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1 On 5 December 2001 the respondent Minister exercised a discretion under subs 501(2) of the Migration Act 1958 (Cth) (the "Act") to cancel the appellant's visa. The appellant was twenty five years of age at the time of the cancellation of his visa. He arrived in this country as an infant of six months of age. His other personal and family circumstances are summarised in the reasons for judgment of Allsop J published on 14 February 2003. The reasons of the Court today should be read with, and against the background of, the reasons of Sackville J and Allsop J published on that date.

2 Pursuant to orders made by the Court on 19 March 2003, the respondent provided the appellant with written reasons for his decision of 5 December 2001. These reasons were, without objection, placed in evidence before us.

3 The primary judge dismissed the challenge to the exercise of the respondent's discretion, as that challenge was then formulated. The appeal, as finally constituted and argued, raised two grounds not argued before the primary judge. No objection was taken by the respondent to the raising of these fresh issues by the filing of a second further amended notice of appeal.

4 The two issues raised were framed in terms of procedural fairness. The first concerned one discrete part of the respondent's reasons. The appellant contended that the respondent was obliged to found his decision on evidence; that this obligation is an aspect of his duty to accord procedural fairness; and that a breach of the obligation constitutes a jurisdictional error such as to justify the grant of a writ of prohibition.

Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2

Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 139 (27 June 2003)
Last Updated: 27 June 2003


FEDERAL COURT OF AUSTRALIA
Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 139


TAYFUN AYAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 364 OF 2002

SACKVILLE, ALLSOP & JACOBSON JJ

SYDNEY

27 JUNE 2003

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 364 of 2002




ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
TAYFUN AYAN

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
SACKVILLE, ALLSOP AND JACOBSON JJ


DATE OF ORDER:
27 JUNE 2003


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's 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
N 364 of 2002




ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
TAYFUN AYAN

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
SACKVILLE, ALLSOP & JACOBSON JJ


DATE:
27 JUNE 2003


PLACE:
SYDNEY





REASONS FOR JUDGMENT
The Court:

1 On 5 December 2001 the respondent Minister exercised a discretion under subs 501(2) of the Migration Act 1958 (Cth) (the "Act") to cancel the appellant's visa. The appellant was twenty five years of age at the time of the cancellation of his visa. He arrived in this country as an infant of six months of age. His other personal and family circumstances are summarised in the reasons for judgment of Allsop J published on 14 February 2003. The reasons of the Court today should be read with, and against the background of, the reasons of Sackville J and Allsop J published on that date.

2 Pursuant to orders made by the Court on 19 March 2003, the respondent provided the appellant with written reasons for his decision of 5 December 2001. These reasons were, without objection, placed in evidence before us.

3 The primary judge dismissed the challenge to the exercise of the respondent's discretion, as that challenge was then formulated. The appeal, as finally constituted and argued, raised two grounds not argued before the primary judge. No objection was taken by the respondent to the raising of these fresh issues by the filing of a second further amended notice of appeal.

4 The two issues raised were framed in terms of procedural fairness. The first concerned one discrete part of the respondent's reasons. The appellant contended that the respondent was obliged to found his decision on evidence; that this obligation is an aspect of his duty to accord procedural fairness; and that a breach of the obligation constitutes a jurisdictional error such as to justify the grant of a writ of prohibition.

5 To expose the issue it is necessary to set out the relevant part of the respondent's reasons dealing with the seriousness of the appellant's past criminal conduct and the protection of the Australian community. In that part of the reasons the following appeared:

Primary Considerations
Protection of Australian Community

9. I gave primary consideration to the protection of the Australian community, taking into account the seriousness and nature of Mr Ayan's conduct, the likelihood that such conduct might be repeated and general deterrence.

Seriousness and nature of conduct

10. Mr Ayan had been convicted of a number of serious offences between 1998 and 2001. He was convicted on at least 10 different occasions for crimes such as shoplifting, break and enter building commit felony (steal), goods given other not entitled reasonably suspect stolen, break and enter with intent to steal, possess housebreaking implements and goods in/on premises reasonably suspected stolen. These constituted crimes that I consider to be very serious under subparagraph 2.6(l) of the Direction:

"It is the Government's view that the following are examples of offences which are considered by the Government to be very serious:

(l) serious theft (including `white collar' crime) - such crimes are of concern because of the amounts of money involved and/or the disruption caused to individuals, business and Government;

11. Mr Ayan's crimes were primarily property offences and did not involve violence. I recognised that he was drug dependant at the relevant time and accepted that he committed these offences primarily to support that dependence. I accepted that his addiction began after the loss of a close friend and the separation of his parents.

12. I also found, however, that Mr Ayan's crimes were of a continuous and repetitive nature. The value of goods stolen in relation to offences committed amount to at least $30,000. His conduct caused serious disruption to a number of Australian citizens and residents and caused them to have concerns in relation to their own safety and that of their property. I consider this conduct to be very serious.

13. The nature of Mr Ayan's conduct and its effect on the community is such that I gave this consideration great weight, having taken the view that the Australian community is entitled to protection from such conduct.

[emphasis added]

6 The emphasised passage above provides the foundation of the argument. It was said that there was a failure to accord procedural fairness because these passages contained assumptions of fact for which the respondent had no evidence.

7 The second issue was an asserted failure to accord procedural fairness by failing to provide the appellant with (a) the briefing paper provided to the respondent, and (b) the copy of the appellant's criminal record contained therein.

The First Issue

8 The weight given by the respondent to the matters in his reasons which we have emphasised at [5] above was considerable. The reasons of the respondent reflect an attention to the personal and familial considerations of the appellant, including the hardship that the consequences of the decision will inflict on the appellant and his family, in particular his mother. The respondent concluded his reasons by saying:

27. In reaching my decision, however, I concluded that the continuous nature and seriousness of Mr Ayan's crimes over an extended period, the disruption these crimes have caused others and the expectations of the Australian community outweighed all other considerations above.
[emphasis added]

The centrality and weight of the impugned consideration thus cannot be doubted.

9 It is necessary to say something of the appellant's criminal record. (It is unnecessary to rehearse the circumstances which might explain this past conduct. These were mentioned in [68] to [70] of the reasons of Allsop J of 14 February 2003 and were expressly taken into account by the respondent in his reasons.) Leaving to one side entirely the crimes for which the appellant was convicted as a minor, the appellant was convicted, amongst other property related offences, on twelve occasions of breaking and entering, either with intent to steal or with stealing. On two occasions he was convicted of possessing housebreaking implements. There was material before the respondent to the effect that the buildings into which the appellant broke included homes.

10 There was a debate before us as to whether, if there had been findings or assumptions of fact by the respondent without any supporting evidence, those were errors which could be said to be jurisdictional so as to attract relief under s 39B of the Judiciary Act 1903 (Cth). It is unnecessary to explore this issue. The impugned parts of [12] of the reasons of the respondent set out at [5] above were not findings or assumptions of fact made without evidence. It is wrong, in our view, to say, as the appellant does, that these conclusions required some form of express or direct evidence of the attitude of people who had a connection with the buildings into which the appellant broke. The respondent's conclusions can be seen as an assessment by him of the effect of the appellant's criminal activities on those whose premises were the subject of those activities. It is rational and within common human experience to expect people who have had their homes or businesses broken into, and in some cases robbed, to be fearful or anxious about their safety and property. It is also rational and within common human experience to conclude that people, whose buildings have suffered such break and entry, especially where robbery has occurred, will have their lives disrupted, and in all likelihood seriously.

11 There was material or evidence before the respondent for him to conclude as he did. That evidence was the extensive criminal record of the appellant. The respondent was exercising an administrative discretion. He was required to expose his reasons and so, in this case, his reasoning process. That involved his conclusions based on facts as to how the victims of the crimes would have reacted to them; he no doubt brought to bear his views as to ordinary human nature and common experience. That was entirely within his province, absent, as here in the drawing of these conclusions, arbitrariness and caprice.

12 This first ground fails.

The Second Issue

13 The two elements of this issue in argument, in substance, collapsed into one: the asserted requirement to provide the particular form of the criminal record of the appellant that was before the respondent. The asserted requirement to see the appellant's criminal record, as placed before the respondent, required the appellant to be shown at least that part of the briefing paper. It was not suggested that, absent this asserted ground of unfairness, there was otherwise an obligation to provide the appellant with the exact form of the briefing paper in order that procedural fairness be accorded.

14 The importance of the form of the criminal record before the respondent flowed from the assertion that it contained errors. The failure to provide the appellant with that form of his record denied him, it was said, the opportunity of correcting the errors and, perhaps, thus affecting the outcome of the exercise of the discretion.

15 The appellant's record took two forms in the papers before the respondent. At pages 5 to 7 of the briefing paper the various convictions were transcribed in tabular form. Immediately after the tabular form was the statement:

"A copy of Mr Ayan's criminal history is at Annex B".
16 In the table, two "errors" were identified. First, in the list of convictions at Central Local Court on 17 June 1999 there appeared the following:

Break and enter building commit felony (steal) value >$2000 & ,$5,000 (2 counts) Minimum term 12 months with an additional term of 4 months

...


Break and enter building commit felony (steal) value >$2000 & <$5,000
Break and enter building commit felony (steal)
Minimum term 12 months with an additional term 4 months
Minimum term 12 months additional term 4 months.



[emphasis added]
17 Secondly, the entry adjacent to "Cental Local Court 25/1/2001" read as follows

Break and enter W/I (steal) Imprisonment 9 months


[emphasis added]
18 Annexure B to the briefing paper was a printout from the New South Wales Police Service entitled "Criminal History - Bail Report" of the appellant. It was submitted that this was the foundation for the entries in the table. That is not self evident, though that may not matter. The "errors" in the table were said to be disclosed by material which was before the Department, but not provided to the Minister. This material was a printout from the New South Wales Department of Corrective Services entitled "Conviction, Sentences and Appeals". This document disclosed that on 25 January 2001 the sentence for the crime of break and enter with intent to steal was four months imprisonment, not nine months as referred to in the table. Also, in relation to the sentences imposed in June 1999 the third sentence of minimum twelve months with an additional term of four months was inconsistent with the Corrective Services document which only identified one year's imprisonment for this crime.

19 There was no evidence before us as to which was correct - the document from the Department of Corrective Services which was not before the respondent, or the tabulation which was before the respondent. We will, nevertheless, proceed on the basis that there were two errors in the tabulated form of the briefing paper as just identified.

20 The question whether the respondent was required to provide the appellant with his own criminal record, or the particular form of his own criminal record relied upon, depends on all the circumstances of the case. Mr Henry, on behalf of the appellant, correctly emphasised the importance of the decision to the appellant and his family, the lack of any merits review of the decision made personally by the respondent, and the centrality of the appellant's criminal record to the respondent's decision. It is, however, also important to realise that the assessment as to whether there has been an absence of procedural fairness is one of assessment of "practical injustice" (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 195 ALR 502, [34] and [38] per Gleeson CJ and see also [122] per Hayne J and [149] per Callinan J, and the Full Court of this Court in Untan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 69 at [96] to [99]) or whether the procedure was "fair in all the circumstances" (Wiseman v Borneman [1971] AC 297, 308 (per Lord Reid) applied by Brennan J in Kioa v West (1985) 159 CLR 550, 662) to enable the person the subject of the decision to understand the matters which he or she needs to address and to have a reasonable opportunity to address those matters. This assessment is not to be made by applying a priori logic, but by attendance to the particular circumstances of the case and the procedure adopted up to the point of decision making.

21 Here, the appellant was interviewed in gaol by an officer of the Department. The interview was conducted by reference to a prepared form. There was no suggestion that the interview did not proceed along the lines of the form. The form commenced:

The visa holder is to be informed that:
(a) he/she has rendered him/herself liable for cancellation by reason of his/her:

- substantial criminal record; or

- association; or

- past and present criminal conduct; or

- past and present general conduct; or

- risk future conduct.

Detail legal ground/s

(b) the purpose of the interview is to afford him/her the opportunity of making known his/her personal circumstances and anything that he/she wishes to be taken into account when the Minister or delegate considers his/her case.

(c) He/she will be given the opportunity of reading, amending (if necessary) and signing each page of the notes.

22 The appellant was provided before or at the interview with the relevant Ministerial Direction which included the following:

Protection of the Australian Community
...

2.5 The factors relevant to an assessment of the level or risk to the community of the entry or continued stay of a non-citizen include:

(a) the seriousness and nature of the conduct;

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

(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

a. The seriousness and nature of the conduct

2.6 It is the Government's view that the following are examples of offences which are considered by the Government to be very serious:

...

(l) serious theft (including "white collar" crimes):

* such crimes are of concern because of the amounts of money involved and/or the disruption caused to individuals, business and Government.

[emphasis in original]

23 During the interview in gaol the appellant discussed his criminal convictions. It is unnecessary to set out the whole interview. It is plain from the notes of the interview before the respondent that the appellant understood that he needed to explain his criminal past. He did not ask for a copy of his own record. That is understandable. There was little complexity in it. It was long and sadly repetitive. His punishments hitherto, even assuming the corrections of the "errors" referred to above, included serious imposition of custodial sentences.

24 At this time the appellant had a solicitor, F. Ilknur Bayari. This solicitor sent a letter to the Department that stated, amongst other things:

In the meantime, I was instructed that Mr Ayan felt that his record of interview was not fully reflective of his and his family's feelings and attitude on the matter. Accordingly, I have taken additional statements from Mr and Mrs Ayan in Turkish and recorded them in English. Interpreter's certification has been provided.
Various statements of the appellant and members of his family were enclosed with this letter.

25 An officer of the Department replied to this letter and stated, amongst other things:

As you will see he is not liable for deportation, but visa cancellation pursuant to section 501(6)(a) of the Migration Act 1958 due to his substantial criminal history.
Please be advised that I will be preparing a submission for the Minister in relation to the question of visa cancellation, and would ask that if you have anything further to submit on behalf of Mr Ayan, or his family, that it reach me no later than close of business 13 July 2001.

26 On 3 September 2001 a Departmental officer sent a letter to the appellant providing an up to date Ministerial Direction. The changes were identified. The changes did not concern pars 2.5 or 2.6 set out at [22] above. The letter also included the following paragraph:

In the interests of natural justice, you are provided with an opportunity to provide comments against the new 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 or is relevant to your circumstances. You may also wish to provide any further information that you feel the Minister ought to be aware of and take into account.
27 The appellant took the opportunity to respond. He sent a 5� page handwritten letter to the Department. He referred to his "substantial criminal record". He did not seek details of it. No doubt because he was aware of it. His submission, perfectly understandably, took the seriousness of his record as a given. He sought to explain it, and put it in context, in an attempt to persuade the decision maker not so to hold it against him as to cancel his visa. He set out the powerful human reasons why he felt that he and his family should not suffer the harsh consequences of the cancellation of his visa.

28 At the time of this letter or shortly afterwards the appellant's present solicitor, Mr Turner, wrote to the Department. It was a seven page submission. It did not ask for the appellant's criminal record. Mr Turner dealt with the Ministerial Direction and the appellant's history without descending into the minutiae of the individual sentences. Mr Turner stated, amongst other things:

The offences for which Mr Ayan has been incarcerated are "break enter and steal" and related matters which, although they fall within the statutory definitions of `very serious', are towards the lower end of the type of activity relevant to your consideration and are not of a kind that should lead to a decision being taken by the Minister personally. This is a matter where a decision should be made by a delegate of the Minister.
29 The "errors" if noticed and possibly corrected could have had no effect on the thrust or burden of Mr Turner's or the appellant's approach to the matter. Neither Mr Turner nor the appellant gave any evidence that he would have acted any differently or put any different substantive submissions to the respondent had he appreciated the "errors"; though it may be readily assumed that if the "errors" had been noticed they may well have been identified in the correspondence. (In this context, we note that the "errors" which appeared in the "Court Book" before the primary judge, and the Appeal Book before us, had not apparently been noticed while the matter was pending before the primary judge or, indeed, at any time until shortly prior to the hearing in June 2003.)

30 It seems to us that, in the circumstances, the appellant did not need to be told of the precise detail of his criminal past and the sentences that had been imposed on him. He and his successive solicitors approached the matter (entirely sensibly if we may say so) on the basis that there was no real issue about the precise detail of his record. In these circumstances it would be strange for a conclusion to be reached that the respondent was obliged in law to provide the appellant with a document setting out the precise detail which was not the subject of request or submission and which did not form part of the approach taken by those (including the appellant) advancing the interests of the appellant and his family.

31 The "errors" in the briefing paper do not affect this conclusion. In our view they are plainly not of such a magnitude as to affect either the reasoning or approach of the respondent or the approach of the appellant or his solicitors. The errors deal with details which, even if taken into account, do not change the overall pattern and seriousness of the conduct which is what the appellant, his solicitors and the respondent focussed on. We do not see how the existence of such "errors" in the circumstances can be seen to raise an obligation not otherwise existing to provide this form of the criminal record or how the existence of such "errors" in the circumstances can be said to have had any effect at all upon the outcome.

32 In our view the appellant cannot complain that he was not accorded procedural fairness. There was no injustice of any kind, in the respects argued, practical or otherwise.

33 For the above reasons the appeal must be dismissed. We see no basis to conclude other than that the usual rule as to costs should prevail.

34 The orders of the Court will be that the appeal be dismissed with costs.

I certify that the preceding thirty-four (34) paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Justices Sackville, Allsop and Jacobson.




Associate:

Dated: 27 June 2003

Counsel for the Appellant:
M S Henry






Solicitor for the Appellant:
Yandell Wright Stell Lawyers






Counsel for the Respondent:
G T Johnson






Solicitor for the Respondent:
Australian Government Solicitor






Date of Hearing:
12 June 2003






Date of Judgment:
27 June 2003


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