Ongel v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 248

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'.