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[2007] FCA 426
Federal Court of Australia
2007-03-28
Hayne JJ, Kenny J
Original judgment source is linked above.
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.
CONSIDERATION 18 It is unnecessary in this case to consider whether or not the Minister was bound to take into account the best interests of Mr Yalniz's children in deciding to cancel his visa. For present purposes, I am prepared to assume that, if the Minister failed to have regard to the interests of his children, her decision would have been affected by jurisdictional error. This assumption may rest on any one of a number of bases: see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v Lorenzo [2005] FCAFC 13 at [57] per Wilcox, Sackville and Finn JJ. The difficulty faced by the applicant is in showing that the Minister failed to have regard the best interests of the children as a primary consideration in a manner the law accepts. 19 Although not bound to apply Direction 21, being a direction under s 499(1) of the Act (see Le v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 84 ALD 17 at 28 per Jacobson and Bennett JJ), the Minister specifically stated, in her reasons for decision, that she "proceeded in accordance" with the Direction. Direction 21 relates to the application of the character test and the exercise of discretion in determining whether or not to cancel a visa. Direction 21 provides that a decision-maker should have regard to three "primary considerations", one of which is "in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children". 20 In conformity with the Direction, the Minister stated, in her reasons, that: I gave primary consideration to the best interests of any children who are less than 18 years of age and with whom Mr YALNIZ is in a parental or other close relationship. Mr YALNIZ has four children from his second marriage and five children from his third marriage, all of whom are under the age of 18 years. Mr YALNIZ was imprisoned in January 2002 and I noted that he has not had contact with any of his children since his incarceration. I noted Ms Sowerine's statement that Mr YALNIZ has desperately wanted to contact his children and that he was advised by his solicitor that he should wait until he is released from prison before commencing proceedings in the Family Court. There is no evidence of any current Parenting Order in force imposing parental responsibilities on Mr YALNIZ for any of his nine children. On balance the information relevant to this consideration weighed against cancelling Mr YALNIZ's visa. I gave this consideration considerable weight. 21 In her reasons, the Minister also stated she had "carefully assessed all of the information set out in the Issues Paper". Indeed, the Minister's signature was endorsed at the conclusion of this document. In relation to the best interests of Mr Yalniz's children, the Issues Paper referred to art 3.1 of the Convention on the Rights of the Child and to par 2.16 of Direction 21, which set out factors to be taken into account when considering a child's best interests. The Issues Paper referred to the ages of Mr Yalniz's children and to the fact that there was "no indication that the children would accompany Mr Yalniz if his visa were cancelled". The Issues Paper also referred to his incarceration, his desire to see his children and his solicitor's advice. The Issues Paper emphasized Mr Yalniz's feelings for his children and referred to the submissions made by Victoria Legal Aid and the declaration made by Mr Yalniz's uncle. Finally, on this topic, it stated: Should Mr Yalniz's children accompany him to Turkey, it is open for you to find that the standards of education and health care in Turkey are not comparable to those available in Australia. It is open for you to find that should Mr Yalniz's children leave Australia, they may be separated from their mothers and would face a period of readjustment as they become accustomed to a new school and attempt to establish new social networks. It is open for you to find that it would be in the best interests of the children to remain in Australia and not to experience the disruptions involved in relocating to Turkey. It is reasonable to accept that Mr Yalniz's children would be affected by a decision under s. 501(2) and that it remains in each child's best interests that Mr Yalniz not be removed from Australia. In the event of his removal, the children would be deprived of a continuing relationship with their father. 22 It is clear from the Minister's reasons that she read and considered the Issues Paper, as indeed her reasons said she had done. The Issues Paper recognized the hardship that the cancellation of Mr Yalniz's visa might occasion, and referred to other matters bearing on her decision. It is clear that the Issues Paper (and the Minister) proceeded on the assumption that it was in the children's best interests to remain with their parents, as asserted in Direction 21. Further, in making her decision, the Minister specifically said that she gave primary consideration to the best interests of Mr Yalniz's children, recognizing that this consideration weighed against the cancellation of his visa. She stated that she gave considerable weight to this consideration. There is no reason to doubt the Minister's statement in this regard. 23 There was no need in this case for the Minister to go through a list of factors that might have informed her conclusion with regard to Mr Yalniz's children. Sometimes this may be appropriate but in other cases it may be sufficient, as in this case, to adopt an approach that assumes the relevant factors point to one conclusion - that it will be in the best interests of children to remain with their parents: compare Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31 at [15] per Tamberlin, Kiefel and Emmett JJ; Kaur v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 70 at [20]-[22] per Nicholson, Jacobson and Lander JJ; and Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212 at 221 per Gleeson CJ, Gummow and Heydon JJ and 238 per Kirby J. The fact that she did not make a list of factors (e.g., hardship and children's development) does not in this case make good the proposition that she did not direct her mind to the matters that arose on the information before her. Having regard to what I have already stated, I think it plain enough that she discharged her obligation fully in this regard. 24 There was in this case no obligation to make further inquiries concerning the children. There was nothing to create such an obligation: compare Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 at 314 per Tamberlin, Sackville and Stone JJ; and Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 208 at [19] per Marshall, Mansfield and Siopis JJ. Although the information about the best interests of the children was limited, it made out Mr Yalniz's case, by explaining his relationship with them and the loss they would suffer if deported. Mr Yalniz might have provided more detailed information had he wished, but he did not do so. As I have said, the Minister plainly took account of the information that she had been given. 25 There is thus no evidence that the Minister failed to regard the best interests of the children as a primary consideration. On the contrary it seems patent that she did have appropriate regard to their interests. She formed the view, however, that, although a primary consideration to which she gave considerable weight, it was outweighed by other considerations, which warranted the cancellation of Mr Yalniz's visa. 26 For the reasons stated, I would dismiss the application with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.
Associate: Dated: 28 March 2007 Counsel for the Applicant: Mr J.A. Gibson
Solicitors for the Respondent: Australian Government Solicitor
Yalniz
Minister for Immigration and Citizenship
(2003) 211 CLR 476
(2003) 216 CLR 212
(2004) 139 FCR 292