with the matter on the merits and determining, on a final basis, the question of whether constitutional writs should be ordered. He decided that they should not. 25 In those circumstances, the orders made by the primary judge should be treated as final and, accordingly, no leave to appeal is necessary. It follows that the objection to competency should be dismissed, see Applicants S61 v Refugee Review Tribunal & Anor [2004] FCAFC 150 at [31]-[41].

GROUNDS OF REVIEW 26 By notice of motion filed on 30 January 2004, the appellant applied for leave to file an amended notice of appeal. On the assumption that the appeal is competent or that leave to appeal is granted, the Minister opposes the grant of leave to file an amended notice of appeal that raises grounds not raised before the primary judge. 27 The grounds relied on before the primary judge were those raised in the draft order nisi filed in the High Court of Australia. The draft order nisi claimed constitutional writ relief on the following grounds:

• Denial of natural justice/procedural fairness:
  • The Minister failed to accord natural justice and procedural fairness to the appellant in that: o having determined to decide the matter personally, the Minster did not personally afford the appellant an opportunity to know and comment upon and answer the case against him; o s 501G(1)(e) of the Act was not complied with in that the Minister did not provide reasons for his decision at the time he made his decision or at all.
• Error of law:
  • the Minister, being required by s 501G(1)(e) of the Act to give written reasons for his decision, failed to give any or adequate such reasons.
• Jurisdictional Error:
  • The decision was ultra vires or beyond jurisdiction in that the Minister proceeded on the footing that, if satisfied that the appellant did not pass the character test, he must consider whether the appellant should nonetheless be permitted to remain in Australia, whereas the correct approach was that, if so satisfied, a discretion to cancel the visa was enlivened, the prima facie decision being that, absent an exercise of such discretion adversely to the appellant, he was entitled to retain his visa.
• The decision was wholly unreasonable because:
  • the appellant had been permanently resident in Australia since he was 6 years old, and has spent 30 years of his life in Australia;
  • the appellant's offence was out of character and there was insignificant risk of recidivism;
  • from birth the appellant has suffered from a congenital medical condition that requires daily medication for the term of his natural life and the Minister was not aware of whether the appellant's prescribed medication was available in Turkey;
  • the whole of the appellant's surviving family were permanently resident in Australia and he had no family in Turkey;
  • the appellant, while having reasonable Turkish oral language ability could not read or write in the Turkish language. The primary judge dealt with each of those grounds. 28 In the notice of appeal filed on 28 October 2003 the following grounds of appeal were raised: 'The judge made error of law in dismissing my argument in Natural Justice. The Judgment handed down on…10th October 2003 was in breach of the Rules of Natural Justice.' No particulars of those grounds were given. 29 The grounds stated in the proposed amended notice of appeal are as follows: '1. His Honour erred in concluding that the [Decision] did not involve jurisdictional error.

1.1 In making the Decision, an irrelevant consideration was taken into account, namely, that of general deterrence.

1.2 The Decision did not involve a proper or bona fide exercise of the discretion conferred by s 501(2), by reason that the Appellant's personal circumstances, namely, his intellectual disability, and the circumstances of the commission of the crime including the Appellant's own intellectual disability and his culpability, were not made known or apparent to the [Minister].

2. His Honour erred in concluding that the Appellant was not denied natural justice or procedural fairness by the [Minister].

2.1 The [Minister] failed to provide the Appellant with an opportunity appropriate to the Appellant's particular circumstances to make known or apparent to the [Minister] the Appellant's personal circumstances, namely, his intellectual disability, and the circumstances of the commission of the crime including the Appellant's own intellectual disability and his culpability.

2.2 In purporting to accord the Appellant natural justice or procedural fairness, the Appellant's personal circumstances, namely, his intellectual disability, was not made known or apparent to the [Minister].' Notwithstanding the terms of par 1.1, counsel for the appellant made it clear, in the course of oral argument, that no submission was made that there was a lack of bona fides in the making of the Decision. 30 The outline of submissions filed on behalf of the appellant does not raise any of the grounds set out in the draft order nisi. The only grounds supported by the submissions are those fresh grounds contained in the proposed amended notice of appeal. If leave to rely on those grounds is refused, it follows that the appeal must be dismissed with costs. 31 Competent and experienced counsel represented the appellant at the hearing before the primary judge. No explanation was offered as to why, assuming it is open to grant leave to rely on grounds not raised in the application to the High Court, the proposed fresh grounds were not raised before the primary judge. Rather, the Full Court was simply invited to draw an inference that, notwithstanding the absence of evidence from the appellant or his former legal representatives, the new grounds had simply not occurred to those advisers. 32 The proposed fresh grounds are not merely variations of grounds argued before the primary judge. They are completely new grounds. In essence, they amount to two discrete grounds. The first ground concerns the propriety of taking into account general deterrence as a relevant consideration in cancelling the appellant's visa. The second concerns the extent to which the Minister had regard to the intellectual disability of the appellant, which was apparently taken into account by Judge Payne in her sentencing remarks in relation to the appellant in the District Court. It is convenient to deal with each of those grounds separately. 33 Before doing so, it is desirable to mention that, in the course of oral argument, counsel for the appellant made additional submissions, which were foreshadowed to some extent in written submissions filed on behalf of the appellant. Those submissions go beyond the grounds specified in the amended notice of appeal in some respects. No further leave was sought in relation to those submissions and, since they had no substance, it is unnecessary to deal with them. 34 However, one submission should be dealt with specifically. The draft order nisi, when filed in the High Court, was supported by an affidavit sworn by the then solicitor for the appellant. Apart from facts concerning the circumstances of the appellant, the affidavit annexed copies of a number of documents. One of the copy documents annexed was a copy of a letter dated 22 October 2002 from a delegate of the Minister to the appellant, informing him of the Decision. Attached to that letter was a copy of a memorandum prepared by officers of the Minister's Department on 5 September 2002 ('the Issues Memorandum'). The copy of the Issues Memorandum exhibited a number of markings in pen or pencil. 35 There was also in evidence before the primary judge the usual bundle of 'Relevant Documents' prepared by the Minister in cases of this sort, pursuant to a practice note issued by the Court. A copy of the Issues Memorandum was included in the Relevant Documents. The copy included in the Relevant Documents had none of the markings just mentioned. In the circumstances, it is patently obvious that the markings in question were placed on the copy received by the appellant after the original had been signed by the Minister. 36 Nevertheless, a submission was made on behalf of the appellant, in support of his assertion of denial of procedural fairness, that an inference should be drawn that the markings had been placed on the Issues Memorandum by the Minister. That submission has no substance and should not have been made.

IRRELEVANT CONSIDERATION 37 The Minster made his decision on the basis of the Issues Memorandum, which is entitled: 'ISSUES FOR CONSIDERATION OF POSSIBLE CANCELLATION OF RESIDENT RETURN VISA UNDER S.501(2) OF THE MIGRATION ACT 1958.' 38 The Issues Memorandum consists of several separate sections under the following headings: PURPOSE

(b) likelihood that the conduct may be repeated (including any risk of recidivism)

EVIDENCE OR OTHER MATERIAL ON WHICH FACTS/BACKGROUND INFORMATION IS BASED

MINISTER'S DECISION ON CANCELLATION UNDER S.501(2) In the correspondence addressed to the appellant prior to the Decision and in the Issues Memorandum, reference is made to Direction No. 21. Specifically, the following appears in the Issues Memorandum under the heading 'General deterrence': '[27] Paragraph 2.11 of [Direction 21] states:

General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in two ways:

(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and

(b) the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal schemes [sic] may discourage or prevent another person or persons from engaging in similar schemes.

[28] The offences committed by [the Appellant] are Robbery Armed with Offensive Weapon and Make False Instrument. It is open for you to find that cancellation of [the Appellant's] visa would serve as a deterrence factor against others committing similar offences. The Government has a strong interest in deterring others from committing offences of this nature.' 39 The appellant contends that, in so far as the Minister had regard to general deterrence in making the decision to cancel the appellant's visa, he had regard to an irrelevant consideration. He says that such an irrelevant consideration constitutes a jurisdictional error such that the Decision was not a decision under the Act and, accordingly, was not a privative clause decision within the meaning of s 474(2) of the Act. The appellant contends that, because of that jurisdictional error, s 474(1) does not preclude the grant of relief to the appellant. 40 There is no qualification expressed in the power conferred on the Minister under s 501(2). By that provision the Minister may cancel a visa if the prerequisites there referred to are satisfied. It is common ground that those prerequisites were satisfied in the present case. The only question is whether, in exercising the discretion that clearly arose, the Minister had regard to an irrelevant consideration, namely, the fact that the cancellation of the appellant's visa would serve as a deterrence factor against others committing similar offences. 41 It was not suggested on behalf of the Minister that the Minister did not have regard to the question of general deterrence. However, it is clear that the question of general deterrence was only one of a number of matters raised in the Issues Memorandum as relevant to the Minister's exercise of discretion. Other factors were taken into consideration as indicated in the contents of the Issues Memorandum set out above. In so far as the Issues Memorandum reflects the Minister's reasons for his decision, it is clear that general deterrence was not a conclusive factor, although it was treated as an important factor. 42 It may be that if the sole, or a substantial, factor justifying cancellation of a visa were the deterrence of others from committing a crime, the purpose of the decision may be punitive, which might be an irrelevant consideration (see Re Sergi and The Minister for Immigration and Ethnic Affairs (1979) 2 ALD 224 at 231 and Gungor and The Minister (1980) 3 ALD 225 at 227 and 232). However, whether or not that proposition is correct, that is not this case. 43 There is nothing in s 501(2) itself to indicate, or limit, the considerations that are to be taken into account by the Minister in exercising the discretion conferred by that provision. As indicated above, the preamble to Direction No. 21 states that the object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. The preamble states that, in exercising the power given to the Minister, the Minister has a responsibility to protect the community from criminal or other reprehensible conduct and to cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to remain within it. In general terms, that must be so. 44 It cannot be said that to have regard to the beneficial consequences for Australia flowing from the exercise of the discretion to cancel the visa is to have regard to a consideration foreign to the purpose for which the discretion is granted. But for the grant of a visa, the appellant would have no right to remain in Australia. The exercise of the discretion was not directed to the punishment of the appellant. The possible consequence of deterring other non-citizens from committing similar offences was not an irrelevant consideration in the exercise of the discretion conferred on the Minister by s 501(2) to decide whether the appellant should be permitted to remain in Australia (see generally Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 151 at [75]-[77]). 45 The matter raised by this ground is one of pure law. However, it was not raised or hinted at before the primary judge. While the ground is not unarguable, there would be no utility in granting leave to raise the matter as an additional ground for the grant of relief, since there was no error on the part of the Minister. Leave to rely on the ground should be refused.

DENIAL OF PROCEDURAL FAIRNESS 46 This fresh ground has three aspects in the amended notice of appeal, each of which is related to the appellant's intellectual disability. First it is said that the Minister's decision did not involve a proper exercise of the discretion by reason that the appellant's intellectual disability was not made known or apparent to the Minister. Secondly, it is said that the Minister failed to provide the appellant with an opportunity to make known or apparent to the Minister his intellectual disability and the circumstances of the commission of his crimes, including his intellectual disability and culpability. Finally, it is said that the appellant's intellectual disability was not made known or apparent to the Minister. The appellant's complaint is that the Minister did not give appropriate consideration to the material concerning the Appellant's mental disability to be found in the sentencing remarks of Judge Payne. 47 The Issues Memorandum referred to the appellant's 'medical condition' but did not refer to his intellectual disability. The appellant's complaint is that the Issues Memorandum did not refer to the fact that Judge Payne, in her remarks on sentencing, found that circumstances existed that warranted a lesser sentence for the appellant than that specified in a guideline judgment of the Court of Criminal Appeal for offences of that type. The Issues Memorandum did not refer to the fact that the appellant's intellectual disability was taken into account by her Honour in determining sentence. 48 The appellant contends that he had a reasonable expectation that the fact that Judge Payne imposed a lesser than usual sentence and the reasons for doing so would be important factors considered by the Minister in making his determination, without the appellant having to draw them to the Minister's attention. He claims that that expectation was engendered by the fact that the delegate's letter of 8 July 2002 informed him that her Honour's comments would be one of the matters to be taken into account. He also claims that he had a reasonable expectation that the Minister would take into account all of his personal circumstances, including his intellectual disability, without having to draw it to the Minister's attention. He says that that expectation was engendered by all of the correspondence summarised above. Finally, he complains that he was not given the opportunity to be interviewed despite having been told in the delegate's letter of 13 March 2002 that, closer to the date of his release, he would be contacted in writing by his case officer who would interview him about the matter. 49 However, he gave no evidence to that effect or at all and the claims must be considered in the context of the correspondence summarised above. Thus, in the delegate's letter of 8 July 2002, the appellant was informed that he was to be provided with an opportunity to comment and that matters to be taken into account included his criminal record and 'the Judge's comments'. That last reference is clearly a reference to the comments on sentence made by Judge Payne. A copy of her Honour's remarks on sentencing was attached to, and referred to in, the Issues Memorandum. 50 In response to the delegate's letter of 8 July, the appellant wrote his letter of 12 July 2002. It is clear enough that that letter was composed with some assistance. It refers to several items of Direction No. 21, including the seriousness and nature of the appellant's conduct, the likelihood of repetition or recidivism and the significance of general deterrence. The letter refers to the fact that the appellant arrived in Australia aged six in the company of his parents and brother. It also refers to the appellant suffering a car accident in 1986 that placed him in a position of financial hardship and to the relatively recent death of his father that placed him in a position of responsibility. Finally, the letter refers to the fact that the appellant has no relatives living in Turkey and that deportation would render undue hardship not only to him but to his immediate family in Australia. 51 However, no mention was made of the appellant's mental disability. There may be several reasons for that. One possible explanation is that the author of the appellant's letter, whether it be the appellant or an adviser, perceived that it would be disadvantageous to disclose the mental disability. The appellant gave no evidence that he was in any way misled, by the terms of the correspondence he received from the Minister into refraining from drawing attention to his mental disability. It is by no means clear what significance that disability might have had for the decision that had to be made by the Minister under s 501(2). The appellant had the opportunity of specifically drawing his condition to the attention of the Minister. For whatever the reason, that opportunity was not taken. 52 The Issues Memorandum attaches Judge Payne's remarks on sentencing in their entirety. In that part of the Issues Memorandum that follows the heading 'DECISION', the Minister says 'I have considered all relevant matters'. Under the heading 'EVIDENCE OR OTHER MATERIAL ON WHICH FACTS/BACKGROUND INFORMATION IS BASED' the following relevantly appears: 'In support of the above findings I had regard to the following material: … Annex H - Judge Payne's Comments …' Whether or not that is a statement purporting to be made by the officer who prepared the Issues Memorandum or the Minister, there is no reason to doubt that the Minister considered all relevant matters. Clearly, whatever findings appear in the Issues Memorandum, they were based, at least to some extent, on the sentencing remarks. To the extent that the remarks are relevant, there is no basis for concluding that the Minister did not have regard to them. 53 It follows that there is no substance in the proposed fresh grounds relating to denial of procedural fairness based on failure to deal appropriately with the mental disability of the appellant. There would be no utility in granting leave to the appellant to rely on those matters as a ground for the grant of relief and leave to do so should be refused.

CONCLUSION 54 The appeal should be dismissed with costs. However, the Minister should not have her costs of the objection to competency. I certify that the preceding fifty four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 30 June 2004 Counsel for the Appellant Mr P Roberts SC Solicitor for the Appellant: Levitt Robinson Counsel for the Respondent: Mr N Williams SC and Ms N Sharp Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 4 May 2004 Date of Judgment: 30 June 2004