Ayan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 337

FEDERAL COURT OF AUSTRALIA

Ayan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 337 AYAN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 364 of 2002 SACKVILLE, ALLSOP & JACOBSON JJ SYDNEY 5 NOVEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 364 OF 2002

BETWEEN: TAYFUN AYAN

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE, ALLSOP & JACOBSON J

DATE OF ORDER: 5 NOVEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal and the motion filed by the appellant on 31 October 2002 be stood over to a date and time to be advised.

2. The costs of the hearing on 5 November 2002 be reserved. 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

BETWEEN: TAYFUN AYAN

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE, ALLSOP & JACOBSON J

DATE: 5 NOVEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT SACKVILLE J: 1 When this matter was called for hearing, counsel for the appellant, Mr Robinson, moved on a notice of motion filed 31 October 2002. In that motion the appellant sought leave to file in Court an amended notice of appeal. The motion also seeks leave to file in Court an amended application for an order of review. 2 Mr Robinson subsequently handed up a document headed, "Grounds of Judicial Review" that consolidates the grounds upon which the appellant now seeks to rely on the appeal. Mr Robinson accepted that a number of the proposed grounds of appeal were not raised before the primary Judge. One of the grounds that is sought to be relied upon by the appellant raised a constitutional issue and is framed in the following terms: "Section 501 of the Migration Act 1958 (Cth) does not apply to the appellant, by reason of the appellant having been absorbed into the Australian community, so that at the date of the respondent's decision the appellant was neither "an immigrant" within the meaning of s 51(xxvii) of the Constitution or "an alien" within the meaning of s 51(xix) of the Constitution and s 501 was therefore not a valid law of the Commonwealth in its application to him." 3 Although Mr Robinson suggested that the constitutional ground was argued at first instance, it seems tolerably clear that it was not in fact raised as a ground before his Honour. 4 Nonetheless, Mr Johnson, who has appeared on behalf of the respondent (the "Minister"), very fairly accepted that, with perhaps two exceptions, none of the grounds sought to be raised in the amended notice of appeal, if put at first instance, would have required any different approach to the evidence or necessitated factual inquiries to be undertaken on behalf of the Minister. 5 The first of the exceptions is ground 1(c) in the Grounds of Judicial Review. This raises the contention that the appellant had a legitimate expectation that the Minister would not decide the visa cancellation matter personally and that the appellant would be accorded full merits review in the Administrative Appeal Tribunal, as promised in a letter dated 19 September 1999. Mr Johnson submitted that the Minister's representatives may well have wished to make further inquiries in relation to the legitimate expectation issue had it been raised before the primary Judge. 6 The second exception relates to one way in which the constitutional question might have been put. Mr Johnson submitted that if the appellant had argued before the primary Judge that he had been absorbed, as a matter of fact, into the Australian community, it may have been necessary to investigate issues relating to that question. 7 Mr Johnson accepted that the constitutional question might have been argued in a way that did not require any further factual issues to be explored. This argument would be that the Minister had failed to address a fundamental constitutional precondition relating to the appellant's status (that is, whether he had been absorbed into the Australian community). On this argument, it might well be enough for the appellant's purpose that there was sufficient material before the Minister to require him to consider the issue. 8 The substance of the constitutional issue has been argued before the High Court in the matters of Re Ruddock; Ex parte Meng Kok Te M 25 of 2001 ("Te") and Re Ruddock; Ex parte Dung Chi Dang M 118 of 2002 ("Dang"). The High Court has reserved its decision in these matters. Each appears to raise the question of whether a person absorbed into the Australian community can be validly the subject of the exercise of the aliens power conferred by section 51 (xix) of the Constitution. 9 These decisions are likely to be directly relevant to the case the appellant wishes to put on the appeal. We understand that judgment in these matters is likely to be delivered by the High Court by early February 2003. As a general rule a Full Court of this Court will exercise caution before adjourning decisions by reason of pending decisions of the High Court that are said to bear directly upon the outcome of the appeal. This is so, in part, because it will often be uncertain as to whether the High Court's decision will be determinative of the outcome. In the present case, however, a ruling of the High Court (should it take this course) that a person absorbed into the Australia community is not subject to the aliens power is likely to be very significant to, if not determinative of, the appellant's case. Accordingly, it seems to me that if the appellant is precluded at this stage from raising the absorption issue, there is a risk that serious injustice would be caused. 10 In my view, the appropriate course is to stand over the appeal and the motion to amend the grounds of appeal until after the High Court has delivered judgment in Te and Dang. It may well be that by that time the High Court's decision on the constitutional challenge to s 474 of the Migration Act 1958 (Cth) will also have been determined: Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicants S134/2002; (Judgment reserved 4 September 2002). That challenge may bear directly upon other issues that are sought to be raised in the amended notice of appeal. 11 Accordingly, I propose that the appeal be stood over until after the High Court delivers judgment in Te and Dang, the parties would then be notified as to that date and the Court reconvened to deal further with the appeal. ALLSOP J: 12 I agree with that course for the reasons delivered by the learned presiding Judge. JACOBSON J: 13 I also agree with the course proposed by the learned presiding Judge for the reasons given by him. SACKVILLE J: 14 The only other question concerns costs. The Court will reserve the costs of today. The result, then, is that the appeal and the motion will be stood over, the appeal will be stood over until a date after the High Court delivers judgment in Te and Dang. The parties will be notified of that date. The listing, in the first instance, will be for further directions. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sackville, Allsop & Jacobson J.