Zaoui and Minister for Immigration and Citizenship

[2011] AATA 515

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 515

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/1620

GENERAL ADMINISTRATIVE DIVISION		)
Re		Samir Zaoui

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Senior Member A K Britton

Date26 July 2011

PlaceSydney

Decision The decision under review is affirmed.

........................[sgd]......................

Senior Member A K Britton

CATCHWORDS

MIGRATION – visa cancellation – character test – Ministerial Direction – weighing of relevant considerations – decision under review affirmed

Migration Act 1958 (Cth) – ss 499, 501

Direction [no. 41] – Visa refusal and cancellation under s 501

Minister for Immigration & Citizenship v Toma (2011) 191 FCR 362; [2011] FCA 91

R v Zaoui [2010] NSWDC 179

Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390; [2011] FCA 194

REASONS FOR DECISION

25 July 2011  Senior Member A K Britton

1.In April of this year, the Minister for Immigration and Citizenship decided to cancel Mr Samir Zaoui’s Australian visa. Mr Zaoui now applies to the Administrative Appeals Tribunal for review of that decision. An Algerian citizen, Mr Zaoui is currently serving two consecutive 12 month sentences for convictions relating to multiple charges of obtaining money by deception. Mr Zaoui’s long criminal history relates mainly to offences involving dishonesty. In the past ten years he has served approximately nine separate custodial sentences and spent a total of just under four years in custody. 

2.Mr Zaoui is 47 years of age. He has lived in Australia continuously since his arrival in 1988. He was granted permanent residency in 1989.

3.Shortly after arriving in Australia, Mr Zaoui married. He has had almost no contact with the four children of that marriage since the late 1990s. Since 2001, Mr Zaoui has been in a relationship with Australian citizen, Ms Verona Schmidt.  Despite living apart for much of their relationship, Mr Zaoui and Ms Schmidt see themselves as a couple.

4.Mr Zaoui does not pass the “character test” because he has a “substantial criminal record” and therefore the discretionary power to cancel his visa is enlivened: s 501 of the Migration Act 1958 (Cth) (“the Act”). The issue to be decided in this matter is whether that power should be exercised. In making that decision, “Direction [no. 41] – Visa refusal and cancellation under s 501” (the Direction), issued by the Minister under s 499 of the Act, must be applied.

Factors relevant to the exercise of power to cancel Mr Zaoui’s visa

5.The Direction instructs that in exercising the power conferred by s 501, due consideration must be given to the Government’s objectives as set out in the preamble to the Direction:

5.1 Objectives

(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.

(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.

(3)The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.

6.The Direction lists a number of “primary” and “other” considerations that must be taken into account by the decision-maker, and instructs that “other considerations” — namely those listed at cl 11 — should generally be given less weight than primary considerations: cl 11(2).

7.The primary considerations are set out in cl 10(1) of the Direction:

(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b) whether the person was a minor when they began living in Australia;

(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d) relevant international obligations, including but not limited to:

(i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

Primary Considerations

(a) Protection of the Australian Community

8.Factors relevant to assessing the risk of harm to the community of Mr Zaoui’s continued stay in Australia include: (i) the seriousness and nature of the relevant conduct; and (ii) the risk that the conduct may be repeated: cll 10.1.1 and 10.1.2.

(i) Seriousness and nature of the conduct

9.          The Direction sets out at cl 10.1.1(1) a number of factors that must be taken into account in assessing the seriousness and nature of the offending conduct and states:

Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.

10.        Clause 10.1.1(3) states that the sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community, and due regard must be given to the extent of the offender’s criminal record including:

(i)        the number and nature of offences;

(ii)       the period between offences; and

(iii)      the time elapsed since the most recent offence.

11.Clause 10.1.1(4) states that the following factors are also to be considered in the assessment of the seriousness and nature of the conduct:

(a) any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;

(b) any relevant factors the person provides as mitigating factors;

…

12.Mr Zaoui’s criminal history is set out at Annexure A to these Reasons. Of the many offences for which he has been convicted, few involve violence or the threat of violence — crimes identified in the Direction as being of “special concern to the Australian community”. The three assaults for which he was convicted occurred in a domestic context and were dealt with by way of non-custodial sentences.

13.In the past ten years, Mr Zaoui has been convicted of numerous dishonesty type offences. On appeal (R v Zaoui [2010] NSWDC 179), Judge Berman DCJ described at [1] the 43 charges of “Obtain Money By Deception” for which he was convicted in March 2010 in this way:

Samir Zaoui hit upon a remarkably simple way of defrauding people of money. He would go into small business, usually a pizza store or something similar, and say that his car had broken down, it needed a new battery and the NRMA wanted some money to replace the battery. He must have been quite convincing because he seems to have been very successful. There are more than fifty occasions when the offender has, through those means, obtained money from people by that deception. On occasions there was not enough money in the till to pay him the money that he required and so employees would provide their own money. On one occasion he even went with an employee to an ATM, it did not work so they went to a second ATM before finally the employee handed over $400. The money appears to have been spent by Mr Zaoui on drugs. He was an industrious, hardworking conman.

14.Mr Zaoui has been convicted for a large number of similar offences in Victoria in 2007, NSW in 2006 and Queensland in 2003.

Period between offences: 

15.Over the past decade the only significant period when Mr Zaoui has not offended has been when he was incarcerated. His offending has escalated in recent years.

Time elapsed since most recent offence:

16.Mr Zaoui’s most recent offence was committed on 29 October 2009. He has been in prison since that day.

Mitigating factors:

17.It is argued for Mr Zaoui that his offences can be explained (though not excused) in part by his drug and alcohol addiction and gambling habit.

18.Mr Zaoui admits to a long history of gambling and drug and alcohol use. He claims that he offended in order to feed his habits.  He started drinking heavily in the mid-1990s around the time his relationship with his wife began to deteriorate. Over the past decade he has used a variety of illicit drugs.  He claims not to have used illicit drugs or alcohol throughout his current custodial sentence, which commenced about 22 months ago — on his account, the longest period in his adult life he has not used drugs and alcohol.

19.For the purpose of these proceedings, Mr Zaoui was assessed by psychiatrist, Dr Jonathon Adams. Dr Adams was of the opinion that Mr Zaoui’s long term polysubstance abuse had resulted in interpersonal, mental state, employment, financial and offending problems.

(ii) Risk that the conduct might be repeated

20.In assessing the risk that Mr Zaoui’s offending conduct might be repeated, the Tribunal’s task “is one of ‘assessing any risk of re-offending” having regard to the “highly relevant” and “particularly relevant” factors set out in subcll (1) and (2) of cl 10.1.2”: Minister for Immigration & Citizenship v Toma (2011) 191 FCR 362 at 372-373.

Previous general conduct

21.There is no evidence of Mr Zaoui having committed any offences before he arrived in Australia.  Nor is there evidence of any serious misconduct prior to the deterioration in his relationship with his wife in the mid-1990’s.

Evidence of rehabilitation

22.Apart from two short courses completed in the last 12 months while in custody, Mr Zaoui has not completed any drug or alcohol rehabilitation programs.  In 2005, as a condition of bail, he was ordered to attend a residential drug and alcohol rehabilitation program. He left after a week. In November 2006 he was released on parole on condition that he participate in a program offered by the Glen Residential Rehabilitation Centre but did not attend the course.

23.In September 2006, Mr Zaoui was invited by the Department of Immigration to show cause why his Australian visa should not be cancelled on account of his criminal history. In a statutory declaration dated 18 September 2006, in urging the Department not to cancel his visa, Mr Zaoui declared that he was committed to undertake rehabilitation and to reform. He explained that he had not completed the rehabilitation course in 2005 because the other attendees, the majority of whom were of Aboriginal descent, were prejudiced towards him and had threatened him.  He also declared that he raised these problems with “the authorities” who suggested he attend a rehabilitation centre in Queensland. Mr Zaoui was subsequently arrested in Queensland for breaching the conditions of his parole. There is no evidence that he undertook, or made enquiries about undertaking, rehabilitation in Queensland.  Nor is there any evidence to corroborate Mr Zaoui's claim that he spoke to the authorities about his alleged mistreatment by other course participants.  

24.In his statutory declaration, Mr Zaoui also declared that on completion of his sentence, the following month he would be attending a rehabilitation program at the Glen Residential Rehabilitation Centre and on completion, to return to work as a chef.  As noted, he did not attend that course.

25.A condition of the grant of parole in respect of his current custodial sentence is that Mr Zaoui undertake a drug and alcohol rehabilitation program.  Mr Zaoui has been accepted into a residential drug rehabilitation program run by Odyssey House.  He claims that he has every intention of completing that program if he is permitted to stay in Australia.

26.Dr Adams was of the opinion that, given Mr Zaoui’s long history of illicit drug and alcohol use, he would benefit from a supported and structured environment to undertake rehabilitation and the program he had been offered by Odyssey House was suitable.

Evidence of breaching judicial orders etc.

27.Mr Zaoui has a long history of breaching court orders and directions made by parole services. In May 2002 he was convicted on three charges of contravening apprehended domestic violence orders in relation to assaults on his former wife; in June 2003 he was convicted of “breach of bail undertaking”; in July 2006, he was convicted on two charges of “failed to appear in accordance with bail undertaking” and sentenced to four months’ imprisonment.  In a pre-sentence report prepared in March 2010, after referring to Mr Zaoui's long history of breaching court orders and directions and of not complying with parole conditions, the NSW Probation and Parole Service noted that Mr Zaoui “demonstrated in the past that he has been unwilling to comply with Court orders and has failed to comply with supervision requirements of our service”. He was assessed by the Service as being unsuitable for a community service order. 

Mental health issues

28.Dr Adams was unable to complete his assessment of Mr Zaoui because of difficulties in arranging access to Mr Zaoui in custody. Dr Adams concluded that although Mr Zaoui is being treated with anti-psychotic medication and the records of Justice Health NSW and his GP refer to him exhibiting psychotic symptoms on occasion, given the limited opportunity he had to interview Mr Zaoui, he was unable to make a definitive and reliable diagnosis. For that reason he also felt unable to comment on his risk of recidivism.

Commitment to change

29.Mr Zaoui testified that during his current term in prison, he has come to realise that his life has become an endless cycle of drinking, drug use, gambling and stealing and he is now determined to break that cycle.  When asked what has changed since making a similar claim in the 2006 statutory declaration submitted to the Department, Mr Zaoui claimed that he only now realises that he must break the cycle of substance abuse, gambling and crime that has engulfed his life if he is to restore his relationship with his children and put his life back on track. He also stated that in 2006 he did not treat the threat made by the Department to cancel his visa as serious and only now realises that there is a real possibility he might be deported.  Ms Schmidt believes Mr Zaoui’s commitment to turn his life around is genuine. His eldest daughter testified that she is committed to assisting her father and that she understands that her siblings are as well.

Protection of the Australian Community: Findings and Conclusions

30.The primary consideration of the protection of the Australian community requires consideration to be given to both the seriousness of the subject conduct and the risk that it might be repeated. 

31.Taken individually, the many offences for which Mr Zaoui has been convicted could not be considered as particularly serious. Most involved defrauding individuals of relatively small amounts of money. Only a few involved violence.  The majority were dealt with by way of a bond or community service order and where a custodial sentence was imposed, it was relatively short. However as instructed by the Direction the seriousness of Mr Zaoui’s conduct cannot be assessed by reference to the nature of the offences alone, the number is also relevant. Not only has there been a pattern of regular offending over the past decade, but it has escalated in recent years. When viewed overall, in my opinion Mr Zaoui’s offending conduct can only be characterised as serious.

32.Mr Zaoui’s long criminal history indicates scant regard for the law and social norms. For the past decade he has been habitually untruthful and breached numerous undertakings made to the courts and parole services.

33.As properly acknowledged for Mr Zaoui, his risk of recidivism is inextricably tied to whether he completes a structured drug and alcohol program. His unsupported but uncontradicted claim of not using drugs or alcohol over the last 22 months, even if accepted, does not establish that Mr Zaoui will be able to resist the temptation to use drugs and alcohol on his release.  At best, it shows that while in prison he had been able to suppress his desire. The Odyssey House program is the third opportunity of rehabilitation that has been offered to Mr Zaoui in recent years.  Not only has he failed on two previous occasions to avail himself of similar opportunities but, in doing so, has breached undertakings given to the courts and parole services. As noted in the report prepared by the NSW Probation and Parole Service in February 2010 “… it appears from his history that his willingness to attend a residential rehabilitation facility increases at the time of him being sentenced by the Court.”

34.It goes without saying that where a person with a long criminal history claims to be committed to reforming their behaviour, it is difficult, if not impossible, to assess the veracity of that claim. In this case, there is little objective evidence that Mr Zaoui has acted on his purported “epiphany”. Apart from two short courses, he has not undertaken any drug or rehabilitation programs while in prison. While the undertaking given to the District Court of NSW to participate in a lengthy rehabilitation program was given prior to him receiving notice of the decision to cancel his visa, it was given in the knowledge that without such undertaking it was unlikely that his application for a reduction in his custodial sentence, albeit with an increase in his total sentence, would be granted.

35.Furthermore, Mr Zaoui’s long history of dishonesty raises doubts about the truthfulness of his claim especially given the evidence that he has continued to make untruthful claims after the claimed epiphany.  As recently as February of this year, for example, after being advised of the decision to cancel his visa, Mr Zaoui wrote in a “Personal Details form” provided to the Department of Immigration that he was in regular contact with his children. 

36.It may be, as suggested by his solicitor, that underlying Mr Zaoui’s long history of untruthfulness and disregard for the law is an untreated mental illness. Whatever the cause, I am unable to accept with any confidence Mr Zaoui’s claim that he is now genuinely committed to turning his life around.

37.Mr Zaoui’s total criminal history, recent history of convictions, failure to undertake rehabilitation and long history of breaching undertakings given to the courts and parole services, leaves me unable to conclude that his risk of recidivism is low. Even if accepted that his stated commitment to his children and Ms Schmidt and self-interest in remaining in Australia, will operate to reduce the risk of reoffending to some degree, I am unable to conclude that it is reduced to any substantial degree. In my opinion, he poses a high risk of reoffending. 

38.Given the seriousness of Mr Zaoui’s conduct and the real and material risk that he may reoffend, the consideration of the protection of the Australian community weighs heavily against him in the assessment of whether his visa ought be cancelled. 

(b) Whether Mr Zaoui was a minor when he began living in Australia

39.Mr Zaoui contends that this consideration weighs in his favour, because he has spent most of his life in Australia.  I do not agree, because this consideration will only weigh in a person’s favour if they were a minor when they began living in Australia and Mr Zaoui was 24 years of age when he migrated Australia.  That Mr Zaoui has been resident in Australia for a number of years has no bearing on the application of this consideration.

40.In Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390 at 396, Rares J noted that no guidance is provided in the Direction as to the weight that should be given to this Consideration where the visa holder was not a minor when they arrived in Australia. His Honour was of the opinion that a decision-maker is:

[E]ntitled to take into account the fact that a person who arrived in Australia as an adult, did so with the knowledge, duties and responsibilities of an adult in the position of the visa holder, at that time for the purposes of assessing what, if any, weight ought be given to that factor in the deliberative process.

41.In my view, the fact that Mr Zaoui was an adult when he began living in Australia weighs against him but only to a small extent.

(c) Length of time resident in Australia

42.Under the Direction, “More favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character”: cl 10.3(1).

43.Mr Zaoui has resided in Australia for 23 years. While this period of residence is significant, Mr Zaoui began engaging in criminal activity less than three years after arrival, such that this consideration weighs only slightly in his favour.

(D) The best interests of the child

44.Mr Zaoui has two children to whom this consideration applies (children under 18 years of age). They are aged 15 and 12.  Both are Australian citizens. 

45.The Direction instructs that it is generally presumed that a child's best interests will be served if a child remains with their parents: cl 10.4.1(4). This presumption is rebutted where there is any evidence that the person has neglected the child in any way, or the child has suffered any emotional trauma arising from the person’s conduct: cl 10.4.1(4). 

46.The Direction provides that the interests of each child be given individual consideration and that it not be assumed that the interests of each child will coincide. Clause 10.4.1(5) lists a number of factors that must be considered in assessing the best interests of each child.  They are addressed below in no particular order. 

47.Apart from two occasions in 2009, Mr Zaoui has had no contact with any of his children since 1999. Under cross-examination, he initially stated that the reason he did not see his children throughout that period was because he was fearful that his wife would report him for contravention of an AVO. He later conceded that he made no attempt to contact his children or seek legal advice about whether he could see them.

48.In 2009, following a chance meeting with one of his children, Mr Zaoui met up with his children on two occasions. On the first occasion, he took them to dinner at an exclusive restaurant in Sydney’s Darling Harbour, arranging a limousine to deliver them to and from the restaurant. Mr Zaoui claims that he and children had a wonderful time and were pleased to be reunited. His eldest daughter, who gave evidence in these proceedings, confirmed that claim. Mr Zaoui promised his children that he would continue to see them. Following the dinner, Mr Zaoui and his children met up again on one further occasion and he again promised to remain in contact.  After that meeting, his eldest daughter attempted to arrange a further meeting. Mr Zaoui gave various excuses and eventually went to live in Melbourne without leaving a forwarding address or any contact details. Mr Zaoui had no further contact with his children until they were contacted by his solicitor and advised of these proceedings. Three of his children visited him in gaol and two attended these proceedings.

49.According to Mr Zaoui, the reason he broke his promise to remain in contact with his children was because he was ashamed of his situation and did not want them to learn that he was not the rich and successful business man he had pretended to be.  He said he was comforted and relieved by the fact that his children, having learnt of his criminal history and reduced circumstances, were nonetheless prepared to accept him.

50.The two children relevant to this consideration were aged two and four when Mr Zaoui last had any substantial contact with them. For the past 11 years, parental responsibility for each child has fallen entirely to Mr Zaoui’s former wife. In my opinion, it is improbable that if Mr Zaoui were to remain in Australia he would play any meaningful parental role in respect of either child.  Neither child will accompany Mr Zaoui to Algeria if he were to be deported.

51.There is no direct evidence of the wishes of either child. Their eldest sister testified that when they visited him recently in prison they appeared very happy to see their father and she understood that they wanted him to stay in Australia. 

52.I think it most unlikely if Mr Zaoui were to be deported that he would maintain contact with his children. There is a greater likelihood that he would maintain some contact if he were to remain in Australia.

53.I accept that it would be in the best interests of both children to have the opportunity to resume contact with their father providing of course that he did not again disappear without explanation. However, given that he has been separated from them for over 11 years and played no parental role throughout that period and is unlikely to in the future, the extent to which this consideration weighs in Mr Zaoui’s favour is negligible. 

Other considerations

54.The Direction specifies a number of “other considerations” that must be taken into account, if relevant. They should generally be given less weight than the four primary considerations: cl 11(2).

Family and other ties

55.The only ties of any significance Mr Zaoui has to Australia are to his children and Ms Schmidt. 

Age and health

56.Mr Zaoui is 47 years old. He has a serious and untreated drug and alcohol addiction. While inconclusive, the evidence also suggests that he might suffer from some form of mental illness.

Links to Algeria

57.Mr Zaoui has not lived in Algeria since he was 17 years of age. He claims to have an aunt and two brothers who live in Algeria and a sister who lives in Morocco. His parents are deceased. He claims not to have seen any of his siblings since arriving in Australia and to have maintained limited contact with only two of his siblings. 

Hardship likely to be experienced by Mr Zaoui

58.There can be little doubt that Mr Zaoui will suffer significant hardship if he were to be deported for the following reasons.  First, he has not lived in Algeria for over 23 years. Second, he has limited contact with his few remaining relatives living in Algeria. In his words, “I have nobody in Algeria for me”. To date, Mr Zaoui has not made any enquiries about whether any of his  relatives remaining in Algeria would be prepared to provide him with any support.  He describes his situation in this way, “I have nobody in Algeria for me”. Third, if deported, he would be removed from his four children and Ms Schmidt.  While it is possible that his eldest children might visit him in Algeria, I accept Ms Schmidt’s claim that she would find it impossible to do so. Fourth, he would lose the opportunity to attend the Odyssey House rehabilitation program – which in my opinion probably represents Mr Zaoui’s best chance of breaking the cycle of chronic polysubstance use and criminality that has characterised his life over the past decade.  Fifth, it is uncertain whether he would be able to find secure accommodation in Algeria at least in the short term. Sixth, he claims that of the five languages he speaks, he is least fluent in Arabic, the official language of Algeria.  Seventh, Australia probably offers Mr Zaoui the best opportunity to have his mental health properly assessed and, if necessary, to receive treatment.

59.The hardship likely to be experienced by Mr Zaoui is ameliorated to an extent by the fact that his skills as a chef, are transportable.

Hardship likely to be experienced by Mr Zaoui’s family members resident in Australia

60.In my opinion, if Mr Zaoui was deported, his children and Ms Schmidt are likely to suffer hardship.

Ms Schmidt

61.Ms Schmidt and Mr Zaoui have lived together “on and off” for the past 11 years. While unsure, Ms Schmidt thought they had probably lived together for over half of that period.

62.Ms Schmidt suffers from schizophrenia and is currently under the care of a psychiatrist. She reports that she has been hospitalised on occasion; her last admission was some time ago. She is compliant in taking her medication.

63.Ms Schmidt claims that Mr Zaoui has always been good to her and never aggressive, even when intoxicated. On her account when she became unwell in 2003 and was later diagnosed with schizophrenia, he was accepting of her condition. She says that they are not just partners but also good friends who care for each other.

64.Ms Schmidt has not visited Mr Zaoui since he was incarcerated in September 2009 but claims that he rings her almost every day unless there is a “lock down” or he cannot afford to make a call.  She explained that the reason she had not visited Mr Zaoui in prison is because she finds it distressing to be in crowds and use public transport on account of her condition. 

65.Ms Schmidt claims that if Mr Zaoui were to be deported she would not be able to visit him or to move to Algeria. She claims that she could not afford to travel. She stated that a move to Algeria would not be possible on account of her health, and the fact that it would mean she would be separated from her family whom she is close to and relies upon for support.

66.Ms Schmidt claims that she would be devastated and probably suicidal if Mr Zaoui were to be deported. She claims that after her mother died in 2003, she became depressed, attempted suicide and was hospitalised. This occurred prior to her condition being diagnosed and treated.

67.Ms Schmidt and Mr Zaoui state that if he remains in Australia they intend to live together in Ms Schmidt’s apartment which she rents from the NSW Department of Housing. 

Mr Zaoui’s children

68.Unlike their younger siblings, Mr Zaoui’s two eldest children, now aged 19 and 21, spent their childhood with their father. I accept the evidence given by Mr Zaoui’s eldest daughter that she has very fond memories of her father. She also impressed me as a remarkable young woman who was genuinely committed to restoring a relationship with her father and assisting him to get back on his feet.

69.I have no doubt that Mr Zaoui would be missed by his two eldest children if he were to be deported. Any hardship they would suffer would be of an emotional nature. For the past 11 years he has not provided them with any financial support and nor is it likely that this will change.

70.The two youngest children would suffer the hardship, as discussed above, of losing the opportunity to get to know and develop a relationship with their father.

Notification of possible deportation

71.In November 2006 the Department of Immigration wrote to Mr Zaoui informing him that a decision had been made not to cancel his visa and advising that:

However, the Delegate of the Minister has also decided to issue a WARNING to you that conviction for ANY further offences will result in a fresh assessment being made to again consider cancellation of your visa.

Other considerations: Findings and conclusions

72.Of the “other considerations”, I consider the hardship likely to be experienced by Mr Zaoui, his children and Ms Schmidt and the fact that he has been warned of possible deportation, to be the most relevant. The person most likely to be adversely effected if Mr Zaoui were to be deported is, in my opinion, Ms Schmidt. She is emotionally vulnerable and I accept her claim that she would be devastated if he were deported. While the risk of self-harm cannot be excluded, Ms Schmidt’s condition has now been treated and stabilised for a significant period, during which time there has been no history of, or the threat of, self-harm, despite the very considerable distress frequent separation from Mr Zaoui must have caused.  For the reasons discussed above, Mr Zaoui would also suffer significant hardship if he were to be deported to Algeria. While Mr Zaoui’s children, especially the eldest two, would undoubtedly suffer some emotional pain if their father were to be deported, their mental health and emotional well-being is unlikely to be adversely effected.  These three factors plainly weigh in Mr Zaoui’s favour in the assessment of whether the power to cancel his visa should be exercised.

73.Weighing against Mr Zaoui and a factor which I believe to be of significant weight, is the fact that he went on to reoffend after being clearly notified that any further offending might result in the cancellation of his visa. 

Decision

74.In deciding whether to exercise the discretionary power to cancel Mr Zaoui’s visa, I must take into account both the primary and “other” considerations and undertake a balancing exercise. In doing so, I must be guided by the overarching general principle set out in the objectives to the Direction — that is, the protection of the Australian community.

75.The primary considerations taken as a whole weigh heavily in favour of the cancellation of Mr Zaoui’s visa. The real issue is whether the circumstances of this case warrant a departure from the directive that primary considerations “generally” are to be given more weight than “other considerations”: cl 11(2).  I believe that of the other considerations, the hardship that he and his partner will suffer if he is to be deported to be the most relevant. 

76.As is often the case in decisions made under s 501 of the Migration Act, competing considerations must to be taken into account. Here, the interests of the Australian community conflict with those of Ms Schmidt, Mr Zaoui and his children. While these are powerful factors that weigh in Mr Zaoui’s favour, it is impossible to ignore the high risk that he might reoffend, the relatively short period he was in resident in Australia before he started to offend, the fact that he arrived in Australia as an adult and significantly, that he went on to reoffend notwithstanding being notified that he would probably be deported if he did so. I have therefore decided that a departure from the directive that primary considerations are generally to be afforded more weight that “other considerations” cannot be justified in this case. In reaching that decision, I am mindful that the type of crimes Mr Zaoui is likely to commit could not be characterised as falling at the high end of the scale in terms of seriousness.

77.The exercise of the power to cancel Mr Zaoui’s visa is a difficult decision given the inevitable hardship that will be suffered by Mr Zaoui and Ms Schmidt and the pain it will cause his children. Nonetheless, in my view it is the preferable decision given the weight of factors that favour cancellation.  I have therefore decided to affirm the Minister’s decision to cancel Mr Zaoui’s visa.

ANNEXURE A

DATE OF CONVICTION	OFFENCE	PENALTY
1991	-   Drive Unregistered Vehicle -   Drive Uninsured Vehicle -   Use Licence Plates Calculated to Deceive	Fined $125. Two years’ good behaviour bond.
1992	-   Drive With High Range Prescribed Concentration of Alcohol -   Not Stop After Accident	Released on entering Recognizance Self $500 to be of Good Behaviour for three years. Licence disqualified for 6 months. Fined $100
1994	-   Assault	Released on entering Recognizance Self $400 to be of good behaviour for two years.
1996	-   Assault	Released on entering Recognizance $300 to be of good behaviour for twelve months.
1998	-   Common Assault	Community Service Order to perform 100 hours Unpaid Community Work
1999	-   Cheque Not Met On Presentation	Fined $1,000
2000	-   Contravene, Breach Warrant for 10 months – Breach Community Service Order
2002	-   Contravene Apprehended Domestic Violence Order (3 charges)	Fined $300
2003 (QLD)	-   Breach of Bail Undertaking -   Fraud – Dishonestly Obtain Property From Another (x 16) -   Wilful Damage -   Stealing -   Valueless Cheque Discharge Debt Liability Or Obligation    (x 2)	Imprisonment for 5 days. Imprisonment for 130 days concurrent Pay Restitution
2005	-   Obtain Benefit -   Pass Valueless Cheques	18 months (3 months’ non-parole)
2005	-   17 May 2005 – Breach parole by leaving Rehabilitation	15 months outstanding on sentence
2006	-   Obtain money by deception (15 charges) Outstanding warrants – arrested in Queenbeyan -   Goods In Personal Custody Suspected Being Stolen -   Fail To Appear In Accordance With Bail Undertaking (ie Rehabilitation) (2 charges) -   Pass Valueless Cheque -   Fail to Appear In Accordance With Bail Undertaking	On each charge 18 months concurrent imprisonment Ordered to serve outstanding sentence – released to attend rehabilitation Imprisonment 4 months’ cumulative
2007 (VIC)	-   Obtain Property By Deception (x 2) -   Obtain Property By Deception (x 8)	Imprisonment for 90 days Sentence partially Suspended for 12 months after serving 56 days Imprisonment. Pay Compensation Imprisonment for 3 months concurrent Pay Compensation
2009	-   Warrant executed	Serve 1 year 9 months’ imprisonment (balance of parole) plus non-parole period 6 months to expire July 2011
2010	-   Obtain Money By Deception (18 charges) -   Obtain Money By Deception (25 charges) -   Goods In Personal Custody Suspected Being Stolen -   Possess Prohibited Drug	On each, imprisonment for 12 months, served concurrently

I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.  

Signed:         .........................[sgd].............................
  Associate to Senior Member Britton

Date/s of Hearing  23 and 24 June 2011
Date of Decision  25 July 2011
Solicitor for the Applicant          Ms L Dillon-Smith, Legal Aid NSW

Solicitor for the Respondent     Ms E Warner-Knight, Australian Government Solicitor