Yalniz v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT The proceeding 1 Mr Selahattin Yalniz, who is the applicant in this proceeding, has applied to this Court for orders, including orders in the nature of certiorari and prohibition directed to the respondent Minister, upon the ground that the Minister's decision to cancel his visa under s 501(2) of the Migration Act 1958 (Cth) ('the Act'): …was made in breach of an imperative duty imposed on her or an essential pre-condition to or an inviolable limitation or restraint upon her power and her jurisdiction necessary for exercise of the discretion to cancel the Applicant's visa pursuant to s 501(2). The Respondent exceeded her jurisdiction and/or constructively failed to exercise jurisdiction. 2 An amended application, filed on 9 February 2007, gave the following particulars of this ground: Particulars i) The Respondent in choosing to apply Direction 21 was obliged to treat the best interests of the Applicant's nine children as a relevant consideration and in doing so to identify what those interests were. The Respondent failed to do so and: ii) [The Respondent] failed to consider the hardship that the children would suffer by reason of the cancellation and/or the impact the cancellation would have on their development and the consequences for them of the applicant being forced to leave Australia, with the children staying in Australia with their respective mothers. iii) The Respondent in exercising her discretion under s 501 of the Migration Act was obliged to take account of the hardship that the Applicant's nine children would suffer by reason of the cancellation and failed to do so. 3 The Court has jurisdiction in relation to this matter by virtue of s 476A(1)(c) of the Act. Applications in this Court in relation to a matter of this kind are governed by O 54B of the Federal Court Rules. Mr Yalniz is represented in this proceeding by Victoria Legal Aid, which apparently overlooked this circumstance in commencing the proceeding. The respondent said nothing of any failure to comply with O 54B. I disregard the deficiencies in the application and amended application that perusal of the Order discloses and treat the application and amended application filed on behalf of Mr Yalniz as having been duly made. 4 The Minister's decision is a "privative clause decision" within the meaning of s 474 of the Act. This Court cannot set it aside except for jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506-508 and 511 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. 5 For the reasons I am about to state, I would dismiss this application. Circumstances of the applicant 6 Mr Yalniz, who is in his mid forties, is a citizen of Turkey. He arrived in Australia on 18 July 1984. He has been married three times and has nine children from two of these marriages. 7 On 11 November 2002, in the County Court in Melbourne, Mr Yalniz was convicted and sentenced to six years and six months imprisonment, with a non-parol period of four years on charges of rape, reckless conduct endangering life, intentionally causing injury (two counts), making a threat to kill and common law assault. 8 On 20 September 2005, Mr Yalniz was given a 'Notice of Intention to Consider Cancelling a Visa Under Subsection 501(2) of the Migration Act 1958', which was dated 20 September 2005. That notice specified ss 501(2) and 501(6)(a) as containing the particular grounds on which his visa was liable to cancellation: that is, it was said that he did not pass the "character test" due to his "substantial criminal record". Mr Yalniz was also given various other documents, including a copy of s 501, his criminal history and the sentencing remarks of the County Court trial judge (Judge Hart), and the Minister's 'Direction under section 499 - Visa Refusal and Cancellation under Section 501 of the Migration Act 1958' ('Direction 21'). 9 Mr Yalniz was invited to respond, and was given the opportunity to provide information regarding his personal circumstances. By letter dated 18 May 2006, Victoria Legal Aid made submissions on his behalf. It also provided statutory declarations from Mr Yalniz and his uncle, as well as a report dated 5 May 2006 from a psychiatric registrar at Thomas Embling Hospital and a report dated 26 October 2005 from an occupational therapist at the Melbourne Assessment Prison. In essence, Mr Yalniz's case was that his offences took place "in the context of a relationship breakdown" and were "due to Mr Yalniz's considerable distress and agitation at the prospect of losing residence of two of his children". With regard to the best interests of Mr Yalniz's children, it was submitted that "they have the right to not be separated from their parents". Mr Yalniz declared that he loved his children and did not want to be separated from them. Amongst other things, his uncle declared that, if Mr Yalniz were sent back to Turkey, it would be "terrible" for him and his children; and that Mr Yalniz was a good father and responsible for his children. 10 On 28 July 2006, an officer of the Minister's Department contacted Victoria Legal Aid to seek further information concerning Mr Yalniz's children. Victoria Legal Aid provided a response by letter dated 1 August 2006 advising that Mr Yalniz had wanted to contact his children whilst in prison, but he had not been able to contact his former wives. It further advised that he had engaged a solicitor to commence Family Court proceedings but the solicitor had advised him that he should wait until he was no longer in prison in order to do so. Hence he had at that stage no contact with his children. 11 An officer of the Minister's Department prepared a document entitled 'Issues for Consideration of Possible Cancellation of a Visa Under s 501(2) of the Migration Act 1958' ('the Issues Paper'), for the Minister's consideration. On 29 September 2006, the Minister exercised her discretion to cancel Mr Yalniz's visa. The Minister provided a written statement of her reasons for the decision. Mr Yalniz was provided with a 'Notice of Visa Cancellation Under Subsection 501(2) of the Migration Act 1958' dated 17 October 2006. Statutory provisions 12 Section 501(2) of the Act provides: The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. Section 501(6)(a) provides that a person does not pass the character test if "the person has a substantial criminal record". Section 501(7)(c) provides that a person has a substantial criminal record if "the person has been sentenced to a term of imprisonment of 12 months or more". 13 It is common ground that Mr Yalniz does not pass the character test because, for the purposes of s 501(6)(a), he has a substantial criminal record, having been sentenced to imprisonment for more than twelve months. In this circumstance, Mr Yaniz's complaint concerns the way in which the Minister exercised her discretion under s 501(2) as to whether or not she would cancel his visa. Respondent's decision 14 Under the heading "Discretion", the Minister's reasons for her decision stated: Having found that Mr YALNIZ does not pass the character test, I carefully assessed all of the information set out in the Issues Paper and considered whether to exercise my discretion to cancel Mr YALNIZ's visa. While not bound by Ministerial Direction No. 21 - "Direction Under s. 499 Visa Refusal and Cancellation Under section 501 of the Migration Act" ("the Direction") - following my usual practice I proceeded in accordance with this Direction. I determined whether each of the relevant considerations weighed in favour or against exercising my discretion to cancel Mr YALNIZ's visa under section 501(2). 15 By way of conclusion, the Minister stated: I considered all relevant matters including (1) an assessment against the character test as defined by s 501(6) of the Migration Act 1958, (2) Ministerial Direction 21 under s 499 of that Act and (3) all other evidence available to me, including evidence provided by, or on behalf of, Mr YALNIZ. In reaching my decision I concluded that the seriousness of Mr YALNIZ's offences and, to a lesser extent, the expectations of the Australian community weighed against all other considerations above. Having given full consideration to all these matters, I decided to exercise my discretion to cancel Mr YALNIZ's visa under s 501(2). The parties' submissions 16 Counsel for Mr Yalniz submitted the Minister was bound to consider the best interest of his children because she had chosen to apply Direction 21. A concomitant of this was that the Minister was bound to consider the hardship they would suffer "by reason of the cancellation and/or the impact the cancellation would have on their development and the consequences for them of the applicant being forced to leave Australia, with the children staying in Australia with their respective mothers". Counsel argued, in the alternative, that the Minister was bound to consider the best interests of Mr Yalniz's children because this consideration fell within the "subject matter, scope and purpose" of s 501 of the Act. Referring to the Minister's statement of reasons, counsel for Mr Yalniz submitted that the Minister failed to consider the best interests of Mr Yalniz's children and, in so doing, associated matters (e.g., hardship and the children's development). Counsel also relied on the failure to consider "the factor of hardship" as a "freestanding obligation". In counsel's submissions, this amounted to jurisdictional error. 17 Counsel for the respondent contended that Direction 21 did not bind the Minister in the personal exercise of the discretion under s 501 and that, in choosing to apply the Direction, the Minister did not turn the considerations mentioned in Direction 21 into considerations that she was bound to take into account in making her decision. In any event, so counsel submitted, although the Minister was not bound to take into account the best interests of Mr Yalniz's children, she had in fact done so. Counsel submitted that the Minister not only had regard to the children's best interests, but also specifically concluded that the information relevant to the best interests of the children was a factor against cancelling the visa, and she gave that consideration considerable weight.