Seyfarth v Minister for Immigration

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FEDERAL COURT OF AUSTRALIA

Seyfarth v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1713

MIGRATION – judicial review – deportation order made by the Minister under s 501(2) of the Migration Act 1958 (Cth) (‘the Act’) – the Minister’s power stated to have been exercised pursuant to s 501(6)(a) and 501(6)(c)(i) of the Act – no reasons for decision given – submission to the Minister unclear – supporting documentation to submission included information upon which the Minister could have formed a reasonable suspicion that the applicant did not pass the s 501(6) character test – not possible to draw inference that the Minister failed to take account of supporting documentation – the Minister exercised his power within jurisdiction – no jurisdictional error demonstrated – application dismissed

Constitution s 75(v)
Migration Act1958 (Cth) s 91X, 501, 501(6)(a), 501(6)(c), 501(6)(c)(i), 501(7)(c), 501G(4), 503A
Crimes (Sentencing Procedure) Act 1999 (NSW) s 24(a)
Justices Act 1902 (NSW) s 125B(1)
Sentencing Act 1989 (NSW) s 5(4), 8

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327 applied
Goldie v Commonwealth (2002) 117 FCR 566 distinguished
Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 114 considered
Howells v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 327 applied
Long v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 610 considered
Lorenzo v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 435 applied
Minister for Immigration & Multicultural & Indigenous Affairs v Ball [2004] FCAFC 91 considered
Minister for Immigration & Multicultural & Indigenous Affairs v W157/00A (2001) 125 FCR 433 applied

Re Minister for Immigration & Multicultural Affairs; Ex parte Cassim (2000) 175 ALR 209
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 cited

R v McHugh (1985) 1 NSWLR 588 cited
R v Galati [2003] NSWCCA 148 cited
R v Nykolyn [2003] NSWCCA 229 cited
Shaw v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143 cited
Te v Minister for Immigration & Ethnic Affairs (1999) 88 FCR 264 considered
Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069 cited

EDWARD NICHOLAS SEYFARTH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 597 OF 2004

HELY J
22 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 597 OF 2004

BETWEEN:

EDWARD NICHOLAS SEYFARTH
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

HELY J

DATE OF ORDER:

22 DECEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application be 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

NSD 597 OF 2004

BETWEEN:

EDWARD NICHOLAS SEYFARTH
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

HELY J

DATE:

22 DECEMBER 2004

PLACE:

SYDNEY

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Details
Case
[2004] FCA 1713
Decision Date

CaseChat Overview and Summary

The case of Seyfarth v Minister for Immigration involved Mr Seyfarth, a UK citizen who had been granted permanent residency in Australia, and the Minister for Immigration who decided to cancel his visa. The legal dispute centred on the Minister's decision to cancel Mr Seyfarth's visa under Section 501(2) of the Migration Act 1958, citing his criminal history and conduct as grounds for cancellation. Mr Seyfarth challenged this decision, arguing that it was unreasonable and not in accordance with the law.

The primary legal issue the court had to resolve was whether the Minister's decision to cancel Mr Seyfarth's visa was lawful. This involved assessing whether the Minister correctly exercised his discretion under Section 501(2) of the Act and whether the decision was based on relevant and appropriate considerations. The court also had to consider whether the Minister's decision was so unreasonable that it failed the proportionality test under administrative law.

The court found that the Minister's decision was lawful and well within the bounds of his discretion. The court noted that Mr Seyfarth had a substantial criminal history, which included multiple convictions for fraud and other serious offences. The court held that the Minister had appropriately considered all relevant factors, including Mr Seyfarth's criminal record, the character test under Section 501(6) of the Act, and the Minister's Direction. The court rejected Mr Seyfarth's arguments that the decision was unreasonable, finding that it was based on a proper application of the law and supported by the evidence.

As a result, the court dismissed Mr Seyfarth's application for judicial review and ordered him to pay the costs of the proceedings. The decision affirmed the Minister's authority to cancel a visa based on criminal conduct and upheld the importance of the character test in visa eligibility assessments.

Orders

Orders of the court

1. The application be dismissed with costs.

Background

Background to the litigation

When the matter was called on for hearing Mr Seyfarth expressed the wish that his father be allowed to speak for him. No objection was made by the Minister, and I granted leave for Edward Darrell Seyfarth (‘Mr Seyfarth’s father’) to speak on the applicant’s behalf.Background Mr Seyfarth is a citizen of the United Kingdom. He first arrived in Australia on 27 April 1985 on a Visitor Visa. He was then aged 12. Mr Seyfarth was granted a Permanent Entry Permit on 15 July 1988, and a Resident Return Visa in 18 November 1991. The Resident Return Visa was subsequently deemed to continue to operate as a Transitional (Permanent) Visa.Notice of Intention to Consider Cancelling Visa On 9 January 2003 Tony Hinderry, an officer of DIMIA, wrote to Mr Seyfarth a letter headed ‘Notice of Intention to Consider Cancelling a Visa Under Subsection 501(2) of the Migration Act 1958’ (‘the Notice’). The Notice included the following:‘… It has come to the attention of the Department that this visa may be liable for cancellation under section 501 of [the Act]. The relevant grounds are: Subparagraph 501(6)(a) – Substantial criminal historySubparagraph 501(6)(c)(i) – Past and present criminal conductI have attached the full text of section 501 for your information.The Minister has advised that he will be personally making the decision whether to cancel your visa under subsection 501(2). This will mean that should the decision be to cancel your visa, you will not be entitled to have this decision reviewed by the Administrative Appeals Tribunal (AAT).Before the Minister considers whether to cancel your visa under subsection 501(2), you are provided with an opportunity to comment. Matters to be taken into account include the following:·Protected Information as pursuant to section 503A of the Act. A copy of the text of Section 503A of the Act is attached.·The Judge’s comments in relation to a matter which appeared before the Parramatta Local Court on 20 December 2001.·Your Sentence Administration ReportThis report contains a record of your offences committed during your incarceration. A copy is attached for your information.In reaching a decision whether to cancel the visa the Minister will have regard to the matters noted above and the attached Minister’s Direction No 21 titled “Direction under Section 499 – Visa Refusal and Cancellation under Section 501 Migration Act 1958”. I have included a copy of this direction.In preparing your comments please read fully and carefully the contents of the Minister’s Direction. You should address each and every topic that you feel applies to you and is relevant to your circumstances.I have attached a standard questionnaire that you may wish to use as a guide in providing your response. You may also wish to provide any further information in written form that you feel the Minister ought to be aware of and take into account.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 23 January 2003.If you do not respond by the above date, a decision will be made on whether your visa will be cancelled using information already held by the Department.’(emphasis in original)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HELY J
The charges referred to in [21] of the DIMIA submission were described by Mr Seyfarth in his ‘criminal history’ document submitted on 6 February 2003 as being charges for which he was on remand for sentence in the District Court in February 2003 (see [14] above).Minister’s Decision On 4 March 2003 the Minister decided to cancel Mr Seyfarth’s visa. The decision was expressed in the following terms:‘PART E: DECISION[79] I have considered all relevant matters including (1) an assessment of the Character Test as defined by s 501(6) of [the Act], (2) my Direction under s 499 of that Act and Mr Seyfarth’s comments, and have decided that:Please delete whichever is NOT applicable:[(a), (b) and (c) are deleted](d) I reasonably suspect that Mr Seyfarth does not pass the character test and Mr Seyfarth 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’(emphasis in original) On 8 March 2003 Mr Hinderry sent a letter to Mr Seyfarth notifying him of the Minister’s decision. The letter included the following:‘You provided a submission on 29 January 2003. The submission consisted of written comments from your family and friends were carefully considered and taken into account. The [Minister] has after exercising his discretion, decided to cancel your visa on 4 March 2003 pursuant to section 501(2) of the Act. The particular grounds under which you do not pass the Character Test are subsections 501(6)(a) & (c) of the Act.’(emphasis added) Mr Seyfarth acknowledged the receipt of the 8 March 2003 notification letter on 10 March 2003.Mr Seyfarth’s criminal record A pre-sentence report prepared by a Probation Officer records that:‘[Mr Seyfarth] in early 1993 travelled to England and worked in a travel company before he was dismissed around December 1993. Not long after his dismissal he illegally ordered six airline tickets and was imprisoned for one year before returning to Australia in June 1995.’The information in the pre-sentence report is said to be drawn from interviews with Mr Seyfarth, perusal of the relevant files, and a conversation with Mr Seyfarth’s stepmother. There is no reference to this matter in the body of the DIMIA submission, and counsel for the Minister did not rely upon this sentence (assuming it was imposed) for the purpose of establishing that Mr Seyfarth has a substantial criminal record. Mr Seyfarth’s criminal record in this country, according to the Bail Report, can be summarised as follows:[1996]– On 15 August 1996 he was convicted in the Lithgow Local Court on charges of make false statement to obtain financial advantage (2 counts), pass valueless cheque (16 counts) and larceny. Various concurrent sentences of imprisonment were imposed effectively resulting in a minimum term of 9 months commencing on 15 August 1996 and an additional term of 3 months commencing on 14 May 1997. Mr Seyfarth appealed to the Parramatta District Court against these convictions. The convictions were confirmed by the District Court on 10 November 1997. Whether the sentence was varied by the District Court is a controversial matter to which I shall later return.[2001]– On 20 December 2001 he was convicted at the Parramatta Local Court on a number of charges of making a false statement to obtain a financial advantage and using false instruments. Four sentences of 4 months imprisonment were imposed (to be served concurrently) with another sentence of one month to commence on the expiration of the concurrent 4 month terms. Mr Seyfarth was also given a 2 year good behaviour bond in relation to other similar offences dealt with at the same time.–On 3 separate occasions in 2001 he received fines for entering into enclosed lands, possessing a prohibited drug and possessing a prohibited weapon.[2002]– On 28 November 2002 he was committed for sentence by the Parramatta Local Court on a number of charges of making false instruments and having false instruments with intent to use.Judicial review proceedings

Ratio Decidendi

Legal Principle Established

Established by: HELY J

Full text does not contain this section.