Islam v Cash
[2015] FCA 815
•12 August 2015
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 9Cases 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 612Date 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
ApplicantAND: 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
ApplicantAND: SENATOR THE HON MICHAELIA CASH, ASSISTANT MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGE:
FLICK J
DATE:
12 AUGUST 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The Applicant, Mr Mizanul Islam, is a citizen of Bangladesh. He first entered Australia in 1991. He was then aged four. His parents held Diplomatic visas. After five years in Australia, the family returned to Bangladesh. Mr Islam returned to Australia in 2002. He has remained in Australia since that date.
Mr Islam married an Australian citizen in March 2012. A daughter of that marriage was born in September 2012. In September 2012 he applied for a number of different classes of visa, including a visa founded upon his marriage.
On 2 June 2014 Mr Islam was notified that consideration was being given to whether there were grounds under s 501(1) of the Migration Act1958 (Cth) (the “Migration Act”) to refuse to grant him a visa.
On 22 May 2015 a decision was in fact made to refuse to grant Mr Islam the visa he sought. The making of that decision was preceded by a Departmental Submission to the Assistant Minister. That Departmental Submission annexed (inter alia):
·a copy of the letter to Mr Islam dated 2 June 2014, together with documents annexed to that letter – including a National Police Certificate recording a series of convictions in both the Children’s Court and the Magistrates Court of the Australian Capital Territory in 2004, 2005, 2006 and 2012. Reference was also made to the conviction in the Supreme Court of that Territory of Mr Islam in July 2012 for the offence of “Aggravated Robbery” for which he was sentenced to imprisonment for a period of 5 years; and
·a draft statement of reasons which was cross-referenced to further materials which were attached, including a copy of the daughter’s birth certificate and material supporting the nature of the relationship between Mr Islam, his wife and daughter and his immediate family and material generally supportive of a conclusion that Mr Islam is now “in a better place” than he was when he was sentenced in July 2012.
A Statement of Reasons signed by the Assistant Minister was also provided to Mr Islam on 29 May 2015.
On 23 June 2015 an Originating Application was filed in this Court seeking judicial review of the May 2015 decision. The named Respondent is the Assistant Minister for Immigration and Border Protection. In very summary form, and reformulated in terms of traditional grounds of review, the “Details” of the claim provided with that Originating Application contend that the May 2015 decision is vitiated by reason of:
·a failure to take into account or properly to take into account the best interests of Mr Islam’s child and the “impact [the] decision would make on my wife and immediate family here in Australia…”;
·an inappropriate focus upon Mr Islam’s criminal past and a failure to take into account the fact that a “new page in my book of life has turned since my marriage to my beautiful wife and my beautiful daughter was born”; and
·a failure properly to take into account two reports prepared by a psychologist.
Mr Islam appeared before the Court on two occasions prior to the hearing and explained that he was attempting to secure representation. Those attempts have proven unsuccessful. Given the fact he is presently being held in detention, an early hearing date was provided. Those appearing for the Respondent undertook the task expeditiously to compile those documents relevant to the application Mr Islam made for the visa and its subsequent progression through the decision-making process.
The proceeding is to be dismissed.
Section 501
Section 501 of the Migration Act provides in relevant part as follows:
Decision of Minister or delegate–natural justice applies
(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; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
…
The section poses two distinct questions: first, has a person failed to satisfy the Minister that he does not pass the “character test”?; and, secondly, how should the discretion be exercised?: Aquino v Minister for Immigration and Border Protection [2014] FCA 1425 at [15] per Greenwood J. In respect to decisions not made by the Minister, but by a delegate of the Minister, a Direction had been made pursuant to s 499 of the Migration Act in July 2012 as to the manner of exercise of the discretion: Direction No 55 titled Visa refusal and cancellation under s 501. Clause 9(1) of that Direction set out the following as “primary considerations” to be taken into account, namely:
·protection of the Australian community from criminal or other serious conduct;
·the strength, duration and nature of the person’s ties to Australia; and
·the best interests of minor children in Australia.
A new Direction was given in December 2014: Direction No 65 titled Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA. Clause 9(1) of the new Direction is in the same terms as the former cl 9(1).
The source of the statutory obligation imposed upon the Assistant Minister to provide reasons for her decision is to be found in s 501G(1)(c), (d) and (e) of the Migration Act which provide as follows:
If a decision is made under subsection 501(1) or (2) … to:
(a)refuse to grant a visa to a person; or
…
the Minister must give the person a written notice that:
(c)sets out the decision; and
(d)specifies the provision under which the decision was made and sets out the effect of that provision; and
(e)sets out the reasons (other than non-disclosable information) for the decision; and
…
The reasons for refusal
The Assistant Minister’s Statement of Reasons sets forth (inter alia) the fact that on 26 July 2012 Mr Islam was convicted in the Australian Capital Territory Supreme Court of the offence of aggravated robbery and the sentence imposed of 5 years’ imprisonment.
The Statement of Reasons concludes that Mr Islam, accordingly, did not pass the character test.
Consideration was then given to those factors which had a bearing upon the Assistant Minister’s exercise of her discretion, being those matters taken into account under the following “headings”:
·criminal conduct;
·protection of the Australian community;
·best interests of minor children;
·expectations of the Australian community; and
·“Other Considerations” – being international non-refoulement obligations and the effect of the decision on immediate family members.
After such matters are addressed, the Statement of Reasons then sets forth the conclusions reached.
Albeit unrepresented, Mr Islam properly focussed attention upon the need to take into account both the best interests of his daughter and the need to afford protection to the Australian community. Irrespective of whether a decision is made by a delegate of the Minister or the Minister personally, a lawful exercise of the discretion conferred by s 501 requires both matters to be taken into account.
Such consideration as is given to those matters, it is to be recognised at the outset, must be a consideration in accordance with law. Mere advertence to a consideration, it is accepted, without any analysis may not be sufficient: Elias v Commissioner of Taxation [2002] FCA 845 at [62], (2002) 123 FCR 499 at 512. For a consideration to be properly taken into account, a decision-maker must give more than mere “lip service” to a relevant consideration: Anderson v Director-General of the Department of Environment and Climate Change [2008] NSWCA 337 at [58], (2008) 251 ALR 633 at 651 per Tobias JA (Spigelman CJ and Macfarlan JA agreeing). There must be “proper, genuine and realistic” consideration of those matters that are required to be taken into account: Williams v Minister for the Environment and Heritage [2003] FCA 535 at [29] to [30], (2003) 74 ALD 124 at 130. Wilcox J there cited with approval the following observations of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291:
“[W]hat was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy ... The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense ...”
See also: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [212], (2005) 147 FCR 51 at 92 to 93 per Madgwick J (Conti J agreeing at [227] to [230]); Tomson v Minister for Finance and Deregulation [2013] FCA 664 at [48], (2013) 136 ALD 610 at 623 per Rares J; WZAQU v Minister for Immigration and Citizenship [2013] FCA 327 at [12] to [13], (2013) 140 ALD 612 at 615 per Flick J. Although the formulation of a “proper, genuine and realistic” consideration has been the focus of judicial expressions of caution (e.g., Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [60] to [64], (2001) 106 FCR 426 at 441 to 442; Belmorgan Property Development Pty Ltd v GPT RE Ltd [2007] NSWCA 171 at [76], (2007) 153 LGERA 450 at 467 per Basten JA), it nevertheless remains a useful touchstone to ensure that consideration given to a particular matter is such consideration as is required by law.
Within this context and given the prominence in the present proceeding of the alleged failure to take into account the best interests of Mr Islam’s daughter, reference should be made to the following passages in the Assistant Minister’s Statement of Reasons:
Best interests of minor children
21. I gave primary consideration to the best interest of any children who are less than 18 years of age and whose best interests are affected by the refusal of Mr ISLAM’s visa application.
22. Mr ISLAM has a daughter, Saffia, who is now aged two. Saffia has maintained regular contact with her father while he has been in custody, though this has been more difficult during his immigration detention. The available information indicates that Saffia is experiencing anxiety and distress because of being unable to spend more time with her father and her mother is concerned for her welfare if Mr ISLAM is prevented from rejoining the family.
23. I acknowledge that Mr ISLAM has an important role to play in Saffia’s life and that it is in her best interests not to refuse his application.
The Statement of Reasons returns to record further consideration given to the impact of the decision upon Mr Islam’s daughter when consideration is given as follows to the impact of the decision “on immediate family members”:
28. I have also taken into consideration representations from Mr ISLAM’s spouse, Ms Vittoria Islam. Not only is Ms Islam very concerned about the effect on her young daughter if Mr ISLAM is unable to remain in Australia (as I have noted above), but she herself would also be deprived of her husband’s emotional, physical and financial assistance in the event that his visa is refused. I accept that this would impose some hardship on her, though I note that she has been forced to maintain herself and her daughter without his support for most of the duration of their relationship, as he has been in criminal or immigration custody. I accept that if she decided to accompany him to Bangladesh she would face substantial hardship in terms of the employment available to her, the general standard of living she would have to accept and the cultural barriers facing her.
Rejected is so much of Mr Islam’s claim that there is “no indication” that consideration was given to “the best interest of my child and the impact [the] decision would make on my wife and immediate family here in Australia …”. The reasons make express reference to – and give consideration to – the best interests of Mr Islam’s young daughter and the impact on the “immediate family”. Also rejected is so much of the claim that the Assistant Minister did not give “enough weight to the Primary Consideration of the best interest of my child”. So expressed, Mr Islam seeks to propel this Court impermissibly from its proper role of ensuring that a decision is made in accordance with law into a review of the factual merits of the dispute and the factual conclusions reached by the decision-maker. The “weight” to be given to competing considerations is not a matter which this Court is able to review: Rawsthorne v Minister for Immigration and Citizenship [2013] FCAFC 39 at [25], (2013) 140 ALD 524 at 528 per Cowdroy, Katzmann and Farrell JJ.
With respect to the consideration given to Mr Islam’s past criminal conduct and the asserted failure to take into account the commitment on his part to change, the Assistant Minister’s Statement of Reasons relevantly provides:
Protection of the Australian Community
14. In making my decision I considered that Australia has a low tolerance of any criminal conduct by visa applicants, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
15. Mr ISLAM has a record of repeated and frequent criminal offending when he has been at Liberty over a period of some years. His offending has included several serious offences of violence. Should he continue to offend, members of the Australian community would be put at risk of serious harm.
16. While available information indicates that Mr ISLAM began offending after falling into bad company and beginning to abuse drugs, I have noted that he had the benefit of a good family background.
17. By 2012, Mr ISLAM had been engaged with the criminal justice system for some eight years, but Justice Nield remarked that he had ‘learned nothing from the penalties imposed on him for earlier offences” and that “his future is likely to be similar to his past”. I share these concerns that Mr ISLAM has had ample opportunity over a prolonged period of time to cease his offending, but has not been able to do so over an extended period in the general community.
18. I accept that Mr ISLAM’s record of behaviour in prison and immigration detention has generally been good over recent years, though I note that there have been some incidents of a negative nature. I also acknowledge that he now has the active support of his family.
19. I have taken into account that a report prepared before his release from prison in 2014 found that Mr ISLAM had a history of “lapses with alcohol and illicit substances” and that he would need intervention in the form of further assessment and treatment before going into the general community. In view of such concerns I cannot be confident that he will be able to avoid further substance abuse and possibly criminal offending if he returns to the community.
20. Considering all the above, I find that there is still more than a low risk of Mr ISLAM reoffending in future, and that if he were to do so, the potential consequences are of a serious nature.
The sentencing remarks of Nield J were included in the materials forwarded to the Assistant Minister for her consideration. Those remarks, it may further be noted, also included the following observations:
[33] I am unable to say that the offender is unlikely to re-offend. The fact that he committed the subject offence in breach of parole for an earlier committed offence suggests to me that he is more likely to re-offend, than he is not to re-offend. Frankly, I suspect that his future is likely to be similar to his past. However I accept that he, like every other sinner, is not beyond redemption and that he might turn over a new page in his book of life. Of course, only time will tell.
There is, again, nothing to indicate that such consideration as was given to these matters was other than a “proper, genuine and realistic” assessment of the facts. As is apparent from paragraph [19] of the reasons provided, that assessment included a consideration of the ACT Corrective Services Pre Release Report dated 10 April 2014 which stated in part as follows:
SUMMARY AND RECOMMENDATIONS
Mr Islam has been serving a sentence for a serious offence involving aggravation. It was not the first such offence and it occurred during a period when he was on parole. At the time, he was struggling with drug dependence issues, this resulted in contact with an antisocial peer group, he had no financial resources and it appeared his relationship was unstable. A further stressor remained his uncertain future as an Australian resident.
There is evidence to indicate Mr Islam is in a better place. His relationship appears secure and he and his wife have a young child. Whether he is employed or performs childcare and domestic duties, he has a role he can perform with some certainty given current visa applications. There would appear to be supportive people in place to encourage pro social adjustment to living in the community. He has completed the Cognitive Self Change Program.
Of concern, Mr Islam has been unable to avail himself of an alcohol and drug intervention. Although he claims a significant period of abstinence this is not borne out in the record. Lapses with alcohol and illicit substances have placed him at risk. It is therefore important an intervention to assess alcohol and drug issues and determine appropriate treatment is enacted.
Although qualified, that report proceeds to recommend Mr Islam’s release on parole and generally supports a conclusion that Mr Islam is “in a better place”.
The Assistant Minister, it is respectfully concluded, undertook a proper assessment of the risk posed to the Australian community, an assessment which included an evaluation of those factors which may have persuaded the Assistant Minister to reach a contrary conclusion. On the facts of the present case, as was the like conclusion in Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [23], it cannot be concluded that the consideration given by the Assistant Minister to such matters was other than in “a reasonably detailed way”. The task being undertaken, moreover, was “fundamentally forward, rather than backward, looking”: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 at [192], (2014) 220 FCR 1 at 40 to 41 per Buchanan J. Any argument that the Assistant Minister failed to take into account Mr Islam’s present and likely future conduct is, with respect, misplaced.
Mr Islam’s case, founded upon either the failure properly to take into account the best interests of the child and/or the risk of re-offending, thus fails.
But no express reference is made in the Statement of Reasons of the Assistant Minister to the two reports prepared by the psychologist dated 23 and 25 June 2014. Both reports were, however, annexed to the materials placed before the Assistant Minister at the time she made her decision. Both reports were supportive of Mr Islam.
The difficulty confronting Mr Islam in respect to these reports, however, is essentially three-fold, namely:
·the Statement of Reasons provided by the Assistant Minister records that she “assessed the information set out in the Issues Paper and attachments”;
·the reference in paragraph [22] of the reasons to the “available information”, that “information” presumably being a reference to the two reports; and
·the fact that there is no necessity for the Assistant Minister to refer specifically to each piece of information placed before her.
Further to the last of these three reasons, North J summarised the general position in Blue Wedges Inc v Minister for Environment, Heritage and the Arts [2008] FCA 399, (2008) 167 FCR 463 at 492 as follows:
[123] … The mere fact that not every issue was addressed in the statement of reasons or in the departmental advice contained in the departmental briefs does not prove that the material was not considered by the Minister. There are other explanations for the absence of mention of the matters in the statement of reasons. The Minister may have excluded some on the basis that they were not sufficiently important, or that the environmental concern was not sufficiently in question to warrant express mention. There is no reason to doubt in the circumstances of this case that the Minister did as he noted on the departmental briefs, namely, that he considered the assessment documentation provided to him …
Notwithstanding the terms of s 501G(1)(e) of the Migration Act, in the circumstances of the present case, it is thus not considered that the failure expressly to refer to these two reports exposes jurisdictional error.
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.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate:
Dated: 12 August 2015
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