Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 172

FEDERAL COURT OF AUSTRALIA

Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 172

MIGRATION – constitutional writ relief – cancellation of non-citizen permanent visa – decision made by Minister personally – appellant's failure to pass character test - criminal record. MIGRATION - procedural fairness - whether general deterrence is an irrelevant consideration - whether general deterrence is a factor relevant to the exercise of the Minister's discretion - whether cancellation of visa where general deterrence is the sole or substantial reason for cancellation of visa is punitive - whether appellant's intellectual disability was taken into account. PRACTICE and PROCEDURE - notice of objection to the competency of the appeal –whether trial judge dealt with matter on a final basis - no leave to appeal necessary – application for leave to file amended notice of appeal to include grounds not raised before trial judge.

Migration Act 1958 (Cth) ss 30(1), 474(1), 474(2), 499, 499(1), 499(2A), 500(1)(b), 500(4)(b), 501, 501(2), 501(6)(a), 501(6)(c)(i), 501(7), 501G(1)(e) Federal Court of Australia Act 1976,s 24(1A) Federal Court Rules, O 51A r 5(1), O 51A r 5(2),

Applicants S61 v Refugee Review Tribunal & Anor [2004] FCAFC 150 Djalic v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 151 Re Sergi and The Minister for Immigration and Ethnic Affairs (1979) 2 ALD 224 Gungor and The Minister (1980) 3 ALD 225 FATIH TUNCOK v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1662 OF 2003 MOORE, BRANSON & EMMETT JJ 30 JUNE 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1662 OF 2003

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

BETWEEN: FATIH TUNCOK

APPELLANT