Taillez and Minister for Immigration and Border Protection (Migration)

[2016] AATA 1045

Taillez and Minister for Immigration and Border Protection (Migration) [2016] AATA 1045 (20 December 2016)

Division	GENERAL DIVISION
File Number	2016/4453
Re	Serge Taillez
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member T. Tavoularis
Date	5 December 2016
Date of written reasons	20 December 2016
Place	Brisbane

The decision under review is affirmed.

........................[Sgd]................................................

Senior Member T. Tavoularis

Catchwords

MIGRATION – Decision not to revoke mandatory cancellation of visa – Applicant did not pass section 501 character test – visa cancelled – discretion should not be exercised to revoke cancellation – decision under review affirmed

Legislation

Migration Act 1958 (Cth), ss 499, 500, 501, 501CA

Criminal Code1899 (Qld), s 421

Cases

Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372

Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313

Secondary Materials

Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (“Direction No. 65”)

WRITTEN REASONS FOR DECISION

Senior Member T. Tavoularis

20 December 2016

INTRODUCTION

1. This is an application for review of the decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) not to revoke the mandatory cancellation (by virtue of s 501(3A) of the Migration Act (Cth) (“the Act”)) of the visa of Serge Henri Marcel Taillez (“the Applicant”) pursuant to s 501CA(4) of the Act. Under s 500(1)(ba) of the Act, this Tribunal has jurisdiction to review the decision of the delegate.

   BACKGROUND

2. The Applicant is a citizen of France. On 29 April 2005, he entered Australia holding a Class TZ Subclass 417 holiday visa. He currently resides in Australia with his wife, Angela Nicole Taillez, whom he married in March 2006.  

3. Via the sponsorship of his wife, the Applicant was granted a spouse (migrant) (subclass 801) visa on 13 November 2008. This matter concerns the circumstances surrounding the cancellation of this visa and the refusal of the Minister to revoke that cancellation.   

4. The Applicant has a lengthy criminal history for offences committed in this jurisdiction since 2009. This offending eventually came to the Minister’s attention and in correspondence dated 17 September 2014, the Minister considered the possible cancellation of the visa.[1] On that occasion, the visa was not cancelled. Instead, the Minister’s delegate (via this letter) told the applicant this:

   After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds on this occasion.  Your current Class BS Subclass 801 Spouse visa will continue to provide you with permission to remain in Australia.  However the delegate decided that you are to be give the following formal warning.

   Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future.  Disregard of this warning will weigh heavily against you if your case is reconsidered.[2] (emphasis in the original)

   [1] T Documents, T6, pp 44–46.

   [2] Ibid, p 44.

5. The abovementioned correspondence from the Minister (at the third page) contains a self-serving acknowledgement to be signed and dated by the applicant by way of confirmation of his understanding of the letter’s nature and effect.[3] It is not clear to me from the evidence as to whether this acknowledgement was signed and dated. In any event and in the absence of evidence to the contrary, postage receipt rules indicate that I should presume that, at the very least, the Applicant received this correspondence.

   [3] Ibid, p 46.

   The nature of the offending: (prior to 17 September 2014)

6. For the purposes of certain legislative tests and thresholds that I will apply later in this decision, it is necessary to examine the Applicant’s offending.

7. The offending conduct of this Applicant before his receipt of the warning letter dated 17 September 2014 is accurately summarized by the Minister’s representative at paragraph 8 of its Statement of Facts, Issues and Contentions.[4] The list of offences running from 30 June 2009 until 29 January 2014 makes for serious and sombre reading.

   [4] Exhibit 6, Respondent’s Statement of Facts, Issues and Contentions, pp 2-3, as extracted from T Documents, T 4, pp 18-20.

8. Viewed in total, a significant proportion of this group of offences are serious because of their very nature. The sombre aspect of the offending is that the severity of the offences seemingly graduates with the passage of time.

9. The following examples from the Applicant’s criminal history demonstrate this point:

   ·30 June 2009 (Brisbane Magistrates Court) – unauthorized dealing with shop goods - $100 fine (no conviction recorded);

   ·20 December 2012 (Richlands Magistrates Court) – possess property suspected of having been used in connection with the commission of a drug offence - $350 fine (no conviction recorded);

   ·29 January 2014 (Ipswich Magistrates Court) – unlawful use of a motor vehicle, stealing and enter premises with intent to commit indictable offence - 6 months imprisonment;

   ·29 January 2014 (Ipswich Magistrates Court) – stealing, attempted stealing and possess by day instrument of house with intent to commit indictable offence – 6 months imprisonment;

   ·29 January 2014 (Ipswich Magistrates Court) – stealing – 6 months imprisonment;

   ·29 January 2014 (Ipswich Magistrates Court) – stealing and fraud – 12 months imprisonment;

   ·29 January 2014 (Ipswich Magistrates Court) – two counts of possessing dangerous drugs, possessing property suspected of having been used in connection with the commission of a drug offence, two counts of possess property suspected of having been acquired for the purpose of committing a drug offence, two counts of contravening direction, possession of knife in a public place or school, failure to take reasonable care and precautions in respect of syringe or needle, two counts of possess utensils or pipes etc., enter premises and commit indictable offence - 18 months imprisonment and $900 fine.

   The nature of the offending: post 17 September 2014

10. The theme of the Applicant’s offending after receipt of the warning letter of

    
    

    17 September 2014 is consistent – if not in sentencing terms then certainly in style – with the bundle of offences that came before the Court in January 2014:[5]

    ·15 July 2015 (Richlands Magistrates Court) – possess knife in a public place or school, unlawful possession of dangerous drugs, possess utensils or pipes etc. and possess dangerous drugs – $1,000 fine (conviction recorded);

    ·17 August 2015 (Richlands Magistrates Court) – possess dangerous drugs, possess utensils or pipes etc. and fail to dispose properly of needle and syringe - $1,200 fine (conviction recorded);

    ·19 August 2015 (Richlands Magistrates Court) – enter premises and commit indictable offence – 1 month imprisonment (suspended, although this suspension was revoked per paragraph 12 below);

    ·9 March 2016 (Brisbane Magistrates Court) – stealing – fined $200.

    [5] For all charges, see T Documents, T 20, pp 96-98.

11. To my mind, the most significant of the post warning letter group of offences came before the Brisbane Magistrates Court on 6 November 2015. The Applicant was dealt with on two matters:

    (i)1 count of entering or being in premises for the actual commission of an indictable offence pursuant to s 421(2) of the Criminal Code 1899 (Qld) (“the Criminal Code”). This offence carries a maximum penalty of 14 years imprisonment;

    (ii)1 count of gaining entry to premises by break (that is, forcible entry) for the actual commission of an indictable offence pursuant to s 421(3) of the Criminal Code. This section provides that an offender found guilty of an offence under s 421(3) “… is liable to imprisonment for life.”

12. This offending, in turn, breached the terms of a 1 month custodial term (suspended for an operative period of 12 months) imposed on 19 August 2015. For both the offending pursuant to s 421 of the Criminal Code and the invoked one month suspended custodial term, the Applicant was sentenced to 12 months imprisonment. Both terms were ordered to be served concurrently with a parole release date set for 6 March 2016.[6]

    [6] Ibid.

13. As part of this sentencing regime, the Applicant was ordered to make restitution in the amount of $20,760 representing the value of property stolen as a result of the offending under s 421 of the Criminal Code.[7]  

    [7] Ibid.

14. On 2 March 2016, the Minister cancelled the Applicant’s visa pursuant to s 501(3A) of the Act.[8] On 12 March 2016, the Applicant requested revocation of the Minister’s mandatory visa cancellation.[9] On 27 July 2016, the Minster’s delegate refused to revoke the mandatory cancellation.[10] On 24 August 2016, the Applicant applied to this Tribunal for review of the refusal to revoke the mandatory cancellation.[11]

    [8] T Documents, T 7, pp 47-51.

    [9] Ibid, T 11, pp 57-60.

    [10] Ibid, T 16, pp 76-82.

    [11] Ibid, T 2, pp 3-10.

    ISSUES

15. The refusal to revoke the mandatory cancellation was made on 2 grounds. I must consider and address both of the following issues:

    (a)whether the Applicant passes the “Character Test” as defined in s 501(6) of the Act; and

    (b)whether, having regard to the considerations in Ministerial Direction No 65, the discretion appearing in s 501CA(4) of the Act should be exercised to find another reason why the mandatory cancellation decision should be revoked.

16. I am satisfied that the Applicant does not pass the character test in s 501(6), and consider that the Minister’s delegate correctly exercised the discretion in s 501CA(4) of the Act to refuse to revoke the mandatory cancellation. My reasons are set out below.

    ISSUE 1:  DOES THE APPLICANT PASS THE CHARACTER TEST?

17. It is not immediately clear to me from material filed on his behalf whether the Applicant seeks to dispute the respondent’s contention that he does not pass the character test.  However, for the sake of completeness of these reasons, I will address it here.

18. Section 501(6) of the Act provides a number of circumstances in which someone will not meet the “Character Test”. Most relevant here is s 501(6)(a), under which a person does not pass the character test if they have a “substantial criminal record”, as defined in s 501(7). In s 501(7), a person has a “substantial criminal record” if they have been sentenced to a term of imprisonment of 12 months or more.[12] The wording of that provision is clear: it relates to the sentence imposed by a Court, not the amount of time a person has actually served. 

    [12] Migration Act 1958 (Cth), s 501(7)(c).

19. As mentioned above, the Applicant has been sentenced to not one, but three terms of imprisonment of 12 months or more. He was sentenced to 18 months for drug and other offences in January 2014; 12 months for stealing and fraud also in January 2014; and 12 months for entering premises with intent to commit an indictable offence and for breach of a suspended term of imprisonment in November 2015. It is immaterial that the former two sentences were to be served concurrently.[13]

    [13] Ibid, s 501(7A).

20. The Applicant therefore has a substantial criminal history within the meaning of that subsection such that he does not pass the character test. I must therefore move to the next question: whether the discretion under s 501CA(4) of the Act to revoke the mandatory cancellation of this visa should be exercised.

    ISSUE 2: SHOULD THE s 501CA(4) DISCRETION TO REVOKE THE MANDATORY CANCELLATION OF HIS VISA BE EXERCISED?

    Was the original decision to revoke correct?

21. Under s 501(3A) of the Act, a mandatory cancellation of a visa must occur if the Minister’s delegate (or other decision maker) is satisfied that the person holding the visa:

    (a)does not pass the character test[14] on the basis of, inter alia, the person has been sentenced to a term of imprisonment for 12 months or more;[15] and[16]

    (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 Territory.[17]

    [14] Ibid, s 501(6)(a).

    [15]Ibid, s 501(7)(c).

    [16] Ibid, s 501(3A)(a).

    [17] Ibid, s 501(3A)(b).

22. Cancellation of the visa occurred on 2 March 2016. This was before the Applicant’s parole date for his most recent offence. As both elements are satisfied, I therefore find that the original decision of the Minister to cancel this visa was a correct one pursuant to s 501(3A) of the Act.

    Can the mandatory cancellation be revoked?

23. In the event of a cancelled visa, the Minister must, pursuant to s 501CA of the Act, give the affected person:

    (a)written notice setting out the original decision;[18] and

    (b)particulars of the relevant information;[19] and

    (c)invite the affected person to make representations to the Minister about revocation of the original decision.[20]

    [18] Ibid, s 501CA(3)(a)(i).

    [19] Ibid, s 501CA(3)(a)(ii).

    [20] Ibid, s 501(CA)(3)(b).

24. For the purposes of this decision, I also consider there has been due compliance with the provisions of s 501CA(3)(a) and (b).

25. Section 501CA(4) gives the Minister power to revoke the mandatory cancellation decision if:

    (a)the affected person makes representations for review of that decision;[21] and

    (b)the Minister is satisfied that:

    (i)the person passes the character test (as defined in s 501);[22] or

    (ii)there is another reason why the original decision to cancel the visa should be revoked.[23]

    [21] Ibid, s 501CA(4)(a).

    [22] Ibid, s 501CA(4)(b)(i).

    [23] Ibid, s 501CA(4)(b)(ii).

26. I find that the Applicant has made appropriate and lawful representations to the Minister. I have already found that this Applicant does not meet the requirements of the character test.

27. The only remaining possibility is for the Applicant to satisfy the Minister (for present purposes, this Tribunal) to exercise his/its discretion (pursuant to s 501CA(4) of the Act) to revoke the mandatory cancellation of his visa.

    The legislative framework

28. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with Direction No 65 (“the Direction”). The Direction provides guidance for decision makers on how to exercise the discretion. Relevantly, it states that:

    …a decision maker must take into account the considerations in Part A or Part B where relevant in order to determine whether a non-citizen will forfeit the privilege of being granted or of continuing to hold a visa.[24]

    [24] Direction No 65, paragraph [7].

29. The considerations relevant to cancelling a non-citizen’s visa appear in Part A of the Direction. Paragraph 9 of the Direction provides the 3 primary considerations that the Tribunal must take into account:

    (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.

30. Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case. The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 10 of the Direction. These considerations are:

    (a)International non-refoulment 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.

31. The Direction also sets out at paragraph 6.3 a number of principles that should be taken into account when assessing the above considerations. Relevantly, some of those principles include:

    1… Being able to come into or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.[25]

    2The Australian community expects that the Australian government can and should refuse entry to non-citizens or cancel their visas, if they commit serious crimes in Australia or elsewhere.[26]

    3A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community, … should generally expect to be denied the privilege of coming to or to forfeit the privilege of staying in, Australia.[27]

    4…

    5Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for only a short period of time…[28]

    Primary Consideration A:  Protection of the Australian Community from Criminal or Other Serious Conduct.

    [25] Direction No 65, paragraph 6.3(1).

    [26] Direction No 65, paragraph 6.3(2).

    [27] Direction No 65, paragraph 6.3(3).

    [28] Direction No 65, paragraph 6.3(5).

32. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 9.1(2) of the Direction further provides that decision makers should also give consideration to:

    (a)The nature and seriousness of the non-citizen’s conduct to date; and

    (b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    (a) The Nature and Seriousness of the Applicant’s Conduct to Date

33. The Applicant’s conduct to date is clearly of a serious nature. Across a relatively short span of time (2009 to 2016 – barely a fifth of his life) his criminal record is lengthy, involving commission of dozens of offences. The sheer number and frequency of offending across a relatively short span of time inevitably results in a pattern of re-offending with a particular propensity towards property and drug-related offences. This type of offending, to my mind, has its roots in the Applicant’s issues with heroin. His offending seems oriented towards either:

    (a)obtaining items of value that can be sold to buy drugs (e.g. property, stealing and fraud offences); or

    (b)being in actual possession of dangerous drugs and associated utensils or paraphernalia; or

    (c)conduct indicating active participation or association with a drug culture or environment (e.g. possession of knife in a public place, possession of property suspected of having been used in the commission of a drug offence).

34. I therefore have little difficulty in agreeing with the Minister’s delegate in finding that the totality and repetitive nature of this Applicant’s offending can be viewed seriously in terms of its overall impact on the community.

35. The seriousness of this offending is illustrated by the sentences the Courts have imposed for this offending. This Applicant has been sentenced to respective custodial terms:

    ·once for 18 months in January 2014;

    ·twice for 12 months in January 2014 and November 2015;

    ·three times for 6 months in January 2014;

    ·once for 1 month in August 2015.

36. The present duration of this Applicant’s period of offending runs from June 2009 to March 2016 (“the period of offending”). That comprises a period of roughly 6 years and 9 months or 81 months or 2,460 days. The totality of custodial time to which he has been sentenced is approximately 5 years and 1 month or 61 months or 1,830 days. This means he has been sentenced to combined custodial terms representing approximately 75.3% of the period of offending. The totality of time he has spent in actual custody is 155 days (from the January 2014 sentencing regime) plus 120 days (from the November 2015 sentence), giving an approximate total of 275 days. This means he has spent over 11% of the total period of offending in actual custody.

1. On any reasonable view, both of the abovementioned percentages for (a) sentenced custodial time and (b) actual time served are, in my view, very significant especially in the context of the relative brevity of the period of offending.

2. I agree with the Minister’s contention that in addition to the nature and type of offending, the fact that this Applicant has been sentenced to terms of imprisonment and has spent actual time in custody, is a serious consideration. It is serious because the Courts most often regard sentencing a defendant to an actual term of imprisonment as a last resort. This Applicant received his first custodial sentence in 2014. His criminal history shows he started offending in 2009, was sentenced to his first custodial term in January 2014 with two additional custodial sentences in August 2015 and November 2015. To receive this number of custodial terms across the period of his offending and also bearing in mind the length of these sentences, it is, I think a clear reflection of the objective seriousness of the offences involved.   

3. The nature and seriousness of the offending is also apparent from the remarks of the sentencing Magistrate in January 2014. He used words such as “high end criminality”, “planned criminality”, “well thought out criminality” and “significant offending”.[29] Those remarks are clear enough to any decision maker.

   [29] T Documents, T 22, p 107.

4. To my mind, and particularly for present purposes, it is the gradual escalation of the severity of the offending that is of most concern. His early offending in 2009 and 2012 is for relatively minor things, for which small fines and/or good behaviour bonds formed the predominant type and style of punishment. As mentioned earlier, it is the graduation in severity of the type of offending, and its apparent entrenchment in his pattern of conduct, that is of concern. This graduated offending in 2014 and 2015 indicates either direct involvement in a drug culture or conduct aimed at raising money or rendering a positive obligation to obtain drugs.

5. An additional indicator of the seriousness of the Applicant’s conduct derives not just from his offending but from his conduct in continuing to offend despite receiving a warning, in writing, from the Minister’s Department on 17 September 2014 that his visa was at risk of being cancelled. This letter encloses a full text of s 501 of the Act (containing the character test) and a copy of his criminal history, showing the totality of his then offending from 2009, including the serious matters for which he was sentenced in January 2014. Despite that warning, the offences in August 2015, November 2015 and March 2016 are committed.

6. In consideration of all of the above, I determine that the Applicant’s conduct has been of a very serious nature. Consequently, this factor weighs heavily in favour of exercising the discretion to cancel his visa.   

   (b) The Risk to the Australian Community Should the Applicant Continue to Commit further Offences or Engage in Other Serious Conduct

7. Paragraph 13.1.2(2) of the Direction provides two factors the Tribunal must have regard to in determining the risk to the Australian community of the Applicant re-offending or continuing to engage in other serious conduct. They are:

   (a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   (b)The 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 reoffending …

   The Nature of Potential Future Harm

8. As a general principle, the Direction also provides – logically to my mind – that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.   

9. This Applicant is obviously a repeat offender with a serious criminal history. Having regard to the nature of the past conduct – including two offences  for being in possession of a knife in a public place or school and possession of a 300mm “Samurai” style knife – I am of the view that were he to re-offend in a similar manner, he could pose a grave risk to individuals in the Australian community.

10. Particularly, ill-considered and irrational use of the 300mm “Samurai” style knife (or other knife) could clearly result in members of the Australian community suffering anything from serious physical and psychological injuries to death. 

11. Though I recognise that the Applicant contends that he poses no future risk of harm, this contention is unsubstantiated. Taking into consideration the nature of his previous offending, I consider that the potential future harm he may cause to members of the Australian community is great.

    The Likelihood Re-offending or Continuing to Engage in Other Serious Conduct

12. The Applicant contends that he is not likely to continue to offend or otherwise engage in serious conduct because he has changed. He says that the version of himself that committed a number of serious offences no longer exists.

13. Whilst I recognize the Applicant says the spectre of deportation will have a lasting impact on his behaviour, I do not consider this sufficient ground for finding that he is not likely to re-offend.  

14. The Applicant has received three sentences of imprisonment, yet this has had no discernible impact on his pattern of offending. It is therefore unlikely that being detained or being removed from his family is a sufficient catalyst for the Applicant to change his ways. Further, he was issued with a notice of intention to consider cancellation of his visa under s 501(2) of the Act via a letter dated 25 July 2014. This was 6 months after imposition of the January 2014 sentencing regime. Yet when the Applicant knew his visa would likely be the subject of cancellation action and that he would thereby need to pass the “character test”, he was again before the Court in August and November 2015 and March 2016. This indicates to me that even if the Applicant considers himself a changed man, it is likely that he will eventually return to his previous pattern of offending.

15. Mention should also be made of the Applicant’s contention that he has completed a 6 week drug rehabilitation programme while on parole.[30] There is no independent evidence before me that such course was completed. Since making that contention in 2014, he has again offended in August and November 2015 and March 2016. Worryingly, if I were to accept that drug addiction was the primary cause of the Applicant’s offending, his continued offending points towards a relapse back into heroin, which raises the very real possibility of continued offending. In her letter of 24 March 2016, Dr Catherine Wren tells the Minister’s Department that the stress of an altercation between the Applicant and his father-in-law has:

    …. resulted in a relapse back into heroin use, and need for higher doses of medication.[31]

    [30] T Documents, T5, p 34.

    [31] T Documents, T30, p145.

16. The Applicant says he has been rehabilitated while in prison and then in immigration detention. However, I think this contention is negatived by the refusal of the relevant authorities to release him back into the community. I therefore agree with the Respondent’s contention that because he has not been in an unsupervised environment within the community since his claimed rehabilitation, the likelihood of the Applicant’s re-offending if released back into the community remains a real possibility.  

17. As a decision maker determining an application like this, I cannot cause the Tribunal to go behind the Applicant’s original convictions. Rather, I have to accept the findings of fact upon which the convictions are based.[32] This Applicant’s offending (especially from January 2014 onwards) and his continued offending despite the letter from the Minister in mid-2014 threatening to cancel his visa, constitutes behaviour showing a still flawed ability to distinguish right from wrong. This again increases the likelihood of offending.   

    [32] Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372 AT 408 – 409; [2011] AATA 304 at [121]. See further Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; [2000] FCA 1385 at [41] – [45] per Branson J for a summary of the law relating to the way in which an administrative decision –maker may have regard to a conviction and the facts on which it is based.

18. In consideration of the above factors, I determine that primary consideration A – protection of the Australian community – weighs heavily in favour of not revoking the mandatory visa cancellation decision.   

    Primary Consideration B: The Best Interests of Minor Children in Australia Potentially Affected by the Decision

19. There are no live issues or contentions before me concerning the interests of minor children in Australia who would be affected by this decision.   

    Primary Consideration C:  The Expectations of the Australian Community

20. I turn now to the final primary consideration: the expectations of the Australian community.  In making this assessment, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community, and whether the Australian community would expect that someone with his character concerns and history of offending should continue to hold a visa. I must also have regard to the Government’s views in this respect.

21. As has been noted above, the Applicant has a significant history of criminal offending, including at least 14 criminal and other convictions for something in the order of more than 30 individual counts and 3 sentences of imprisonment of at least 12 months. This history includes possession of a 300mm “Samurai” type knife which, to my mind, warrants some discussion. It is clearly not a mainstream or commonplace utensil or minor-level weapon such as a Swiss Army knife or even a standard household knife. It is apparent to me from the police report that the Applicant was in the possession of the knife in anticipation of using it in a violent way, even if it were for self-defence. In the relevant statement of facts relating to this offence, the following is noted:

    Police asked the defendant if he consented to a search of the vehicle, to which the defendant agreed.

    During the search, Police located a ‘samurai’ style knife. The knife had a black-braided handle, and a metal blade approximately 300mm long. The knife was stored in the dashboard, with the blade protruding into the dash, and the handle next to the steering wheel.

    When questioned, the defendant stated that he owns the knife, and that he owns it because he sometimes sleeps in the car with his wife, keeping it within “easy reach for safety”

    The defendant stated that he does not work or preform any sort of labouring duties that would require the use of a knife…[33]

    [33] Exhibit 6, attachment to Respondent’s SFIC, Queensland Police Service Court Brief (QP 9 Documents), charge 5 of 5.

22. I have significant doubts as to whether the Australian community would expect that someone with an extensive criminal record like the Applicant’s would be granted or allowed to keep his visa. 

23. Having regard to all of these circumstances, I find that this consideration weighs heavily in favour of not revoking the mandatory visa cancellation.

    Other Considerations

24. I turn now to other considerations listed at paragraph 10 of the Direction.[34] I have considered sub-paragraphs (b), (d) and (e) below. Sub-paragraphs (a) and (c) have little or no reference to this matter. (See paragraph 30 above for the full statement of these sub-paragraphs).

    [34] Direction No 65, paragraph 10(1).

25. In relation to the strength, nature and duration of his ties in Australia,[35] the Applicant has spent two-thirds of his life residing outside of Australia. He is married to an Australian citizen. I agree with the Minister’s contention that any hardship caused to his wife would be removed if she moved with him to France. I note from her evidence at the hearing that she says she would follow him back to France. 

    [35] Direction No 65, paragraph 10(1)(b).

26. I also find that in circumstances where the Applicant has spent most of his life in France, and has a number of immediate family members there, I consider that he would have little or no impediments[36] in establishing himself and maintaining basic living standards in France.

    [36] Direction No 65, paragraph 10(1)(e).

27. The Applicant is multi-skilled – a matter that goes to his credit.  He has worked in areas as diverse as carpentry, forklifting driving, concreting, warehouse administration, screen printing and as a chef. He had a workplace accident in 2007 but has worked since August 2014 as a carpenter on a full time basis.  I therefore agree with the Minister’s contention that there is no likely impediment to his finding similar work in France. At the hearing, the Applicant said he received something in the order of $200,000 as a net payout from his abovementioned workplace injury claim. He said he used the money towards the purchase of a motor car and motorcycle. He said the balance of the $200,000 was spent by him and his wife on drugs.

28. I also agree with the contention that there are little or no substantial language or cultural barriers for this Applicant to overcome if compelled to return to France. He is a French citizen. He would have the same access to social, medical and economic support as other French citizens.   

29. Having regard to the three factors I have considered under the category of “Other Considerations”, I do not think any of them outweigh the considerations favouring non-revocation of the mandatory visa cancellation decision.

    CONCLUSION

30. There is no doubt that, on the basis of his offending, the Applicant does not pass the character test as defined in s 501(6) of the Act. In then considering whether to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory cancellation decision, I have had regard to the considerations referred to in the Direction. Primary considerations A and C weigh heavily in favour of non-revocation of the mandatory visa cancellation decision. The strength of the Applicant’s ties to Australia does not weigh particularly strongly against non-revocation, and there are few impediments to his successful re-settlement in France.

31. Accordingly, the sealed version of my oral decision was couched in these terms.

32. For the reasons outlined above and given orally at the conclusion of the hearing in this matter, I affirm the decision under review.

I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

........................[Sgd]................................................

Associate

Dated 20 December 2016

Date of hearing	5 December 2016
Applicant	In person
Advocate for the Respondent	Ben Dube
Solicitors for the Respondent	Sparke Helmore