Ongel v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 525

FEDERAL COURT OF AUSTRALIA

Ongel v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 525 SUAT ONGEL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 394 of 2003 JACOBSON J 30 MAY 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 394 of 2003

BETWEEN: SUAT ONGEL

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 30 MAY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed. 2. The applicant pay the respondent's costs of the proceedings. 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 394 of 2003

BETWEEN: SUAT ONGEL

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE: 30 MAY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application to review a decision of the Minister to cancel the applicant's permanent residency visa under s 501(2) of the Migration Act 1958 (Cth) ("the Act"). 2 The Minister exercised his discretion to cancel the visa upon the ground that the applicant had not satisfied him that he passed the character test referred to in s 501(6). The Minister was satisfied that the applicant has a substantial criminal record as defined by s 501(7)(c) of the Act. 3 The applicant is a married man who has spent almost all of his life in Australia. He has two small children. He claims that the Minister's decision is affected by a lack of procedural fairness. 4 The applicant submits that the lack of procedural fairness arises from the making of the decision with, what is said to be, insufficient factual material to consider the best interests of the children. In particular, he says that he had a legitimate expectation that the Minister would contact or cause to be contacted the applicant's wife in regard to the best interests of the children before making a decision to cancel the visa. The Facts 5 On 5 September 2002, an officer of the Department wrote to the applicant notifying him that it had come to the attention of the Department that his visa may be liable to cancellation under s 501 of the Act. 6 The letter referred to s 501(6)(a) of the Act which provides that a person does not pass the character test if he or she has a substantial criminal record. The letter also referred to s 501(6)(c)(i) which deals with a person's past and present criminal record. 7 The letter stated that before the Minister considered whether to cancel the applicant's visa under s 501(2), he was provided with an opportunity to comment. 8 Matters which the applicant was told would be taken into account included his criminal history, of which a copy was attached, and the remarks on sentencing of the applicant on a conviction for assault on 1 August 2000. A copy of the remarks of His Worship, Mr P Johnson, was attached. 9 The applicant's criminal history dated from a Children's Court conviction for possession of housebreaking implements in 1994. The applicant was then fifteen years old. The criminal history was lengthy and, most notably, included two offences for which the applicant was sentenced to prison terms exceeding one year. 10 The most recent serious offence on the applicant's criminal history was an assault for which the applicant was sentenced by Mr Johnson in the Wollongong Local Court on 1 August 2000. 11 His Worship's remarks, which as I have said were attached to the letter, included the following :- "The defendant has a significant criminal history, and leaving aside those matters that are unrelated to acts of violence. A significant offence recorded on his record was in 1993 when he was sentenced to two years in gaol with an additional parole term of eight months, for two offences. A sexual assault matter and a matter, described on the record as inducing a witness. There were some other matters that he was sentenced on at the time, or shortly afterwards of assault and assaulting police. Since his release from gaol, which would have been about 1 September 1995, he has been convicted once apart from these matters of an assault at Nowra Court in October 1997 when he was fined $750. So since the offences that he got the gaol sentence for in 1993, he has had one other assault in the seven years since then, apart from this one." 12 His Worship also said in the transcript:- "The offences are objectively very serious, they involve serious assaults on females who were of small stature, by a man who was much bigger than them. They were assaults that were extremely violent, and involved punches to the face, kicks to the body of each of the women, resulting in injury, significant injury, particularly for <name of the plaintiff> the breaking of the ribs and the consequences for her. They were committed in a public place. They were committed at night." 13 The letter of 5 September 2002 stated that, in reaching a decision whether to cancel the visa, the Minister would have regard, inter alia, to the Minister's direction No 21 entitled "Direction under Section 499 – Visa Refusal and Cancellation under Section 501 Migration Act 1958". A copy of the direction was attached to the letter. 14 The letter also attached a questionnaire for the applicant to use as a guide to his response. 15 In addition the letter also stated:- "If you and/or anyone who wish to provide comments and information that you feel the Minister ought to be aware of and take into account, please provide them to this office by mail or facsimile no later than 26 September 2002." 16 The applicant replied to the Department's letter on 23 September 2002 by completing the questionnaire sent to him by the Department. 17 The answers to the questionnaire indicated that the applicant was born in Turkey in March 1969 and that, accordingly, except for three years in Turkey during which he carried out military service, he had lived in Australia since he was 18 months old. 18 The applicant also stated in the questionnaire that he was married to a Turkish national with whom he had been in a relationship for twelve years and by whom he had two daughters aged four years and six years. 19 The applicant stated in the questionnaire that he lived with his wife and children. 20 In answer to a question as to his involvement with his children prior to his imprisonment, he said:- "School, Sport, I'm in their lives all the time since they were born. today, tomorrow, till the day I die." 21 The applicant replied to a question in the questionnaire enquiring as to the effect on anyone else if his visa was cancelled by saying:- "it will efect my family kids, wife and my self really bad you know I might as well commit suicide than go back to my country. My wife and I had very good things planned for oure kids future it will kill us all very badly youre better of putting us through line of fire and executing all then deporting me or us." 22 On 30 October 2002, the Department prepared an issues document which was subsequently cleared and forwarded to the Minister. 23 The purpose of the issues document was to seek the Minister's decision as to whether the applicant passed the character test in s 501(6) and, if not, whether his visa should be cancelled under s 501(2). 24 The issues document set out the applicant's immigration history. It referred to his date of birth as 1 March 1969 and his arrival on 6 September 1970 when he was granted permanent residency. His then current visa status was described as a "Resident Return Subclass BB-155 Visa" which was issued on 3 January 2002. 25 The issues document stated that the applicant had two convictions for offences for which he had been sentenced to terms of imprisonment of twelve months or more as provided in s 501(7)(c). 26 Thus, as was noted in the issues document, it was open to the Minister to find that the applicant had a substantial criminal record under s 501(7)(c) and that he therefore failed the character test set out in s 501(6) of the Act. 27 The issues document then stated that, if the Minister was satisfied that the applicant did not pass the character test, he must consider the exercise of his discretion as to whether the applicant should be permitted to remain in Australia. 28 Passages from the sentencing remarks of His Worship Mr Johnson were set out. The passages included those which I have set out at [11] and [12] above. 29 A summary of the applicant's convictions was set out. They consisted of 18 court appearances from 7 January 1985 to 6 September 2000. Some of his convictions on those dates were for multiple offences or for multiple counts of a particular offence. 30 The issues document stated that, on the basis of the applicant's criminal history, it was open to the Minister to find that his conduct against the community was serious. 31 The Department attached to the issues document a copy of the applicant's response and a letter from the Probation and Parole Service Records Unit. 32 In his response, the applicant stated that he had been rehabilitated. The letter from the Parole Service Unit stated that there had been a "positive response" to the applicant's rehabilitation since his release from prison. 33 The issues document stated that, notwithstanding the applicant's response and the letter from the Parole Service Unit, it was open to the Minister to find that the applicant is at medium to high risk of recidivism. 34 The issues document contained a section under the sub-heading "The Best Interests of the Children" which referred to the United Nations Convention on the Rights of the Child. Reference was made to Article 3.1 which states that the best interests of the child are to be the primary consideration in actions concerning children. 35 This section of the issues document included the following paragraphs:- "[37] Mr Ongel in his response to the Department stated he has 2 daughters, Rummeysa, aged 6 years and Summeye, aged 4 years. Mr Ongel mentioned that his children will be affected by a decision under s.501(2) to cancel his visa and remove him from Australia. [38] In Mr Ongel's response to the Department, he indicated he resides with his wife and his 2 children. Mr Ongel further added, prior to his imprisonment, he was constantly involved in his children's daily activities such as school and sport. [39] Should Mr Ongel's visa be cancelled and be removed to Turkey and if his wife and 2 children do not accompany him, Mr Ongel's children would be denied an opportunity to continue their relationship with their father which they have commenced since birth and which has been interrupted by Mr Ongel's incarceration. As Mr Ongel's children mature, a prolonged separation from their father would have an adverse impact on the development of the children." 36 The issues document then proceeded to consider at para [40] how the children may adapt to life in Turkey. 37 This section of the issues document concluded with the following 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." 38 The Minister's decision was made on 12 November 2002. It was recorded on the issues document after a paragraph which stated that the Minister had considered "all relevant matters". The Minister then deleted three inapplicable paragraphs and left in place a paragraph which recorded his decision as follows:- "(d) I reasonably suspect that Mr Ongel does not pass the character test and Mr Ongel has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa" 39 The applicant was notified of the Minister's decision by a letter dated 14 March 2003. The letter stated the grounds under which the applicant did not pass the character test. 40 The applicant filed his application for review with the Court on 26 March 2003. I gave his counsel leave to file an amended application in Court on 26 May 2003. The amended application did not alter the substance of the application but it amended the terms of the orders which the applicant sought. Submissions of the Parties 41 Counsel for the applicant submitted that, despite the Minister's assertion that he had considered all relevant matters, he could not have considered the best interests of the children as a primary consideration. 42 This submission was said to follow from what the applicant's counsel described as the paucity of factual material before the Minister. 43 The factual material was said to be in stark contrast to the information which the decision-maker had in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 ("Lam") and Untan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 69 ("Untan"). 44 In each of those cases, the wife or partner of the person whose visa was cancelled had been in contact with the decision-maker and had provided information as to the children's circumstances; see Lam at [7] and [8] and Untan at [18] and [21]. 45 It was submitted for the applicant that he had a legitimate expectation that, in order to consider the best interests of the children, the Minister would make enquiry of their mother so as to obtain information as to matters such as their emotional and financial situation. 46 Counsel for the Minister submitted that the applicant had been given every opportunity to put to the Minister all of the information which the applicant or anyone else, including his wife, wanted the Minister to take into account. 47 The Minister's counsel pointed to the information which was supplied by the applicant in the questionnaire which, he submitted, was fairly summarized in the issues document. 48 Indeed, counsel for the Minister observed that the issues document stated that it was open to the Minister to find that the best interests of the children were served by having the applicant remain in Australia. 49 He also submitted that there was no obligation on the Minister to make enquiries in order to obtain information about the children that was not before the Minister. He said that, although the applicant had not so submitted, it was a necessary ingredient of the case which the applicant needed to make out that there was to be imposed upon the Minister a positive obligation to initiate enquiries. Counsel for the Minister submitted that such an obligation would be inconsistent with the remarks of the High Court in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 ("Teoh"). 50 Finally, the Minister's counsel submitted that, in any event, there was no evidence of any additional information which would have been forthcoming if enquiries had been made of Mrs Ongel. Accordingly, there was no practical injustice and no denial of procedural fairness; see Lam. Decision 51 It is true, as the applicant submits, that in Lam and Untan the decision-maker was provided with information by the mother of the children as to their current circumstances. However, each case must of course turn on its own facts. 52 In Lam, the applicant's submission to the Department included a letter from his fiancé. The submission in that case was, as Gleeson CJ observed at [7], prepared with skilled assistance. 53 In Untan, the Department conducted interviews with the applicant's wife but it did so only after the applicant made known his wish that his wife's views be obtained; see especially at [17] and [20] of the judgment of Beaumont, Whitlam and Stone JJ. 54 Here, the applicant was specifically invited in the letter of 5 September 2002 in the paragraph which I set out at [15] to provide any information which he "or anyone who wish to provide comments and information" felt that the Minister ought to take into account. 55 No information or comments were supplied by the applicant's wife. The only information which was supplied in response to the letter was the material which I have quoted at [18] to [21] above from the applicant's answers to the questionnaire and one further answer in which he said he spent 24 hours a day every day with his children. 56 It must follow that the submission that the applicant had a legitimate expectation that the Minister would interview his wife cannot be sustained. The opportunity having been offered and not taken up, there can be no room for any suggestion that the Minister or the Department would initiate contact with Mrs Ongel. 57 Even if the applicant had a legitimate or reasonable expectation, there was no actual unfairness because he was given a full opportunity to be heard; see Lam at [34] per Gleeson CJ; at [105] per McHugh and Gummow JJ; at [122] per Hayne J and at [148] per Callinan J. See also Untan at [96] to [98] per Beaumont, Whitlam and Stone JJ. 58 Nor can I accept that the Minister had insufficient information on which to consider and give primacy to the best interests of the children. The applicant put what he wished to be taken into account in his answers to the questionnaire. The issues paper stated that on this information it was open to the Minister to find in the applicant's favour on the basis of the best interests of the children. 59 I accept the Minister's submission that what the applicant put in his answers to the questionnaire was fairly summarised in the issues paper. 60 There is nothing to suggest that the information was so skeletal as to amount to no information at all. Indeed, the contents of the issues paper indicate to the contrary. 61 Moreover, there was nothing in the circumstances of this case to give rise to any obligation on the Minister to initiate enquiries of the applicant's wife. There was no indication that there might be a centrally determinative item of information which the applicant could not be expected to provide to the Minister from his own knowledge; see Teoh at 289-290 per Mason CJ, Deane J, at 302-303 per Toohey J, at 305 per Gaudron J, at 321 per McHugh J. 62 Furthermore, it is plain, as the Minister's counsel has submitted, that no evidence has been put before the Court as to what, if any, additional information would have been supplied. Thus, there is nothing which gives rise to any indication of practical injustice; see Lam at [37] per Gleeson CJ. 63 In his written submissions, the applicant stated that he had a legitimate expectation that the Minister would have regard to his directions under s 499 of the Act. This submission was not pursued orally. 64 In any event, the Minister was not bound to follow the directions. As Dowsett J said in Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 at [10], s 501 of the Act confers an unfettered discretion upon the Minister to refuse or to cancel a visa once the character test has been resolved against the person whose visa is in question. 65 Moreover, there was nothing to indicate that the Minister had failed to pay regard to the paragraphs of the directions to which the applicant referred in his written submissions. 66 Finally, the applicant did not contend that the issues document and the Minister's decision which appeared at the end of the issues document did not set out the reasons for the decision in accordance with s 501G(1)(e) of the Act; cf Minister for Immigration & Multicultural Affairs v W157/00A [2002] FCAFC 281 at [68] per Branson J, at [106] per Allsop J. 67 Nevertheless, as Branson J said in W157 at [78], having regard to the nature and the content of the material that was before the Minister at the time he made his decision, it cannot be concluded that the material was insufficient to enable the Minister to take into account the best interests of the children as a primary consideration. Allsop J at [108] was also of the view that the issues document contained sufficient information to enable the Minister to identify the best interests of the children and to take them into account. Those comments apply equally in the present case. Orders 68 For the reasons set out above I propose to dismiss the application with costs.