Islam v Cash

Case [2015] FCA 815

FEDERAL COURT OF AUSTRALIA

Islam v Cash [2015] FCA 815

Citation: Islam v Cash [2015] FCA 815
Parties: MIZANUL ISLAM v SENATOR THE HON MICHAELIA CASH, ASSISTANT MINISTER FOR IMMIGRATION AND BORDER PROTECTION
File number: NSD 731 of 2015
Judge: FLICK J
Date of judgment: 12 August 2015
Catchwords:

MIGRATION – failure to consider relevant considerations – proper and genuine consideration – matters expressly referred to in reasons – matters not specifically referred to in reasons – matters referred to in Departmental Submission but not reasons  

ADMINISTRATIVE LAW – relevant considerations – need for more than lip-service – need for genuine consideration

Legislation:

Migration Act 1958 (Cth), ss 499, 501, 501(1), 501G(1)(c), 501G(1)(d), 501G(1)(e)

Direction no. 55 – Visa refusal and cancellation under s 501 (Cth), cl 9  
Direction no. 65 – Visa refusal and cancellation under s 501 (Cth), cl 9

Cases cited: Anderson v Director-General of the Department of Environment and Climate Change [2008] NSWCA 337, (2008) 251 ALR 633
Aquino v Minister for Immigration and Border Protection [2014] FCA 1425
Belmorgan Property Development Pty Ltd v GPT RE Ltd [2007] NSWCA 171, (2007) 153 LGERA 450
Blue Wedges Inc v Minister for Environment, Heritage and the Arts [2008] FCA 399, (2008) 167 FCR 463
Elias v Commissioner of Taxation [2002] FCA 845, (2002) 123 FCR 499
Fraser v Minister for Immigration and Border Protection [2014] FCA 1333
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274, (2001) 106 FCR 426
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134, (2005) 147 FCR 51
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, (2014) 220 FCR 1
Rawsthorne v Minister for Immigration and Citizenship [2013] FCAFC 39, (2013) 140 ALD 524
Tomson v Minister for Finance and Deregulation [2013] FCA 664, (2013) 136 ALD 610
Williams v Minister for the Environment and Heritage [2003] FCA 535, (2003) 74 ALD 124
WZAQU v Minister for Immigration and Citizenship [2013] FCA 327, (2013) 140 ALD 612
Date of hearing: 6 August 2015
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 27
Counsel for the Applicant: The Applicant appeared in person
Solicitor for the Respondent: Mr A Markus of Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 731 of 2015
BETWEEN:

MIZANUL ISLAM
Applicant
AND:

SENATOR THE HON MICHAELIA CASH, ASSISTANT MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent

JUDGE:

FLICK J

DATE OF ORDER:

12 AUGUST 2015

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The proceeding is dismissed.

2.The Applicant is to pay the costs of the Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 731 of 2015
BETWEEN:

MIZANUL ISLAM
Applicant
AND:

SENATOR THE…

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Details
AGLC
Islam v Cash [2015] FCA 815
Case
[2015] FCA 815
Decision Date

CaseChat Overview and Summary

In the case of Islam v Cash, the applicant, Mr Islam, sought judicial review of a decision by the Assistant Minister for Immigration and Citizenship to refuse his visa application. The crux of the dispute centred on whether the decision-maker had failed to consider relevant factors in making her decision. The matter was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the Assistant Minister had properly and genuinely considered all relevant matters in reaching her decision. Specifically, the court had to determine whether the Assistant Minister failed to consider relevant factors by not mentioning specific documents in her reasons or by not referring to the fact that Mr Islam's wife and daughter were Australian citizens. The court had to balance the need for more than a superficial or tokenistic consideration of relevant matters against the necessity of confining itself to judicial review rather than merits review.

The court found that the Assistant Minister had indeed considered all relevant factors, even if not all were explicitly mentioned in the reasons. The Statement of Reasons included consideration of the impact on Mr Islam's family, including his Australian citizen wife and child, and the future risk Mr Islam posed to the Australian community. The court held that delving into the merits of the decision would overstep the boundaries of judicial review. Consequently, the court dismissed the application and ordered that the applicant pay the respondent's costs.

Orders

Orders of the court

1. The proceeding is dismissed.

2. The Applicant is to pay the costs of the Respondent.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

To the extent that the “Details” of the claims provided by Mr Islam seek separately to contend that there was a failure to give consideration to the fact that his wife and daughter are Australian citizens, the argument is rejected. The application for the visa sought by Mr Islam, it should be recalled, was founded upon the very fact that he was the husband of an Australian citizen. And it was self-evident from the materials annexed to the Departmental Submission that his daughter was also an Australian citizen. CONCLUSIONS The proceeding is to be dismissed. The Assistant Minister expressly referred in her Statement of Reasons to the impact that her decision would have upon the wife and the immediate family and expressly took into account the best interests of Mr Islam’s child. The Statement of Reasons also expressly took into account and made an assessment of the future risk that Mr Islam would pose to the Australian community. The consideration expressly given to such matters was a proper and genuine consideration of those matters. To the extent that the Assistant Minister did not make reference to specific documents placed before her for consideration, or did not refer to them in the Statement of Reasons, no inference can properly be drawn that such matters were not also taken into account. For this Court to go beyond the reasons provided – and to intrude into the factual merits of the decision reached – would be improperly to propel the Court into the field of merits review rather than judicial review. It remains a matter for the Assistant Minister to form a view as to whether the decision reached should be further considered. There is no reason why costs should not follow the event.THE ORDERS OF THE COURT ARE:1.The proceeding is dismissed.2.The Applicant is to pay the costs of the Respondent.

Ratio Decidendi

Legal Principle Established

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