Cassidy v Minister for Immigration

Case •

[2006] FMCA 325

•

27 February 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CASSIDY v MINISTER FOR IMMIGRATION [2006] FMCA 325
MIGRATION – Visa – permanent entry visa (spouse) – refusal by Minister to exercise discretion and grant visa as applicant did not satisfy character test under s.501 of the Migration Act 1958 – no requirement to consider each criterion under s.65 if s.501 would not be satisfied – application dismissed.
Migration Act 1958, ss.54, 65, 501, 501H
Migration Regulations 1994, reg.1.15A
Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514
VWOK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 336
VWOK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCFCA 249
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6
Applicant: PATRICK WALTER CASSIDY
Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
File Number: MLG 883 of 2005
Judgment of: Riethmuller FM
Hearing date: 27 February 2006
Date of Last Submission: 27 February 2006
Delivered at: Melbourne
Delivered on: 27 February 2006

REPRESENTATION

Counsel for the Applicant: Mr Gerkens
Solicitors for the Applicant: FGC Legal
Counsel for the Respondent: Ms Riley
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. The application filed on 31 May 2005 is dismissed.

  2. The applicant do pay the respondent’s costs, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 883 of 2005

PATRICK WALTER CASSIDY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

  1. This is as application for judicial review of a decision of the minister made on 12 April 2005 to the effect that the applicant has not satisfied her that he passed the character test and to exercise her discretion to refuse to grant a visa to the applicant under s.501 of the Migration Act 1958 (“the Act”).

  2. This case concerns an applicant who is from New Zealand.  In 1993 the applicant committed the offence of rape and was sentenced in 1995 to five years' imprisonment in New Zealand.  He was released from prison prior to the serving of the full term, presumably as a result of probation or parole following from his conduct in prison.

  3. The applicant has married an Australian citizen, a woman who was born in Geelong, Victoria.  Both the applicant and his wife have extended families, all of whom live in Australia, as set out in a submission made to the respondent’s department from the applicant's adviser on 12 June 2003 to the following effect:

    4.4.1.7  As stated above, out client and his wife do not have any family living in New Zealand.  They both express the wish to return to Australia and live their lives with knowledge of the security and support of their families.  The separation from their families in Australia has been very hard.  As Gustavo Restivo states in his report in relation to Melanie, at page 4:

    “She is sadly missing her extended family in Australia.  Melanie [told me] that her parents are experiencing stress as a consequence of Melanie and Patrick being in Auckland.

    Melanie has been back on her own to see her family once and Melanie & Patrick’s families are coming from time to time to NZ to see them.  Patrick and Melanie said that both extended families are suffering as a result of the separation.

    4.4.1.8  Furthermore, Melanie has suffered depression as a result of the enforced isolation from her family.  She has had trouble adjusting to life in New Zealand and is seeing a counsellor to assist her with her feelings and fears.  Through irregular family visits have helped immensely, they are not the same as the constant love and support that would be available in Geelong, Victoria.

  4. Other details of the nature of the relationship between the applicant and his wife are to be found in the submissions:

    4.2.2.8  Furthermore, our client has found great personal happiness in his marriage to Melanie Cassidy, an Australian citizen.  He and Melanie were wed on 28 September 2001.  Quoting our client from a statement (dated 11 March 2003) made regarding his relationship with Melanie:

    4.2.2.9  The feelings that our client has for his wife are mutual, quoting her statement (dated 11 March 2003):

    “I can sincerely say there has not been a single moment where I have even mildly questioned Patrick’s good nature or genuine love for life itself.

    Here is a man who does not have a malicious, unkind, questionable bone in his body.

    I am not being biased, Patrick Cassidy is a very special person and I am a very lucky girl to have him to call my husband.

    4.2.2.10         Copies of the statements referred to above have previously been provided to the DIMIA.

    4.2.2.11     They have a special and unique bond developed from shared experience.  The fact that Melanie was prepared to move to New Zealand to be with her husband when it was apparent that he would not be able to return to Australia shows the strength of their relationship.

  5. The matter was put forward to the Minister for consideration on the basis of a concession by the advisers to the applicant, set out in their written material, that:

    We concede on the basis of our client's past substantial criminal record, namely the five-year prison sentence imposed for the rape conviction in 1995, he does not pass the character test.

  6. As a consequence, the Minister concluded that the applicant did not pass the character test as set out in s.501(6) and s.501(7)(c) of the Act, the Minister stating in her reasons (at [51]):

    Mr Patrick Walter CASSIDY is deemed to have a substantial criminal record and not to pass the character rest by virtue of s501(6) with reference to s501(7)(c) of the Act. For the above reasons I am not satisfied that Mr Patrick Walter CASSSIDY does not pass the character test and that he was unable to satisfy me that he passes the character test.

  7. The Minister then went on to determine whether or not to exercise the discretion that she had under the Act describing her considerations as follows (at [51]):

    Having determined that Mr CASSIDY was unable to satisfy me that he passes the character test I considered whether to exercise my discretion to refuse the visa application of Mr CASSIDY. While not bound by the Ministerial Direction Number 21 – “Direction Under s499 Visa Refusal and Cancellation Under section 501 of the Migration Act” (“the Direction”), I proceeded in accordance with this Direction. I consider that the Direction properly indicates how the powers and functions of the kind here should be exercised. Accordingly, I gave primary consideration to the protection of the Australian community, the expectations of the Australian community and the best interests of the children. I then considered other relevant considerations in relation to Mr CASSIDY.

  8. Thereafter, the Minister considers a number of factors under headings:  Protection of Australian Community, Seriousness and Nature of Conduct, Risk of Recidivism, Deterrent to Others, Expectations of Australian Community, Best Interests of the Children, and Other Considerations.

  9. In this case, as the Minister correctly identified, there are no children involved.   Under the heading ‘Other Considerations’, the Minister recounted some details of the familial relationships of the applicant, including: that he is married to Ms Melanie Cassidy; that there has been some strain upon the parties as a result of his wife moving to New Zealand to be with him in the time leading up to this application; and that both the applicant and applicant wife’s families reside in Australia.

  10. The Minister notes the contents of a psychological report which appears to have been provided as part of the application process.  The Minister accepted the conclusion in the psychological report that the applicant and his extended family will benefit if the applicant is granted a permit to reside in Australia.

  11. As some argument was directed to the precise nature of these considerations, it is appropriate that I set them out in full (at [68]-[72]):

    In reaching my decision I also took into account other considerations and in particular the effect of a refusal decision on Ms Melanie CASSIDY (nee WADEY) and members of both her and Mr CASSIDY’s families.

    I noted the character and work references supplied on behalf of Mr CASSIDY attesting to his good character and the relationship he has with his wife.

    I also noted the contents of the Psychological Report from Gustavo Restivo in which he has stated that Ms Melanie CASSIDY (nee WADEY) has moved to New Zealand to be with Mr CASSIDY and the psychological effect that this matter is having on Mr CASSIDY, his wife and their extended families.

    I accepted Mr Restivo’s conclusion that Patrick and Melanie CASSIDY, their families and the Australian community in general will benefit Patrick is granted with a permit to reside in Australia.

    I note the support that has been offered by both Mr CASSIDY’s and his wife’s families in Australia.  I note that a final determination has yet to be made as to whether Mr CASSIDY meets the definition of “Spouse” as defined in Migration regulation 1.15A.  I gave these matters moderate weight.

Grounds for review

Ground 1

  1. The first ground for review that was raised by the applicant was a claim that the Minister had failed to comply with s.65 of the Act. Section 65 is in the following terms:

    65 - Decision to grant or refuse to grant visa

    (1)After considering a valid application for a visa, the Minister:

    (a)if satisfied that:

    (i) the health criteria for it (if any) have been satisfied; and

    (ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

    (iii)   the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

    (iv)   any amount of visa application charge payable in relation to the application has been paid; is to grant the visa; or

    (b)if not so satisfied, is to refuse to grant the visa.

    (2)To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).

    Note: See also section 195A, under which the Minister has a non-compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister's power under that section.

  2. The substance of the complaint is that the Minister, once concluding that the applicant did not satisfy the test in s.501, and therefore could not satisfy s.65(1)(a)(iii), did not then go on to consider whether or not the applicant satisfied each of the other three criterion set out in subsections (i), (ii) and (iv) of s.65.

  3. It appears to me that to place such an onus upon a decision‑maker in the context of a case such as this is not the intention of the legislature in the way in which the section is drawn, nor an appropriate interpretation of the section. If the decision-maker, as in this case, was satisfied that s.501 would not be satisfied, then the applicant could not succeed under s.65, and it was appropriate to refuse to grant the visa.

  4. Even if I be wrong in this regard, I would exercise the discretion not to issue constitutional writs for judicial review in a case where a particular ground would not be made out: otherwise one would simply be returning the matter to the Minister to decide under (i), (ii) and (iv) when the ultimate result of the matter remained clear.

  5. Counsel for the Minister raised as a further argument against the applicant as a result of the effect of s.501H, which reads as follows:

    501H    Refusal or cancellation of visa—miscellaneous provisions

    Additional powers

    (1)A power under section 501, 501A or 501B to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.

    Cross-references to decisions under section 501

    (2)A reference in Part 5 to a decision made under section 501 includes a reference to a decision made under section 501A, 501B, 501C or 501F.

  6. This section has been considered by the Federal Court, at first instance by Crennan J, in VWOK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 336, and then later on appeal by Heerey, Finkelstein and Alsop JJ in VWOK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCFCA 249.

  7. The justices of the Federal Court all considered that s.501 created an independent source of power for refusal of an application. For this reason, the failure to consider the balance of the subsections under section 65 does not amount to a ground for judicial review.

Ground 2

  1. The second argument that was raised was that the decision‑maker must specify precisely what visa is being granted or refused, and in this case the Minister's reasons refer only to ‘visa’.  In this case, however, there was only one visa application before the department and the Minister, and there is no doubt about what visa application the Minister was referring to when referring to ‘the visa’.

  2. I see no error on the part of the Minister in choosing to use the form of words that she did in the context of this case.  Had there been multiple visa applications, and this led to some uncertainty as to precisely what the Minister was actually considering, a different result may well have flowed.  However, that is not the context of this case.

  3. In this regard I am also mindful of the comments of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 that (at [31]):

    The reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

  4. I therefore find that this is not a ground for judicial review. 

Ground 3

  1. The next point argued by the applicant was that the Minister must have regard to all of the information in the application relying upon s.54 of the Act. It is said that this arises from a failure of the Minister to have regard to the spousal elements of the case.

  2. There is nothing in the material before me to indicate that the Minister has not properly turned her mind to the material that was before her.  This argument more appropriately sounds of the latter argument as to whether or not the Minister had regard to all of the relevant considerations in this case.

Ground 4

  1. The next ground was whether or not the Minister ought to have considered in detail each of the matters set out in the Ministerial Direction, number 21, and in particular paragraphs 2.17(a) (disruption to family ties), 2.17(b) (genuine marriage to an Australian citizen) and 2.17(c) (hardship to immediate Australian citizen family members).

  2. It appears clear that the direction itself is not binding upon the Minister:  see Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514

  3. This appears to be a matter that was known to the Minister, when one has regard to the terms of an earlier letter sent out from the department to the applicant on 2 May 2003 where the letter stated:

    Before the Minister of his or her delegate considers whether to refuse your visa application under section 501(1), you are provided with an opportunity to comment. Matters to be taken into account include information protected under section 503A, your comments and the attached Minister’s Direction No 21 titled ‘Direction under Section 499 – Visa Refusal and Cancellation under Section 501 of the Migration Act 1958.’ I have attached the full text version of section 503 for your information.

    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 or is relevant to your circumstances.  You may also wish to provide further information that you feel the Minister ought to be aware of and take into account.

  4. It is argued that this letter created a legitimate expectation upon the part of the applicant that the Minister would in fact consider in detail each of the items set out in paragraph 2.1.7(a) to (c).  I am not satisfied that the terms of this letter, or the fact that there is a Ministerial direction, of themselves creates some form of legitimate expectation which in the context of this case could found an application for judicial review.

  5. The matters set out in that direction are all matters which potentially could be relevant, although not every matter would be relevant in every case.  The Minister in her decision noted that she is not bound by the direction.  However, she proceeded in accordance with the direction and gave primary consideration to the protection of the Australian community, the expectations of the community and the best interests of the children (although the Minister noted that the latter does not affect this case as there are no children).

  6. The applicant's argument turned upon whether or not the Minister had made findings about the nature of the relationship between the applicant and his wife, Ms Cassidy.  This flows largely from the comment by the Minister at paragraph 72 of her decision document where she states:

    I note that a final determination has yet to be made as to whether Mr Cassidy meets the definition of spouse as defined in Migration Regulation 1.15A.

  7. Counsel elaborated this argument by pointing to the proposition that the Minister does not specifically address whether or not the Minister accepts that this is a genuine relationship of a marriage‑like nature to the exclusion of all others, in the sense utilised in regulation 1.15A.  It appears to me that whether or not the applicant and his current wife would, as a matter of law, meet the definition set out in regulation 1.15A was not a matter that the Minister had to determine in order to determine this application.

  8. Indeed it appears to me that the comment by the Minister on this topic was more one to note that the Minister had not attempted to pre-empt the formal decision as to whether, as a matter of law, the applicant would meet the requirements of this particular regulation.

  9. The fact that the Minister has not proceeded to determine that particular narrow question does not mean that the Minister has not turned her mind to the nature of the applicant's relationship with his spouse, and the impact of this decision upon he and his spouse.

  10. In fact the previous decisions appear to me to make clear the fact that the Minister has considered the effect of a refusal decision not only upon the applicant but also upon Ms Cassidy and both the applicant and Ms Cassidy's families.  If the Minister was not satisfied that the applicant and Ms Cassidy were in a genuine relationship, then the effect of the decision upon Ms Cassidy or her family would appear to have little or no relevance in the context of the case.

  11. Whilst the Minister has not made formal statements such as a statement to the effect ‘I find that,’ or the like, she has set out that she notes and accepts a number of facts that were put forward on the part of Mr Cassidy and his wife.

  12. It is not appropriate to pick over the wording of decisions when the matters set out are relatively clear.  I have referred to the decision in Wu's case above.  In this case there does not appear to have been any contest as to these facts and circumstances as put forward by the applicant's advisers, just as there was no contest as to the fact that there had been a previous prison sentence imposed which meant that the applicant did not formally pass the character test.

  1. In this context, the forms of words used by the Minister, both at paragraph 50 and paragraphs 68 to 72, appear to me to be sufficient to indicate that the Minister has proceeded to take into account those facts and circumstances.  Indeed in most cases where there is no dispute as to particular facts, there is not a need for a decision-maker to go on and make formal findings in that regard rather than recounting the facts that must be taken into account in exercising the discretion.

  2. In this context the case then appears to me to boil down to a question of whether or not the Minister had failed to take into account relevant considerations or whether the applicant is effectively seeking to review the extent of the considerations the Minister gave to these relevant matters, or the weight that the Minister applied to them.

  3. It appears to me to be clear that the Minister has turned her mind to the nature of the familial relationships and the disruption that was claimed by the applicant.  In this regard the Minister has not failed to take into account a relevant consideration.  The main facts and circumstances relied upon by the applicant appear to have been recounted by the Minister.

  4. The fact that the applicant may have wished that the Minister gave more weight to, or considered in far more detail, these matters, does not of itself amount to a ground for judicial review of the Minister's decision.  The case would have been quite different had the Minister not considered these matters at all.  For example, if paragraphs 68 to 72 did not appear in the decision, then it would have been apparent that a relevant consideration, namely the relationship between the applicant and his wife and where their family members had resided, had not been taken into account.

  5. However, these matters have been taken into account by the Minister and it is for the Minister to determine what weight should be placed upon these matters.  The Minister has done this and determined that she would give them moderate weight.  They have gone into the melting pot, so to speak, of all of the other considerations that the Minister has outlined before she has come to the conclusion that she has reached.

  6. In the circumstances I am not satisfied that these grounds amount to a proper basis for judicial review.  I therefore refuse the current application.

  7. As the applicant has been unsuccessful, there are no reasons that costs would not follow the event, as is the usual costs order in cases of this type.  In these circumstances I order that the applicant pay the Minister's costs fixed at $5,000.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date: 

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