NVDC and Minister for Immigration and Border Protection (Migration) - [2018] AATA 457

NVDC and Minister for Immigration and Border Protection (Migration) [2018] AATA 457 (26 February 2018)
Division:GENERAL DIVISION
File Number(s): 2017/7352
Re:NVDC
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member R. Pintos-Lopez
Date:26 February 2018
Place:Melbourne

The decision under review is affirmed.

.....[sgd]...................................................................
Senior Member R. Pintos-Lopez
MIGRATION – application for revocation of cancellation – character test failed – serious criminal record – multiple opportunities to rehabilitate – strong family ties – no non-refoulement obligations – decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567
Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409
Brown v Minister for Immigration and Citizenship [2010] FCAFC 33
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198
Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135
Minister for Immigration and Multicultural Affairs v Serevi [2000] FCA 1691
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Spruill v Minister for Immigration and Citizenship [2012] FCA 1401
Re Le and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 407
Minister for Immigration and Citizenship v Anochie [2012] FCA 1440
Secondary Materials
Ministerial Direction no. 65
REASONS FOR DECISION
Senior Member R. Pintos-Lopez
26 February 2018

The Applicant seeks review of a decision made by a delegate of the Respondent, the Minister for Immigration and Border Protection (the Minister) pursuant to s 501CA(3A) of the Migration Act 1958 (Cth) (the Act), dated 29 November 2017,[1] not to revoke an original decision, dated 22 February 2016, by which his Class AZ Subclass 866 Protection visa (the visa) was cancelled under s 501(3A).[2] The decision not to revoke the cancellation of his visa, was made because a delegate of the Minister was not satisfied that:
(a)the Applicant passed the character test as defined by s 501 of the Act as he has a substantial criminal record (as defined in s 501(7)); and
(b)there was no other reason why the original decision should be revoked.
[1] G-documents, p7-17.
[2] The Applicant’s visa was cancelled in the original decision because it was found that he did not pass the character test, provided in s 501(6), by reason that he had a substantial criminal record (as defined by s 501(7)), and was then serving a sentence of imprisonment as provided by s 501(3A)(b) of the Act.
For the reasons that follow, the decision is affirmed.
BACKGROUND
The Applicant is a 50-year-old Algerian man. He first arrived in Australia in 1997 at the age of 29. Since arriving in Australia he has never departed and, accordingly, has been in Australia for 21 years.
The Applicant is in a de-facto relationship with an Australian citizen, with whom he commenced a relationship in Australia in 1999. The Applicant and his partner have a 17-year-old daughter who will turn 18 in around July 2018.
In around 1999, the Applicant commenced paid employment in Australia. Initially, he worked at a bakery and then later making furniture. In around 2001, while working at a warehouse, he injured his back lifting a box and, as a result, could no longer work.[3] In around 2002, he was granted a disability support pension.
[3] G-documents, p55, sentencing remarks of Curtin J in 2005.
At the same time, in around 2002, the Applicant commenced using drugs and subsequently became addicted to the amphetamine called ice. At that time, he also started to commit crimes in the community. From that time, a period of approximately 16 years, he has been convicted of a large number of crimes, which are by his account, related to his need to obtain funds to maintain his drug habit.
The Applicant’s crimes have mostly involved property related offences. Some offences are of a more serious nature. For example, in 2016 he was convicted of aggravated burglary, in circumstances where a 90-year-old woman discovered him in her home during the course of the burglary. In 2015 he was convicted of assault with weapon. The Applicant was seen leaving a house by one of the occupants who had arrived home. The occupant of the house gave chase and was confronted by the Applicant who had a Stanley knife and a screwdriver in his hand and told the occupant to get back, which he did. It is significant that these two more serious offences were committed recently relative to the overall history of the Applicant’s offences.
Overall, the Applicant has been in Australia for 21 years; for the first five years he did not commit any crimes but following that period, for a period of 16 years, he has committed a large number of offences. From 1999 to 2001, the Applicant was engaged in paid employment, which is a period of approximately three years.
The Applicant has had a number of opportunities for rehabilitation, including by way of suspended sentences, many of which he has breached.
In 2006, an officer of the Department of Immigration and Multicultural Affairs made a decision not to cancel his visa because of his offending but instead issued him with a formal warning.
The Applicant is currently in custody in Port Phillip Prison pending the resolution of a charge of riot in relation to an incident at the Metropolitan Remand Centre in June 2015.[4]
[4] The Minister did not rely upon the alleged facts in relation to the riot for the purposes of the present decision.
In around February 2016, the Minister notified the Applicant that his visa had been cancelled under the Act as the Minister was satisfied that he did not pass the character test because of his substantial criminal record and because at that time, he was serving a sentence of imprisonment, on a full-time basis, in a custodial institution.[5]
[5] G-documents, p120.
In around November 2017, the Minister refused the Applicant’s request to have the cancellation of his visa revoked.
The Applicant approaches the Tribunal seeking review of the Minister’s refusal to revoke the mandatory cancellation of his visa.
At the hearing, the Applicant was represented by his wife who is not a lawyer. The Applicant, his wife and their 17-year-old daughter gave evidence at the hearing.
The Applicant submits that he ought not have his visa cancelled as it will break up his family and have a serious negative impact upon him, his wife and his daughter. He sought initially to argue that he feared for his safety should he be returned to Algeria. He put that argument on various bases, being a fear of harm and persecution by the soldiers whom he witnessed committing serious crimes and/or because of a general fear and distrust of the Algerian police. He ultimately acknowledged that Algeria was largely changed since the civil war of the 1990s and, as a result, he did not truly have a fear for his safety upon return to Algeria but was requesting revocation of the cancellation of his visa principally on the ground of the harmful breakup of his family.
The Minister submits that the decision ought be affirmed largely due the number of crimes committed by the Applicant over such a long period of time, placing particular emphasis upon those more serious crimes noted above while also noting the various fruitless second chances that have been provided to the Applicant for rehabilitation.
RELEVANT LAW
The Act provides for the cancellation of visas by operation of the character test in s 501 and for revocation of a cancellation under s 501CA.
Section 501(3A) of the Act provides:
The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) and (7) of the Act define what is meant by a “substantial criminal record” and provide relevantly for present purposes:
(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
…
(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; or
…
Concurrent sentences
(7A)For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Section 501CA of the Act provides for revocation of the original cancellation decision under s 501(3A):
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)a written notice that sets out the original decision; and
(ii)particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
(5)If the Minister revokes the original decision, the original decision is taken not to have been made.
(Emphasis added in bold.)
Section 499 of the Act grants power to the Minister to give directions:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b)the exercise of those powers.
…
(2A)A person or body must comply with a direction under subsection (1).
Ministerial Direction no. 65 made under s 499 of the Act, currently applies to decisions made pursuant to s 501CA (the Direction).[6] The Direction sets out the objectives of the Act along with general principles and guidance in relation to the manner of exercising the power contained in s 501CA. The Direction then contains three parts, which apply to the exercise of certain powers. Part C applies to the revocation of decisions made under s 501CA of the Act.
[6] The Direction was made on 22 December 2014.
The Direction contains three primary considerations that must be taken into account in every decision considering revocation of a cancellation, being:
(a)protection of the Australian community from criminal or other serious conduct;  
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
The Direction prescribes certain other considerations that must be considered, if and where they apply. Those other reasons, however, do not limit the reasons that may be considered where they are determined to be relevant. These other reasons include:
(a)international non-refoulement obligations;  
(b)strength, nature and duration of ties;  
(c)impact on Australian business interests;  
(d)impact on victims; and 
(e)extent of impediments if removed.  
In relation to the balancing of the various considerations under the Direction, the authorities provide that:
(a)the Tribunal is obliged to consider the Direction and assess the degree of the considerations and, having done so, it must “put its conclusion on the issue on the scales in the manner provided for by the Direction”: Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238, at [23], per Whitlam and Gyles JJ.
(b)The Tribunal is not bound to accept the version of events put by the applicant, the decision-maker will give the applicant’s story such weight as he or she considers appropriate in all the circumstances: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84, at 91, per Davies J.
(c)When applying the discretion, the Tribunal must genuinely weigh factors leading to opposite conclusions and not artificially limit any of the factors: Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567, at [20].
APPLICATION
These reasons proceed, in accordance with s 501CA(4)(b) of the Act, to consider:
·first, whether I am satisfied that the Applicant passes the character test as defined by s 501 of the Act and specifically, whether the Applicant fails the character test contained therein because he has a substantial criminal record; or
·second, whether there is another reason why the original decision to cancel the Applicant’s visa should be revoked.
The Direction provides for the manner of exercise of the discretion provided for in s 501CA and, accordingly, sets out a framework for consideration by way of primary considerations and other reasons. That framework of considerations is applied seriatim in the reasons that follow.
Whether the Applicant passes the character test
The Applicant will have a substantial criminal record if, among other things, he has been sentenced to a term of imprisonment of 12 months or more or he has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.[7]
[7] Section 501(7)(c) and (d) of the Act.
For the purposes of making that determination under s 501(7) of the Act, it is the term of imprisonment to which the applicant was sentenced, not the term actually served, that is relevant: Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409 at 415-18, per Bowen CJ and Deane J.
A sentence to a term of imprisonment which is suspended falls within the section: Brown v Minister for Immigration and Citizenship [2010] FCAFC 33.[8]
[8] In Brown, consideration was given to the application of concurrent sentences and the meaning of substantial criminal record for the purposes of the Act.
The Minister submits that the Applicant has a substantial criminal record as he has been sentenced to a term of imprisonment of 12 months or more.
The Applicant was sentenced to:
(a)2 years of imprisonment in 2005 for the offence of obtaining a financial advantage by deception;
(b)12 months of imprisonment in 2009 in relation to 19 charges for dealing in property suspected to be proceeds of crime, for which the sentence was suspended under the sentencing legislation; and
(c)dozens of offences from 2004 until 2016, which, when added up, amount to two or more terms of imprisonment totalling one year or more.
I am satisfied that the Applicant does not pass the character test as he has a substantial criminal record, as prescribed under s 501(7)(c) of the Act, as I find that he has been sentenced to a term of imprisonment of 12 months or more. Although not strictly necessary given that finding, I also find that the Applicant has a substantial criminal record by application of s 501(7)(d) of the Act, as he has two or more terms of imprisonment totalling one year or more.
Whether there is another reason why the decision should be revoked
In considering whether there is another reason why the Minister’s original cancellation decision ought be revoked the considerations set out in the Direction must be fairly assessed on the evidence before the Tribunal, in order to then weigh those considerations, and by putting the conclusion “on the scales in the manner provided for by the Direction.”[9]
[9] Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238, at [23], per Whitlam and Gyles JJ. See also Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84, at 91, per Davies J and Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567, at [20].
Part C of the Direction contains three primary considerations and a number of other considerations to be taken into account when determining whether there is another reason why the decision should be revoked.
Primary considerations
The Direction contains three primary considerations that must be taken into account being the:
(a)protection of the Australian community from criminal or other serious conduct;  
(b)best interests of minor children in Australia; and  
(c)expectations of the Australian community.[10]
Protection of the Australian community
[10] Paragraph 13(2).
The Direction provides that decision-makers should have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.[11] In addition, decision-makers should also give consideration to the:
(a)nature and seriousness of the non-citizen’s conduct to date; and  
(b)risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[12]  
[11] Paragraph 13.1(1).
[12] Paragraph 13.1(2).
Nature and Seriousness of the conduct to date: the Direction contains certain factors that are relevant to the nature and seriousness of the conduct that must be considered. The applicable factors from the Direction include:
(a)the principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious; 
(b)the sentence imposed by the courts for a crime or crimes; 
(c)the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(d)the cumulative effect of repeated offending; and
(e)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).[13] 
[13] Paragraph 13.1.1(1)(b), (c), (d), (e) and (g).
Risk to the Australian community: in terms of the risk to community, the Direction provides:
In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[14]
[14] Paragraph 13.1.2(1).

The Direction states that in considering the risk to the Australian community, decision-makers must have regard cumulatively to the:
(a)nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and  
(b)likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).  
Consideration of the protection of the Australian community in this case may be summarised as requiring an assessment of the Applicant’s:
(a)past conduct including:
(i)the nature and seriousness of his past offences and their frequency; and
(ii)warnings given to him as to his migration status and whether he has re-offended since being warned;
(b)along with future conduct, including the:[15]
(iii)likelihood of the Applicant reoffending; and
(iv)the nature of the harm to individuals or the Australian community if the Applicant were to engage in further criminal or other serious conduct.
The nature and seriousness of the Applicant’s past offences and their frequency
[15] Being something that is not farfetched or fanciful: Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 at 205.
Since arriving in Australia, the Applicant has been convicted of a large number of offences, commencing in 2004.[16] The majority of those offences relate to property and include:
[16] A National Police Certificate, dated 2 May 2017, provides a summary of the Applicant’s offences in Australia: G-documents, pp24-32.
(a)burglary;
(b)theft;
(c)theft of a motor vehicle;
(d)obtaining property by deception;
(e)obtaining financial advantage by deception;
(f)receiving and disposing of stolen goods;
(g)go equipped to steal/cheat;
(h)intentionally destroying property; and
(i)dealing with property suspected as proceeds of crime.
A number of the offences directly relate to the Applicant’s use of drugs, including:
(a)trafficking amphetamines;
(b)possession of amphetamines; and
(c)possession of a drug of dependence.
There are also other convictions, ostensibly corollaries of his other offending, which include:
(a)driving whilst authorisation is suspended;
(b)fraudulently altering a registration label;
(c)having in custody a false document; and
(d)possession of a prohibited weapon.
The more serious offences, however, are those involving:
(a)aggravated burglary by reason of a person being present; and
(b)assault with a weapon.
In assessing, particular offences, the Tribunal may not impugn a sentence or put in issue the propriety of a conviction or the fairness of the trial.[17] The Tribunal may, however, examine the circumstances surrounding the commission of the relevant offence for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct: Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at [358].[18]
[17] See Minister for Immigration and Multicultural Affairs v Serevi [2000] FCA 1691, at [13] and Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, at [25].
[18] In Brown v Minister for Immigration and Citizenship [2010] FCAFC 33, Nicholas J (with Moore and Rares JJ agreeing) at [31], noted that the Tribunal recounted the appellant’s evidence concerning the various offences for which she had been convicted and her use of drugs and that much of the appellant’s evidence concerning those matters was rejected by the Tribunal. The Tribunal concluded that the appellant was not a reliable witness.
In Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135, Fisher and Lockhart JJ, at 138, stated:
The conviction is the genesis of the Minister’s power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination and the extent of that enquiry will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial judge and jury must determine.[19]
(Emphasis added in bold.)
[19] CfMinister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, at [47] stating his “Honour did not say, nor do we take him to have meant, that the tribunal should feel free to disregard the findings of historical fact upon which the sentence was based, in particular findings as to the circumstances of the commission of the offence.”
Their Honours stated further at 139:
It is our opinion that the Tribunal is entitled to consider all evidence. It will attach appropriate weight thereto in its task of evaluating the conduct of the applicant; but not for the purpose of assessing the propriety of the conviction.
In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, at [40] and [46], the Court stated:
at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.
…
While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point.
In the present case, the sentencing remarks in relation to three of the Applicant’s convictions are in evidence. The Applicant was taken to these sentencing remarks by the Respondent and gave evidence in relation to each.
On 25 October 2005, the Applicant pleaded guilty in the County Court to obtaining financial advantage and property by deception, making and using a false document, and having custody or control of false documents. The offences occurred between January and September 2003 and involved, among other things, deception by use of false names and false documents in order to obtain money.[20] The offences as set out in the sentencing remarks involved the Applicant and another co-accused obtaining credit cards by supplying false details, and on occasion by making false documents such as driver’s licences and payslips. The judge described the offences involving the use of false identities and false documents over a period of some eight months as constituting a systematic fraud.
[20] G-documents, pp51-61.
During the hearing before the Tribunal, the Applicant denied the extent of his offending in relation to his 2003 conviction. He gave evidence that he had taken “the rap” for his co-accused as they had gone “behind his back” and “put everything” on him. He alleges that he did not oppose the conviction because he did not know that his co-accused had put all the blame on him until after he was sentenced.
The Applicant’s evidence, insofar as it relates to the nature and gravity of his offending on the 2005 conviction, is, in effect, to challenge certain offences or the extent of culpability in relation to some, unidentified, specific offences.
Without making any finding which would impugn the sentence given to the Applicant or the propriety of his conviction or the fairness of the trial, I find that the Applicant’s account insofar as he alleges that he had been convicted for more offences than he had committed or was less culpable is inherently unlikely. The Applicant did not provide a plausible explanation as to the extent of his offending or as to how or why he had taken “the rap” for his co-accused. His account that he had not opposed those offences at the time of sentencing is rejected in circumstances where he was present at the sentencing hearing and represented by lawyers.
I find that the offences are serious as they involved what the judge described as a systematic fraud. The Applicant’s conduct showed a calculated and lengthy disregard for the law and came at a time when he had only five years previously sought asylum in Australia.
On 9 October 2015, the Applicant was convicted of burglary, negligently dealing with proceeds of crime, possession of housebreaking implements and possession of a prohibited weapon. Most seriously, however, he was convicted and sentenced in relation to assault with a weapon. The Applicant was also sentenced in relation to a suspended sentence, which was wholly restored.
The transcript of the hearing before the magistrate involved an indication from the magistrate of the sentence that he would impose if the Applicant pleaded guilty. The Applicant rejected the indication at the time, but the evidence from the Applicant given before the Tribunal was that later that day he did in fact plead guilty and accepted the nine-month sentence that the magistrate had indicated earlier that day.
The sentencing remarks state that the offence involved the Applicant entering into a house through the rear unlocked glass sliding-door of the house. The house was unoccupied at the time. While in the house, the Applicant took a number of personal items. As he left the house he was observed by the victim who was arriving home and who then chased the Applicant along the street. When the victim caught up with the Applicant, the Applicant turned around and confronted him while holding a screwdriver and a Stanley knife in a threatening manner. The Applicant told the victim to get back and the victim did. Ultimately, the Applicant was caught three hours later in possession of an item that was taken during the burglary.
The Applicant denies committing these offences. He gave evidence that the victim of the assault had made a false accusation against him. Further, he said that there was no evidence that he had committed these offences including no pictures implicating him. The Applicant stated that he accepted the aggregate nine month sentence on the advice of his lawyer as he was already serving four months in custody and, effectively, by admitting these further offences, he would only need to serve a further five months.
The authorities provide that a conviction and sentence are conclusive evidence for the purpose of my determination. I accept that the Applicant’s 2015 sentence and conviction are evidence that he committed the offences which he denies. Even if that were not so, I do not believe the Applicant’s account as to why he did not commit those offences and why he accepted a nine month sentence because it is highly improbable. Indeed, his account is farfetched and fanciful because it is not reasonable to accept that he would plead guilty to a nine month sentence based upon the difference between his time in custody and the total sentence.[21] I find that the 2015 offences are serious and weigh heavily in relation to this consideration. In particular, the offence of assault involving threatening behaviour towards a victim while armed is a serious offence.
[21] See Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 at 205.
In 11 July 2016, the Applicant was convicted for aggravated burglary by reason of there being a person present, theft, dishonestly receive stolen goods, possession of a prohibited weapon, and handle, receive and retain stolen goods.[22] The Applicant was sentenced to ten months of imprisonment in relation to those offences. The magistrate in sentencing the Applicant noted that the crime of aggravated burglary was committed in circumstances where a 90-year-old woman had discovered him in her home during the burglary. The magistrate reduced the sentence on the Applicant’s plea of guilty that would otherwise have applied if he were found guilty because, in part, the 90-year-old victim would be spared having to attend the trial and be cross-examined.
[22] G-documents, pp33-41.
At the hearing, the Applicant denied committing these offences despite pleading guilty. He gave evidence that he was at the “pokies” at the time of the offence and could not have been involved. He stated that there was no DNA evidence on a cigarette butt found at the crime scene and only DNA in one, but not both, gloves also found there. He said that the evidence showed that the perpetrator was 155cm tall and had fluent English, facts that tended prove that he was not the offender.
He gave evidence that his lawyer told him at the time of sentencing that immigration officials were not going to give him “an answer”, presumably to a request to revoke the cancellation of his visa, which had occurred in February 2016, until the charges for the burglary were resolved and that, without an admission, that process may take two years until it could be resolved. In those two years he would remain in immigration detention. Accordingly, to avoid the delay he states that he pleaded guilty and received a ten month sentence.
Without making a finding in relation to the propriety of his conviction or the fairness of the trial, I find that the Applicant’s evidence that he did not commit these offences to be untruthful. Similarly, to the other two convictions, his explanation as to why he agreed to plead guilty, in this case to avoid a two year wait in relation to his visa decision, is entirely farfetched. In part, that is because it is not believable that he would accept a further conviction in circumstances where his application to have the cancellation of his visa revoked was entirely dependent upon his criminal convictions and the prospect of his rehabilitation.
I find that the Applicant’s offending giving rise to his conviction in 2016 is serious because, as specifically prescribed by the Direction, it was a crime committed against a vulnerable member of the community, who was vulnerable by reason that she was elderly.
The Applicant also denied a conviction in August 2012 for drug related offences.
Overall, I find that the Applicant was untruthful and therefore not a reliable witness in relation to his offending. The Applicant’s systematic denial of the majority of the offending that was put to him indicates a disregard for the law and the criminal justice system and importantly, evidences a lack of insight into his offending, which negatively impacts upon his prospects of rehabilitation and of not committing further offences in future. This is considered further below.
I find that the Applicant’s past offences involved at least three offences that are serious: the systematic fraud for which he was convicted in 2003, the conviction for assault in 2015 and the conviction for aggravated burglary in 2016 in circumstances where a 90-year-old woman was present.
Warning given to the Applicant regarding his migration status and whether he has re-offended since that warning
On 30 November 2005, the Department notified the Applicant that his visa may be liable for cancellation under s 501 of the Act on character grounds.
In a letter from the Applicant, dated 23 March 2006, to the Character and Cancellations Unit in the Department of Immigration, the Applicant stated:
whilst I personally give you my undertaking that I am well scared away from a life of crime; I also understand the risks an offender may present to your department.
Therefore, I can only ask that you please consider my visa in light of my family, my personal undertaking (which I know carries little weight) and finally the Suspended Sentence imposed as a corrective measure by Her Honour in the County Court.
On 16 May 2006, the Department made a decision not to cancel his visa on character grounds but instead issued a formal warning. The immigration official stated that:
[the Applicant] really needs to assess where his life is going and why. While his offences, to date, are at the lower end in terms of their seriousness, he continues to offend. If he really is the family man others have highlighted he should act accordingly. Should he continue to commit crimes he will find less sympathy on future occasions.[23]
[23] G-documents, p87. The Applicant signed an acknowledgement, dated 20 May 2006, of receipt of the notice of decision not to cancel his visa under section 501(2) of the Act.
The notice of the decision not to cancel the Applicant’s visa noted that disregard of the warning provided would weigh heavily against him if his case were reconsidered.
The Applicant’s offending continued unabated after the warning. I find that the 2006 decision to not cancel the Applicant’s visa on character grounds and his continued offending despite the warning is a circumstance that weighs against the Applicant in deciding now whether to revoke a later cancellation of his visa, as it is a matter to be taken into account under the Direction and is evidence of a chance that the Applicant failed to act upon.
When considering the factors that are relevant to findings as to the nature and seriousness of the Applicant’s conduct to be considered under the Direction:
(a)I find that the seriousness of the offences and the sentences imposed, barring those more serious offences considered above, are of neutral weight as relates to their nature, being property offences, and that sentencing is not at the higher end, being mostly sentences for less than 12 months.
(b)I have already given particular consideration to the Applicant’s systematic fraud, assault and the offence involving an elderly woman, which I find are serious.
(c)I find that the frequency of the Applicant’s offending is a factor that counts against the Applicant.
Nature and likelihood of re-offending
Prospective consideration of the Applicant’s circumstances applies when considering the risk to the Australian community, which involves a balancing of the:
(a)nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and  
(b)likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).  
Nature of the harm: as to the nature of the harm to individuals or the Australian community should the Applicant commit further crimes, I consider this to have a neutral or no weight. The Applicant’s past offending has been mostly at the lower end of offences as they have involved property and not person offences, and should he continue to offend, I expect that he would continue to commit such offences. Given the finding that the Applicant’s offending shows a trend of increasing seriousness, I find that there is some risk that the Applicant, if he reoffends may commit more serious offences, however, on balance I do not consider that there is sufficient evidence to find that his offending would involve those more serious offences. This is so as the serious offending considered above, is as a consequence of his other property offences and not as a result of an intention to commit those more serious offences.
Likelihood of re-offending: I turn to the likelihood of the Applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the Applicant not re-offending.

The Applicant gave evidence that he is reformed from his life of crime and drugs, this reform having occurred during his most recent period of incarceration. He said that he has been drug free for that entire period. Further, the Applicant stated that he had finally understood the serious consequences of his offending, and that at the age of 50 he was committed to not engaging in further criminal activity.
In a statement, dated 29 December 2017, the Applicant states that during his current incarceration he has been incident free and has made it his goal to evaluate life and use the time to change for the better. He also states:
I have much remorse for what I have done and the people I have hurt, I have realised more than ever that my actions are only what really matters now and being able to prove this to those who have stood by me and believed in me and that I can turn my life around.[24]
[24] Further Supplementary G-dcouments, p317.
I found the Applicant to be truthful regarding his belief that he was reformed. It was clear that he is deeply affected by the significant consequence of his past offending, one that he had not, despite the threat of cancellation of his visa in 2006, adequately confronted until his visa was cancelled. I find that the Applicant was truthful in his concern about the impact of his deportation upon his wife and daughter and that this realisation has resulted in the effort to stop using drugs and remain clean.
The Applicant’s wife gave evidence of his reform. She stated that she had seen significant evidence of his transformation. She said that the Applicant had completed a number of educational courses while incarcerated.
In evidence are a number of certificates of completion for courses completed by the Applicant in 2017. These include completion of a module entitled “participate in workplace safety arrangements”, “use hygienic practices for food safety”, and “control traffic with stop – slow bat.”[25]
[25] Further Supplementary G-dcouments, pp323 – 326.
While others might not consider the completion of these courses as a significant accomplishment, the Applicant’s wife noted that in the context of her family, that the Applicant’s attending and completing courses was in and of itself a new and important change. She said that she could “just tell” that he was changed and reformed because of her daily phone calls with him.
The Applicant’s wife was at times quite emotional in her testimony and was forceful and convincing in her account and belief that the Applicant is reformed and would not commit any further offences.
The Applicant’s wife’s brother provided a statement, dated 20 January 2018, stating that he is a very easy-going and understanding person and that he has been there to help the family through the bad and good times. He states further that the Applicant has definitely learned his lesson and that he believes that all the Applicant wants to do is just be with his family and be truly good to them and to everyone around him.[26]
[26] Ibid, p318.
I find that the Applicant and his wife are sincere in their belief that the Applicant has commenced a significant process of reformation. These are factors which weigh in the Applicant’s favour in relation to the likelihood that the Applicant will not re-offend.[27]
[27] See Minister for Immigration and Multicultural Affairs v SRT (1991) 91 FCR 234 at 243; and Minister for Immigration and Multicultural Affairs v Serevi [2000] FCA 1691 at [14] (stating that an offender who showed no sign of rehabilitation at the time of sentence may, by the time visa cancellation is being considered, have shown significant rehabilitation so that the risk of further offences has reduced considerably).
In relation to steps to address the Applicant’s drug use, there are two recent program completion reports, dated 7 February 2018, from a counsellor at Port Phillip Prison. The reports relate to a program entitled “12 hours healthy lifestyle program” and another entitled “12 hours substance use program”. The author of the report notes that the Applicant’s level of participation and engagement was at the higher end of the scale.
The program completion reports contain a line with various stages of change and motivation to be marked by the author. These are in corresponding order of accomplishment, that is towards the goal of being drug free:
·Pre-contemplation
·Contemplation;
·Determination;
·Action; and
·Maintenance.
The stage of change or motivation of the Applicant is marked at the level of “contemplation” which is below “determination”, “action”, and “maintenance” in both reports. The “completion” stage is described as a stage when a person’s drug use is assessed as enjoyable, exciting, pleasurable, or rewarding in some way but the person may worry about increasing negative consequences. The reports list the Applicant’s stage as two short of a stage of action when a person puts a plan into action in order to achieve their personal goal. The author notes that the Applicant has identified various strategies to achieve his goal of “relatedness” which was impacted by him spending significant time away from his family whilst offending to fund continued use of drugs, combined with time spent with drug using peers.[28]
[28] Further Supplementary G-documents, p339.
I find that Applicant’s completion of drug-use related programs are matters that ought weigh in his favour. However, the low level assigned to him in relation to his stage of change or motivation tend to discount reliance upon them as evidence of any significant reformation. They are also programs that have only been very recently undertaken and do not suggest a process involving two years as the Applicant attests. As the author did not give evidence of the Applicant’s involvement in the program or the reports themselves, I do not give the reports any significant weight. I do, however, take into account the absence of any other past reports or any other evidence other than that of the Applicant himself and his wife as to his reform. In this regard, I find that the absence of any other evidence of steps taken by the Applicant to address his drug-use that, by his account, form the central reason for his offending, is a factor that militates against a finding that he has been reformed. I find that the Applicant lacks the relevant insight into his drug related offending necessary to show reform or even an adequate commencement on the path to reform.
The Applicant’s convictions involve various contraventions of orders which were directed at providing the Applicant with an opportunity to avoid custody and thereby increase his chances of rehabilitation, these include, among others:
(a)contravention of a suspended sentence order in October 2015;
(b)contraventions or failure to comply with a community correction order or community based order in January 2007, October 2009, October 2013 and August 2014;
(c)failing to answer bail in July 2009 and October 2013.
It has been considered that a breach of good behaviour bonds displays a lack of respect for Australia’s laws and reflects poorly on an applicant’s prospects for rehabilitation as well as showing a lack of insight into the applicant’s offending: see Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83, at [43].
I find that the evidence of the Applicant’s past breaches of orders designed to provide the Applicant with an opportunity to address his criminal behaviour is a factor to which I attribute significant negative weight in assessing his risk of recidivism. Similarly, the Applicant’s breached “undertaking that I am well scared away from a life of crime” in relation to the 2006 threat of having his visa cancelled, weighs significantly against him in relation to his risk of recidivism. I find that his repeated breaches of these sorts of opportunities display a lack of respect for Australia’s laws. They also reflect poorly on the Applicant’s prospects for rehabilitation.[29]
[29] See for example, Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83, at [43].
Overall, I find that there is little likelihood of the Applicant not re-offending.[30] Put another way, I find that it is more likely than not that the Applicant will re-offend if released from detention into the Australian community, and accordingly he poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community.
[30] See Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 at 205 (stating that when assessing the risk of recidivism, there may be a real risk of recidivism even though the chance of it occurring is less than 50 per cent. Such an assessment is a qualitative description that serves to describe something that is not farfetched or fanciful).
I have taken into account the evidence from the Applicant and his wife that tends to support him, the evidence of his educational courses, which weigh in favour of the Applicant. Similarly, I have taken into account the absence of any other evidence of reform and most importantly, the Applicant’s decades long history of offending, which has involved on many occasions a second chance in the form of suspended sentences or similar orders, chances that the Applicant has not embraced on many occasions. I find that his repeated breaches of those second chances point to the fact that the Applicant has not been deterred from re-offending. The Applicant’s failure to provide any meaningful evidence of steps to address his drug problem further support a finding that he is more likely than not to re-offend.[31]
[31] In some cases, a high risk of recidivism may amount to a significant consideration. A pattern of criminal behaviour over 20 years suggested in one case, that an Applicant had not been deterred from re-offending. It was found that if he was unable to overcome his drug problem, there was a risk that he would re-offend: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151, at [36].
In Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56, at [40], the Tribunal found that the extent of time of law-abiding behaviour may be relevant to an applicant’s rehabilitation. The longer the law-abiding period the more significant the factor. In the case of the Applicant, and of his 21 years in Australia; the first five years were law-abiding while during the following period, a period of some 16 years, he committed a large number of offences and committed them frequently and regularly.
The Applicant notes that he realises “more than ever that my actions are only what really matters now and being able to prove this to those who have stood by me and believed in me and that I can turn my life around.” I agree. Unfortunately, the evidence of the Applicant’s actions are almost entirely against him in relation to an assessment of whether he is likely to re-offend once released.
For these reasons and balancing the matters referred to above that weigh in the Applicant’s favour or against him, I find that the primary consideration of protection of the Australian community is a consideration that weighs heavily against the Applicant.
The best interests of minor children
A number of factors are relevant to assessing the primary consideration of whether revocation is in the best interests of the Applicant’s daughter. Importantly, the Direction provides that:
(1) Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
…
(4) In considering the best interests of the child, the following factors must considered be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child; The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(d)Whether there are other persons who already fulfil a parental role in relation to the child; Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(e)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.[32]
[32] Paragraph 13.2.
The Applicant’s daughter gave evidence that she will be dramatically affected if her father were to be removed to Algeria. She presented as an articulate, intelligent and thoughtful young woman. She stated that the Applicant has been an extremely good father despite his periods of incarceration. She stated that her family would be devastated if her father were deported.
In a letter, dated 6 March 2016, the Applicant’s daughter states “[i]f my dad were to be deported it would emotionally break my family.”[33]
[33] G-documents, p113.
She also provides a statement, dated 15 January 2018, noting the great emphasis on familial bonds in her family. She also states that losing her father by deportation would put her into further depression over and above what she has suffered while he has been in prison and immigration detention. She notes that at the end of 2017, her grades dropped considerably because of the constant stress and concerns about what would happen to her father. She states that even though she turns 18 in July that the stress, worries and depression do not end when she turns 18. She also notes that she is completing her VCE year 12 this year and that if her father were deported she might not have the strength or energy to be able to complete her studies as she might not be able to join him or if she does she will have to move to a country where she is not fluent in the language and leave the Australian schooling system at a time when she is so close to graduating.[34]
[34] Further Supplementary G-documents, p320.
The Applicant gave evidence of the strong bond in his family. He was distressed when speaking of the effect of deportation on his daughter. He said that his main focus and object in life was to provide for his daughter and to be there for her. He gave evidence that, should he be deported, his daughter would live in Algeria with him and his wife. When pressed as to whether he would remove his daughter from Australia even if she gained entry into an Australian university, he stated that this would not change his decision as she would have to join him and his wife because there was no one to care for her in Australia.
The Applicant’s wife was similarly emotional when giving evidence of the effect deportation would have on her daughter. She stated that her daughter had suffered significantly due to his periods of being incarceration and the fear of his deportation. Similarly, to the Applicant she gave evidence that their daughter would join them in Algeria if he is deported.
In a letter from the daughter’s high school from the student well-being coordinator, dated 4 March 2016, the author notes that she self-referred to a counselling service in March 2016 and that during sessions she has described feeling incredibly stressed and anxious about her father being deported to Algeria. She has also spoken about her fears regarding her father’s safety if he were to return to Algeria.[35]
[35] Further Supplementary G-documents, p333.
In a letter, dated 12 February 2018, the year 11 coordinator at the daughter’s high school states that throughout her secondary schooling she has been a lovely student and well regarded by her peers and staff alike. The author states that she is a mature and dedicated student who has managed to find a balance between studies and some difficult personal circumstances, including the stress of her father’s potential deportation.[36]
[36] Ibid, p342.
I found the oral evidence of the Applicant, his wife and daughter to be compelling and consistent. They paint a picture of an extremely close-knit family. The Applicant is regarded with significant affection by his daughter notwithstanding his history of crime and incarceration. She stated that she knew little of his offending, which is a factor that tends to support the Applicant inasmuch as he has been able to shield his daughter from the details of his offending.
I find that revocation of the cancellation of the Applicant’s visa is in the best interests of the Applicant’s daughter. I attribute significant weight to the nature and duration of the relationship between the father and daughter as it is demonstrably significant and appears positive and typical, albeit in the attenuated circumstances of the Applicant. I find that the Applicant is likely to play a positive role in her future if his visa cancellation were revoked. However, this factor, as it concerns the interests of the daughter as a child, becomes almost neutral when considering that the daughter will turn 18 in a matter of months and that any future role in relation to her childhood is likely to be from custody as he is awaiting trial for a charge of riot.
I do not reduce weight due to the negative impact on the daughter of the Applicant’s prior conduct and any future criminal conduct, which I have found is more likely than not to occur. This is because the daughter has been successful in her studies, presents as articulate and intelligent and the father has provided, in her mind, the support to be expected from a father. I also accept that she has been shielded from some of the impact due to the intentional conduct of the Applicant in keeping her separate from his offending. The impact on the daughter of separation is likely to be significant. Despite the parents’ evidence, I do not believe that she will travel to Algeria because of her evidence which I consider below. As such, I consider that her ability to maintain contact will be seriously negatively affected.
I take into account that the Applicant’s wife has the responsibility for care of the daughter, which burden she has likely carried during periods when the Applicant has been incarcerated. I also take into account the daughter’s wishes that are of more significance due to her maturity.
The interests of the Applicant’s daughter is a significant consideration, which weighs strongly in favour of the Applicant.[37] However, to that must be added as a significant countervailing factor that the daughter has only months until she turns 18. The strength of the consideration to be considered against the other considerations is of a lesser weight than it would otherwise have been should the daughter have had a substantial period remaining as a minor.[38]
Expectations of the Australian community
[37] See Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 at [32]; and Spruill v Minister for Immigration and Citizenship [2012] FCA 1401, at [18], per Robertson J (quashing a decision where the Tribunal failed to make a specific determination about whether cancellation is, or is not, in the best interests of the child).
[38] In Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, the Court declared that the proper approach is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”.

In relation to the primary consideration of the expectations of the Australian community, the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person.[39]
[39] Paragraph 13.3(1).
In Re Le and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 407, at [40], the Tribunal stated that:
The community has the right to expect that persons allowed to settle in this country will not make themselves into a public menace and a burden on the criminal justice system and the public purse.[40]
[40] Cf Shaw v Minister for Immigration and Indigenous Affairs. [2005] FCAFC 106, at [91] (considering the content and utility of a consideration as indistinct as the “expectations of the Australian community”).
I have taken into account the very large number of offences that the Applicant has committed over many years and the fact that, having been granted a protection visa, the Applicant has spent the vast majority of his time in Australia as a non-productive member of the community habitually committing offences. I also take into account that the majority of those offences are at the lower level of serious offences that for the most part have not involved any offence against the person. I find that the primary consideration of the expectations of the Australian community weighs against revocation of the Applicant’s visa cancellation. The amount of offences and the length of time of offending weigh heavily against the Applicant and this is only partially ameliorated by the types of offences but also taking into account the three serious offences considered above.
Other considerations
The Direction provides for other considerations in addition to the primary considerations. The Direction states:
In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;  
b) Strength, nature and duration of ties;  
c) Impact on Australian business interests;  
d) Impact on victims;  
e) Extent of impediments if removed.[41]
[41] Paragraph 14(1).
I make no assessment as to the impact on victims as there is no evidence before the Tribunal sufficient to make any such an assessment.
Similarly, there is no evidence that revocation will have any impact on Australian business interests and I do not take that consideration into account.
International non-refoulement obligations
The Direction states that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at a risk of a specific type of harm.[42]
[42] See Minister for Immigration and Citizenship v Anochie [2012] FCA 1440.
A non-refoulement obligation assessment is provided in relation to the Applicant in a document entitled International Treaties Obligations Assessment, dated 14 July 2017 (the Non-refoulement Assessment). The Non-refoulement Assessment concludes that Australia does not have non-refoulement obligations in respect of the Applicant.
The Non-refoulement Assessment details the Applicant’s claim that in:
September 1996 he witnessed a massacre in his home area in Algeria. He had been driving his taxi home when he was stopped by plainclothes men and asked for identification. Whilst being detained, he could see three men lying face down on the ground and after he was allowed to continue on his way, he heard gunshots. He later returned to the scene of the massacre where he saw eight bodies which had been shot and mutilated. He fears the Algerian authorities will persecute him because he revealed his knowledge of extrajudicial killings by the government authorities.[43]
[43] 68
The Applicant gave a similar account orally. The Respondent put to the Applicant various differences in the accounts that the Applicant has given of the incident but I do not assign much weight to these discrepancies as memories fade in relation to an event so far in the past. It is relevant in this regard that the Applicant successfully obtained a protection visa on the basis of his account of this incident.
The Non-refoulement Assessment states that the Applicant said that he did not return to Algeria on each occasion when his parents died due to the safety risk posed.
The Non-refoulement Assessment considers the history and politics of Algeria. It notes that after the military refused to recognise the electoral victory of the Islamic Salvation Front in December 1991, Algeria commenced what is referred to as the Algerian Civil War from 1992 to 2002. The Non-refoulement Assessment considers various other assessments and reports regarding the social and political conditions in Algeria, which acknowledge the human rights violations that occurred in the 1990s. The Non-refoulement Assessment states that it has been a considerable period of time since the Applicant left Algeria and that during this period of time, the country has seen considerable improvement in the general situation since the conflict of the 1990s.
The Non-refoulement Assessment considers the Applicant’s claims in conjunction with the current independent report on Algeria and concludes that “there is nothing to suggest that he would be targeted by the Algerian authorities, were he to be returned to Algeria.”[44] The Assessment’s author concludes that he or she is not satisfied that the Applicant has a real chance of being subject to significant harm should he be returned to Algeria.
[44] G-documents, p78.
In a letter, dated 27 May 2017, the Applicant states:
Should I return to my country of birth I will be at risk in fear for my safety. Having lost both my parents and not being able to return to see them put them to rest was very difficult, but I made this decision due to the safety risk and protecting my Australian family.[45]
[45] Ibid, p102.
On 23 February 2016, in his request that the Minister revoke the mandatory cancellation of his visa, the Applicant stated that
I request my cancellation be revoked so as not to break up a family. I have no living parents and no ties to Algeria. Further, given the crime I’ve witnessed I’m in fear of my life if I am forced to return to Algeria. [46]
[46] Ibid, p93.
In contrast to the Applicant’s statements that the reason he did not return to Algeria after his parents’ deaths due to fear, he provides a statement, dated 29 December 2017, stating:
As I was struggling with the thought of not obtaining citizenship and losing my family, my mother suddenly passed back in my hometown and I could not afford to return to pay my respect and visit my father.… Then through all of the frustration and confusion of not knowing how to deal with procedures and cost of the citizenship my father passed away, and once again I was in no financial position to return home and assist with my father’s funeral or pay my respect.[47]
[47] Further Supplementary G-documents, p316.
In a form provided by North East Valley Division of General Practice, dated 8 January 2014, in relation to a mental health care plan it is noted that the Applicant suffers from post-traumatic stress disorder, depression and anxiety.[48]
[48] Ibid, pp327-329.
The Applicant initially gave evidence that he feared for his safety should he be returned to Algeria. He said that he had a fear of harm and persecution by the soldiers whom he witnessed committing serious crimes or otherwise because of a general fear and distrust of the Algerian police. The Applicant ultimately resiled from that position by accepting that he did not truly have a fear for his safety upon return to Algeria but was requesting revocation of the cancellation of his visa principally on the ground of the impact it would have on his wife and daughter.
I find that the Australia does not have non-refoulement obligations in respect of the Applicant because of the conclusions of the Non-refoulement Assessment and the evidence of the Applicant. Accordingly, that consideration is of no weight.
Strength, nature and duration of ties
The Direction provides in relation to the strength, nature and duration of ties to Australia that:
Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and  
ii)More weight should be given to time the non-citizen has spent contributing positively to the Australian community.  
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).[49]
[49] Paragraph 14.2.
The Applicant has resided in Australia for 21 years. He arrived in Australia at the age of 29. The Applicant did not commence offending soon after arriving in Australia. However, when regard is had to the comparatively small amount of time that the Applicant has contributed to the Australian community, at least by way of paid employment, that is three years from those 21 years, the length of his being in Australia against his limited contribution to the Australian community tend to cancel each other out.
The strength, duration and nature of the Applicant’s family ties have been considered above. These ties weigh in favour of the Applicant.
The effect of non-revocation upon the Applicant’s daughter has been considered above. I take that into account and give it moderate weight under the primary consideration. The effect is also attributed weight, albeit a lesser weight, in relation to the period after she turns 18.
The Applicant’s wife also gave evidence as to the effect of non-revocation on her. Her evidence was very emotional and heartfelt. I find that she was a truthful witness in regard to the serious extent of her distress and the impact upon her of non-revocation.
The Applicant’s wife provided a statement, dated 12 January 18, stating that she cannot afford the expenses of moving to Algeria and that she cannot speak the language. She states that if the Applicant were to be deported she would go into severe depression.
In a letter, dated 13 March 2014, a medical practitioner notes that the Applicant’s wife is under care for panic attacks and anxiety disorders. The practitioner states that she is suffering from post-traumatic stress disorder, which developed as a result of childhood abuse.[50]
[50] Further Supplementary G-documents, p322.
In a report provided by the Moreland General Practice, dated 27 March 2017, the Applicant’s wife is reported as having a past history of medical conditions including panic attacks, mild, moderate and acute insomnia.[51]
[51] Ibid, p331.
In a letter, dated 23 March 2017, from an organisation called Seeds of Renewal Centre, the author notes that the Applicant’s wife has attended psychotherapy sessions and that in the opinion of the author she suffers from post-traumatic stress disorder, chronic flashbacks, intrusive thoughts and nightmares/terrors.[52]
[52] Ibid, 334.
Taking into account the abovementioned factors, I find that the strength, nature and duration of ties weigh in favour of non-revocation, this is largely due to the evidence of the Applicant’s wife and daughter.
Extent of impediments if removed
In relation to the extent of impediments if the Applicant is removed, the Direction provides:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;  
b) Whether there are substantial language or cultural barriers; and  
c) Any social, medical and/or economic support available to them in that country.[53]
[53] Paragraph 14.5.
The Applicant gave evidence of the family he has in Algeria. He stated in a document containing his personal details that he has six brothers and four sisters.[54] One brother and one sister reside in Norway while the remainder of his siblings reside in Algeria. In oral evidence, he stated that his family would not be able to assist or support him as they have families of their own. The fact that the Applicant’s siblings having families of their own does not discount the existence of family support that the Applicant has in Algeria. Such a situation is common in any family but it would not be expected that those family members would not provide support.
[54] G-documents, p99.
The Applicant gave evidence orally that he would struggle to find work in Algeria as his brother had told him that work was scarce. The Applicant did not raise the issue of his work injury and his incapacity to work and there was no evidence of the existence or otherwise of any form of disability support payments system in Algeria. Otherwise, the Applicant’s age and his medical conditions present no particular or specifically relevant impediment to the Applicant establishing himself in Algeria. Similarly, there was no independent evidence that the Applicant would face any specific difficulties in finding work in Algeria; these are difficulties that apply to any person seeking work in Algeria. When taking into account the close family the Applicant has in Algeria against the difficulties he may face in establishing himself and maintaining basic living standards, I find that this consideration neither weighs against or for the Applicant.
CONCLUSION
For the above-mentioned reasons, I determine the present application for review under s 501CA of the Act as follows:
First, I find that the Applicant fails the character test as defined by s 501 of the Act because he has a substantial criminal record.
Second, I find that there is no other reason why the original decision to cancel the Applicant’s visa should be revoked. In arriving at that conclusion, I have applied the provisions of the Act and the Direction as follows:
Primary considerations
In relation to the protection of Australian community, I find the Applicant has committed serious offences in relation to the systematic fraud for which he was convicted in 2003, the conviction for assault in 2015 and the conviction for aggravated burglary in 2016 in circumstances where a 90-year-old woman was present. Otherwise, I find that the seriousness of the offences and the sentences imposed, barring those more serious offences, are of neutral weight as relates to their nature, being mostly property offences, for which sentences of less than 12 months have been imposed. However, I find that the frequency and quantity of the Applicant’s offending is a factor that weighs heavily against him.
I have taken into account, among other things, evidence of the Applicant’s decades long history of offending, his repeated breaches of second chances and his most recent involvement in courses and drug reform programs in custody, and on balance, I find that it is more than likely that the Applicant will re-offend if released from detention in Australia. Accordingly, he poses an unacceptable risk of harm. This is factor that weighs heavily against the Applicant.
I find that revocation is in the best interests of the Applicant’s daughter. I attribute significant weight to the nature and duration of the relationship between the father and daughter. However, this factor, as it concerns the interests of the daughter as a child, is of a lesser significance considering that the daughter will turn 18 in a matter of months.
I find that the expectations of the Australian community, weigh heavily against the Applicant principally due to the number of his offences and the lengthy period of his offending.
Other considerations
I find that the strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation, largely due to the evidence of the Applicant’s wife and daughter. When taking into account the close family that the Applicant has in Algeria against the difficulties that he may face in establishing himself and maintaining basic living standards, I find that this consideration neither weighs against or for the Applicant.
On balance, when weighing up the various factors and considerations relevant to this decision, I find that those factors that weigh against the Applicant, of which many weigh heavily against the Applicant, far outweigh those that weigh in his favour, which are for the most part of moderate or minor weight.
DECISION
The decision under review is affirmed.

155. I certify that the preceding 154 (one hundred and fifty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member R. Pintos-Lopez

.....[sgd]...................................................................
Associate
Dated: 26 February 2018

Date of hearing: 16 February 2018

Representative for the Applicant: Sharon Ivano

Solicitor for the Respondent: David Brown

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing:	16 February 2018
Representative for the Applicant:	Sharon Ivano
Solicitor for the Respondent:	David Brown
Solicitors for the Respondent:	Australian Government Solicitor