Kalkan v Minister for Immigration
[2005] FMCA 1290
•8 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KALKAN v MINISTER FOR IMMIGRATION | [2005] FMCA 1290 |
| MIGRATION – Character test – decision of Minister to cancel visa – substantial criminal record – misdescription of applicant’s criminal record – relevant consideration – errors not trivial – failure to consider true criminal record constitutes jurisdictional error – errors deprived applicant of possibility of successful outcome – decision set aside. |
| Migration Act1958, s.501(2) |
| Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 66 ALR 299 Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340 (unreported) Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 |
| Applicant: | TANER KALKAN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2564 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing dates: | 14 December 2004, 23 February 2005, 7 March 2005 |
| Date of Last Submission: | 31 March 2005 |
| Heard at: | Sydney |
| Delivered at: | Canberra |
| Delivered on: | 8 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Joanne Kinslor |
| Solicitors for the Applicant: | Christopher Livingstone and Associates |
| Counsel for the Respondent: | Geoffrey Kennett |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The decision of the respondent purporting to have been made under section 501(2) of the Migration Act 1958 on 16 June 2004 be set aside.
The respondent be prohibited from taking any further steps to give effect to her purported decision under section 501(2) of the Migration Act 1958 made on 16 June 2004.
The respondent pay the applicant's costs of the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2564 of 2004
| TANER KALKAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In this matter the applicant seeks judicial review of a decision of the respondent Minister made personally by her on 16 June 2004 to cancel the applicant's visa under section 501(2) of the Migration Act 1958 (the Act).
Background
The applicant is a citizen of Turkey who was born in 1970. He came to Australia in 1991 when he was aged 20 as the holder of a Transitional (Permanent) Visa. He has resided in Australia continuously since then and is now 35 years old.
The applicant is the father of two Australian citizen children born in 1993 and 1998. The two children are by different partners and currently reside with their mothers. The applicant is in Villawood Detention Centre.
Since 1995 the applicant has been convicted of a number of offences. Most of these have been driving or drug related. However, in October 2000 he was convicted of three counts of detaining a person for advantage and one count of robbery. He was sentenced to two years imprisonment for these offences.
On 12 February 2003 the Department of Immigration and Multicultural and Indigenous Affairs (the Department) sent the applicant a notice of intention to consider cancelling his visa under section 501(2) of the Act. The notice said that in making the decision the Minister would have regard to Ministerial Direction Number 21, a copy of which was attached. The applicant was asked to comment by 5 March 2003 and provided with a standard questionnaire to assist him in addressing the relevant issues. Further notices were sent to the applicant on 28 February 2003 and 12 March 2003. These advised the applicant that non-disclosable information and protected information would be taken into account in considering any decision on his visa.
The applicant appeared to have completed the questionnaire on
11 March 2003 and this was returned to the Department with some other documents.
On 15 January 2004 the applicant made further written submissions to the Department. In these he asserted that the questionnaire submitted earlier had been filled in by his former de facto spouse and might contain false or misleading information.
At some time after the receipt of those further submissions an Issues Paper was presented to the Minister summarising the relevant material, discussing the applicant's case in relation to the considerations in Ministerial Direction Number 21 and providing a statement of reasons that the Minister might adopt if she decided to cancel the applicant's visa.
On 16 June 2004 the Minister signed part D of the Issues Paper indicating her decision to exercise the discretion under section 501(2) to cancel the applicant's visa. On the same day she signed a statement of reasons for that decision.
Legislation
Section 501(2) provides:
The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
A person is taken not to pass the character test if he or she has a "substantial criminal record" (section 501(6)(a)). A person has a substantial criminal record, inter alia, if he or she has been sentenced to a term of imprisonment of 12 months or more (section 501(7)(c)).
The discretion in section 501(2) therefore arises when the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that he or she does not pass that test. In light of the sentence of two years imprisonment which the applicant received in October 2000, there can be no doubt that the Minister was entitled to conclude that he did not pass the character test. There is no dispute before me that the applicant did not pass the character test. Rather, the complaint relates to the exercise of the Minister's discretion.
Reasons for Minister's decision
Having concluded that the applicant did not pass the character test, the Minister then considered whether to cancel his visa.
The Minister said that she gave primary consideration to the protection of the Australian community, the expectations of the Australian community and the best interests of the children. She also considered other relevant considerations in relation to the applicant.
She found that the crimes committed by the applicant were very serious under paragraph 2.6 of the Ministerial Direction. His conduct had 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. The Australian community was entitled to protection from such conduct.
The applicant had demonstrated a consistent pattern of criminal conduct over a lengthy period of time - seven years. The Minister assessed that there was a continuing risk that he might reoffend. She noted that the applicant had claimed that he had committed the offences as a result of drug and alcohol addiction and that he claimed that he was completely rehabilitated and drugs were no longer part of his life.
In view of the applicant's pattern of criminal offending and the seriousness of those offences, the Minister believed that the Australian community would expect his visa to be cancelled and for him to be removed from Australia.
The Minister also concluded that the cancellation of the visa and removal of the applicant from Australia would cause hardship to his children. The Minister gave considerable weight to the difficulties his children would suffer if he were removed from Australia, but noted that his criminal history and incarceration also caused him and his family hardship.
The Minister noted that the applicant had resided in Australia for
13 years. The applicant's criminal conduct began when he was
25 years old. His crimes involved violence on some occasions and his conduct was related to drug addiction.
In deciding to exercise her discretion to cancel his visa, the Minister concluded that the seriousness of the applicant's crimes over an extended period, the disruption these crimes had caused others and the expectations of the Australian community outweighed all other considerations.
Grounds for review
The further amended application under the Judiciary Act 1903 sets out three grounds for review: breach of natural justice, failure to take into account a relevant consideration, and taking into account an irrelevant consideration. The grounds are:
1. The decision involved a breach of natural justice.
Particulars
(a)The Minister did not afford the applicant an opportunity to address adverse material from a third party that was relevant and significant to the decision.
(b)Having advised the applicant that she would act in accordance with paragraphs 2.15 and 2.16 of Ministerial Direction Number 21 titled "Direction Under Section 499 - Visa Refusal Under Section 501 Migration Act 1958 and otherwise in the circumstances where the applicant and his children had a legitimate expectation that the respondent would act in accordance with the terms of the Convention on the Rights of the Child, the respondent failed to have regard to the best interests of the applicant's children as a primary consideration in that:
· she did not have regard to the status of the applicant's children as Australian citizens and afford that matter any or the appropriate weight;
·she did not have regard to the hardship that a child of the applicant would suffer if he was forced to leave Australia;
(c)The Issues Paper presented to the Minister adverse material adverse to the Applicant which he had not had an opportunity to address, being the identification of dismissed charges as offences forming part of the applicant's criminal record.
2. The Minister failed to take into account a relevant consideration.
Particulars
(a)The Minister did not have regard to the status of the applicant's children as Australian citizens and afford that matter any or the appropriate weight;
(b)The Minister did not take into account the hardship that a child of the applicant would face if he were forced to leave Australia;
(c)The Minister did not take into account that charges against the applicant had been dismissed.
3.The Minister took into account an irrelevant consideration.
(a)The Minister took into account convictions against the applicant that had been dismissed and were not in fact convictions.
For reasons that will become apparent, it has not been necessary for me to address all of the three grounds and their accompanying particulars.
Misdescription of the applicant's criminal record
A number of the claims made by the applicant rely on the contention that the applicant's criminal record was misdescribed to the Minister. Five matters on which the applicant had been charged but not convicted were put before the Minister as constituting convictions. The applicant asserts that the Issues Paper failed to advise the Minister that the charges in relation to these offences were dismissed.
Paragraph 21 of the Issues Paper at pages 6 to 8 of the court book contains a table prefaced with the words "Mr Kalkan has convictions for the following offences:". The table has four columns headed Sentence Date, Court, Offence, Sentence. Included in this table are the following matters listed as offences for which Mr Kalkan had been convicted:
·18 June 1998 Campbelltown Local Court. Resist police officer. Warrant to issue.
·18 June 1998 Campbelltown Local Court. Drive while disqualified. Warrant to issue.
·18 June 1998 Campbelltown Local Court. Assault police. Warrant to issue.
·18 June 1998 Campbelltown Local Court. Drive while disqualified. Warrant to issue.
·27 August 2002 Burwood Local Court. Failure to comply with reporting obligations. Convicted - warrant to issue.
Paragraph 25 of the Issues Paper refers to a number of "offences" including "resist and hinder police officer in execution of duty" and "assault police officer".
Annex B to the Issues Paper is described as "Mr Kalkan's New South Wales Criminal History received on 5 October 2002". At pages 25, 26 and 31 the five matters referred to above are included as criminal convictions, with the last "fail to comply with reporting obligations" described as "convicted section 25(2) warrant to issue". The Issues Paper repeatedly refers the Minister to Annex B as containing a copy of Mr Kalkan's New South Wales criminal history (see, for example, paragraphs 12, 17, 21, 37, 39 and 62).
Paragraphs 29, 37 and 70 also refer to the offence of "assault" without distinguishing between "common assault" for which the applicant had been convicted and "assaulting police" for which he had been charged but not convicted.
At no point in the Issues Paper is the Minister advised that the applicant was not convicted for the five offences listed in paragraph 24 above. The closest the Issues Paper comes to this is a quote from the applicant's submission incorporated at paragraph 25, which refers to the charge relating to failure to comply with reporting obligations being dismissed. Also attached to the Issues Paper is Annex D which is the applicant's response to the notice of intention to cancel his visa. At pages 47 and 48 of the court book he asserts that these charges have been dismissed and attaches his copy of his criminal record which at pages 53 and 55 indicate that a number of the charges had been dismissed.
The respondent accepts that the Issues Paper prepared for the Minister “was mistaken in listing certain charges among the offences for which the Applicant had "convictions"”. The respondent contends that there is no indication that the Minister relied on this information anyway, and even if she did, this was at most an error of fact.
I do not accept the respondent's submissions. There is no evidence before me that the erroneous information provided to the Minister was corrected at any stage, nor that she paid no attention to it. The Issues Paper portrayed the applicant as having "convictions for the following offences" (see paragraph 21). The clear impression conveyed from reading the Issues Paper is that the applicant was convicted of the five offences listed in paragraph 24 above. They were portrayed to the Minister as forming part of his criminal record.
I am satisfied that the criminal record that was taken into account by the Minister included convictions on these five matters. The applicant's criminal record was clearly misdescribed and incorrect. On the evidence before me I conclude that she failed to take into account that he had been acquitted of the five charges in question. This conclusion is irresistible from the Issues Paper and the material placed before the Minister.
Jurisdictional error
I have concluded that the Minister failed to take into account the applicant's true criminal record, the Minister having been misinformed by the material in the Issues Paper. Does this amount to jurisdictional error?
The guiding principles on relevant considerations are those articulated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 66 ALR 299 at 308:
(A) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which is he bound to take into account in making that decision …
(B) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. … [W]here the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.
(C) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision …
(D) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, …
In Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340 the Full Federal Court discussed the applicable principles in respect of a failure on the part of the Minister to take into account the appellant's true criminal record for the purposes of section 501A of the Act. Specifically, the Minister had been misinformed on the nature of the sentences imposed for a number of offences. The Court considered whether that failure amounted to jurisdictional error, and if so whether the appellant should be denied relief.
In Lu at [37] the Minister conceded that the appellant's criminal record, including the sentences imposed on him, was a consideration the Minister was bound by section 501A of the Act to take into account "in the Peko-Wallsend sense". This concession was based on the language of section 501A(2)(c) and (d) which imported the character test as defined in section 501(6). The Minister also accepted that errors in describing a person's criminal record may result in a decision being affected by jurisdictional error (at [38]).
Having made those concessions, the Minister at [39] relied on the qualification to the "relevant considerations" doctrine stated by Mason J and set out at (C) above to the effect that not every failure to take into account a relevant consideration would justify a decision being set aside. This qualification is directed to the situation where a decision-maker fails to take into account a relevant consideration but the failure could not have materially affected the decision.
Mr Kennett for the Minister submitted that Lu is not binding on this Court as the Minister has not made similar concessions in this case. The Minister did not concede that a visa holder's criminal record was a mandatory relevant consideration in the exercise of the discretion under section 501(2).
The Minister's arguments are unconvincing. At [54] and [55] Sackville J provides his reasons for accepting the Minister's concession in that case as being correct. In particular, at [55] he says:
It is within the scope and purpose of s501A(2) of the Migration Act, which allows the Minister to set aside the ‘original decision’ in circumstances identified in [53] above, that the Minister should have regard to the offences for which the person was convicted and the sentences imposed in respect of those offences. As Wilcox J observed in Minister v Huynh, at 136-137 [43], these are essential matters in assessing the degree of criminality in the offences and their significance in determining whether it is desirable to cancel the person's visa and to remove him or her from Australia. In short, they indicate the seriousness of the person's conduct and the threat he or she poses to the Australian community. It must be remembered that s501A(2) confers a power on the Minister not merely to cancel a visa, but to set aside a decision of the AAT not to cancel the visa. It is unlikely that Parliament contemplated that the Minister could exercise a power having such drastic consequences for a permanent Australian resident on the basis of incorrect information as to the offences committed by the visa holder and the sentences imposed for those offences. It follows that if the Minister fails to take into account a visa holder's correct criminal record because the Department provides incorrect information, ordinarily the Minister will have failed to act in accordance with the requirements of s501A(2) and therefore will have acted in excess of jurisdiction.
Section 501(2) is worded similarly to section 501A(2) in all relevant respects. It follows that I am satisfied having regard to the subject matter, scope and purpose of the relevant provisions that the Minister was bound in the Peko-Wallsend sense to take into account the applicant's true criminal record. The true criminal record was a relevant consideration.
Was the error one which "even in relation to matters the relevant statute says must be considered, [would not] necessarily amount to a jurisdictional error" (see [50] in Lu)? As Sackville J said at [56]:
…a minor error relating to the convictions or sentences imposed on the visa holder will not in substance result in the Minister failing, in a relevant sense, to take account of that person's criminal record.
In this matter the Minister was provided with erroneous information suggesting that the applicant had been convicted for five offences for which he had not. Furthermore, his conviction for common assault was arguably misleadingly described on a number of occasions in the Issues Paper.
In my view, it cannot be said that these errors are minor or trivial. There was no evidence that the erroneous information provided to the Minister was corrected in any way. Nor was there any evidence from which it could be concluded that the Minister paid no attention to the misleading information.
The Minister did not satisfy the obligation that arose from the subject matter, scope and purpose of section 501 to take into account the applicant's true criminal record. Accordingly, she has not "properly applied the law" (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [74]). In the circumstances the Minister committed a jurisdictional error by failing to give the requisite consideration to a matter the statute required her to take into account, that is, an accurate statement of the applicant's criminal record.
Relief
Having found that the Minister committed a jurisdictional error by failing to take into account a relevant consideration, it is now necessary to consider whether the applicant should be denied relief on discretionary grounds.
The test is explained by Sackville J, with whom Black CJ and Sundberg J agreed, at [64] in Lu:
It seems to me that the correct approach is that stated in Stead and adopted by the High Court in Aala. The test is whether the applicant has been deprived of the possibility of a successful outcome by the decision-maker's failure to observe the requirements of the statute. If so, the jurisdictional error could have had a bearing on the outcome and the applicant is not to be denied relief on the basis that the error was insignificant. The test must be applied by reference to the material actually before the decision-maker and, where the decision-maker's reasoning processes is known, taking into account his or her approach to the exercise of the particular statutory power. The question is not whether the decision-maker would probably have reached the same result even if the omitted consideration had been taken into account.
Black CJ said at [6]:
Where jurisdictional error has occurred in the making of a decision as to which the decision-maker is invested with a broad discretion, it may be difficult to conclude, as a matter of logic, that the error did not deprive a person of the possibility of a favourable decision. The circumstance that a case seems very heavily weighted against a person does not logically deny that the error may possibly - not "probably" - have affected the outcome adversely to that person's interests.
Mr Kennett for the Minister noted that the facts in Lu were regarded by Sackville J as "close to the line" on the issue of discretionary refusal of relief. He therefore submitted:
…that the less significant errors in the present case should be treated, on discretionary grounds, as not requiring that the decision of the Minister be set aside.
In her statement of reasons at part E of the Issues Paper the Minister spells out the considerations that she took into account in exercising her discretion. These included the seriousness and nature of the conduct to which she gave great weight, the risk of recidivism on which she placed medium weight, and expectations of the Australian community on which she also placed great weight. She concluded at paragraph 90:
…that the seriousness of Mr Kalkan's crimes over an extended period, the disruption these crimes have caused others and the expectations of the Australian community outweighed all other considerations.
The Issues Paper misleadingly advised the Minister that the applicant had convictions for five matters - resist police officer, drive while disqualified (two counts), assault police and fail to comply with reporting conditions - for which the applicant had not been convicted. Clearly the most significant matters before the Minister were ones for which the applicant had been convicted - detain for advantage and robbery being the most serious. In the main, the remaining convictions related to driving offences with a couple of drug offences and a conviction for common assault.
If the question was whether the Minister would have been likely to reach the same conclusion had she know the correct criminal record of the applicant, I would probably have answered in the affirmative. But the question is whether the applicant was deprived of the possibility of a successful outcome by the Minister’s failure to observe the requirements of section 501(2) of the Migration Act.
I have reached the conclusion that the applicant was deprived by the errors in the Issues Paper of the possibility of a successful outcome. Had the Minister been provided with the correct criminal record of the applicant she may have taken a different view and refrained from cancelling his visa. The applicant should not be denied relief.
In reaching this conclusion I have noted the comment of Sackville J at [70(iii)] in Lu:
I think it appropriate, in determining the question that arises for decision, to take into account the serious consequences for the appellant if his visa is validly cancelled. It is clear that he has not made a substantial contribution to the wellbeing of his adopted country. But he has lived here for 22 years, since he was aged 13. If he is to be removed, it should be on the basis of an accurate recitation of his criminal record.
Such concerns apply equally here.
Conclusions
In summary I conclude:
·the Minister failed to take into account the applicant's true criminal record having been misinformed on this
·the applicant's true criminal record amounted to a relevant consideration in the Peko-Wallsend sense
·failure to take into account the true criminal record in this case constituted jurisdictional error
·the Minister's failure to observe the requirements of the Act deprived the applicant of the possibility of a successful outcome
·the applicant should not be denied relief.
In view of these findings it is unnecessary for me to consider the other grounds pleaded in the further amended application.
The decision of the Minister purporting to have been made under section 501(2) of the Act on 16 June 2004 must be set aside. The Minister is prohibited from taking any further steps to give effect to her purported decision and must pay the applicant's costs of the application.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Helen Athanasiadis
Date: 8 September 2005
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