ISLAM Applicant And MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2010] AATA 515
•9 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 515
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 Date9 July 2010
PlaceCanberra
Decision The decision under review to cancel Mr Islam’s visa on character grounds is set aside and in substitution it is decided that the Tribunal exercise its discretion to not refuse Mr Islam’s visa.
............................................
Professor RM Creyke, Senior Member
CATCHWORDS
IMMIGRATION – Cancellation of visa on character grounds – Substantial criminal record – Drug addiction catalyst to criminal behaviour – Previous exercise of discretion not to cancel visa in 2007 – Direction [No 41] binding Tribunal replaced previous Direction [No 21] – No conviction of serious offence for five years since Applicant a teenager – decision under review set aside and substituted
Migration Act 1958 (Cth) ss 499(2A), 501(2),(6),(7)
R v Boney [2008] ACTSC 30
REASONS FOR DECISION
9 July 2010 Professor RM Creyke, Senior Member
1. Mr Mizan Ul Islam is in criminal detention in remand in relation to an alleged offence in May, 2008. He has applied to the Tribunal to review a decision under the Migration Act 1958 (Cth) (Act) section 501(2) to refuse him a Temporary Business Entry Class UC Visa because he does not pass the character test due to his ‘substantial criminal record’,[1] and for his consequential release on bail.
[1] Migration Act 1958 (Cth) s 501(6)(a)).
2. The matter comes to the Tribunal following a decision of the Federal Court on 18 December 2009 which set aside a decision of the Tribunal made on 16 December 2008, to affirm a decision of a delegate of the Minister for Immigration and Citizenship, dated 10 October 2008, to deny Mr Islam a visa.
3. The matter was heard by a differently constituted Tribunal on 26 May 2010.
Legislation
4. The relevant provisions of the legislation follow.
501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate – natural justice applies
…
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test. …
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)); or
(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.
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; or
(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more …
5. 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 Tribunal’s function under 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 previously considered this claim.
Background
6. The facts are not in issue and are drawn from a combination of the applicant’s submissions, the respondent’s submissions and previous applications in this matter.
7. Mr Islam is a citizen of Bangladesh where he was born on 2 June 1986. He is the youngest of four children. His family is a traditional close knit Muslim family with strong cultural and religious values. He entered Australia on 23 April 1991, aged 4 years as a dependent of his father, an employee of the Bangladeshi Embassy in Canberra. At the end of his father’s posting in 1996 the family returned to Bangladesh. On 21 June 2001 the family was again posted to the Bangladesh Embassy in Australia, and Mr Islam arrived on 10 January 2002. Mr Islam was then 15 years old. He has now spent more than half his life in Australia.
8. The Tribunal notes that Mr Islam’s parents continue to reside in Australia on working visas. His father is now a driver for the Iraqi embassy. His mother is a child care worker for Woden Community Service which, in 2007, was seeking to sponsor her permanent residency. Both parents would like to become Australian citizens. The eldest son is an Australian citizen, working as an accountant in Canberra. The youngest daughter was awaiting her permanent residence visa in June 2007, which is assumed has been processed by now. The eldest daughter is married and lives in the United States.
9. Mr Islam initially did well at school including in his first year of high school on return to Canberra, and he claims, his grades even in year 11 were at tertiary standard. However, in the intervening years, beginning in 2003, Mr Islam’s behaviour changed and he began to miss school on occasions, to drink alcohol to excess and to use drugs. He changed school but his behaviour did not improve. This upset the family and he was physically disciplined by them in a traditional Muslim manner, a practice which he said the family has not applied to him for a number of years. He became involved in criminal activities, which, according to his family was to their great shame and they have expressed their concern for the victims of his crimes. Nonetheless, despite their disappointment with him, the family have continued to provide Mr Islam with emotional and considerable financial support.
10. On 3 January 2004, Mr Islam was involved in offences of attempted theft and providing a false name and address, and again on 7 May 2004 of theft of a motor vehicle. He appeared in the ACT Children’s Court. On the first occasion no conviction was recorded but he was given 80 hours of community service. On the second occasion he was convicted but released on a probation order.
11. On 5 July 2004, Mr Islam was sentenced in the ACT Children’s Court in relation to an assault with intent of robbery. No conviction was recorded but he was required to attend a community unit for 120 hours. He was also charged with taking a motor vehicle without consent for which he was convicted and released on entering a probation order for 12 months, and ordered to attend courses. At the same time he was convicted of furious driving for which he was fined $200.
12. On 20 December 2004, Mr Islam was convicted in the ACT Magistrates Court of taking a motor vehicle without consent for which he was released on entering a recognizance bond of $1500 to be of good behaviour for 12 months. He was required to undertake supervision, rehabilitation and education with respect to drugs and alcohol abuse, to undertake an anger management program, and was disqualified from driving for 12 months. He was also convicted of being an unlicensed driver/rider, for which he was convicted and fined $200; of driving with a blood alcohol level in excess of the prescribed level, for which he was convicted on entering a recognizance and disqualified from holding a licence for 7 months concurrent with the previous disqualification; and of dangerous driving, for which he was disqualified from holding a licence for 12 months, to be imposed concurrent with the other disqualifications.
13. On 1 June 2005 Mr Islam was convicted and sentenced to 12 months imprisonment for committing an assault at the Woden Bus Interchange on 12 November 2004. He pleaded guilty and was sentenced to 12 months imprisonment, suspended on entering into another 2 year good behaviour bond and was required to accept supervision and undertake courses and treatment, including in drug, alcohol and anger management, and to be subject to random urine analysis.
14. On 21 August 2005, Mr Islam was arrested for committing a robbery at the Ampol service station, Kambah and was taken into custody. He was sentenced by the ACT Supreme Court on 2 June 2006 to 4 years’ imprisonment for the offence and breach of his bond. His earliest release date was 21 February 2007. An appeal against the severity of the sentence was dismissed by the ACT Court of Appeal on 2 November 2006.
15. On 21 February 2007, at the end of his parole period, Mr Islam was released from the correctional centre in Goulburn, his bridging visa was cancelled and he was taken into immigration detention at Villawood Immigration Detention Centre.
16. On 22 February 2007, Mr Islam applied for a Bridging Visa E (Class WE), that is, a criminal detention visa. On 26 February 2007 the application was refused. Following review of this decision by the Migration Review Tribunal, the decision was remitted for reconsideration and a recommendation was made that a security of $15,000 be required if he was to be granted the visa.
17. On 8 March 2007, a delegate of the Minister notified him of an intention to reject his application for a Bridging Visa E under section 501 of the Act. A further notice of intention to refuse an application for the bridging visa was served on Mr Islam on 13 April 2007.
18. On 23 November 2007, the Minister for Immigration exercised the discretion not to refuse the application for a visa. As a consequence, on 27 November 2007, Mr Islam was granted a Bridging Visa E (Class WE) and was released from Villawood.
19. A formal notification by the Department of Immigration of this decision was sent on 30 November 2007. That notification contained a warning that ‘any further conduct bringing him within the provisions of section 501 will lead to the question of visa cancellation being considered. … Disregard of this warning will weigh heavily against him if the Minister or his or her delegate considers his case again in the future’.
20. Mr Islam is alleged to have committed an assault at Dominos Pizza Store, Mawson on 1 May 2008. Mr Islam was arrested on 16 May 2008 and charged with aggravated robbery. On 17 May 2008 he appeared in the ACT Magistrates Court and was refused bail. On 6 June 2008, he was released on bail by the ACT Supreme 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 April 2011.
21. On 6 May 2008, Mr Islam was issued with a formal warning by the Sentence Administration Board of the ACT following Mr Islam’s breach of his parole order through his use of marijuana.
22. On 25 June 2008, the Department of Immigration and Citizenship sent Mr Islam a notice of intention to consider refusal of his application for a Temporary Business Entry (Class UC) visa because of his failure to meet the character test.
23. On two occasions Mr Islam breached his bail conditions. On the first on 6 July 2008, he was 90 minutes late to sign in for a bail undertaking. He claimed his car had broken down on the way. On the second, on 15 July 2008 he was arrested at 10.30 pm in Phillip, ACT but released since his mother and sister had driven him to Phillip so that he could repay a loan to a friend. His mother and sister had spent some time looking for a car park and then after waiting for an hour had gone home. The police report noted that when the police approached Mr Islam he tried to run away but was apprehended when he fell and grazed himself. Mr Islam denied that he ran. He said 'They jumped on me and I kept shouting "Just wait, my mum and my sister are in the carpark"’. He reports that they said ‘Bullshit’ and arrested him. As he was injured the police took him to hospital for treatment. When he was released from the hospital he rang his mother and sister who picked him up. Mr Islam admitted he had walked on his own across the car park to the Hellenic Club to meet his friend without being accompanied by a parent. He was not charged with breach of bail on that occasion.
24. On 15 August 2008, Mr Islam entered an undertaking in the ACT Supreme Court on the same curfew conditions as his previous bail conditions.
25. On 18 September 2008, Mr Islam was found on Yamba Drive, O’Malley at 2.20am where he had gone to pick up the brother of a close friend at his urgent request, following a domestic altercation between the friend and his older brother. The location was not far from Mr Islam's home. Mr Islam said he did not want to wake up his parents since it was after midnight, nor to call the police since he did not want his mates to get into trouble. He claimed that the friend was like a young brother and he was concerned for both he and his brother. During the telephone call he could hear shouting in the background. When he arrived at Yamba Drive both the friend and his brother were there and apparently the police had been called and the young brother was taken away and they also arrested Mr Islam for being in breach of his bail conditions. He was refused bail and returned in custody, first to the Belconnen Remand Centre and after its closure in April 2009, to the Alexander Maconochie Centre.
26. On 10 October 2008, a delegate of the Minister refused Mr Islam’s application for a Bridging Visa Class E. On 21 October 2008 Mr Islam sought review by the Tribunal of that decision. The Tribunal affirmed the decision on 16 December 2008.
27. Mr Islam appealed to the Federal Court when it became known that the member of the Tribunal who had heard the application for review had, on 30 May 2008, issued a warrant under the Surveillance Devices Act 2004 (Cth), permitting the Australian Federal Police to use a listening device in relation to communications by Mr Islam.
28. The Court upheld the appeal on the ground of perceived bias, notwithstanding that, at the time of the Tribunal hearing, the member had no recollection of issuing the warrant or of the details of the warrant. The matter was remitted to the Tribunal, differently constituted for further review. That review was conducted on 26 May 2010.
Evidence of Ms Bradley
29. Ms Victoria Bradley is Mr Islam’s case manager in the Alexander Maconochie Centre and has known him since late 2008. She began working with him on a one-to-one basis in January 2009. She said she had been working for 20 years in corrections, primarily with adults but also with juveniles. She is a Justice of the Peace, and a qualified youth worker. She said she had come to know Mr Islam well and had been helping him liaise with authorities in relation to his legal actions before the courts, the Tribunal and in his dealings with the Department of Immigration and Citizenship. She said she would not have spoken on Mr Islam’s behalf unless she thought he was able to be productive. She regarded him as reliable, responsible and trustworthy.
30. In evidence at the Tribunal she said that her first impression of Mr Islam was that he was very respectful, articulate and intelligent and she thought ‘What’s a nice boy like you doing in here?’ Because of these qualities, and because of his sensitivity to cultural issues, she has used him more than once as a trainer with NAIDOC (National Aboriginal and Islander Day Observance Committee) activities and to assist her with the celebration of NAIDOC. As she said ‘I don’t pick just anyone for that position. I chose him also because of his respect for Aboriginal culture.’ She had also used him as a supervisor and facilitator for activities with other detainees, for example, in leatherwork classes. The latter is a position of responsibility and trust since it involves knives and other potential weapons. Approval is given for involvement only if a detainee is well-regarded. In that context, the Tribunal noted that Mr Islam was not handcuffed on arrival at the Tribunal.
31. In the latter part of 2009, Ms Bradley said she noticed he appeared depressed, anxious, and began getting into trouble in the corrections centre. Her evidence was that he seemed to be frustrated with the uncertainty created by his immigration problems and to be on the verge of giving up. She said at present he is improving but is still anxious. He had abandoned some aspects of his personal hygiene, his body language showed dejection, and he was getting involved in prison politics, as a member of the ‘top group’. He said he was being bullied and so he retaliated. Ms Bradley said she was aware of two occasions when Mr Islam was involved in assaults within the Centre. The first was on 29 October 2009 and the second on 16 January 2010. On both occasions he was disciplined and spent 28 days in separate confinement. She said she did not see the incidents and was aware no charges were laid.
32. Ms Bradley’s evidence was that during his time in detention Mr Islam had undertaken courses, which are voluntary for people in remand. They included an alcohol and drug course, of which he had, she believed, completed seven of the eight sessions and an anger management course. He was recently referred to another anger management course. This second course is facilitated by Samaritan House and is a different kind of program to the first one. She said did not know why he had been referred to the program.
Evidence of Mr Islam
33. Mr Islam said he first experimented with alcohol when age sixteen. By age seventeen he had developed a drinking pattern of approximately ten standard drinks of spirits per session on weekends with friends. He reported, however, that by 18, he had reduced his intake to approximately six standard pre-mixed drinks once weekly. He stated in 2006 in evidence for the ACT Supreme Court that he last consumed alcohol on 22 August 2005. He says he understands that his earlier pattern was problematic and connected to his illegal and anti-social behaviour.
34. Mr Islam first used marijuana when he was sixteen, initially to an excessive level, but he reduced this to what he estimated was ‘moderate’ usage. However, his usage again escalated prior to being taken into custody in August 2005. At seventeen he also experimented with heroin and ‘ice’ when he could not obtain heroin and, after July 2005, his heroin use escalated to daily intravenous usage. He also used both amphetamine and ecstasy when aged seventeen years, but claimed to have ceased this use, before relapsing in 2005. He had also on occasions used benzodiazepine and buprenorphine. He went through an initial period of withdrawal when first in remand in August 2005.
35. Mr Islam said he has been virtually drug free since he went into custody. The only exception was use of a small amount of marijuana which he took for a short time in 2008 to assist with sleeplessness. While in remand he attended a number of alcohol and drug programs and took opportunities for individual support. In 2006, he was approved to attend a ten and a half month residential Community Rehabilitation Service drug and alcohol program and a place was reserved for him from June 2006. However, due to complications with his visa situation he did not attend the program.
36. Mr Islam said at the hearing he could have obtained drugs while in detention if he wanted to but he says he has not availed himself of the opportunity. He said he has now been clean for years. He said that after spending time in Villawood he has changed his ways. He said when he was released from Villawood and was at home from 27 November 2007 until September 2008 he did not use drugs.
37. Mr Islam was questioned about two assaults in the Alexander Maconochie Centre in which he was said to be involved. The first was in October 2009 and he said nothing about that incident. On the second occasion in January 2010, Mr Islam said that he was attacked first and he simply defended himself. There were a number of people involved, all of whom were disciplined. He pleaded guilty simply to ‘get it over and done with’. When asked how he would handle the situation now following his anger management course, Mr Islam said he would walk away and later talk to those who had aggravated him.
38. He acknowledged that he had signed up to an alcohol and drug course while in Alexander Maconochie Centre and did not complete the course but explained that since he had abstained for some time and considers he no longer has a drug problem he thought the course was unnecessary. In addition he said he did not like the way the course was presented and also it was being run at a time which interfered with his visits program.
39. The only occasions in the last few years on which he had marijuana was in February 2008 when a friend gave him a small amount to help him get to sleep. At that time he was getting between 2-3 hours or at most 4 hours of sleep per night and he had not given thought to his bail conditions because he was not thinking straight at the time due to tiredness. The reason for his sleep difficulties was that while in Villawood, Mr Islam said he witnessed a violent and brutal attack on a close friend who was stabbed repeatedly in the back by three other detainees and nearly lost his life. Since then he has at times had difficulty sleeping. He said he had tried a variety of sleeping tablets, but the condition got worse, and at that point, on advice that marijuana can assist with sleep problems, he had used the drug.
40. On 14 December 2009, while in the Alexander Maconochie Centre Mr Islam completed an eight-session anger management course and was awarded a certificate. He denied he had been referred to other anger management courses, despite evidence that he has been enrolled for one in June 2010. He said the confusion arose because he had inadvertently asked someone else to sign him up for a course, thinking it was an activity to do with NAIDOC. In that context he noted that there are few sessions which those on remand can do and he takes advantage of them when he can. The majority of courses are provided only to those serving prison sentences, not to people in remand.
41. Mr Islam said the family practice of physical discipline for poor behaviour was practised on all his siblings, and was accepted in strict Muslim culture. However, he said he had not been subjected to the practice for five years. He said his family now felt guilty about what was done and had apologised. At the same time, he said he did not resent having been disciplined in that way since it had made him think and he deserved it. He said he now believes he should have listened more closely to his family rather than getting involved in criminal activities.
42. He appreciated how much they had done for him and the consequences for them if he was deported. He also said being incarcerated had taught him the error of his ways and he had no intention of misbehaving in the future because he did not want to go back into custody. He said when he committed the offences for which he had been charged he had been young and naïve and he believed he could not be touched. Since then he has come a long way and has realised such behaviour is unacceptable.
Consideration
43. A significant change since the previous Tribunal hearing in this matter is that on 3 June 2009 the Minister issued Direction No 41 providing criteria against which the Minister will exercise the deportation power under section 501 of the Act. Direction 41 replaces the previous Direction No 21. The overall objective of Direction 41 is expressed ‘to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens’.[2] A provision in Direction 41 not found in Direction 21 is 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’.[3]
[2] Direction [No 41] – Visa refusal and cancellation under s 501, clause 5.1 (2).
[3] Direction [No 41] – Visa refusal and cancellation under s 501, clause 5.2(4).
44. 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).
45. The sole issue for the Tribunal is whether it should exercise the residual discretion in section 501(1) of the Act to refuse to deport Mr Islam. The Tribunal considers it is unlikely if it affirms the decision to deport Mr Islam, that he would be deported prior to his trial in April 2011. In these circumstances, the choice is between permitting Mr Islam to be released on bail until April 2011 or that he remain in the Alexander Maconochie Centre for that period.
46. In making that decision the Tribunal is to take into account the criteria contained in the Ministerial Direction. Although Direction No 41 is a policy, it is binding on the Tribunal.[4] The current 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’.
Primary consideration 1: The Protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence
[4] Migration Act 1958 (Cth) s 499 (2A).
47. Factors relevant to this criterion are ‘the seriousness and nature of the relevant conduct; and the risk that the conduct may be repeated’.[5]
Seriousness and nature of the relevant conduct
[5] Direction [No 41] – Visa refusal and cancellation under s 501, clause 10.1(2).
48. 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 Direction No 21, including the seriousness and nature of the conduct. 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’. The only event of potential significance was that Mr Islam was arrested and charged with the aggravated burglary of a Dominos Pizza Store at Mawson on 1 May 2008. That charge will not be determined until a hearing scheduled in April 2011. As it has not been resolved, the charge cannot be taken into account for the purpose of the exercise of the discretion.
49. In that context, counsel for Mr Islam argued that it had been premature to refuse Mr Islam’s visa and referred to clause 7.3.2(2) of Direction 41, namely, that ‘if the person’s conduct is the subject of criminal charges in Australia, which have not been finalised before the relevant court, no decision should be made in respect of the character test until the charges have been resolved’. 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 the relatively minor breaches of bail conditions. It would be indefensible, in his view, to deport someone for those reasons. Nonetheless, counsel accepted that the Tribunal was free to make a determination contrary to the Minister’s earlier decision.
50. The Tribunal notes that Direction 41 lists grievous bodily harm, assault and aggravated assault, and robbery as examples of offences that are considered serious.[6] 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.
[6] Direction [No 41] – Visa refusal and cancellation under s 501 clause 10.1.1(2)(d), (e).
51. The aggravated assault 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'. He also said his 'social life has been [affected] to the extent that [he is] now reluctant to go out at night'. Mr Islam said of this occasion that he had been 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.
52. Despite the lenient sentence, two months later, on 23 August 2005, Mr Islam was convicted 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. The Court also noted that the conviction constituted a breach of the recognizance imposed by the ACT Magistrates Court and ordered that Mr Islam concurrently serve the 12 month sentence imposed in relation to the office of 'intentionally inflict actual bodily harm'. In addition, Mr Islam had been required to attend the community unit for a total of 200 hours by the ACT Children's Court.
53. The Tribunal does not deny 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. This consideration weighs in favour of the Tribunal affirming the decision.
54. Nonetheless, the offences were committed almost five years ago and were considered by the Minister on 23 November 2007 and found not to outweigh the other factors in the exercise of the discretion. That must be taken into account in considering what has occurred subsequently of relevance to Mr Islam’s criminal behaviour, his propensity to reoffend and the risk this creates for the Australian community.
The risk of the harm occurring
55. The Direction 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.[7] The Minister has calculated that Mr Islam has 12 convictions. That figure includes the three ‘Arrest without warrant on bail’ charges in 2008. The Tribunal accepts that breach of a bail condition is not an offence under section 56A(2) of the Bail Act 1992 (ACT) which simply authorises the police to arrest without warrant on reasonable suspicion of breach of a bail condition.[8] That means, the actual number of offences of Mr Islam is reduced to 9.
[7] Direction [No 41] – Visa refusal and cancellation under s 501 clause 10.1.1(3).
[8] R v Boney [2008] ACTSC 30 at [3] per Refshauge J.
56. Discounting the breaches is also appropriate given their nature. They were not serious. On the first occasion, Mr Islam’s motor vehicle had broken down and he was late to report. On the second occasion, when he was not arrested but simply issued with a police caution, he was out of the company of his mother for a period, and on the third occasion, he was assisting a friend in difficulty. They were not the serious kind of offences which warrant deportation.
57. The nine offences arise out of seven incidents in 2004-2005, including two incidents when he was a minor, and three breaches of bail conditions in 2008. That is, since he became an adult in June 2004, Mr Islam has been involved in two incidents which gave rise to convictions of a serious nature. Apart from the bail offences, all 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 a teenager.
58. In determining the risk of the harm occurring in the future, the Tribunal notes that since that period, Mr Islam has been in detention from 22 August 2005 till 27 November 2007, and again from 18 September 2008 to the present. In other words, Mr Islam was out of detention for close to ten months. In that period, when he was released on bail, Mr Islam was apprehended for breaching bail on three occasions. He was also arrested for the alleged offence in Mawson and remanded in custody between 16 May 2008 and 6 June 2008 when he was again released on bail.
59. The Minister contends that there was only a brief period of non-offending when he 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 it is necessary to consider both the period in the community and in detention over the last 5 years.
60. Mr Islam was in custody between August 2005 and February 2007. Immediately on his release he was taken into immigration detention in Villawood from February 2007 to November 2007 when he was released into the community and returned to his home in Canberra. In September 2008, Mr Islam was again taken into custody where he has remained. In effect since his arrest in August 2005, Mr Islam has spent three years and three months in custody and since he has turned 18 he has spent half his time in incarceration.
61. The Tribunal has taken into account his 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 10.1.2(b) of Direction No 41 that it take into account, when considering the risk of recidivism, evidence from ‘independent and authoritative sources, such as judicial comments, professional psychological report, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment’.
62. 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, [and]
·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’.
63. In June 2006, the report of the sentencing judge, Gray J, in relation to the August 2005 offence 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.
64. 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.
65. There are no reports of his behaviour while in Villawood between February 2007 and November 2007. His behaviour while in the Belconnen Remand Centre and, since April 2009, at the Alexander Maconochie centre has generally been positive. The case reports on Mr Islam since September 2008 indicate that he is, for the most part, polite, respectful and well behaved.
66. 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.
67. Ms Bradley’s evidence about Mr Islam’s behaviour in detention since the beginning of 2009 was 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.
68. The evidence before the Tribunal was that, despite the potential to access drugs while in the Belconnen Remand Centre, and more recently in the Alexander Maconochie Centre, 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.
69. The Tribunal notes that during his period in the community in 2007 and 2008, he was also 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 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’.
70. 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.
71. The Minister contends 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'. The Tribunal does not accept this assessment. While living with his family for the 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 has he done so while in detention.
72. His family have also provided evidence 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. Mr Islam also has the further incentive to good behaviour that he is close to obtaining an IT qualification which would enable him to obtain employment should he be granted a visa to work. He said at the hearing that he could complete the courses in two to three months following his release.
73. 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. Although Mr Islam has said he hopes to re-form the relationship with Ms Ciccarone if released, he does not know if this is possible. If, as seems likely, that relationship has come to an end this relationship, as a source of friction with his family, has dissipated. In any event, the family’s concern about the relationship appears to have abated. 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, indicating a willingness to accept her relationship with Mr Islam were it to continue.
74. A second concern relating to family discord was the use by the family of certain culturally sanctioned disciplinary practices. At the hearing Mr Islam said he had not been subjected to those practices for five years and that they were in the past. The family too, have said they were ashamed of the practice and would no longer pursue it and had apologised. More significantly, Mr Islam said he did not resent being disciplined in this manner since it made him think and he believes he deserved it. On both counts there has been considerable amelioration of the family pressures to which the Minister refers.
75. In terms of his anger management, the Tribunal notes the reports that Mr Islam was generally well behaved while in detention. The Tribunal is aware, however, that he was involved 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 and that Mr Islam was segregated for 28 days. 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.
76. 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 in the month after his relationship with his fiancée came to an end at a time when Ms Bradley had observed his confidence was deteriorating and his level of frustration about his immigration problems was escalating.
77. 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 third occasion was due to mechanical failure. He claims to have learned from these experiences, he is now 24, and he knows that this next period is critical for any assessment of his right to remain in Australia, and for the future of his family in this country. This should be a strong incentive to maintain his control.
78. 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.[9] 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.
[9] The Minister claimed Mr Islam's case was comparable to those in Re Christy and Minister for Immigration and Citizenship [2009] AATA 762.
79. The Tribunal considers the facts outlined indicate that the possibility of Mr Islam reoffending is unlikely to pose more than a minimal risk to the Australian community. Despite the limited time Mr Islam has spent in the community over the last 5 years, the Tribunal is not persuaded that the risk of a recurrence of the harmful conduct in which Mr Islam was involved five years ago, under the influence of his then drug addiction, is likely to recur such that it would pose an unacceptable risk to the community. 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 his short period in detention following the Dominos Pizza incident, occurred over 5 years ago. He has matured; his focus is on completing studies he was doing while in the community in 2008; he has 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. On that basis, the Tribunal does not consider that primary consideration 1 weighs heavily in favour of affirming the decision.
80. Since that time, although Mr Islam has had two recent relapses of anger management, his drug addiction appears to be under control. Absent that catalyst, the Tribunal considers the overall risk he would pose to the community over the next 10 months should he be released is acceptable and has markedly reduced any likelihood of his criminal behaviour being repeated.
Primary consideration 2: Whether the person was a minor when they began living in Australia
81. 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.[10] Mr Islam was four years old when he first arrived in Australia. He remained in Australia for five years, and returned here when he was 15 and has been here since. That means that for nine years, or half of his years as a minor, including the majority of his teenage years, he has lived in this country. In addition, as Mr Islam pointed out, his only experience of school was in the English-speaking Australian system and he had difficulty settling back into Bangladesh when his family returned in 1996. He had become acculturated to Australia during those early years of his life here.
[10] Direction [No 41] – Visa refusal and cancellation under s 501 clause 10.2(1).
82. That acculturation is borne out by the current position of Mr Islam's immediate family. With the exception of one sister who is married and living in the United States, his family are either Australian citizens or seeking permanent residence in Australia. There is no evidence that Mr Islam has other close family ties or friends in Bangladesh. This factor, which recognises the responsibility of Australia for those who have spent a formative period of their lives in Australia, weighs in favour of Mr Islam.
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
83. 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'.[11] 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.
[11] Direction [No 41] – Visa refusal and cancellation under s 501 clause 10.3(1).
84. 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 7 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 in his favour should be given to this new factor in the circumstances arising in Mr Islam’s case.
Primary consideration 4: Relevant international obligations, including but not limited to, the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT).
85. Mr Islam is not a child, nor does he have children. There is no suggestion that refusal of Mr Islam's visa would in any way be contrary to Australia's non-refoulement obligations. Nor is there any suggestion that the refusal would constitute a breach of the Convention Against Torture. The Tribunal agrees this consideration should be given no weight.
Secondary Considerations
Family Ties
86. Mr Islam’s family is a close one, adhering strongly to Muslim 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 financially supported him during the legal proceedings which he has faced, they have paid for courses in which he has enrolled, and he was fully supported while living at home. Members of the family continued to visit him while he was in Goulburn, in Villawood, in the Belconnen Remand Centre, and subsequently at the Alexander Maconochie Centre. All the members of the family were present for some or all of the time during the Tribunal hearing.
87. Since March 2004 Mr Islam had developed a strong relationship to Vittoria Ciccarone, to whom he became engaged in February 2005. 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. Ms Ciccarone continued to visit him while he was in detention. However, some time in December 2009, the relationship came to an end. The Tribunal did not hear evidence about how this affected Mr Islam. However, it is likely to mean that his ties with and need for his own family become the stronger. This factor weighs against affirming the decision under review.
Age
88. This factor raises the issue of whether there would be a negative impact on a person 'living with or under the care and control of a parental or care figure'. As a single Muslim male, Mr Islam is expected to continue to live with his family and the consequence for him and his family is listed under Hardship to family, below. His youth, lack of qualifications and absence of employment experience, other than unskilled labour, would make it hard for him to obtain further training or work in Bangladesh and this is referred to in Links to country, etc, and Person’s level of education, below. This factor weighs against affirming the decision under review.
Health
89. Mr Islam said his mental and physical health is fine. He has no medical conditions and is not on any medication. This factor should be given no weight.
Links to country to which the person is to be removed
90. Mr Islam has only lived in Bangladesh for about ten of his twenty-four years. There is evidence from Mr Islam’s family that deportation would create difficulties for them all since they have been in Australia for thirteen years, including continuously for the last eight years. The evidence provided is that Mr Islam has no close family or friends in Bangladesh. The Minister has argued that 'it would be surprising if Mr Islam did not establish ties and linkages to the community in Bangladesh' during the formative years for Mr Islam, namely, from age 9-14. Nonetheless, there is no evidence that this occurred and the affidavits of the family denied that Mr Islam had retained friendships or had close family ties in that country. The Tribunal also finds it would be hard for him to adjust to Bangladeshi culture and to find a job since he has few skills and jobs are not plentiful. This factor weighs against affirming the decision.
Hardship likely to be experienced by the person or their immediate family
91. All Mr Islam’s family, including his two siblings, have decided they would have to return to Bangladesh with him if he is deported. That is despite one if not both of his siblings having permanent Australian residence and his parents actively seeking such status. The choice of the family to return is to support Mr Islam because he has no close family or friends in Bangladesh, having spent his formative teenage and early adult years in Australia, and because in strict Muslim culture an unmarried member of the family continues to live with parents.
92. That is likely to have a negative effect on the careers of his two siblings and of his mother. The difficulty would be greatest for his mother and sister since career prospects for women in Bangladesh are poor. There would also be an adverse impact on the families of the children whom his mother minds. This factor weighs against affirming the decision.
Person’s level of education
93. 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 incarceration.
94. 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, and an alcohol and other drug coping skills program.
95. Before being taken into custody on remand Mr Islam did five, one day, courses in information technology for each of which he has obtained a certificate, He has two more courses spread over eight days to complete his Express IT program. Mr Islam is guaranteed work within the industry following completion but would need to obtain an appropriate visa in order to gain employment. He has been refused an appropriate visa in the past.
96. When asked at the hearing what he would do if released, Mr Islam said he would complete his studies. He said it would take him one or two months only to undertake the final two courses. His parents have paid about $14,000 for him to do these courses and he is anxious to obtain the qualification.
97. He said he had trouble doing IT skills training in the Alexander Maconochie Centre because although he had the textbooks, inmates can access computers for only about one and a half hours a week. To develop and maintain a skill level needs daily access. He had also enrolled in a labour construction course while in the Centre.
98. Mr Islam also said at one stage he had been interested in a hair dressing course. He enrolled to do some hairdressing training at the Alexander Maconochie Centre. A formal qualification in hairdressing would involve him in a four year apprenticeship through the TAFE. Mr Islam’s only work experience was as a part-time general hand at a food and produce market and as a kitchen hand.
99. The Tribunal notes that the Minister submits that these 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, and that he would be guaranteed work when he had the qualification. The efforts Mr Islam has made towards obtaining qualification in the area of IT and the closeness to achieving that goal weigh in Mr Islam's favour.
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?
100. The Department has 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'. As a consequence he has not been convicted of any offence in the face of an express warning, although he has breached bail on three occasions since that time.
101. 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 weighs in favour of affirming the decision under review.
Conclusion
102. Mr Islam has not been convicted of any serious offences since he was a teenager. He is now 24, and has matured. That is evidenced by his attempt to rehabilitate himself through undertaking IT courses which, if finalised over a two to three month period out of custody, will equip him with a qualification which is in demand and is guaranteed to find him work within a few months, provided he can obtain an appropriate visa. 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.
103. 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 and being a supervisor in other courses undertaken by inmates. He has also undertaken anger management and alcohol and drug courses while in detention.
104. 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 half their life, including the formative mid to late teenage period, and early adulthood in Australia. These factors, together with the impact on Mr Islam’s family who have been responsible residents and all of whom have taken steps or are already Australian citizens or permanent residents, have persuaded the Tribunal to find that the decision to refuse Mr Islam’s visa should be set aside and he should be released from custody. The Tribunal was advised by the Minister that if the decision was set aside the Minister would release Mr Islam.
105. Mr Islam is aware that he only has the next ten months prior to his trial in April 2011 to continue to demonstrate his good behaviour and that this may be his chance to prove he can use his intelligence to become a productive member of the community and to justify the continued strong support of his family, and the leniency which he has been accorded in respect of his period of criminal behaviour.
106. The Tribunal notes other disadvantages to Mr Islam remaining in detention. The opportunities for further education are limited for people in remand, and Mr Islam could not conclude his IT courses because of the limited access to computers while in incarceration. That environment is also not conducive to his being able to demonstrate in a definitive manner that he has indeed broken his drug habit, that he will not resort to unhealthy use of alcohol and that he is the ‘productive’ individual that the Tribunal assesses he is capable of becoming.
107. No doubt if the Mawson charge is decided adversely to Mr Islam, the refusal of his visa under the character provisions will need to be re-visited. That time has not arrived and Mr Islam has this opportunity to influence any such outcome if it eventuates.
108. The Tribunal sets aside the decision under review and recommends that the Minister approve Mr Islam’s release from custody.
I certify that the 108 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member.
Signed: .............[sgd].........................................
C. Kocak, AssociateDate/s of Hearing 26 May 2010
Date of Decision 9 July 2010
Counsel for the Applicant Nicholas Poynder
Solicitor for the Respondent Clayton Utz