Nassif v Minister for Immigration and Citizenship [2007] FCA 197 (23 February 2007)

Last Updated: 26 February 2007

FEDERAL COURT OF AUSTRALIA

Nassif v Minister for Immigration and Citizenship [2007] FCA 197

MIGRATION – Minister’s decision to cancel applicant’s visa under s 501(2) of the Migration Act – whether Minister failed to consider whether she was required to treat the best interests of the 12 year old son of the applicant’s fiancée as a primary consideration – whether Minister considered whether the relationship between the applicant and the child was a "parental or other close relationship" within the meaning of that phrase in a Ministerial Direction – Held: Minister did not give consideration to whether the relationship was a "parental or other close relationship".



Migration Act 1958 (Cth) s 501(2)


Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 cited





















CHAOUKI NASSIF v MINISTER FOR IMMIGRATION AND CITIZENSHIP
NSD 2389 OF 2006

BRANSON J
23 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2389 OF 2006

BETWEEN:	CHAOUKI NASSIF Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	BRANSON J
DATE OF ORDER:	23 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The name of the respondent be changed to Minister for Immigration and Citizenship.

2. An order in the nature of certiorari issue quashing the Minister’s decision dated 19 October 2006 to cancel the applicant’s visa.
3. The respondent pay the applicant’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2389 OF 2006

BETWEEN:	CHAOUKI NASSIF Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	BRANSON J
DATE:	23 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1 On 19 October 2006 the then Minister for Immigration and Multicultural Affairs, acting personally, decided to cancel Chaouki Nassif’s visa pursuant to s 501(2) of the Migration Act 1958 (Cth). Mr Nassif has applied for an order quashing the decision of the Minister. By his amended application, Mr Nassif claims that the Minister failed to warn him that she did not intend to treat the best interests of a child, namely Joshua Young, as a primary consideration in making the decision, and additionally failed to consider whether she was required to treat Joshua’s best interests as a primary consideration (see Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273). Joshua, who at the time of the Minister’s decision was 12 years old, is the son of Mr Nassif’s fiancée, Ms Sharon Young.

ISSUE TO BE DETERMINED

2 It is uncontentious that the Minister did not advise Mr Nassif that it was not her intention to treat the best interests of Joshua as a primary consideration in making her decision. It is also uncontentious that she did not treat the best interests of Joshua as a primary consideration in making her decision.

3 The parties agree that in the circumstances of this case the Minister was only obliged to treat the best interests of Joshua as a primary consideration if Mr Nassif had a "parental or other close relationship" with Joshua. The phrase "parental or other close relationship" comes from Ministerial General Direction No 21. The parties also agree that the information before the Minister was such as to require her to turn her mind to whether Mr Nassif had such a relationship with Joshua.

4 The only issue to be determined is thus whether it is appropriate for the Court to conclude, on the balance of probabilities, that the Minister did not give consideration to whether the relationship between the Mr Nassif and Joshua was a "parental or other close relationship". For the reasons set out below I am of the view that it is appropriate for the Court to so conclude.

STATEMENT OF REASONS

5 The Minister signed a statement of reasons in respect of her decision. The statement records that, after concluding that she was empowered by s 501(2) of the Act to cancel Mr Nassif’s visa, the Minister turned to consider whether to exercise her discretion to do so.

6 Paragraph 11 of the statement of reasons explains the procedure adopted by the Minister in considering whether to exercise her discretion as follows:

‘While not bound by Ministerial General Direction Number 21 – "Direction under s499 Visa Refusal and Cancellation Under section 501 of the Migration Act" ("the Direction") – following my usual practice I proceeded in accordance with this Direction. I consider that my Direction properly indicates how the powers and functions of the kind here should be exercised. Accordingly, I gave primary consideration to the protection of the Australian community, the expectations of the Australian community and the best interests of the children. I then considered other relevant considerations in relation to Mr NASSIF.’

7 I interpolate that Ministerial Direction No 21 provides as follows:

‘In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a) the protection of the Australian community, and members of the community;

(b) the expectations of the Australian community; and

(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.’

8 Under the heading "Primary Considerations" and the subheading "Best Interests of the Child" the statement of reasons records:

‘Mr NASSIF’s children are over the age of 18 years and I will consider them under "Other Considerations".’

No reference is made to Joshua under the heading "Primary Considerations".

9 Under the heading "Other Considerations" the following is recorded:

‘I accepted that Mr NASSIF’s fiancée, Ms Sharon Young, and her son Joshua, may suffer some hardship as they have established a relationship with Mr NASSIF over the years and would no longer have his support.’

PROPER INFERENCE TO DRAW

10 The material before the Minister was insufficient, in my view, to raise for consideration the question of whether the relationship between Mr Nassif and Joshua was "parental" in character. The material did not suggest, for example, that Mr Nassif and Joshua resided in the same household, that Joshua was financially dependent on Mr Nassif or that Mr Nassif was involved in the making of important decisions concerning Joshua’s upbringing and education. However, it has been conceded that the material was adequate to raise for the Minister’s consideration whether the relationship was sufficiently close and familial in character to be a "close relationship" within the meaning of the phrase "parental or other close relationship" in Ministerial Direction No 21.

11 No direct evidence is available on the issue of whether or not the Minister gave consideration to the nature of the relationship between Mr Nassif and Joshua. It is thus necessary to determine whether, on the whole of the available evidence, it is appropriate to infer that the Minister overlooked the need to give consideration to the nature of that relationship.

12 Four principal factors were relied upon as indicating that the Minister did give consideration to the nature of the relationship. First, the statement of reasons asserts that the Minister proceeded in accordance with Ministerial Direction No 21. Ministerial Direction No 21 draws a distinction between persons under the age of 18 years with whom the visa holder has a "parental or other close relationship" and others. It is only the former category whose best interests are required to be regarded as a "primary consideration". Therefore, it was argued, the fact that the only reference to Joshua in the statement of reasons appears under the heading "Other Considerations" suggests that the Minister decided that he was not a person with whom Mr Nassif had a "parental or other close relationship".

13 Secondly, the statement of reasons contains the assertion that the Minister had "considered all relevant matters including ... the direction ... and all evidence provided on behalf of/and by Mr Nassif".

14 Thirdly, the Minister, although required to give reasons for her decision, was not required in those reasons to give detailed consideration to the evidence.

15 Fourthly, the fact that the statement of reasons refer simply to the "relationship" between Mr Nassif and Joshua suggests that the Minister considered the nature of that relationship and chose not to characterise it as "parental" or "close".

16 I agree that the above factors carry weight. However, they must be weighed against the following considerations. In outlining the process adopted by her in determining whether to exercise her discretion to cancel Mr Nassif’s visa, the Minister asserted that she "gave primary consideration to ... the best interests of the children" (see par 11 of the statement of reasons which is set out in part at [6] above). Under the heading "Primary Considerations", the statement of reasons makes reference to Mr Nassif’s adult children only. An inference therefore arises that they are the children referred to in par 11 and consequently the only children considered by the Minister in the context of primary considerations.

17 Additionally, Mr Nassif’s children are referred to under the heading "Primary Considerations" only for the purpose of recording that they are over the age of 18 years (that is, not children whose best interests were a primary consideration). An inference therefore arises that Joshua would also have been referred to in this section if the Minister had turned her mind to whether or not he was a child whose best interests were a primary consideration.

18 The above inferences are strengthened by reference to the Departmental minute which outlined for the Minister the issues for her consideration. Under the heading "Primary Considerations" the minute refers to Article 3.1 of the Convention on the Rights of the Child and then advises:

‘Mr Nassif has three children under the age of 18. They will be considered under "Other Considerations" below.’

No reference is made to Joshua in this section of the minute.

19 The only reference to Joshua in the minute appears under the heading "Other Considerations" where the minute records:

‘Ms Young has a 12 year old son from a previous relationship, who Ms Young states has developed a close relationship with Mr Nassif. She states:

"... Chaouki has indicated to me he would like to adopt Joshua when we’re married and he’s in a position to support him".

A copy of Sharon Young’s letter is included in the submission dated 26 July 2006 at Annex N.

It is open for you to find that Joshua would suffer significant emotional hardship should Mr Nassif’s visa be cancelled.’

The minute does not advise the Minister that, depending on the nature of the relationship between Mr Nassif and Joshua, this emotional hardship could be a primary consideration. Indeed, the Minister is nowhere advised by the minute that she should give consideration to whether the relationship between Mr Nassif and Joshua is a "parental or other close relationship".

20 Having regard to all of the evidence and other material to which the parties drew my attention, I consider it appropriate to draw the inference that the Minister did not give consideration to whether the relationship between Mr Nassif and Joshua was a "parental or other close relationship". In doing so I place particular weight on the failure of the Departmental minute to identify the nature of the relationship between Mr Nassif and Joshua as an issue for the Minister’s consideration and the failure of the statement of reasons explicitly to address the issue.

CONCLUSION

21 I conclude that it is more likely than not that the Minister did not consider whether the relationship between Mr Nassif and Joshua was a "parental or other close relationship".

22 The substantive relief claimed by Mr Nassif is an order in the nature of certiorari quashing the decision of the Minister and an order in the nature of mandamus directing the Minister to consider his application for a visa. No submissions were advanced in support of the claim for an order in the nature of mandamus. Nor was my attention drawn to any application made by Mr Nassif for a visa. The appropriate orders to be made are therefore the following:

1. The name of the respondent be changed to Minister for Immigration and Citizenship.
2. An order in the nature of certiorari issue quashing the Minister’s decision dated 19 October 2006 to cancel the applicant’s visa.
3. The respondent pay the applicant’s costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated: 23 February 2007

Counsel for the Applicant:	Mr C Jackson
Solicitor for the Applicant:	Horowitz & Bilinsky
Counsel for the Respondent:	Mr G Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 February 2007
Date of Judgment:	23 February 2007