ISLAM and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2011] AATA 590

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL        )

)         No: 2008/4932

GENERAL ADMINISTRATIVE Division           )

Re: Mizan Ul Islam
Applicant

And: Minister for Immigration and Citizenship
Respondent

DIRECTION

TRIBUNAL:             Professor RM Creyke, Senior Member

DATE:                      25 October 2011

PLACE:                   Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in this application:

1. at the order on page one of the decision to:
1. delete the words “exercises its discretion to not refuse Mr Islam’s application for a Temporary Business Entry (Class UC) visa”; and
2. insert the words “the matter is remitted to the respondent with a direction that Mr Islam’s visa application not be refused on character grounds”; and

2.at paragraph 138 in the reasons to insert the words “on character grounds” at the end of the paragraph.

...........................[sgd]........................................

Professor RM Creyke, Senior Member

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 590

ADMINISTRATIVE APPEALS TRIBUNAL      )         No 2008/4932

)          

GENERAL ADMINISTRATIVE DIVISION		)
Re		MIZAN UL ISLAM

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Professor RM Creyke, Senior Member

Date 26 August 2011

PlaceCanberra

Decision The Tribunal sets aside the decision under review and exercises its discretion to not refuse Mr Islam’s application for a Temporary Business Entry (Class UC) visa.

..................[sgd]............................

Professor RM Creyke, Senior Member

CATCHWORDS

IMMIGRATION – Application for visa refused – character test – exercise of discretion − substantial criminal record – Ministerial Discretion No 41 - serious nature of offences – protection of Australian community − low risk of reoffending – prospects of rehabilitation – entered Australia as a minor – links to Australian community – decision under review set aside

Migration Act 1958 (Cth) ss 499, 500, 501

Direction [No 41] – Visa refusal and cancellation under s 501

REASONS FOR DECISION

26 August 2011                   Professor RM Creyke, Senior Member

1.Mr Mizan Ul Islam is a citizen of Bangladesh, where he was born on 2 June 1986.

2.On 10 October 2008 a primary decision was made to refuse Mr Islam a Temporary Business Entry (Class UC) visa on the basis he did not pass the character test under section 501 of the Migration Act 1958 (Cth) (Act).

3.On 16 December 2008 that primary decision was affirmed by the Tribunal.  On 18 December 2009 the Federal Court set aside the decision of the Tribunal and remitted the matter ‘to be determined according to law’.[1]

[1] Islam v Minister for Immigration and Citizenship [2009] FCA 1526.

4.On 9 July 2010 the primary decision was set aside by the Tribunal.  On 17 December 2010 the Federal Court set aside the second decision of the Tribunal and the matter was again remitted to the Tribunal ‘to be decided in accordance with law’.[2]

[2] Islam v Minister for Immigration and Citizenship (No 2) [2010] FCA 1418.

5.The matter was heard in Canberra on 27 June 2011. Mr Islam and his counsel attended by video conference from the Sydney Registry of the Tribunal. The other principal witness, Ms Vittoria Ciccarone, attended in person.

Legislation

6.The relevant legislation is the Migration Act 1958 (Cth) (Act). Section 501(1) of that Act provides:

Refusal or cancellation of visa on character grounds

501 (1)  The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. …

Character test

(6)  For the purposes of this section, a person does not pass the character test if:

(a)  the person has a substantial criminal record (as defined by subsection (7))…

Substantial criminal record

(7)  For the purposes of the character test, a person has a substantial criminal record if:  …  

(c)  the person has been sentenced to a term of imprisonment of 12 months or more …

…

7.The Tribunal is granted jurisdiction in such a matter under section 500(1)(b) of the Act. In exercising that jurisdiction the Tribunal is bound by the Minister’s Direction made under section 499 of the Act, Direction [No 41] – Visa refusal and cancellation under s 501. The Direction provides for the manner of exercise of the decision-maker’s functions under section 501 of the Act. The Direction has been in force since 3 June 2009. Direction No 41 replaces the former Direction – Visa Refusal & Cancellation under Section 501 – No 21, which was in force when the Tribunal first considered this claim. 

Issues

8.The sole issue for the Tribunal is whether it should, under its powers of review in section 500 of the Act, exercise the residual discretion in section 501(1) of the Migration Act to refuse Mr Islam a Temporary Business Entry (Class UC) visa.

9.There is no question that Mr Islam does not pass the character test in section 501. He has a ‘substantial criminal record’ (section 501(6)) in that he has been sentenced to ‘a term of imprisonment for 12 months or more’ (section 501(7)(c).) Nonetheless the Minister retains a discretion whether to refuse to grant a visa to such a person (section 501(1)).

10.In making that decision on review the Tribunal is bound to consider the Minister’s Direction.[3]  Ministerial Direction No 41 provides that the discretion should be exercised according to four primary considerations, as well as other considerations to be taken into account as relevant, but which ‘generally … should be given less weight’. 

[3] Migration Act 1958 (Cth) s 499 (2A).

11.In coming to its decision the Tribunal must consider the overriding purposes of the Direction. These are set out in the Preamble to Direction 41 and in paragraphs 5.2(3) and (4). Clause 5.1(2) of the Preamble is central and states the  ‘objective’ of the Act is ‘to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens’.

12.Under ‘General  Guidance’ in clause 5.2, the key provisions are:

5.2(2) In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider:

(a)  the nature of any harm that the person concerned may cause to the Australian community; and

(b)  the risk of that harm occurring.

5.2(3) Exercise of the section 501 power must also be considered in the context of a wide range of factors, including whether the person began living in Australia as a minor, the length of time the person has been ordinarily resident in Australia and any relevant international law obligations.

5.2(4)  In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.

13.Other provisions of the Direction will be dealt with in the context of the consideration of the evidence.

Background

14.This is the second time the Tribunal as currently constituted has heard this matter. Counsel for the Minister said that, except for the clarification of the type of visa, the Minister had no problem with the factual findings from the previous Tribunal’s decision, as set out in paragraphs 7 to 42 of the Tribunal’s reasons.[4]

[4] Re Islam and Minister for Immigration and Citizenship [2010] AATA 515

15.Paragraphs 7 to 42 of the reasons of the previous Tribunal hearing set out Mr Islam’s criminal history; the evidence of Ms Victoria Bradley, Mr Islam’s case manager at the Alexander Maconochie Centre (Maconochie) where Mr Islam had been incarcerated; and the previous evidence of Mr Islam regarding drug use and rehabilitation efforts. Mr Islam’s criminal history is discussed in more detail below. The Tribunal has given consideration to these findings in reaching its present decision.

Evidence of Mr Islam

16.Mr Islam’s evidence is that since he last appeared before the Tribunal he was released on bail on 21 July 2010 by the ACT Supreme Court and moved back to his family home in Torrens, ACT. His brother, his sister and her husband also reside there with Mr Islam’s parents. Mr Islam is now 25 years of age.

17.After he was released on bail, Mr Islam remained on a Bridging Visa E (Class WE), a criminal detention visa, and as part of the visa conditions he did not have permission to work. However, his intention was to complete the IT course which he was undertaking prior to his period in detention in  Maconochie,  and for which partial payment of some $10,000 had been made.

18.However, when he tried to made contact with the IT provider, Excom Education, a few weeks after he was released, he learned that the company had gone into liquidation on 25 August 2010. The company had been operating in Australia for 15 years and also had offices in New Zealand and Singapore. He said he tried ringing the telephone number of the company, but the call rang out.   

19.In an article on the internet, also dated 25 August 2010, a rival company Dimension Data Learning Solutions (DDLS), claimed to ‘have offered to take on all Excom students and allow them to complete certification courses at no extra charge above what they had already paid’.

20.However, when Mr Islam went to the office of DDLS to take advantage of their offer, he was advised that he needed to provide his attendance records at Excom.  These had been held at the Excom office and as the liquidators had been appointed, he could not obtain them. He advised DDLS accordingly and eventually after several telephone calls, he was advised that since it had been some time since he had undertaken his courses with Excom, DDLS were not prepared to extend the offer they made to him. He said DDLS took some time to get back to him.   

21.Mr Islam said he contemplated finishing his course at the Canberra Institute of Technology (CIT) and had obtained the booklets setting out the courses on offer. However, he was anxious to explore more cost-effective options such as DDLS first, given that his parents had already spent significant amounts on his training. He was also not sure whether CIT offered the kind of courses in which he was part-trained.

22.In the meantime, he attempted to do some volunteer work with the Red Cross and he said he was ‘on the verge of starting’ when the Federal Court decision overturned the decision of the Tribunal and he was again taken back into immigration detention. While in Villawood, he received a call from the Red Cross seeking his volunteer services. He has asked that his application be placed ‘on hold’ for the time being. During the period after his release from Maconochie he also attended a gym and had been in contact with some former secondary college friends.

23.Mr Islam’s evidence was that he did not touch alcohol during this time, nor take drugs. He said he had not made contact with any of the people with whom he had been in trouble in the past.

24.As he was on parole he reported to ACT Probation and Parole fortnightly; from November 2010 he attended three sessions at the Canberra Men’s Centre in Civic which specialises in anger management. His probation officer had suggested he do so but left it to Mr Islam to take the next step. So, the decision to attend the sessions was his alone. 

25.He said he had no disciplinary problems while in Villawood and was not involved in the riots which occurred in April 2011. He thought reports on inmates were only made if they misbehaved, so he believed there were no reports on his conduct while there, an assumption supported by his counsel. Counsel for the Minister confirmed that there were no incident reports in relation to Mr Islam.

26.Mr Islam is held in the minimum security area of the centre. He said this part of the Centre was badly damaged during the fires, leaving inmates with little to do as the computer room, kitchen, a TV room, a games room and the shop were destroyed.

27.On release from Maconochie in July 2010, Mr Islam contacted his former fiancée, Ms Vittoria Ciccarone. The couple had earlier intended to marry, but in the latter part of 2008, Ms Ciccarone broke off the relationship. 

28.On re-establishing contact in July 2010, Mr Islam said they started seeing each other again. In November 2010, Ms Ciccarone visited his home for the first time. Previously, although Mr Islam had spent considerable time with Ms Ciccarone’s home where she lives with her parents, the visits had not been reciprocated. This was in part because there had previously been opposition by Mr Islam’s family to the relationship. Ms Ciccarone does not share the Muslim faith (she is a catholic) and has been brought up to enjoy a more relaxed, Western culture as compared with the stricter Muslim code which applied in Mr Islam’s family.  

29.Following this visit of Ms Ciccarone to his home in 2010, the opposition of Mr Islam’s family lessened and Ms Ciccarone has since visited Mr Islam’s family home on several occasions. By the end of 2010, the couple had again decided to marry.  They have set a date – 19 March 2012 – the anniversary of the date eight years earlier when they first began to see each other. Mr Islam’s father has accepted that they should marry, although his mother still has reservations. Ms Ciccarone visits him at Villawood every other weekend, and they are in constant telephone contact. 

30.Mr Islam said even if his parents had to return to Bangladesh he would prefer to live in Australia. He said it would be hard for Ms Ciccarone to adjust to life in Bangladesh. However, if he was there he believes ‘deep down … she will probably follow me to Bangladesh if the relationship is strong enough’.  However, he said I ‘don’t want to be selfish and tell her that I would like her to come with me.  I know it would be hard for her, don’t want to put this pressure on her’.  He would support his parents from Australia. However, if he is forced to return to Bangladesh he expects he would live with his father as it is ‘my turn to start looking after him’.

31.Mr Islam also said that if he was permitted to stay in Australia he believes he has support here. He has counsellors he has seen, he has his family, and he has Vittoria and her family.  He said he also has friends here but did not get statements from them for the hearing. He would aim to finish his IT course so he could work.

32.Mr Islam was not sure if he would be under the supervision of ACT Probation and Parole if released from Villawood. In any event he said he would show up to explain what was happening. It was agreed that he would probably be under the same kind of bail conditions as previously. 

33.Mr Islam said that it would not be easy to return to Bangladesh since there are conflicts within the family there. His father’s brother lives in the former family home in the north of the country about 400 km from the capital and his father is probably living there too.  However, his father and his brother have differences.  Mr Islam is not close to the remaining relatives, including some cousins whom he described as ‘greedy’ and only ‘looking for handouts’. He said his parents too are not close to their remaining relatives. His parents’ other siblings are mostly in the United Kingdom or in Canada. His father would be his only close relative if Mr Islam were to return, unless his mother also returned.

Evidence of Ms Ciccarone

34.Ms Ciccarone’s evidence was that she is 23 and lives at her family home in Kambah, ACT.  She has one brother who is married with children to whom she is very close.  She is employed by the Department of Defence as a customer relations officer and has a high security clearance.  She is studying a Diploma of Management due for completion in December 2011 and is hopeful that once qualified she will be accepted in a senior management position in Defence.

35.Her explanation for Mr Islam’s bad behaviour, about which he has been open with her, is that it was a combination of rebellion against the strict cultural traditions of Mr Islam’s family, and ‘he got in with the wrong people’.  She said she sees the good side of Mr Islam and when he is with her and her family he is a different person. She believes he has matured, is now an adult and is no longer the person he was in his teen years. She does not believe he is likely to reoffend.

36.She has known Mr Islam since she was 15. They had been planning to marry in 2007 when she was 19 years of age, but this was put on hold due to Mr Islam’s troubles with the police. She said she broke off the relationship after Mr Islam’s last breach of parole in September 2008.

37.She said she knows how hard it has been for him never being able to work or to prove himself. As evidence of his reformed character, she pointed to the counselling and volunteer work he attempted while back in the community in 2010.  She also said a woman counsellor had had several sessions in Mr Islam’s home with Mr Islam and his family discussing family issues generally and how to deal with the family’s concern about Mr Islam’s former criminal behaviour.

38.She is now keen to go ahead with the marriage. She said she has chosen to go back into the relationship.  She said she knows Mr Islam better than others. ‘He’s smart but he needs a chance and he has been trying so hard to prove himself.  All he wants to do now is to get somewhere; to be like other people’.  She said that this is something they have in common.  She also noted that they will need two incomes if they are to have children. She has not faced the future of the relationship if Mr Islam has to return to Bangladesh.

Evidence of other changes since last hearing

39.Mr Islam’s mother is a family day care worker with the Woden Community Service. The renewal of her subclass 457 visa application was refused on 2 June 2010 on the ground that the Woden Community Service had been unable to secure a labour agreement with the Department of Immigration. Consequentially her application for review was rejected by the Migration Review Tribunal on the grounds that the decision was not a ‘reviewable decision’ since the application was not ‘sponsored by an approved sponsor’ at the time of the application for review.  Judicial review of the decision by the Federal Magistrates Court was to be heard on 22 July 2011. In the meantime, his mother holds a Bridging Visa ‘A’. The Tribunal has not been made aware of any outcome to Ms Islam’s hearing.

40.Mr Islam’s father had to return to Bangladesh in October 2010 to sort out his pension with the Bangladeshi Government and overstayed. As a consequence he has lost his bridging visa and he needs to reapply. He may be able to obtain a subclass 457 visa while in Bangladesh. Otherwise his father’s status is dependent on his mother’s subclass 457 business visa being reinstated.

41.His brother Meraj, who is an Australian citizen, has a job in Defence as an IT trainer. He is planning to stay in Australia. His sister and her husband are expecting a baby and will also not return to Bangladesh. They too are Australian citizens. At the time of the previous Tribunal hearing, it was expected that both his siblings would also return to Bangladesh if Mr Islam’s visa was refused. That is now unlikely. If Mr Islam’s mother is not successful on appeal, and her husband’s application is also rejected, she will return to Bangladesh. Formerly both parents had said that if Mr Islam was deported they would accompany him to Bangladesh.

Consideration

42.Giving consideration to the evidence at the previous Tribunal hearing and the information provided since, the Tribunal must reassess the circumstances in light of Direction 41, bearing in mind its overall objectives and the relevant primary and secondary factors listed. 

43.The Direction is in two parts: Part A relates to the character test; Part B relates to the exercise of the discretion in the event the person does not meet the character test. There is no question that Mr Islam does not meet the character test in section 501(6) of the Act. He has a substantial criminal record, having been sentenced to a term of imprisonment of four years with a minimum parole period of 18 months, that is, in excess of 12 months (section 501(7)(c) of the Act). Part A is accordingly not relevant. It is Part B of the Direction which guides the Tribunal in its decision-making on this issue.

44.Paragraph 10 of Direction 41 provides that factors relevant to assessing whether to grant a person a visa, the following (the primary considerations) are to be considered (clause 10(1)):

a)The protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

b)Whether the person was a minor when they became living in Australia, and

c)The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct.

d)Relevant international; obligations…

45.It was accepted at the hearing that primary consideration 4, which relates to Australia’s international obligations, is also not relevant.  The focus is therefore on the first three primary considerations and any appropriate other secondary considerations.

The first primary consideration: protection of the Australian community from serious criminal or other harmful conduct

46.This primary consideration must involve due consideration of the Government’s objectives as set out in the preamble and discussed at paragraphs 11 and 12. Factors relevant to the level of risk of harm to the community include ‘the seriousness and nature of the relevant conduct; and the risk that the conduct may be repeated’ (clause 10.1(2)(a) and (b)). Crimes that are considered ‘serious’ include grievous bodily harm, assault, aggravated assault, and robbery (clause 10.1.1(2)(d),(e)).

47.As a minor (he was 17 years of age) Mr Islam was involved in the following offences:

ACT Children’s Court

·On 20 February 2004 for providing a false name/address and attempted theft. No conviction was recorded; he was required to undertake 80 hours of community service;

·On 5 July 2004 for:

oassault with intent of robbery (attend community unit for 120 hours);

otake motor vehicle without consent (convicted and released on a probation order for 12 months, ordered to attend courses);

ofurious driving (fined $200).

48.His convictions as an adult are:

ACT Magistrates Court

·On 20 December 2004, when he was 18 years of age:

otake motor vehicle without consent (released on entering recognizance bond of $1500 to be of good behaviour for 12 months;  undertake supervision and rehabilitation and education with respect to drugs and alcohol abuse and anger management; disqualified from driving for 12 months);

ounlicensed driver/rider (fined $200);

ospecial driver PCA, that is exceeding the prescribed concentration of alcohol (released on entering recognizance, disqualified from holding licence for seven months, concurrent with previous disqualification);

odangerous driving (released on entering recognizance, disqualified from holding licence for 12 months, concurrent with previous disqualification);

·On 1 July 2005, convicted and sentenced to 12 months imprisonment for intentionally inflicting actual bodily harm, released on entering into a recognizance with a two year good behaviour bond; undertaking to provide a bond of $1000 and accept supervision and undertake courses and treatment, including in drug, alcohol and anger management issues, and to be subject to random urine analysis.

ACT Supreme Court

·On 2 June 2006, age 20 years, he was convicted in the ACT Supreme Court of aggravated robbery and sentenced to four years’ imprisonment with a minimum parole period of 18 months, backdated to 22 August 2005.  He was also convicted of breach of his recognizance and sentenced to 12 months imprisonment to be served concurrently. His appeal against his sentence was dismissed by the Court of Appeal on 2 November 2006.

49.Mr Islam was incarcerated from 22 August 2005 and was released from the John Moroney Correctional Centre, Goulburn on 21 February 2007. Upon his release he was taken into immigration detention at Villawood. He was released from Villawood on 27 November 2007.

50.Mr Islam is also alleged to have committed an offence at Dominos Pizza Store, Mawson on 1 May 2008. He was arrested on 16 May 2008 and charged with aggravated robbery (the Mawson charge). On 17 May 2008 he appeared in the ACT Magistrates Court and was refused bail. On 26 June 2008, he was released on bail by the ACT Magistrates Court. His bail undertaking included a curfew between 7.30pm and 7.00am, unless in the company of one or other of his parents. The trial on that charge is set down for September 2011 but as the outcome is not known, the Tribunal has not taken this matter into account in exercising its discretion under section 501.

51.Mr Islam was in breach of his bail conditions on three occasions in 2008. On the first occasion his car broke down and he was late for reporting.  On the second occasion he was only out of his parent’s company for a short period; and on the third occasion he was not in the company of his parents in the curfew hours but was responding to an emergency call in the middle of the night and had not wanted to wake his parents to accompany him. After the third breach on 18 September 2008, Mr Islam was again incarcerated.

52.On 8 December 2005 Mr Islam had been granted a Bridging Visa E (Class WE), a criminal detention visa, for the period of his criminal detention. On 27 April 2006 Mr Islam applied for a Temporary Business Entry (Class UC) visa. On 17 January 2007 he was granted a further Bridging Visa E (Class WE). On 21 February 2007, his Bridging Visa E was cancelled and he was detained at Villawood Immigration Detention Centre. 

53.On 22 February 2007 he again applied for a Bridging Visa E (Class WE).  On 26 February 2007, the application was refused. On 8 March 2007, the Migration Review Tribunal remitted the refusal decision for reconsideration and directed that a security in the amount of $15,000 be requested for compliance with the visa conditions.  On 13 April 2007, the Department of Immigration sent Mr Islam a Notice of Intention to Refuse his Bridging Visa E (Class WE) application

54.Following a response by Mr Islam’s legal representative, on 23 November 2007, the Minister decided to not exercise his discretion to refuse to grant a Bridging Visa E, which was granted on 27 November 2007, and Mr Islam was released into the community. On 30 November 2007, Mr Islam received a formal warning  letter noting that ‘any further conduct bringing him within the provisions of section 501 will lead to the question of visa cancellation being considered and consideration may also be given to refusing any future visa applications’.

Seriousness of offences

55.The Minister contended that Mr Islam’s criminal conduct was of a serious nature.  Counsel for Mr Islam, while not denying the serious nature of Mr Islam's offences, argued that the former Minister in November 2007 decided to exercise the discretion in favour of Mr Islam after weighing the primary considerations in former Direction No 21, including the seriousness and nature of the conduct and the risk to the Australian community.  Since that time, so it was asserted, ‘very little of relevance has occurred to justify a different result’ from the decision of the former Minister. 

56.If the Mawson charge is disregarded, counsel argued that the only developments which had occurred since the Minister exercised the discretion in Mr Islam’s favour had been three relatively minor breaches of bail conditions.  It would be indefensible, in his view, to refuse a visa for those reasons alone. Nonetheless, counsel accepted that the Tribunal was free to make a determination contrary to the Minister’s earlier decision.

57.The Tribunal notes that Direction 41 lists grievous bodily harm, assault and aggravated assault, and robbery as examples of offences that are considered serious.[5]  Mr Islam has been convicted of assault with intent of robbery, 'intentionally inflict actual bodily harm', and aggravated robbery. The assault with intent of robbery was committed while Mr Islam was a minor.

[5] Direction [No 41] – Visa refusal and cancellation under s 501 clause 10.1.1(2)(d), (e).

58.The aggravated assault in 2005 followed an altercation at the Woden bus interchange and resulted in the victim receiving a four centimetre stab wound to his left shoulder, which led to his hospitalisation and left him with 'interrupted sleep patterns' and feeling 'occasionally… anxious and depressed'.  The victim also said his 'social life has been [affected] to the extent that [he is] now reluctant to go out at night'.  

59.Mr Islam said of this occasion that he had been drinking and was depressed and angry because a close friend had just died and that he was provoked.  Magistrate Madden noted, however, that there was ‘little or no provocation’ and on 1 July 2005 sentenced him to 12 months’ imprisonment.  However, he suspended the sentence and Mr Islam entered into a good behaviour bond for two years. He ordered that during that period, Mr Islam should be under supervision, and address his drug, alcohol and anger management issues.

60.Despite the lenient sentence, two months later, on 23 August 2005, Mr Islam was arrested on a charge of aggravated robbery at an Ampol service station in Kambah, ACT.  Mr Islam threatened the console operator with a kitchen knife and stole $245 from the cash register. For this offence he was sentenced to four years’ imprisonment with a non-parole period of 18 months. The Court, sentencing him in 2006, noted that it ‘was a very serious crime of aggravated or armed robbery committed against a defenceless console operator late at night’ and attributed particular blame to Mr Islam as the ringleader.

61.The Tribunal accepts the seriousness of the offences Mr Islam committed at the time of this period of criminal behaviour in 2004-2005.  They were offences involving violence to members of the community and the Tribunal does not seek to minimise their serious nature.

62.At least one of the serious offences was committed while Mr Islam was a minor, and the magistrate did not impose a prison sentence in relation to the intentionally inflicting harm offence on 1 July 2005 when Mr Islam was just 18. In addition, he was released on bail after being arrested in 2008.

63.However, following his conviction in 2006 for aggravated robbery charge, Mr Islam was imprisoned for a term of four years with a parole period of 18 months. The potential length of sentence for this offence was 25 years, suggesting that Mr Islam’s offence was at the less serious end of the range, a conclusion reinforced by the non-parole period of only 18 months.

64.It is also pertinent that in November 2007, despite Mr Islam having been taken into immigration detention, the Minister decided not to exercise the discretion to refuse the visa application. The Minister’s decision was that the seriousness of the offences did not outweigh the other factors in the exercise of the discretion not to grant a visa.

65.These lenient approaches to sentencing and to the discretion to refuse a visa under section 501 in Mr Islam’s case indicate that on more than one occasion his offences were not considered to be of such seriousness as to warrant incarceration or refusal of a visa. They must be taken into account in considering to Mr Islam’s criminal behaviour, his propensity to reoffend and the risk this creates for the Australian community. These considerations should be given weight in assessing the seriousness of the charges and the risk to the Australian community.

Nature of criminal record and risk of reoffending

66.The Direction also states that consideration should be given to ‘the number and nature of the offences, the period between the offences, and the time that has elapsed since the most recent offence’ (clause 10.1.1(3)). 

Number and nature of offences

67.The Minister has calculated that Mr Islam has 12 convictions; five of which were committed while Mr Islam was a minor. The most serious of these convictions as a minor was an assault with intent of robbery. The balance related to an attempted theft, providing a false name and address, taking a motor vehicle without consent, and furious driving. He was fined and required to undertake community service, to enter into a probation order for 12 months, and to undertake courses.

68.After he had turned 18, Mr Islam was convicted again of taking a motor vehicle without consent, driving while unlicensed and under the influence of alcohol, and of dangerous driving.  He was fined, disqualified from driving, and placed on a good behaviour bond for 12 months during which he was to undergo anger management courses and supervision and rehabilitation relating to drugs and alcohol abuse. Of these convictions, only the assault with intent to rob falls within the ‘serious’ category in clause 10.1.1 of the Direction. Further, the offences in 2005 of intentionally inflicting actual bodily harm and aggravated robbery are ‘serious offences’. 

69.Apart from the bail offences, all of Mr Islam’s convictions as an adult occurred in 2004-2005, that is five or more years ago, in an intense period of criminal activity over a period of 19 months, while Mr Islam was involved in drugs and alcohol and for the most part, was a teenager. 

Period between offences and time elapsed since the most recent offence

70.The Minister contends that there was only a brief period of non-offending when Mr Islam was in the community and this should 'weigh in favour of refusing Mr Islam's application for a visa'.  It is also the Minister's contention that Mr Islam cannot demonstrate a significant period of time in the community when he was not a minor that has been offence free, noting that even when Mr Islam was on bail he breached those conditions. The Tribunal considers both the period in the community and in detention over the last six years.

71.Since the intense period of criminal activity in 2004-2005, now some six to seven years ago, Mr Islam has been in detention for several periods.  He was incarcerated or in immigration detention from 22 August 2005 till 27 November 2007, from 18 September 2008 to July 2010, and again from 18 January 2011 until the present. In other words since 2005, Mr Islam has only been out of detention for close to 15 months. In the first period, when he was released on bail, Mr Islam was apprehended for breaching bail on three occasions. The Minister conceded at the hearing, however, that the bail breaches were of little moment in relation to the risk of recidivism and risk to the community.

72.He was also arrested for the alleged offence in Mawson and remanded in custody for three weeks between 16 May 2008 and 6 June 2008 when he was again released on bail. In summary, and without consideration of the Mawson charge, there has been a break in his criminal activities for close to five years, during which time he has been in the community for around 15 months.

73.The Minister has contended that ‘an insufficient amount of time has elapsed subsequent to Mr Islam offending such that in an overall consideration of the seriousness of the crime, significant weight should be given to this factor by the Tribunal’.

74.Counsel for Mr Islam argued that Mr Islam has spent sufficient time out of custody without any hint of reoffending, and from July 2010 this was without even a thoughtless breach of bail.  In his view, 15 months is more than fleeting and amounts to a reasonable period. In his counsel’s view all Mr Islam’s conduct since the last hearing has been consistent with someone who has matured and grown up, meaning that he is even less likely to re-offend.

75.It is now nearly six years since Mr Islam has been convicted of any offence. In the first period of release from custody in November 2007, Mr Islam breached bail on three occasions but he also attempted to re-educate himself for a career in the IT industry. In the second period, from July 2010, he had not committed even thoughtless breaches of bail, and in both periods he used the time to better himself, both personally and professionally within the constraints of no money and no permission to work.  In particular, he offered to do voluntary work for Red Cross, and he voluntarily undertook counselling for anger management and with his family.

76.In addition, counsel for Mr Islam argued that although commonly it is argued that the person has to prove themselves when out in the community, the person’s behaviour in custody is still relevant.  In custody, his behaviour had for the most part been exemplary, as the information under the next section indicates.

77.In effect since his arrest in August 2005, Mr Islam has spent three years and ten months either in custody or in immigration detention, and from the time he turned 18 he has spent half his time in incarceration. Apart from six months in 2010, Mr Islam has also been in detention continuously since he was last arrested in May 2008.

Reports and assessments

78.The Tribunal has taken into account Mr Islam’s behaviour while in custody, as well as in the community, in assessing his conduct with a view to predicting the likelihood of his criminal conduct recurring and the level of risk that he would pose to the Australian community. That accords with the requirement in clause 10.1.1(4)(a) of Direction No 41 that it take into account, when considering the risk of recidivism, ‘any relevant information, including but not limited to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment’.

79.In particular, the Tribunal notes that it was accepted that the intense period of criminal activity had been fuelled by Mr Islam’s addictions to alcohol and drugs at that time.  So attention has been focused on these issues in the assessment.

80.In a report of 13 April 2006 by his Probation and Parole Officer, the assessment made was that Mr Islam:

·appeared to be an intelligent and thoughtful man coming to terms with a short but intense period of criminal offending marked by aggression and violence

·[appreciates] that he faces a further custodial sentence [which] would appear to be having a salutary impact upon him

·[had] recognised the extent to which he wrongly involved another person in [his actions] and demonstrated some remorse for the victims of the offence,

·appears to be evaluating the tough reputation he previously prized and the rebelliousness he was keen to express.

In conclusion, the report expressed ‘some hope that he will again live by an ethic that is law abiding and respectful’ but warned that if he resumed ‘contact with negative peers’ he could ‘relapse into drug use’, and ‘would be [at] significant risk of reoffending’.

81.In relation to the first assault in Woden bus interchange, Magistrate Madden acknowledged that there had been provocation, but said it was ‘at the lower end of the scale’ and that the altercation ‘was an argument that got considerably out of hand’.  Nonetheless, he only imposed a suspended sentence.

82.In June 2006, in relation to the aggravated assault in Kambah on 23 August 2005, Gray J, in sentencing Mr Islam to a period of imprisonment, listed the history of Mr Islam’s offences, and noted that of the two persons involved in the aggravated robbery, it was Mr Islam ‘who must bear the responsibility for quite wrongly involving’ the second person in the activities.  However, he also said:

I accept that as the probation and parole report notes that the current period of remand and the belief that he faces a further custodial sentence, appears to be having a salutary impact on him.  And I take into account that the probation and parole report also notes that Mr Islam has accepted responsibility for his actions, recognised the extent to which he wrongly involved another person in them and has demonstrated some remorse for the victims of the offence.  He is now taking positive steps to address his drug addiction and he has put himself in a position so as to have good rehabilitative prospects.

83.The Pre-Release Report of the ACT Probation and Parole Service dated 13 December 2006 acknowledges that Mr Islam had ‘identified his problematic substance use as the catalyst for his offending behaviour’ and that the offence was committed ‘primarily to fund his drug problem’.  At the same time, the report noted that whilst ‘the inmate has attempted to access the appropriate services in custody to address his offending, demand for these services and staffing issues have impacted on his level of contact’, indicating that he had not been able to attend all the available drug and alcohol services which may have been of assistance to him.

84.Evidence was provided at the previous hearing that for those on remand, like Mr Islam, there were fewer courses available in Maconochie. In addition, despite being recommended to attend, Mr Islam had been denied entry to a highly regarded drug and alcohol course while at Maconochie because of his visa status.

85.His behaviour while in the Belconnen Remand Centre from September 2008 and, since April 2009, at Maconochie, has generally been positive. The case reports on Mr Islam since September 2008 indicated that he was, for the most part, polite, respectful and well behaved. There were, however, two incidents in which he was said to be involved in an assault on a fellow prisoner: one in October 2009; and the second in January 2010.  There is no information as to the first incident apart from the fact that he was isolated for 28 days as a punishment. On the second occasion he was again in separate confinement for 28 days.  Mr Islam said that on this occasion he acted in self-defence when the other prisoner attacked him. The Tribunal has no further information on this incident, except that Ms Bradley indicated no police charges were laid.

86.In the previous hearing, Ms Bradley gave evidence about Mr Islam’s behaviour in detention in Maconochie since the beginning of 2009. She said that he was reliable, responsible and trustworthy.  She noted in particular his contribution to NAIDOC activities, and as supervisor and facilitator of activities of other detainees, positions of responsibility which were only available to those she could rely on.  She also said she would not have been prepared to appear at the hearing on his behalf if she did not believe he was able to be productive.

87.While in Maconochie, Mr Islam undertook a hairdressing course, and a labour construction course.  He also enrolled in a basic IT course. A Rehabilitation Plan by ACT Corrective Services dated 7 August 2008 while Mr Islam was living in the community, recommended only that he be monitored in relation to his abstinence from illicit drugs with random urine sample analysis, and that his family be contacted ‘bi-monthly’ to ‘monitor [his] progress’.  There was no requirement for further drug or alcohol assessment, or attendance at courses.  At that time Mr Islam was studying for examinations in the IT courses he was undertaking.  He had also been approved to assist at a residential youth camp in January 2008.

88.There are no reports of his behaviour while in Villawood between February 2007 and November 2007, and again between January 2011 and the present. Mr Islam has been in the minimum security wing at Villawood, indicating some confidence on the part of the authorities that he was not a danger to himself or to others. In response to questioning on this issue by the Tribunal, Mr Islam said he understood that he was placed in that wing because there were no misconduct reports, because of his good behaviour and that people who go there are ‘low risk’.

89.The evidence which the Tribunal accepts is that had there been problems, reports would have been generated.  Accordingly, the Tribunal finds that during these two periods there are no incidents of poor behaviour to report.

90.The preponderance of reports in the period under consideration indicate a general willingness by the prison and detention authorities, by judicial officers and parole authorities to give weight to Mr Islam’s positive steps to rehabilitate himself and that he should be given the opportunity to put this period of his life behind him. 

Rehabilitation

91.Counsel for the Minister argued that Mr Islam was involved in a sustained period of criminal activity in 2004-2005 and that since then he has not been in the community for more than 15 months. In that time he breached bail on three occasions and had a minor infringement of his parole conditions when he used marijuana on one occasion. These actions suggested, according to counsel for the Minister, that there has not been a sustained period of good behaviour outside of detention.

92.Counsel for Mr Islam submitted that rehabilitation is where a person reaches a stage in which it is unlikely that the person will re-offend.  In counsel’s view, Mr Islam had reached that stage. He has taken positive steps of undertaking and attempting to finish his IT courses in order to gain a qualification, he has voluntarily undertaken anger management counselling, and he has attempted to contribute productively to the community by continuing the voluntary activities he commenced in Maconochie, by offering work for the Red Cross, an offer which was accepted.

Judicial orders

93.Upon his release from detention, Mr Islam was subject to bail conditions. On three occasions he breached bail. On the first occasion, Mr Islam’s motor vehicle had broken down and he was late to report. On the second occasion, he was out of the company of his mother for a period but was not arrested and was only issued with a caution. On the third occasion, he was assisting a friend in difficulty.  At the hearing, counsel for the minister acknowledged that each breach of the bail conditions was not, on its own, serious.

94.Mr Islam’s breaches of his bail conditions show a degree of impulsiveness and a failure to consider the consequences of his actions.  Counsel for Mr Islam noted that on two of the occasions he was responding to calls for assistance by friends, and on one of those he was not charged.  The other occasion was due to mechanical failure.  He is now 25 years and he claims to have learned from these experiences.

Drugs and alcohol

95.The evidence before the Tribunal was that, despite the potential to access drugs while in the Belconnen Remand Centre, and more recently in Maconochie, Mr Islam has not availed himself of the opportunity.  Mr Islam claimed he had put his drug consumption behind him and had been free of drugs for ‘some years now’. That assertion is confirmed by the random urinalysis tests throughout his incarceration which had tested negative on all reported occasions.

96.The Tribunal notes that during his period in the community in 2007 and 2008, he was also apparently drug free, with the exception of the one occasion in early February 2008, when he accepted an offer of a small amount of marijuana to assist him, he said, with sleep problems. This was detected in urinalysis on 15 February 2008 when a positive result was obtained for ‘a low level of cannabis intake’. In his recent evidence to the Tribunal, Mr Islam said he abstained completely from alcohol and drug use while in the community between July 2010 and January 2011. That evidence is consistent with his abstinence from drug taking while in Maconochie. 

97.The Minister contended at the previous hearing of the Tribunal that 'Mr Islam will be returned to an environment and a situation where he has previously abused substances and that there is no evidence of any change in circumstances that will prevent this pattern of behaviour reoccurring'.  

98.The Tribunal does not accept this assessment.  While living with his family for  close to ten months in late 2007 and 2008, Mr Islam did not indulge in the use of illicit substances which had occurred in 2004-05, nor did  he do so while in detention at Maconochie, or during the six months in the community in 2010-2011. There is no evidence of any incidents relating to Mr Islam in the period since January 2011 while he is in Villawood.  The Tribunal does not know whether drug-testing is undertaken in that institution.

99.His family have also stated that 'they have more knowledge of drug abuse issues since Mr Islam has been in prison and strongly support the idea of him attending further rehabilitation if this was required of him once he is released'.  It is notable that the ACT Corrective Services Rehabilitation Plan in 2008 did not recommend that Mr Islam attend further alcohol and drug courses. 

100.The evidence satisfies the Tribunal that Mr Islam is capable of managing without drugs over a considerable period while in the community as well as in detention.  Given that Mr Islam could have obtained drugs while in detention or in the community but apart from his limited use of marijuana, chose not to do so, this supports his claim that he is now drug free.  Since it was this addiction which was the catalyst for his criminal behaviour in the past and the serious offences for which he was charged in 2005 were committed primarily to fund his drug problem, the Tribunal believes this is positive evidence of improved behaviour.

Family pressures

101.The Minister noted however, that 'one of the reasons he turned to drugs was that he was struggling with family pressures'.  Those family pressures have been diminished.  One of the reasons for that pressure was the family's disapproval of Mr Islam's relationship with Ms Ciccarone, an Italian catholic.  The evidence provided to the most recent hearing indicates a growing acceptance by Mr Islam’s parents of his relationship with Ms Ciccarone, to the extent of inviting her on more than one occasion into their family home. In their affidavits the family acknowledged the support she had provided to Mr Islam throughout his period of incarceration and her good influence on him, also supporting their willingness to accept her relationship with Mr Islam.

Anger management

102.A third factor in Mr Islam’s offences has been poor management of his anger. The Tribunal notes the reports that Mr Islam was generally well behaved while in detention. The Tribunal is aware, however, that he was involved, while in Maconochie, on two occasions in late 2009 and early 2010 in assaults on other inmates for which he was disciplined. There was no other evidence about the circumstances of the first assault than that it occurred.  Mr Islam denied he initiated the assault on the second occasion and simply retaliated when attacked.  He said he had pleaded guilty to get the matter over with, although the case notes indicate he did later appeal against the outcome. 

103.Since all those who were in the room when the second assault occurred were disciplined, and there is no evidence other than his assertions as to the degree of Mr Islam’s involvement, it is not possible for the Tribunal to assess his level of culpability. Ms Bradley noted, however, that no charges were laid, although the police did investigate the incident.  The Tribunal also notes that this second incident occurred at a time when Ms Bradley had observed his confidence was deteriorating and his level of frustration about his immigration problems was escalating. There are no incident reports relating to Mr Islam during his time in Villawood and he was not embroiled with the allegedly twenty-five per cent of inmates who were involved in the protests leading to the April fires.

104.The Tribunal notes that Mr Islam undertook an anger management course while in Maconochie, and voluntarily saw an anger management counsellor at the Canberra Men’s Centre on three occasions while in the community in 2010.  His conduct was also generally good while in detention in Maconochie, despite his reported growing sense of frustration.

Summary

105.The Minister's submission was that Mr Islam had a propensity to reoffend despite assurances to the courts, promises of reform, and assurances of support from his family.  The Minister also claims that 'given the seriousness of Mr Islam's violent criminal conduct and the fact that it was committed on repeated occasions, in the face of repeated undertakings to the courts' this created an unacceptable risk that Mr Islam may reoffend.  That in turn, it was argued, creates an unacceptably high risk of harm to the Australian community if he is permitted to stay in Australia.

106.The Tribunal considers the facts outlined indicate that there remains a possibility of Mr Islam reoffending.  However, it is a minimal risk to the Australian community. The 13 April 2006 report of Mr Islam’s Parole Officer noted that it would be contact with his negative peers and a relapse into drug abuse that created the risk of reoffending. Mr Islam has not been involved in drugs and alcohol for a number of years, and there is no evidence to suggest Mr Islam has been in contact with the people that surrounded him during his criminal activity.

107.Despite the limited time Mr Islam has spent in the community over the last six years, the Tribunal is not persuaded that the risk of a recurrence of the harmful conduct in which Mr Islam was involved six or so years ago, under the influence of his then drug and alcohol addiction, is likely to recur such that it would pose an unacceptable risk to the community.

108.The Tribunal notes that the ACT Magistrates Court, the ACT Supreme Court and the previous Minister have all, at different points, considered that Mr Islam did not pose sufficient risk to the community to prevent him being released into the community.  The offences for which he was taken into custody, with the exception of the most recent breach of bail and the Mawson charge, occurred over six years ago.

109.Ms Ciccarone said Mr Islam had matured and is now an adult.  At the hearing Mr Islam’s comment when questioned as to whether he thought Ms Ciccarone would go to Bangladesh if he was deported was that he did not ‘want to be selfish and tell her that I would like her to come with me.  I know it would be hard for her, don’t want to put this pressure on her’.  Additionally, he said he would try to financially support his parents whether from Australia or in Bangladesh if he was living there with his father, since it is ‘my turn to start looking after him’.  When asked about whether he would be under the supervision of ACT Probation and Parole if he were to be released from detention, he noted that regardless of whether there was such a requirement he would show up to tell them what was happening. All these comments indicate a level of maturity and sensitivity to the needs of others at a time of personal uncertainty and frustration, which was not apparent in his earlier behaviour.

110.Since his last conviction, although Mr Islam has had two recent incidents of poor anger management, his drug addiction appears to be under control.  He demonstrated that he is capable of responsible behaviour while in Alexander Maconochie; and he has said he does not ever wish to be in incarceration again.  Absent the catalyst of drug use, the Tribunal considers the overall risk he would pose to the community should he be released is not unacceptable and has markedly reduced any likelihood of his criminal behaviour being repeated. On that basis, the Tribunal does not consider that primary consideration 1 weighs heavily in favour of affirming the decision under review.

Primary consideration 2: Whether the person was a minor when they began living in Australia[6]

[6] Direction [No 41] clause 10.2.

111.This factor takes into account that those who spend their formative years in Australia have increased the likelihood of greater ties and linkages to the Australian community.[7]  Clause 10.2 (1) notes that favourable consideration is justified ‘If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community’.

[7] Direction [No 41] – Visa refusal and cancellation under s 501 clause 10.2(1).

112.Mr Islam was four years old when he first arrived in Australia and he commenced school here.  He remained in Australia for five years, and returned here when he was 15 and has been here since. That means that he has now been in Australia for 15 of his 25 years.  For nine years, or half of his years as a minor, including the majority of his teenage years, he has lived in this country.  

113.Counsel for the Minister submitted that Mr Islam returned to Bangladesh for five and a half years and that after an initial period of acculturation he did well at school in Bangladesh. It was also noted that he had difficulties adjusting again when he returned to Australia and felt he had lost proficiency in English. In addition, counsel argued that there was no evidence of strong ties in Australia now apart from his relationship with Ms Ciccarone.  He had not sought to make contact with friends during his time out of custody in 2010. As for his family ties, his father is now in Bangladesh and his mother may return there depending on the result of her application to renew her business visa. 

114.As for his links to Australia, the current position of Mr Islam's immediate family is that with the exception of one sister who is married and living in the United States, his two other siblings are Australian citizens and likely to remain in Australia. His parents were formerly seeking permanent residence in Australia but the fate of those applications is dependent on the results of his mother’s hearing on 22 July 2011 and his father’s application for a subclass 457 visa, if sought. 

115.A significant link to Australia is Mr Islam’s relationship with Ms Ciccarone. The couple propose to marry next March.  Ms Ciccarone was an impressive witness and her deliberate choice to go back into the relationship knowing as she does Mr Islam’s history of offending, and her belief in him as a person is strong evidence of support by a key person in this country.  Their relationship has now been on foot over a period of close to six years and has been maintained, with the exception of the period when Ms Ciccarone broke off the relationship, despite Mr Islam being in custody.  Ms Ciccarone’s evidence indicates that at a personal and professional level she is in a position to provide strong support and guidance for Mr Islam should he return to the community.

116.Ms Ciccarone is close to her brother who lives in Canberra and Mr Islam’s two siblings are also Canberra-based and he has always lived with them. Ms Ciccarone’s parents provided a statutory declaration in June 2007 for the purposes of the original Tribunal hearing which is supportive of the couple and of Mr Islam. Evidence has been provided that Mr Islam spent much of his free time with Ms Ciccarone’s family in the past and they provided considerable support for him. So Mr Islam has strong linkages with his siblings here and with Ms Ciccarone’s family.

117.Although counsel for the Minister noted that Mr Islam had not set out to contact former friends while out of custody in 2008 and 2010, and that he had only seen former college friends through chance encounters, that is not surprising.  His former friends were not a good influence and establishing contact with others whose history post-secondary education has been very different, may not be easy.

118.The arguments in relation to this consideration are finely balanced. Mr Islam has now spent nearly two-thirds of his years in this country and his criminal activity occurred in his formative late teen years. At the same time he has strong ties with Ms Ciccarone, and his and Ms Ciccarone’s immediate family.

Primary consideration 3: The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct

119.This criterion gives 'more favourable consideration ... to ... the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity that bears negatively on their character'.[8]  Behind that factor lies the overarching policy consideration in the preamble to Direction 41 at clause 5.2(4) that:

In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.

[8] Direction [No 41] – Visa refusal and cancellation under s 501 clause 10.3(1).

120.Mr Islam has spent a major portion of his life in Australia, including the formative mid-to-late teenage years when his offences occurred. Mr Islam commenced his criminal behaviour in 2004 when he was 17 years of age.  He had been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct for seven years.  Accordingly, this primary consideration indicates a willingness to take account of Australia’s responsibility for those who have spent their ‘formative years, or a major portion of their life’ in Australia.  Significant weight should be given to this new factor in the circumstances arising in Mr Islam’s case which favours exercising the discretion to not refuse Mr Islam’s application for a visa. 

Secondary Considerations

Family Ties

121.Mr Islam’s family is a close one, adhering strongly to Islamic tenets and values. They have continued to support him through the troubled period over the last seven to eight years. Their financial contribution has been significant. They have paid for the cost of his legal proceedings, and for courses in which he has enrolled, including the $10,000 or so for the Excom courses.  Mr Islam’s family fully supported him while he was living at the family home.  Members of the family continued to visit him most weekends while he was in Goulburn, in the Belconnen Remand Centre, at Maconochie, and during his two periods in Villawood.  Ms Ciccarone has been visiting him there every other weekend during his latest period in custody. Members of the family were present during Tribunal hearings.

122.Since March 2004 Mr Islam developed a strong relationship to Vittoria Ciccarone, to whom he became engaged in February 2005 until late 2008, and again in the latter part of 2010. The couple have now made the decision to marry and have chosen a date.  Ms Ciccarone resumed the relationship after the break in 2008 and has done so intentionally.

123.From 2004, Ms Ciccarone’s family befriended Mr Islam and he would often eat with them and sometimes sleep at their house. This relationship was not an easy one for the Islam family to accept since Ms Ciccarone was not a Muslim.  However, in affidavits for the purposes of an earlier hearing, they asserted that they accepted her and that the relationship had been a positive one for Mr Islam. In the current hearing, the evidence was that Mr Islam’s family in 2010 invited Ms Ciccarone into their home in 2010 on more than one occasion. His father has accepted the relationship and his mother is becoming more reconciled to it.

124.This factor weighs in favour of exercising the discretion not to refuse Mr Islam’s application for a visa.

Other factors

125.In relation to links to Bangladesh, the evidence is that Mr Islam has an uncle in Bangladesh with whom his father is living at present.  However, he said there were conflicts between Mr Islam’s father and his brother. Should Mr Islam be returned to Bangladesh it is likely, given his family traditions, that he would live with his parent or parents if they are there. There is no evidence that Mr Islam has retained any group of friends in Bangladesh and he said that his relationship with his cousins is distant.  Whether one or both of his parents will also be in Bangladesh is not yet determined.

126.Mr Islam’s links to Bangladesh are much less strong compared to those in Australia. If Mr Islam’s parents are not able to remain in Australia, they will be in Bangladesh should he be returned there.  In any event, they had given evidence earlier that they would accompany him to Bangladesh should he be deported.  Mr Islam says he has no close friends in Bangladesh. That is not surprising since he has not lived there for ten years. In combination the fact that Mr Islam spent eight or nine years in Australia during his childhood years and has closer family ties here than in Bangladesh weigh in favour of exercising the discretion not to refuse Mr Islam’s visa application.

Hardship likely to be experienced by the person or their immediate family

127.If Mr Islam’s parents have to relocate to Bangladesh because of Mr Islam’s deportation there are disadvantages for them as well as for Mr Islam.  There is likely to be a negative effect on the career of his mother since, according to her statement, career prospects for women in Bangladesh are limited.  Some of Mr Islam’s difficulties have been due to his unwillingness to accept aspects of the strict patterns of behaviour expected in his family.  So to return to a country in which such behaviour is the norm may be difficult for him.  This factor weighs slightly against affirming the decision, however the Tribunal notes that there is a chance Mr Islam’s parents will have to return to Bangladesh regardless of whether Mr Islam remains in Australia.

Person’s level of education

128.Mr Islam was educated to year 12.  He did well until year 11, getting good grades in his tertiary subjects.  However, in Year 12 he said he faced difficulties at home and at school and his performance deteriorated.  After Year 12 he was to participate in a six month landscaping course, but discovered he was ineligible to continue because of his residential status.  In 2005, he enrolled at the Canberra Institute of Technology but did not complete the Certificate II in Business Administration.  He intended to enrol again in this course on 31 August 2007, but by then he was in migration detention.

129.While in remand he has completed a number of courses.  At the Belconnen Remand Centre in late 2005 and 2006 he completed all 15 sessions of an Alcohol & Other Drug Coping Skills Training course. The course was to assist with the development of interpersonal and intra-personal skills, as well as positive strategies for coping with life demands, including resisting the urge to use alcohol or drugs.  In February 2006, he also completed a positive lifestyle program run by the Salvation Army to assist with rehabilitation.

130.Before being taken into custody on remand Mr Islam did five, one day, courses in information technology for each of which he obtained a certificate from Excom. He had two more courses spread over eight days to complete the Express IT program. Excom guaranteed work within the industry for those with this qualification following completion. These avenues are no longer open. He will be required to undertake further IT training if he is to work in this area.

131.The Tribunal notes that the Minister submits that these educational achievements 'must be tempered against the fact that no employment offers are in place and that Mr Islam has not demonstrated an area or field he particularly wants to work in that would positively contribute to the Australian community'.  The Tribunal does not accept these reservations. From evidence at the hearing, it is apparent that Mr Islam is committed to completing his IT courses, that is, he has indicated an area or field he wants to work in.  It is also an area in which there is considerable workforce demand in Australia. The Tribunal notes too that Mr Islam’s brother is in IT so he may  be in position to advise and support Mr Islam. The efforts Mr Islam has made towards obtaining qualification in the area of IT weigh in favour of not affirming the primary decision.

Whether advised by Department of Immigration and Citizenship about conduct that brought the person within the deportation provisions of the Act or the character provisions?

132.The Department clearly warned Mr Islam of the consequences on his status in Australia if he is brought within the character and conduct provisions of the Act.  In November 2007, he was advised that any future criminal activity would raise the possibility that his visa could be cancelled and any further applications refused.  As the Minister notes, 'this warning came after Mr Islam's most recent conviction'. He has not been convicted of any offence in the face of this express warning, although he has breached bail on three occasions since that time. 

133.Earlier warnings of the immigration consequences of criminal action were given by the ACT Magistrates Court in 2005, prior to Mr Islam committing the Kambah offence.  That warning was repeated by the ACT Supreme Court in 2006 and the ACT Court of Appeal in 2006.  By 2005, at least, Mr Islam would have been aware of the immigration consequences of his conduct if he continued to offend.  This factor favours affirming the decision under review.

Conclusion

134.Mr Islam has not been convicted of any serious offences since 2004-2005.  He is now 25, and has matured.  That is evidenced by his attempt to rehabilitate himself through undertaking IT courses, his activities as a volunteer, and from statements made at the latest hearing.  In addition, with the exception of one period when he took a small amount of marijuana for medical purposes, he has abstained from drugs since 2005 both in custody and while in the community. Since it was principally his drug and alcohol addiction which led to his offences as a teenager, this is a positive indication that Mr Islam has matured sufficiently to be allowed to be released into the Australian community without that release leading to any unacceptable level of risk. There is a risk of his reoffending, but that risk is acceptably low.

135.He has generally been responsible, reliable and trustworthy while in custody and as a consequence has been entrusted with the privilege of assisting with NAIDOC activities, being a supervisor in other courses undertaken by inmates, and in 2010 by volunteering to work with the Red Cross.  He has also undertaken anger management and alcohol and drug courses while in detention and voluntarily undertook anger management counselling while in the community in 2010, all evidence of his positive attempts at rehabilitating himself. 

136.In addition, in accordance with the new emphasis in Direction 41, the Australian community should accept some responsibility for a person who has spent more than 60 per cent of their life, including the formative mid to late teenage period, and early adulthood in Australia.

137.These factors, together with the strong support of Ms Ciccarone and her family and of Mr Islam’s siblings and their families in Australia, which exceed that of the linkages he has to Bangladesh, have persuaded the Tribunal to find that the decision to refuse Mr Islam’s visa should be set aside.

138.The Tribunal sets aside the decision under review and in substitution the Tribunal exercises its discretion to not refuse Mr Islam’s application for a visa.

I certify that the 138 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member

Signed:         ..........................[sgd]....................................................
  Caitlin Baillie, Associate

Date of Hearing  27 June 2011
Date of Decision  26 August 2011
Counsel for the Applicant         Nicholas Poynder

Solicitor for the Respondent     Tigiilagi Etuati
  Clayton Utz