Minister for Immigration and Citizenship v Islam

The relevant history 5 It is not necessary to canvass Mr Islam's history in light of the fact that there was no dispute before the Tribunal that he did not pass the character test. However, some matters are presently relevant. 6 On April 27 2006 Mr Islam lodged an application for a business visa. In February 2007, at the end of the non-parole period of his sentence on a robbery conviction, Mr Islam was released from Goulburn Correctional Centre. On 22 February 2007 Mr Islam applied for a Bridging Visa E (Class WE) (criminal detention visa). That application was initially refused. The Migration Tribunal remitted the matter to the Minister for further consideration. Following notification by a delegate of the Minister of the intention to reject Mr Islam's application for a criminal detention visa, the Minister exercised his discretion to grant the criminal detention visa and Mr Islam was released from migration detention. A formal notification was sent to him by the Department to the effect that further conduct would lead to a cancellation of his criminal detention visa being considered. 7 At the time he was released on the criminal detention visa, Mr Islam was still on parole, as the head sentence for his robbery conviction did not expire until 20 August 2009. Mr Islam was subsequently arrested and charged with aggravated robbery, allegedly committed in the ACT on 1 May 2008. It was common ground before the Tribunal that this charge, which is listed for hearing in early April 2011, had no direct relevance to the Tribunal's review of the Minister's decision. 8 On 6 June 2008 Mr Islam was released on bail. During the period of his release he breached the conditions of his bail three times. Following the last of these breaches he was returned to custody where he remained until sometime after the Tribunal made its decision. Those breaches were not substantial. In essence they were: being late for signing in for a bail undertaking. Mr Islam said that his car had broken down; and twice breaching the curfew imposed as part of his bail conditions. On one occasion Mr Islam said that his mother had driven him so that he could repay a loan to a friend and on the other occasion Mr Islam said that he had driven to assist a friend in need of urgent assistance. 9 On 25 June 2008 the Department sent Mr Islam a notice of its intention to consider refusing his application for a business visa on the basis of his failure to meet the character test. A delegate of the Minister subsequently refused Mr Islam's application. Mr Islam sought review of that decision and the Migration Tribunal affirmed the delegate's decision. However, the Federal Court set aside the Migration Tribunal's decision. The basis for the Court's decision was apprehended bias on the part of the Migration Tribunal, as the Migration Tribunal member who heard the review had 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 (Islam v Minister for Immigration and Citizenship [2009] FCA 1526). The matter was remitted for review to the Tribunal, which was differently constituted. The Tribunal decision is now the subject of this application.

Relevant legislation and Direction 41 10 Section 501(1) of the Act confers a discretionary power on the Minister to refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test. The parameters of the character test are set out in s 501(6) of the Act. Direction 41, by clause 4(1), applies to decision-makers performing functions or exercising powers under s 501 of the Act to refuse to grant a visa to, or to cancel a visa of, a person who does not satisfy the Minister that the person passes the character test. Direction 41 is binding on all decision-makers (clause 5.2(1)).

Direction 41 11 Clause 5.2 provides general guidance to decision-makers, relevantly: … (2) In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider: (a) the nature of any harm that the person concerned may cause to the Australia community; and (b) the risk of that harm occurring. (3) Exercise of the section 501 power must also be considered in the context of a wide range of factors, including whether the person began living in Australia as a minor, the length of time the person has been ordinarily resident in Australia and any relevant international law obligations. (4) In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia. (5) Among other matters, therefore, this Direction provides direction on the relevant factors that must be considered in making a decision under section 501 of the Act. 12 Part A of Part 2 provides directions on the application of the character test and is not presently relevant. Part B of Part 2 of Direction 41 provides directions 'on the primary and other considerations that are relevant to determining whether it is appropriate in the specific circumstances of the case to exercise a discretion to refuse or grant or cancel the visa'. 13 Within Part B, clause 9(1) provides that decision-makers must take into account the primary considerations in every case and that the "other considerations" set out in clause 11 should be taken into account where relevant, although decision-makers should only take into account directly relevant considerations (clause 9(2)). The primary considerations are set out in clause 10. They are relevantly: (a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence; (b) whether the person was a minor when they began living in Australia; (c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct… 14 Clause 10.1(1) provides that due consideration must be given to the government's objectives as set out in Clause 5.1, which relevantly states: (1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. (2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens… 15 Clause 10.1(2) provides: The factors relevant to assessing the level of risk of harm to the community of the person's entry or continued stay include: (a) the seriousness and nature of the relevant conduct; and (b) the risk that the conduct may be repeated. 16 Clause 10.1.1 gives more detail as to "the seriousness and nature of the conduct". It states, relevantly to Mr Islam: (1) Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community… (2) The following are examples of offences and conduct that are considered serious: … (d) grievous bodily harm, reckless injury, assault and aggravated assault (including abduction); (e) robbery. … (3) … Due regard must be given to the extent of the person's criminal record, including: (i) the number and nature of offences; (ii) the period between offences; and (iii) the time elapsed since the most recent offence. 17 Clause 10.1(4) provides for further factors also to be considered. They are, relevantly: (a) any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual's case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment; (b) any relevant factors the person provides as mitigating factors; (c) whether the offence or conduct in another country is not classified as an offence in Australia… 18 Clause 10.1.2 provides: (1) The person's previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending. (2) The following factors are to be considered as particularly relevant to this assessment: (a) a recent history of convictions, which should be considered as indicating an increased risk of re-offending; (b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and (c) evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts. 19 Clause 10.2 provides: (1) If the person was a minor when they began living in Australian and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration. (2) Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time. 20 Clause 10.3 provides: Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character. 21 Clause 11 relevantly provides: (1) In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered. (2) It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations. (3) These other considerations include… (d) any links to the country to which they would be removed. For example, where the person has no significant familial ties or support in that country, this may be considered in the person's favour; (e) hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia: (i) including whether the immediate family members are able to travel overseas to visit the person; the nature of the relationship between the person and the immediate family members; and whether immediate family members are in some way dependent on the person for support which cannot be obtained elsewhere; (ii) the ability of the person, together with any accompanying family members, to acquire new language skills and their capacity to obtain support. Where possible, this information should be obtained through interviewing the person and their family members…

The Tribunal's decision 22 The decision for review before the Tribunal was the Minister's decision to refuse to grant the business visa. The question for the Tribunal was whether that decision was correct and preferable. This involved the exercise of the discretion enlivened by that question. However, in its order, the Tribunal expressed the decision under review as the decision to cancel the business visa on character grounds. The Tribunal set aside the decision under review and in substitution decided to exercise its discretion 'to not refuse' the business visa. 23 In [1], the Tribunal noted that Mr Islam applied to the Tribunal to review the decision to refuse him a visa and for his consequential release on bail. The Tribunal did not explain how it exercised jurisdiction over any bail conditions imposed on Mr Islam by reason of his criminal activities. 24 The issue that the Tribunal posed for itself was a choice between deporting Mr Islam or permitting him to remain in Australia. At [45] the Tribunal said: The sole issue for the Tribunal is whether it should exercise the residual discretion in s 501(1) of the Act to refuse to deport Mr Islam. The Tribunal considers it unlikely if it affirms the decision to deport Mr Islam, that he will 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. [emphasis added] 25 The Tribunal recognised that it was obliged to consider the criteria in Direction 41 but said that the criteria were to be applied to the decision as to whether to release Mr Islam on bail until his trial or to keep him in the remand centre for that period. That in turn affected the Tribunal's consideration of the entirety of Mr Islam's history. 26 The Tribunal then turned to consider the first primary consideration of Direction 41: the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence. It looked to the seriousness and nature of the relevant conduct and the risk of harm occurring in some detail. The Tribunal's consideration centred on Mr Islam's activities after 2007. The Tribunal made a number of observations and drew the following conclusions that are presently relevant: The Tribunal noted at [53] that the offences committed by Mr Islam from 2004 to 2005 involved violence to members of the community and said that this was a consideration weighing in favour of the Tribunal affirming the decision. However, the Tribunal said at [54] that the offences had been committed almost five years earlier and, when considered by the Minister on 23 November 2007, had been found not to outweigh other factors in the exercise of the discretion as at that date. That, said the Tribunal, must be taken into account in considering what occurred subsequently as relevant to Mr Islam's criminal behaviour, his propensity to re-offend and the risk this creates for the Australian community. As to Mr Islam's criminal history, the Tribunal noted that a number of incidents had arisen when Mr Islam was a minor. It noted that apart from breach of bail offences, all of the incidents occurred five or more years earlier 'in an intense period of criminal activity over a period of 19 months, while Mr Islam was a teenager'. The Tribunal noted that since that period Mr Islam had been in detention from 22 August 2005 to 27 November 2007 and again from 18 September 2008 to the time of the Tribunal hearing. In the period when he was released on bail he had been apprehended for breaching bail on three occasions. 27 The Tribunal proceeded to record in detail Mr Islam's history, together with the report of the sentencing judge and other reports, such as an ACT Probation and Parole Service Pre-Release Report and an ACT Corrective Services Rehabilitation Plan. The Tribunal observed at [77] that Mr Islam's breaches of his bail conditions showed 'a degree of impulsiveness and a failure to consider the consequences of his actions'. The Tribunal noted submissions from Mr Islam's counsel that Mr Islam knows that 'this next period' is critical for any assessment of whether he is to remain in Australia and for the future of his family in Australia, a factor which should be a strong incentive for Mr Islam to maintain his control. 28 At [79] the Tribunal said: 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. The Tribunal noted that the ACT Magistrates Court, the ACT Supreme Court and the previous Minister had all, at different points, considered that Mr Islam did not pose sufficient risk to the community to prevent him being released into the community. After observing that the offences for which he was taken into custody occurred over five years ago, with the exception of the most recent breach of bail and a short period in detention, the Tribunal said that Mr Islam had matured and that his focus was on completing his study, that he was capable of responsible behaviour while in remand and that he had said that he did not wish to be incarcerated again. The Tribunal noted that Mr Islam appeared to have his drug addiction under control. The Tribunal then concluded at [80]: 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. [emphasis added] 29 The Tribunal then turned to consider the second and third primary considerations, followed by the secondary considerations. 30 In its conclusion, the Tribunal noted the following matters: Mr Islam has not been convicted of any serious offences since he was a teenager. He is now 24 and has matured. He has attempted 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. 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 Mr Islam's drug and alcohol addiction which led to his offences as a teenager, this provided the Tribunal with an indication that he has matured sufficiently to be allowed to be released into the Australian community. As emphasised in Direction 41, the Australian community should accept some responsibility for a person who has spent so much of their formative life in Australia. There had been an impact on Mr Islam's family, all of whom have taken steps to becoming or are already Australian citizens or permanent residents. These matters, the Tribunal said, persuaded it to find that the decision to refuse Mr Islam's business visa application should be set aside 'and he should be released from custody'. 31 The Tribunal stated that it was advised by the Minister that if the decision were set aside the Minister would release Mr Islam. Counsel for the Minister contends that no such submission was made to the Tribunal and that the release of Mr Islam from custody was beyond the Minister's power. 32 In any event, the Tribunal noted at [105] that Mr Islam was aware that he only had 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' that he can become a productive member of the community. The Tribunal then noted other disadvantages to Mr Islam remaining in detention. The Tribunal concluded at [107] that if the matters to be heard in April 2011 were decided adversely to Mr Islam, the refusal of his business visa under the character provisions would need to be revisited. Again, in apparent reference to the limited time frame that the Tribunal was considering, it said: That time has not arrived and Mr Islam has this opportunity to influence any such outcome if it eventuates. 33 The Tribunal then said that it 'sets aside the decision under review and recommends that the Minister approve Mr Islam's release from custody'.

Consideration 34 It is well established that an administrative tribunal that identifies a wrong issue, asked itself a wrong question or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion makes an error of law which results in that Tribunal exceeding the authority or powers given to it by the relevant statute (Craig v South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ). 35 The issue for determination in the Tribunal was whether to exercise the discretion under s 501(1) of the Act to refuse to grant a business visa to Mr Islam. If the refusal were upheld, Mr Islam was subject to removal pursuant to s 198 of the Act. The provisions in Division 9 of part 2 of the Act relating to deportation did not apply to him. 36 It is apparent that the Tribunal confused the decision under review and the later consequences of the decision. The Tribunal made a number of references to the possibility of Mr Islam's deportation, including the statement at [56] that it did not consider his breaches of bail in 2008, while holding the criminal detention visa, were sufficiently serious to warrant deportation. It may well be the case that the refusal of Mr Islam's business visa application would result in his deportation as a non-citizen, but that was not the decision before the Tribunal. The Tribunal's application of Direction 41 to the issue of Mr Islam's deportation is not the same as applying it to the discretion to refuse to grant Mr Islam a business visa. 37 Further, the Tribunal's consideration seems to be based upon an understanding that its decision determined whether Mr Islam would be released or remain in custody. The decision to set aside the Minister's refusal to grant the business visa does not necessarily result in the Tribunal's decision having that consequence. Rather, it leaves the business visa application undetermined for reconsideration by the Minister in accordance with the Tribunal's reasons. Mr Islam would have a bridging visa pending this reconsideration. If the business visa were granted, Mr Islam might still be in gaol or on bail. If the business visa were refused, Mr Islam would be an unlawful citizen and liable for removal. Either Mr Islam or the Director of Public Prosecutions would then be able to request a criminal justice visa. Otherwise, Mr Islam would be in immigration detention. 38 This can be contrasted with the review of a cancellation decision, the setting aside of which has the effect of reviving a formerly operative visa, unless it has ceased in the meantime. The Tribunal's order, which set aside the decision to cancel Mr Islam's business visa and in substitution exercised the discretion not to refuse the business visa, re-enforces the Tribunal's misunderstanding of the issue at hand. It appears that the Tribunal may have considered Mr Islam's release from custody as relevant to the setting aside of a cancellation decision. 39 These misapprehensions on the part of the Tribunal may explain its characterisation of the task before it in terms of the choice between permitting Mr Islam to be released on bail until April 2011 and remaining in custody for that period (at [45]). This in turn affected the Tribunal's consideration of the criteria in Direction 41, which should have been directed to the decision to refuse the application for the business visa. That consideration properly brings into account the period beyond April 2011. As the Minister points out, there is no reference in the Tribunal's reasons to a consideration of Mr Islam's behaviour beyond April 2011. The weight placed by the Tribunal on the ten months between its decision and the pending trial illustrates that focus on the near future. There is no consideration of the consequences if he were to be acquitted and what effect that would have on his conduct in circumstances where there was no imminent trial. It follows that the Tribunal did not consider the question of the risk that Mr Islam posed to the community more generally and the extent to which the community needed to be protected from that risk in the longer term, a matter to be taken into account as a primary consideration under Direction 41. 40 As the Minister points out, the Tribunal did note that an adverse result in the criminal trial would likely prompt consideration of Mr Islam's visa status. However, that did not obviate the necessity to consider the situation if there were to be an acquittal. In that scenario, it was necessary to assess the risk in circumstances where the incentive for Mr Islam to maintain control pending his trial, to which the Tribunal referred, was no longer present. 41 The Minister contends that in framing the question for resolution as presenting a choice between Mr Islam's release or detention pending his trial and by focussing on the time between the date of the decision and the date of the trial in its assessment of the considerations in Direction 41, the Tribunal demonstrated an erroneous understanding of the statutory task before it, by reason of which its exercise of the discretion in s 501(1) of the Act miscarried. 42 I accept that submission.

Further grounds 43 The Minister also contends that the Tribunal impermissibly took into account what the Minister had decided in 2007 with respect to the criminal detention visa. He submits that the Tribunal considered that conclusion to be the starting point for its assessment of the criminal behaviour in which Mr Islam had been involved and that it failed to discharge its obligation to consider Mr Islam's total criminal history when assessing, for the purposes of the first primary consideration, the risk of repeated incidence of violent conduct on the part of Mr Islam. 44 It is the case that the Tribunal said that it "must" take into account what the Minister had decided in 2007. It is also the case that the Tribunal emphasised matters in the period since 2007. However, reading the whole of the Tribunal's reasons I am not persuaded that the Tribunal took the Minister's decision of 2007 as a starting point, rather than as a factor that it referred to as one of the discretionary matters to be taken into account. The emphasis on the period since that time was more likely due to the fact that the Tribunal was considering Mr Islam's more recent history, in connection with its erroneous application of Direction 41 to the limited period between the date of its decision and the impending trial. 45 The Minister also submits that the Tribunal misconstrued the third primary consideration and, in effect, misapplied that consideration in the context of the second primary consideration. The second primary consideration refers to the circumstance where a person was a minor when they began living in Australia and spent their formative years in Australia. The third primary consideration refers to the period of residence in Australia in the context of greater likelihood of significant ties to the Australian community. Mr Islam was a minor when he arrived in Australia, although he did not spend all of his formative years in Australia. He was in Australia for seven years, in two tranches, before he engaged in criminal activity. 46 The Minister submits that the Tribunal "double counted" Mr Islam spending part of his formative years in Australia for more than one primary consideration and that this necessarily impacts on the correctness of the Tribunal's decision, given that it involved the exercise of a discretion which, in turn, involved a balancing of considerations. As I propose to remit the matter to the Tribunal for further consideration and as the discretionary considerations will need to be re-evaluated, there is no need for an analysis of the weight of any such factor on the Tribunal's decision. 47 The Minister also submits that the Tribunal decision was affected by error of law in its consideration of Mr Islam's links to Bangladesh and the hardship to his family of his return to Bangladesh. The Tribunal observed at [90] that the evidence indicated that Mr Islam had 'no close family or friends in Bangladesh' but also said at [91] that, as a factor of hardship, Mr Islam's parents and his two siblings would return to Bangladesh with him 'if he is deported'. The Minister points out that these two factors are inconsistent in that if his family and siblings returned to Bangladesh, he would have family there. It follows, the Minister submits, that the considerations cannot be separately relied upon. 48 Again, these are discretionary matters which will need to be reconsidered by the Tribunal and it is not necessary to analyse the effect of any such double counting on the Tribunal's ultimate decision, if that decision were to take into account the necessary matters under Direction 41.

Conclusion 49 By confusing the legal effect of its decision, the Tribunal asked itself the wrong question as to the nature of the decision it was required to make and as to the primary considerations which it was obliged to take into account. It follows that the Tribunal decision should be set aside and the matter remitted to the Tribunal to be decided in accordance with law. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.