Ayan v Minister for Immigration & Multicultural & Indigenous Affairs

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF 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

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