Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 139

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

ONAPPEALFROMASINGLEJUDGEOFTHEFEDERALCOURTOF 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

ONAPPEALFROMASINGLEJUDGEOFTHEFEDERALCOURTOF 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.