Zaoui v Minister for Immigration and Citizenship [2011] FCA 1469 (16 December 2011)

Last Updated: 21 December 2011

FEDERAL COURT OF AUSTRALIA

Zaoui v Minister for Immigration and Citizenship [2011] FCA 1469

Citation:		Zaoui v Minister for Immigration and Citizenship [2011] FCA 1469
Parties:		SAMIR ZAOUI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL
File number:		NSD 1443 of 2011
Judge:		FOSTER J
Date of judgment:		16 December 2011
Catchwords:		MIGRATION – whether the Administrative Appeals Tribunal committed jurisdictional error in affirming a decision of a delegate of the Minister for Immigration and Citizenship under s 501(2) of the Migration Act 1958 (Cth) to cancel the applicant’s visa – applicant seeking merits review – no jurisdictional error demonstrated
Legislation:		Migration Act 1958 (Cth), ss 5(1), 474(1), 476A, 477A, 483 and 501(2) Constitution, s 97(v)
Date of hearing:	16 December 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	33
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1443 of 2011

BETWEEN:	SAMIR ZAOUI Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	16 DECEMBER 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the first respondent’s costs of and incidental to the application.
   

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1443 of 2011

BETWEEN:	SAMIR ZAOUI Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	FOSTER J
DATE:	16 DECEMBER 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is 48 years old. He is sometimes known as “Sami La Mound”. He was born in Algeria and came to Australia on 24 December 1988. He has, therefore, lived in this country for 23 years. He was married but is now divorced. He had four children with his former wife. Those children are now aged 20, 19, 16 and 13 respectively. The applicant claims to be in a longstanding relationship with a lady who is of Aboriginal descent. The applicant has an extensive criminal history, a copy of which is attached to these Reasons for Judgment as Attachment “A”.
2. On 4 February 2011, the Department of Immigration and Citizenship (the Department) sent a notice of intention to consider cancellation of visa under s 501(2) of the Migration Act 1958 (Cth) (the Act) to the applicant giving him notice of the possibility that the respondent (the Minister) or a delegate of the Minister might cancel his visa. At the time that letter was sent, the applicant was the holder of a Class BB subclass 155 visa granted by the Department on 20 August 2008.
3. On 27 April 2011, a delegate of the Minister sent a notice to the applicant cancelling his visa. In that notice, the applicant was alerted to his right to seek a review of that decision in the Administrative Appeals Tribunal (the Tribunal). The applicant then sought a review in the Tribunal of the decision made by the delegate to cancel his visa. The Tribunal conducted a hearing on 23 and 24 June 2011. The applicant was represented by a lawyer at that hearing.
4. On 26 July 2011, the Tribunal delivered its decision on the applicant’s application. The Tribunal affirmed the decision of the delegate. The Reasons for Decision of the Tribunal are dated 26 July 2011. The decision was notified to the applicant on 28 July 2011.
5. The applicant was dissatisfied with the decision of the Tribunal.
6. On 29 August 2011 the applicant filed a document styled “Notice of Appeal” in this Court. The form of that document leaves a lot to be desired and does not conform with the requirements of the Federal Court Rules. The substantive content of the Notice of Appeal is as follows.

Questions of law

1. Failure to consider relevant evidence.
2. Failure to give proper weight to and to properly consider relevant considerations.
3. The decision maker ignored relevant material.
4. Gave too much weight to irrelevant considerations.
5. The Tribunal failed to consider all substantial claims and information put forward by the applicant.
6. The decision was unreasonable.

[*Delete this section if you are not asking the Court to make findings of fact. The Court can make findings of fact only in limited circumstances—see section 44(7) of Administrative Appeals Tribunal Act 1975]
Findings of fact that the Court is asked to make

1. That the Criminal history of the Applicant was not as set out in the decision in that the Applicant did not “engage in criminal activity less than three years after arrival”.
2. The applicant did not receive tow [sic] consecutive sentences but instead received concurrent sentences.
3. The applicant and his partner have not lived apart for much of their relationship
4. The applicant saw his children in 2008 not in 2009.

Orders sought

1. That the decision of the Administrative Appeals Tribunal be set aside and that the applicant’s visa Not be cancelled.

Grounds relied on

1. If the Applicant was deported from Australia, the harm caused to the Applicant’s four children all of whom are Australian citizens would be severe and unreasonable.
2. The harm caused to the applicants partner who is an Aboriginal woman with a mental illness would be unreasonable and harsh.
3. The Applicant can show that he has good prospects of rehabilitation and that he is not a risk of harm to the Australian community
   
7. The applicant cannot appeal to this Court from the Tribunal’s decision. The Tribunal’s decision is either a privative clause decision or a purported privative clause decision (as to which see the definition of those expressions in s 5(1) of the Act). Section 483 of the Act provides:

483 Section 44 of the Administrative Appeals Tribunal Act 1975
Section 44 of the Administrative Appeals Tribunal Act 1975 does not apply to privative clause decisions or purported privative clause decisions.

8. Notwithstanding the terms of s 474(1) of the Act, s 476A invests this Court with limited original jurisdiction if (inter alia):

the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500.

9. Accordingly, s 476A permits a challenge to be made in this Court to the Tribunal’s decision in respect of the applicant made on 26 July 2011. In the event that such a challenge is made within the time limited by s 477A of the Act, the jurisdiction of the Federal Court is the same as the High Court under s 75(v) of the Constitution (see s 476A(2) of the Act).
10. The applicant’s “Notice of Appeal” was received by the Registry of the Court on 22 August 2011 which is within the time limit laid down by s 477A of the Act, assuming that the Tribunal’s decision was ever properly notified to the applicant in the manner required by s 477A. On the assumption that that notification was given to the applicant in the manner required by s 477A (about which there was no evidence), the applicant’s application was, therefore, “made” within 28 days of the actual notification of the decision and was thus made within the time specified in s 477A. The fact that the Registry processed the document at a later date does not matter.
11. In any event, the Minister did not suggest that the applicant was out of time.
12. On the contrary, when the matter came before me on 28 September 2011, the Minister’s solicitor submitted that I should make an order that the applicant’s “Notice of Appeal” be deemed to be an application under s 476A(1)(b) of the Act. I made an order to that effect on that day. In addition, I fixed the matter for hearing today and made other directions designed to ready the matter for hearing.
13. One of the directions which I made on 28 September 2011 was that the applicant file and serve an Amended Application giving full particulars of each ground of review relied upon. I also ordered that he file and serve by 2 December 2011 a written outline of submissions and list of authorities. The applicant did not comply with either of those directions. However, when the matter was called on this morning, he handed to me a letter dated 5 December 2011, which I have marked as “MFI-1, which contains the submissions which he seeks to make in support of his judicial review application.
14. The applicant has appeared before me today and represented himself. He has amplified and supplemented the written material in his letter (MFI-1) by making oral submissions in support of his application. It is reasonably clear from the subject matter of the Notice of Appeal and from the submissions, both written and oral, which the applicant has made, that his attack on the decision of the Tribunal is that the Tribunal committed jurisdictional error in dealing with his matter. I propose to deal with his application on that basis.

THE TRIBUNAL’S DECISION

15. At the commencement of its Reasons for Decision, the Tribunal recorded a brief history in respect of the applicant and then referred to s 501 of the Act and Direction 41. The Tribunal then considered the applicant’s particular circumstances by reference to the various matters which it was required to address by Direction 41. The Tribunal addressed these matters systematically under several headings which, as far as I can tell, captured the various relevant matters raised both by the applicant’s circumstances and the evidence and arguments presented to the Tribunal on his behalf.
16. Under a heading Evidence of Rehabilitation, at [22]–[25], the Tribunal recorded a number of matters relevant to the question of whether the applicant had been rehabilitated or had prospects of rehabilitation. At [26] the Tribunal said:

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.

17. At paragraphs [27]–[29], the Tribunal said:

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.
    
18. The Tribunal then moved on, at [30]–[38], to consider the factor described in Direction 41 as “the primary consideration”, viz the protection of the Australian community. In particular, at [37] and [38], the Tribunal said:
    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.
        
19. The Tribunal then addressed a number of matters which had been raised by or on behalf of Mr Zaoui in support of a decision in his favour. Included within those matters were the length of time that he had been resident in Australia and the best interests of his minor children. As far as the latter subject matter was concerned, the Tribunal carefully took account of that matter at [44]–[53].
20. At [53], the Tribunal said:
    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.
        
21. The Tribunal then dealt with other matters at [55]–[71]. Included within those matters was a consideration of the hardship likely to be experienced by the applicant ([58] and [59]); and the hardship likely to be experienced by his partner and his children ([60]–[70]). Overall, the Tribunal was of the view that, if the applicant were deported, his children and his partner would be likely to suffer hardship. These were matters that were weighed in favour of the applicant by the Tribunal.
22. The Tribunal went on, at [71], to record that, in November 2006, the Department had written to the applicant informing him that a decision had been made not to cancel his visa on that occasion. In the letter of notification the author said:

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.

23. The Tribunal concluded its Reasons at [72]–[77] as follows:

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 [sic] 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 [sic]. 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. None the less, 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.
    

THE APPLICATION TO THIS COURT

24. There is no doubt that the provisions of s 501(2) were engaged in the present case. The applicant did not pass the character test when regard is had to the provisions of subs (6) and subs (7) of s 501. It was, therefore, open to the Minister or his delegate to take action to cancel the applicant’s visa pursuant to s 501(2) of the Act.
25. The applicant did not suggest otherwise. The various matters set out in the document styled Notice of Appeal all direct attention to the merits of the matter. They do not raise any proper basis upon which this Court could set aside the decision of the Tribunal.
26. The applicant provided to me today his letter dated 5 December 2011 (MFI-1) in which the substance of his concerns is set out. Those concerns may be summarised as follows:

(a) The Tribunal made an error of law by failing to protect the applicant’s children and his partner who are all Australian citizens.

(b) The Tribunal has caused great harm to members of the Australian community both mentally, emotionally and psychologically because the decision made by the Tribunal will lead to the applicant’s removal from the lives of his children and his partner at a time when the children and the applicant were rebuilding their relationship and were beginning to function as a family.

(c) Insufficient account was taken of the impact of the applicant’s removal from Australia on his partner who was and is extremely vulnerable. She suffers from mental illness and according to the applicant may harm herself if he is removed.

(d) The decision of the Tribunal has the effect of punishing innocent members of the Australian community (being the applicant’s children and his partner).

(e) The offences for which the applicant was punished and which have led to his failing the character test were not at the serious end of the scale. The applicant claimed that he has accepted his guilt for the wrongdoing which he has committed and was sorry for the harm which he has caused but that nonetheless the offences were at the lower end of the scale.

(f) The decision of the Tribunal contravenes Australia’s international obligations under the Hague Convention against the use of collective punishment.

27. In oral submissions today, the applicant has revisited much of the factual material which was addressed by the Tribunal. He did not place before the Court any ground which was truly capable of constituting jurisdictional error or a ground of review which the Court could entertain. He repeated his assertion that his removal from Australia would be very harmful to his partner and his children. He said that he was now on the road to rehabilitation. He said that he was ashamed of what he had done in the past. He acknowledged that he had been warned in 2006 that, if he reoffended, he may well be deported but said that he did not take that warning seriously at the time. He said that he has woken up to himself and that he is now stable. He said that he was accepting appropriate treatment for his drug and alcohol addiction and his mental illness. However, all of these matters go to the merits of the Tribunal’s decision and do not support any available ground of judicial review.
28. The Notice of Appeal lists six so called questions of law, none of which have been particularised in any way. It also raises several assertions of factual error on the part of the Tribunal. The other matters raised in the Notice of Appeal are all matters going to the merits of the Tribunal’s decision. In reality, none of the grounds do more than assert factual error by the Tribunal. This Court cannot review the merits of the Tribunal’s decision.
29. The Tribunal carefully and, if I may be permitted to observe, comprehensively, considered all of the matters it was required to consider by Direction 41. The Tribunal under-took what appears to me to be a very thorough process of weighing those considerations. The process of weighing considerations of this type is quintessentially a matter for the Tribunal. When undertaking judicial review of an administrative decision, the Court must avoid embarking upon merits review. The matters raised by the applicant in the present case were clearly matters for the Tribunal and cannot be gainsaid or second guessed in this Court.
30. It appears to me that the Tribunal did weigh in the applicant’s favour the likely hardship to be experienced by his children and his partner but had a considerable degree of scepticism about the claims of self-improvement and rehabilitation made by the applicant.
31. In addition, the notion that the decision of the Tribunal constitutes collective punishment on all those involved is utterly misconceived. The partner and children of the applicant have not been deprived of any legal right or privilege by the decision of the tribunal. Whatever hardship they might suffer is not the result of punishment, let alone collective punishment visited upon them, but rather the result of the cancellation of the applicant’s visa, an outcome about which the applicant received very clear and specific warning in 2006—a warning which he apparently chose to ignore.
32. In my judgment, there is nothing in the applicant’s written or oral submissions that would justify setting aside the decision of the Tribunal. I therefore dismiss the applicant’s application.
33. I order that the applicant pay the costs of the first respondent of and incidental to the application.
    

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated: 19 December 2011

ATTACHMENT “A”

DATE OF CONVICTION	OFFENCE	PENALTY
1991	– Drive Unregistered Vehicle	Fined $125.
	– Drive Uninsured Vehicle	Two years’ good behaviour bond.
	– Use Licence Plates Calculated to Deceive
1992	– Drive With High Range Prescribed Concentration of Alcohol	Released on entering Recognizance Self $500 to be of Good Behaviour for three years.
		Licence disqualified for 6 months.
	– Not Stop After Accident	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	Imprisonment for 5 days.
	– Fraud — Dishonestly Obtain Property From Another (x 16)	Imprisonment for 130 days concurrent
	– Wilful Damage	Pay Restitution
	– Stealing
	– Valueless Cheque Discharge Debt Liability Or Obligation (x 2)
2005	– Obtain Benefit	18 months (3 months’ non-parole)
	– Pass Valueless Cheques
2005	– 17 May 2005 — Breach parole by leaving Rehabilitation	15 months outstanding on sentence
2006	– Obtain money by deception (15 charges)	On each charge 18 months concurrent imprisonment
	Outstanding warrants — arrested in Queenbeyan	Ordered to serve outstanding sentence — released to attend rehabilitation
	– Goods In Personal Custody Suspected Being Stolen	Imprisonment 4 months’ cumulative
	– Fail To Appear In Accordance With Bail Undertaking (ie Rehabilitation) (2 charges)
	– Pass Valueless Cheque
	– Fail to Appear In Accordance With Bail Undertaking
2007 (VIC)	– Obtain Property By Deception (x 2)	Imprisonment for 90 days Sentence partially Suspended for 12 months after serving 56 days Imprisonment. Pay Compensation
	– Obtain Property By Deception (x 8)	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)	On each, imprisonment for 12 months, served concurrently
	– Obtain Money By Deception (25 charges)
	– Goods In Personal Custody Suspected Being Stolen
	– Possess Prohibited Drug