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1 This is an appeal from Ongel v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 525, where Jacobson J dismissed an application to review a decision of the respondent (`the Minister') personally to cancel the appellant's resident return visa pursuant to s 501 of the Migration Act 1958 (Cth) (`the Act').

Ongel v Minister for Immigration & Multicultural & Indigenous Affairs [2003

Ongel v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 248 (6 November 2003)
Last Updated: 8 December 2003


FEDERAL COURT OF AUSTRALIA
Ongel v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 248


Migration Act 1958 (Cth)

Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme [2003] HCA 56

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502

SUAT ONGEL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N682 OF 2003

SPENDER, HELY and BENNETT JJ

6 NOVEMBER 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N682 OF 2003




BETWEEN:
SUAT ONGEL

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
SPENDER, HELY & BENNETT JJ


DATE OF ORDER:
6 NOVEMBER 2003


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The appeal is dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N682 OF 2003




BETWEEN:
SUAT ONGEL

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
SPENDER, HELY and BENNETT JJ


DATE:
6 NOVEMBER 2003


PLACE:
SYDNEY





REASONS FOR JUDGMENT
BACKGROUND

1 This is an appeal from Ongel v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 525, where Jacobson J dismissed an application to review a decision of the respondent (`the Minister') personally to cancel the appellant's resident return visa pursuant to s 501 of the Migration Act 1958 (Cth) (`the Act').

2 Section 501(2) gives a discretion to the Minister to cancel a person's visa if the Minister reasonably suspects that a person does not pass the character test in s 501(6) and the person does not satisfy the Minister that the person passes the character test.

3 The appellant has a substantial criminal record within s 501(7)(c). Accordingly, he does not pass the character test in s 501(6).

4 There is not before this Court and there was not before Jacobson J any dispute as to the above facts nor any suggestion that the criteria that enliven s 501(2) have not been made out.

5 On 5 September 2002 the appellant was sent a letter notifying him of the possible cancellation of his visa and inviting him to comment. The Department of Immigration and Multicultural and Indigenous Affairs received a response from the appellant on 23 September 2002. That response included a number of references to his wife and children. On 30 October 2002 an issues document was prepared for the Minister annexing the appellant's response and other material. The Minister's decision to cancel the appellant's visa was made on 12 November 2002 and the appellant informed of the decision on 14 March 2003.

6 The issue before the primary judge was whether there was a lack of procedural fairness arising from the making of the decision with, it is alleged, insufficient factual material to consider the best interests of the appellant's children. In particular, as noted by the primary judge at [4], the appellant said that he had a legitimate expectation that the Minister would contact or cause to be contacted the appellant's wife in regard to the best interests of the children before making the decision to cancel the visa.

7 The relevant grounds of appeal effectively repeat these submissions. They are:

* That his Honour erred in finding that the Minister had sufficient information to make a determination as to the best interests of the children or, as put in written submissions to this Court that, due to the limited information before the Minister, he could not have made a proper decision concerning the best interests of the children.

* That his Honour erred in finding that there was no legitimate expectations that the Minister would notify the mother of the [appellant's] children that the Minister intended to revoke the applicant's visa and invite her to make submissions on the children's behalf.

8 In oral submissions, counsel for the appellant said that there was only one issue in the appeal and that was the question of the best interests of the children. He identified two matters which, he submitted, gave rise to appellable error. The first was what he termed the Minister's `nomination' of Mr Ongel as the spokesperson for those interests and the second, although not stated with precision, seemed to be the acceptance of Mr Ongel as that spokesperson. In that regard Mr Finch, who appeared for the appellant, submitted that Mr Ongel's wife was not given an opportunity to make submissions to the Minister.

9 In written submissions, counsel for the appellant contended that, at the very least, a letter ought to have been sent to the appellant's wife giving her an opportunity to make submissions, that there could have been other relevant information about the children of which the Minister was unaware as he did not enquire and that it was not `up to' the appellant to ensure that the information is placed before the Minister. There was no assertion that there was other information that was relevant, only that `[t]here may be' such information.

10 Mr Finch then submitted at the hearing that the Minister was not obliged to ask questions of the wife. He submitted that the Minister was not obliged to go to any particular person but that the Minister should consider the answers to the questionnaire completed by the appellant to determine a person who had a relationship with the children which would enable him or her to address the best interests of the children. It is not necessary to consider this question further as Mr Finch conceded that, in this case, the answers made it clear that Mr Ongel had such a relationship.

11 The factual matters are set out in the reasons for judgment of the primary judge. They include some detail of the appellant's substantial criminal record and the observations of the Magistrate of the Wollongong Local Court with respect to the most recent of these, being assault occasioning actual bodily harm against two young women, which assaults were extremely violent in nature and resulted in significant injury to two women of small stature by a man much bigger than they.

12 The appellant has spent almost all of his life, since the age of 18 months, in Australia. He is married and has two small children, aged 7 and 5 years, each of whom was born in Australia. The section of the issues paper that was prepared to seek the Minister's decision, as to whether the appellant passed the character test in s 501(6) and, if not whether his visa should be cancelled under s 501(2), was before the Minister. It included, as noted by Jacobson J, under the sub-heading "The Best Interests of the Children", a reference to the United Nations Convention on the Rights of the Child and information as to the two children and the appellant's opinion as to the effects on the children of any cancellation.

13 This section of the issues paper concluded with the remark:

`[41] It is open to you to find from the information given that the best interests of the children is served by having Mr Ongel remain in Australia'.
DECISION OF THE PRIMARY JUDGE

14 His Honour noted that the appellant had been specifically invited to provide any information which he `or anyone who wish to provide comments and information' felt that the Minister ought to take into account. The response was by the appellant and contained his own comments. Jacobson J observed that the opportunity for a response by the appellant's wife had been offered and not taken up and that, in those circumstances, at [56], `t must follow that the submission that the applicant had a legitimate expectation that the Minister would interview his wife cannot be sustained' and, further, that there was no actual unfairness, as the appellant had been given a full opportunity to be heard.

15 At a factual level, the primary judge found that there was nothing in the circumstances of this case to give rise to any obligation on the part of the Minister to initiate enquiries of the appellant's wife or any indication that there might be a centrally determinative item of information that the appellant could not provide himself nor, indeed, that any additional information would have been supplied. As his Honour put it at [62]: `Thus, there is nothing which gives rise to any indication of practical injustice; see Lam [Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502] at [37] per Gleeson CJ' (citation added).

DECISION

16 In Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme [2003] HCA 56 (`Palme') one matter considered was a complaint that there had been inadequate consideration in the submission made to the Minister in respect of a decision to be made under s 501(2) of the Act of the importance of the impact upon the children of the prosecutor of his removal from Australia. Gleeson CJ, Gummow and Heydon JJ commented at [28] that the submission is to be read as a whole and, in that case, the submission presented the matters to the Minister in a balanced fashion (at [30]). Their Honours held, at [29], that there was no substance in the point that there had been inadequate consideration of the importance of the impact of deportation upon the children of the prosecutor.

17 McHugh J also found no substance in that contention, nor the contention that the children were not given an adequate opportunity to make submissions in relation to their separate interests. His Honour noted at [60] that:

`The brief that was submitted to the Minister made it clear that he had to take the interests of the prosecutor's children into account as a primary consideration in making his decision. It also described accurately the nature of the prosecutor's relationship with his children. At all events, the prosecutor did not suggest that the brief contained any false statements'.
18 Kirby J did not dissent on this issue noting, at [94], that the brief made it clear that the Minister was to take the interests of the prosecutor's children into account as a `primary consideration' and made express reference to the Convention of the Rights of the Child, to which Australia is a party; it described the relationship with the children and no allegation was made that it misstated the facts in that regard. The terms of the brief concerning the interests of the children were held sufficient in the circumstances to direct the mind of the Minister to those interests. His Honour concluded that there was `no merit' in the point raised by the appellant.

19 The same comments as were made in Palme can be made in the present case, with the same result. The reasons of the primary judge, given before the decision in Palme, are consistent with the reasons of the High Court in that case. The appellant was afforded the opportunity to make submissions to the Minister, which he did in a way chosen by himself. There was no misstatement of the facts with respect to his relationship with his children.

20 The letter to the appellant notifying him of the intention to consider cancelling his visa specifically states:

`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'.
This does not amount to a nomination by the Minister of the appellant as the sole provider of information with respect to the interests of the children.

21 The appellant asserts that it is not for the appellant to ensure that the information in relation to the children is placed before the Minister. This misunderstands the nature of this process.

22 In any event, Mr Finch conceded that there was nothing to suggest that further enquiries would have changed the facts or the decision to deport. This is precisely what was found by Jacobson J at [62], that there is nothing which gives rise to any indication of practical injustice.

23 As Jacobson J observed at [61]:

`there was nothing in the circumstances of this case to give rise to any obligation on the Minister to initiate enquiries of the applicant's wife. There was no indication that there might be a centrally determinative item of information which the applicant could not be expected to provide to the Minister from his own knowledge; see Teoh [Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273] at 289-290 per Mason CJ, Deane J, at 302-303 per Toohey J, at 305 per Gaudron J, at 321 per McHugh J' (citation added).

We agree with his Honour's observation. Indeed, Mr Finch has not submitted that there is any such factual matter.

24 The appellant's submissions are not consistent with Palme. It is not for a court, exercising powers of judicial review, to reconsider the decision to remove the appellant from Australia on its merits (per Kirby J in Palme at [76]). The visa cancellation decision may be reviewed for jurisdictional error. There is no such error made out by the appellant in this case.

25 We see no error in the decision of Jacobson J.

26 For these reasons, the appeal should be dismissed 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 Justices Spender, Hely and Bennett.




Associate:

Dated: 6 November 2003

Counsel for the Applicant:
P J Finch






Solicitor for the Applicant:
Dennis & Co






Counsel for the Respondent:
T Reilly






Solicitor for the Respondent:
Australian Government Solicitor






Date of Hearing:
4 November 2003






Date of Judgment:
6 November 2003


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