Matthews and Minister for Home Affairs (Migration)

[2018] AATA 1849

Matthews and Minister for Home Affairs (Migration) [2018] AATA 1849 (25 June 2018)

Division:GENERAL DIVISION

File Number(s):      2018/1831

Re:Garrett Matthews

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:25 June 2018

Place:Melbourne

The reviewable decision is affirmed.

........................................................................

Senior Member D. J. Morris

Catchwords

MIGRATION – mandatory cancellation of visa – applicant has substantial criminal record and does not pass character test – whether discretion to revoke mandatory cancellation should be exercised – previous visa cancellation warning – primary considerations – other considerations – decision affirmed

Legislation

Migration Act 1958 (Cth), s 499, 501, 501CA

Cases

DPP v Matthews & Schumann [2013] VCC 265
Gaspar v Minister for Immigration and Border Protection [2016] 153 ALD 337
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673

The Queen v Garrett Matthews (2005 – Victorian County Court unreported reasons for sentence – His Honour Judge Smallwood)

Secondary Materials

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

REASONS FOR DECISION

Senior Member D. J. Morris

25 June 2018

1. Mr Garrett Tehiri Tanga Matthews was born in New Zealand in September 1983.  He is a New Zealand citizen and first came to Australia in 1988 for three months with his mother.  He moved to Australia permanently in October 1989 and has resided here since that time.  Mr Matthews held a Class TY Subclass 444 Special Category (Temporary) visa until 19 January 2016 when the Department of Immigration and Border Protection, now the Department of Home Affairs (the Department) cancelled that visa under section 501(3A) of the Migration Act 1958 (the Act).  The visa was cancelled because a delegate of the Minister for Immigration and Border Protection (now also the Minister for Home Affairs, the Respondent) was satisfied that Mr Matthews did not pass the character test in the Act because of the operation of section 501(6)(a) of the Act on the basis of section 501(7)(c), and because he was then serving a sentence of full-time imprisonment for a criminal conviction. The Respondent contended that Mr Matthews has a ‘substantial criminal record’ under section 501(6)(a) of the Act, and the Applicant in oral and written submissions conceded this point.

2. A delegate of the Respondent made a decision on 1 March 2018 (G3, p 21) to refuse to revoke the mandatory cancellation of the Applicant’s visa under section 501CA(4) of the Act. Mr Matthews has asked the Tribunal to review this decision.

3. The hearing was held on 12 June 2018.  The Applicant was represented by Mr Rob Melasecca, of Aila Rose Melasecca Barristers & Solicitors.  The Respondent was represented by Mr Adam Cunynghame of Sparke Helmore.  Mr Matthews gave evidence and was cross-examined.  His mother, Mrs Marlene Matthews, and a younger brother, Mr Colt Matthews, also gave evidence.

4. The Respondent tendered a volume of documents under section 501 of the Act (G documents), which were taken into evidence.  The Tribunal also had before it Statements of Facts, Issues and Contentions from both the Applicant and the Respondent, charge sheets and briefs provided under summons by Victoria Police (Exhibit R1) and a Timeline of the Applicant’s Rehabilitative Measures (Exhibit A1). 

   Issues and legislation

5. Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of the visa if Mr Matthews made representations within the relevant time period provided for in the Migration Regulations 1994 (28 days in accordance with reg 2.52) and the Tribunal determines that the Applicant passes the “character test”, or, as provided for under subsection 501CA(4)(b), there is another reason why the mandatory cancellation decision should be revoked. 

6. A letter advising Mr Matthews of the delegate’s decision not to revoke the mandatory cancellation of his visa was before the Tribunal (G3, p 18) and dated 2 March 2018.  The Applicant advised in his application for review that he received the decision on 3 April 2018.  Deputy President Forgie held a directions hearing in this matter on 4 April 2018 at which the Respondent conceded that the date when Mr Matthews received advice of the decision not to revoke the mandatory cancellation should be taken to be 3 April 2018.  It was not contested that Mr Matthews had made representations within the prescribed period. 

7. Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if:

   (a)       the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)…

   …; and

   (b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

8. Before the Tribunal was a National Police Certificate of 29 April 2013 (G4) which recorded that Mr Matthews had appeared before the Melbourne County Court on 6 March 2013 and was convicted and sentenced to one count of Aggravated Burglary with a sentence of imprisonment of 4 years 6 months.  At G5, p25 were the  reasons for sentence of His Honour Judge Tinney in DPP v Matthews & Schumann [2013] VCC 265 in which, also on that date, Mr Matthews was convicted of a charge of recklessly causing serious injury and sentenced to 3 years 6 months imprisonment; convicted of a charge of theft and sentenced to 6 months’ imprisonment; convicted of a charge of criminal damage and sentenced to 9 months’ imprisonment on that count; and convicted of unlawful assault and sentenced to 3 months’ imprisonment on that count. His Honour directed that certain parts of some of the sentences be served cumulatively and the result was a total effective sentence of 6 years and 9 months’ imprisonment. The Judge fixed a period of 4 years and 4 months before which Mr Matthews was not eligible for release on parole.

9. Section 501(6)(a) of the Act states that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.

10. Section 501CA then relevantly provides that:

    (1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

    …

    (4)       The Minister may revoke the original decision if:

    (a)the person makes representations in accordance with the invitation; and

    (b)the Minister is satisfied:

    (i)that the person passes the character test (as defined by section 501); or

    (ii)that there is another reason why the original decision should be revoked.

11. Section 501(6) sets out the grounds for failing the character test.  It states, in part:

    (6)For the purposes of this section, a person does not pass the character test if:

    (a)The person has a substantial criminal record (as defined by subsection (7); or…

12. Section 501(7) states, relevantly in this matter, in setting out what a substantial criminal record is:

    (7)For the purposes of the character test, a person has a substantial criminal record if:

    …

    (c)the person has been sentenced to a term of imprisonment of 12 months or more…

13. The Tribunal had a National Police Certificate (G3) which set out the offences in the name of the Applicant.

COURT	COURT DATE	OFFENCE	COURT RESULT
Melbourne Country Court	06 Mar 2013	Aggravated burglary Recklessly cause serious injury Criminal Damage (Intent Damage/Destroy) Theft Unlawful Assault	Convicted. Imprisonment 4 years 6 months. Pay compensation: $2,570. Convicted: Imprisonment 3 years 6 months of which 18 months is to be served concurrently. Convicted: Imprisonment 9 months of which 8 months is to be served concurrently Convicted: Imprisonment 6 months of which 5 months is to be served concurrently Convicted: Imprisonment 3 months of which 2 months is to be served concurrently
Dandenong Magistrates’ Court	08 Feb 2011	Theft of a Bicycle Obtain Property by Deception	On both charges: Convicted.  Fined aggregate $600.
Melbourne Magistrates’ Court	15 Sep 2008	Possess Controlled Weapon Without Excuse Assault with Weapon Theft from Shop Theft	On both charges: Aggregate imprisonment 6 months to be served concurrently and wholly suspended for 12 months On both charges: Convicted. Aggregate imprisonment 6 months to be served concurrently and wholly suspended for 12 months
Ringwood Magistrates’ Court	19 Oct 2006	Burglary Theft	Convicted. Imprisonment 12 months. Convicted. Imprisonment 8 months of which 5 months is to be served concurrently
Ringwood Magistrates’ Court	15 Dec 2005	Breach of Suspended Sentence Imposed on 26 May 2005. Aggravated Burglary – Person Present Intentionally Destroy Property. Intentionally Destroy Property	Breach proven. Suspended sentence wholly restored with the restored term of 4 months to be served Convicted. Imprisonment 3 months Convicted. Imprisonment 2 months with 1 month to be served concurrently Convicted. Imprisonment 2 months to be served concurrently
Melbourne Magistrates’ Court	26 May 2005	Breach of Varied Sentence Imposed on 15 Dec 2004 Re: Use of Drug of Dependence – Prescription Drug Failure to Comply with Community Based Order Breach of Both Community Based Orders Imposed on 15 Dec 2004 .	Breach proven. Convicted. Fined $100. Convicted. Fined $100. Breach proven. Aggregate 4 months imprisonment to be served concurrently and wholly suspended for 2 years.
Melbourne County Court	11 Apr 2005	Armed Robbery Theft Of A Motor Vehicle	Convicted. Imprisonment 12 months Convicted. Imprisonment 1 month to be served concurrently. Pay $150 compensation. Driver’s licence suspended for 1 month.
Melbourne Magistrates’ Court	15 Dec 2004	Theft of a Motor Vehicle Theft from Shop (3 charges). Burglary Theft Obtain Property by Deception. Attempt Theft from Motor Vehicle. Use Drug of Dependence – Prescription Drug Attempt to Escape from Lawful Custody	Convicted. Community Based Order to perform 100 hours of unpaid community work over 12 months. Driver’s licence suspended for 1 month. On all charges: Convicted. Community Based Order to perform 100 hours of unpaid community work over 12 months.
Melbourne Magistrates’ Court	27 Feb 2002	Breach of Sentence Imposed on 10 Jan 2001 Breach of Sentence Imposed on 16 Jul 2001	Breach proven. Convicted. Fined $305 Breach proven. Convicted. Fined aggregate $40.
Melbourne Magistrates’ Court	16 Jul 2001	Variation of Sentence Imposed on 16 May 2001	Fine varied upon default of payment. Perform 18 hours unpaid community work.
Melbourne Magistrates’ Court	16 May 2001	Forge Prescription For Drug Dependence Attempt Utter Forged Script – Drug of Dependence	On both charges: Convicted. Fined aggregate $300 .
Melbourne Magistrates’ Court	10 Jan 2001	Wilfully Damage Property.	Convicted. Fined $300. Pay compensation $200
Melbourne Children’s Court	16 Nov 1998	Theft	Without conviction. Adjourned on bond $100 to be of good behaviour for two months

1. On the basis of the evidence in the National Police Certificate and the Reasons for Sentence given on 6 March 2013, the Tribunal is satisfied that Mr Matthews has a substantial criminal record as defined in the Act. The Tribunal finds that he fails the character test by virtue of this substantial criminal record.

2. The sole issue before the Tribunal, therefore, is whether there is another reason why the original decision should be revoked.  In Gaspar v Minister for Immigration and Border Protection [2016] 153 ALD 337 North ACJ stated at [345]:

   The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation.  If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.  There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…

   Direction No. 65

3. Section 499(1) of the Act provides that the Minister may give directions about the exercise of functions or powers under the Act. On 22 December 2014 the then Minister made Direction No. 65 (the Direction) and it came into operation on 23 December 2014. 

4. The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter. Paragraph 6.1 of the Direction states, in part:

   6.1Objectives

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

   …

   (3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

5. Relevantly, the Direction includes the following principles:

   (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.  Being able to come to 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.

   (2)The 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.

   (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.

   (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable.  In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing a visa.

   (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time.  However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

   (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

   (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

6. In the case of deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account the considerations set out in Part C, which are divided into primary considerations and other considerations.

7. The primary considerations in Part C are set out in paragraph 13(2):

   ·    Protection of the Australian community;

   ·    The best interests of minor children in Australia affected by the decision; and

   ·    Expectations of the Australian community.

8. Other considerations set out in paragraph 14(1) of the Direction include but are not limited to: International non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed.

9. The Direction sets out that the primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (paras 8(4) and 8(5)).

   The Applicant’s contentions

10. Mr Melasecca submitted that the Applicant did not quibble with the facts and contentions as put forward in the Respondent’s written statement, except in relation to the likelihood of re-offending.  Mr Melasecca told the Tribunal that Mr Matthews has been in custody since August 2012 and has therefore already completed around 6 years of rehabilitative custody.

11. Mr Melasecca told the Tribunal about Mr Matthews’ consistent work history since he left school in grade 11.  He has been employed, among other things, as a scaffolder, rigger, carpenter’s labourer and as a team leader and site manager on construction sites.  Mr Melasecca conceded that Mr Matthews’ prior convictions were for serious offences and drew the Tribunal’s attention to the remarks of Judge Tinney in which he described Mr Matthews’ drug addiction as “the monkey on his back”.

12. Mr Melasecca submitted that the Applicant had shown exemplary conduct in the prison system.  In 2013 His Honour said (G5, p 45):

    I accept that it is difficult at the moment to make judgments as to what lies ahead for you but I am certainly not going to write you off.  I am encouraged, as I have said, that you still have family support.  I am encouraged that you do have, notwithstanding the drug issues, a good work history and I am encouraged that you still have someone like Mr Menara still in your camp and standing by you, both now and upon your ultimate release.  I am encouraged that you are doing something useful in prison with your life and also I am encouraged by the judgment that I make that you do actually have a sense of having let down yourself and your family, quite aside from the feelings of remorse you have for your direct victims.  So I believe that you do have reasonable prospects of rehabilitation if, and it is a big if, you can accept some treatment and abstain from drug use.  If you cannot, then your prospects will be quite poor into the future.

13. Mr Melasecca said that Mr Matthews had taken careful heed of these remarks of the sentencing judge in how he has behaved in prison.  His Honour made these remarks in 2013 when the Applicant had already been in custody for a substantial period, and the ensuing six or so years have illustrated the consistent good conduct of Mr Matthews in the corrections system.

14. Mr Melasecca drew attention to the summary in the Applicant’s written submissions.  This pointed out that Mr Matthews has completed violence programs in prison, and drug and alcohol programs, including 90 hours of individual counselling with Caraniche Drug and Alcohol Services.  Mr Matthews, it was submitted, is now a more mature person who has acquired the necessary skills to cope and identify new strategies to deal with his vulnerabilities, on release.  Mr Matthews is able to live with his mother in a supportive environment with two other siblings on release and has employment waiting for him, with his former employer Mr Menara.  Importantly, Mr Melasecca noted that Mr Matthews had held a succession of trusted positions in the prison system and indicated the relevant assessment made by the corrections officers and prison authorities.

1. Mr Melasecca submitted that in coming to the decision under review, the delegate of the Minister focussed on the possibilities that Mr Matthews might re-offend, rather than the likelihood of him re-offending.  In this regard he drew the Tribunal’s attention to the judgment of Justice Mortimer in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 (Tanielu). 

2. Mr Melasecca drew the Tribunal’s attention to the fact that Mr Matthews has undertaken some 25 TAFE units though Bendigo TAFE during his time in custody since 2013.  He noted that Judge Tinney was impressed by Mr Matthews’ work history and remarked on it in his reasons for sentence.

3. Mr Cunynghame agreed with Mr Melasecca that the main point of difference in the submissions from the parties will be the risk of Mr Matthews re-offending.

   The Applicant’s evidence

4. Mr Matthews gave evidence that he began offending when he was aged 14 or 15 and began drug-taking around the same time.  When asked why he started taking drugs, he said he was diagnosed with Type 1 diabetes as a teenager and had easy access to syringes, and then obtained access to illicit drugs.  He said that he left school in grade 11 and began work and, apart from the times when he has been serving custodial sentences, has consistently worked in the building and construction industry.

5. Mr Melasecca asked Mr Matthews why the Tribunal should accept that he would not re-offend on release.  Mr Matthews said he was older and had a different attitude.  He said that he now has tools and skills available to him to see potential threats and ‘things that could bring me down’, and that he had, with the assistance of counsellors, developed coping strategies and was not afraid to ask for help.

6. He told the Tribunal about the number of courses he has successfully completed and about the various positions of trust he has been given in gaol, including roles helping new prisoners settle in, helping intellectually disabled prisoners deal with incarceration and mentoring younger offenders about strategies to help them rehabilitate, as well as deal with prison life.

7. Mr Matthews said that if he is deported to New Zealand, his mother and brothers would not follow him and that he had no family or other support in New Zealand.  Mr Cunynghame asked Mr Matthews about drug treatment or counselling he had undertaken prior to his entering custody in August 2012 and the Applicant responded that he may have attended appointments arranged by the Courts but “I never took anything on board”.

8. When asked directly by the Tribunal whether he remembered coming to the notice of the Department in 2006 in relation to cancellation of his visa and whether he remembered that the discretion not to cancel the visa was exercised at that time, Mr Matthews said he did remember this occurring, and remembered the handwritten comments made at that time by the Minister’s delegate, the Victorian State Manager of the Department, which were conveyed to him with the notice of advice from the Department.

   Other evidence

9. A younger brother of the Applicant, Mr Colt Matthews, gave evidence and said he had noticed a change in his brother’s behaviour that he has accepted the consequences of his bad behaviour and was now ‘more open about everything’.  Mr Colt Matthews said that he had been unaware of the nature of the Applicant’s court appearance in 2005 but was aware of the circumstances of the offending in 2012.  He said that the Applicant never took drugs at home but sometimes did, away from home.

10. In her evidence, Mrs Matthews said that she had noted positive changes in her son’s conduct in recent years, since he has been undergoing counselling and undertaking other courses in prison.  It was her opinion that Mr Matthews was ‘more gathered’.  She said that she had struggled bringing up three boys as a single mother and felt the Applicant had taken the wrong path and had found himself, until recently, unable to cope with situations that confronted him.  Mrs Matthews said that she felt Mr Matthews has the chance to be crime-free, based on the courses he has done and that he deserves another chance to prove that he would not re-offend on release.

11. There was reference in the papers before the Tribunal to the Applicant also having an older sister, but Mrs Matthews gave evidence that she had not had contact with her daughter since around 1994 when she was leaving Australia to travel overseas, and did not know of her current whereabouts.

    Consideration of the Direction

12. As mentioned above, the Tribunal must because of section 499 of the Act consider the merits of the decision under review in terms of the application of the Direction and relevantly Part C of that instrument, which relates to mandatory cancellation of visas when the non-citizen has been convicted of an offence carrying a sentence of more than 12 months.

    Primary consideration: Protection of the Australian community (13.1 of the Direction)

13. The Direction sets out that the Tribunal should give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The nature and seriousness of the conduct (paragraph 13.1.1)

14. The offence for which Mr Matthews is serving his sentence has the following background. One evening, Mr Matthews visited a friend, Mr Schumann.  They consumed a large amount of alcohol and both used Xanax, which the Applicant told the Tribunal was prescribed for his friend.  Mr Matthews said that he does not have a clear recollection of what occurred that evening, because of his intoxication and the effects of taking the drug.  However, the two decided to go to the house of another person, Mr Wheatley, whom Mr Schumann said owed him money.  They went to Mr Wheatley’s house, equipped with a tomahawk, a crowbar and a knife.  They also donned masks.  They forced their way in however Mr Wheatley was not at home.  Mr Davis, who shared the house with Mr Wheatley and who had no connexion with Mr Schumann or the Applicant, was.

15. Judge Tinney said, on entering the house, the pair gratuitously smashed up the walls, two televisions, a computer and a DVD player.  They demanded to know the whereabouts of Mr Wheatley.  Mr Davis said he did not know.  Mr Matthews and Mr Schumann then mounted what His Honour described (G5, p 37) as:

    “a sustained and brutal attack upon the person who was the entirely innocent occupant of his own home.  An attack with fists, with feet and weapons and one that then lurched off into the direction of a theft of his personal property, of his phone and further nasty physical violence when he was dragged off to his own bedroom to collect that item.

    He was overwhelmed physically, and quickly so, in the exchange that I have described but the attack continued even as he lay on the ground.

16. The Judge later described the injuries sustained by the victim of this gratuitous attack.  Mr Davis was hospitalised for four days.  He sustained a serious cut to his finger which required surgical intervention and plastic surgery.  Mr Davis was left, after surgery, with a significant restriction in the movement of his finger, the middle finger of his hand.  This is additionally significant because the victim is an automotive mechanic who requires manual dexterity in his occupation.

17. During the attack, Mr Wheatley returned to the house.  Mr Matthews and Mr Schumann confronted him and swung a crowbar at him, but it missed, and Mr Wheatley ran away and hid.  He saw the two perpetrators who had by that time removed their masks, as Mr Matthews admitted in evidence, and so Mr Wheatley was able to identify them.

18. There is no doubt that this was a serious and violent attack.  The Judge was unable to separate the culpability of the Applicant and his co-accused, Mr Schumann and convicted them of the same offences.  The sentences varied only because the Applicant had a more serious criminal history and because Schumann had been diagnosed with a mental illness.  Mr Matthews joined in an attack on someone he did not know, in that person’s own residence, and a person with whom he had no grievance.  The fact that they used disguises indicates, whatever role alcohol and drugs played that night, there was an element of premeditation.

19. Mr Melasecca, rightly in the Tribunal’s view, did not disagree that the conduct of the Applicant in committing this offence was serious.  The Tribunal also notes that the Direction requires decision-makers to take into account the principle that violent crimes are to be viewed very seriously.

20. The Direction also requires, at paragraph 13.1.1(1)(d), regard to be had to the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.  The National Police Certificate is set out above.  It illustrates the offences of which Mr Matthews has been convicted and the range of penalties imposed by the Courts, including, at the earlier appearances, various orders designed to encourage the modification of behaviour by young offenders, and the fact that Mr Matthews frequently did not comply with those court orders and was brought back before the Court.

21. Importantly in this consideration, the Tribunal must have regard to an offence committed by the Applicant in February 2004.  The reasons for sentence are set out in the remarks of His Honour Judge Smallwood in The Queen v Garrett Matthews (G6, p 11).  The circumstances were that Mr Matthews stole a car.  He then went to a convenience store carrying a hunting knife.  He demanded money from the store assistant and took money from the till, before making off in the stolen car.  At sentence, His Honour took into account that Mr Matthews, soon after his arrest, had collapsed and been hospitalised in relation to his diabetes, and sentenced the Applicant to a head sentence of 12 months with a minimum of three months to be served before Mr Matthews was eligible for parole.

22. As a consequence of this conviction, Mr Matthews came to the notice of the Department. On 17 March 2006, the Applicant was advised that his visa may be liable for cancellation under section 501 of the Act on character grounds. At that time Mr Matthews engaged Victoria Legal Aid to make representations on his behalf to the Department. Those representations relevantly state (G36, p 217):

    Mr Matthews wishes to start his life afresh and provide for his family.  He is also committed to seeking assistance on release in staying away from heroin through Eastern Drug and Alcohol Service (EDAS), a service which he has previously been involved with.  EDAS are willing to take him on as a client on his release from gaol….Mr Matthews also now recognises the importance of managing his diabetes for his wellbeing, and is willing to get all supports necessary for his diabetes… In this context, it is submitted that Mr Matthews is not likely to re-offend.

23. Before the Tribunal (G41, p 227) was a letter dated 17 May 2006 from EDAS to the Department stating that Mr Matthews had previously been a client of EDAS on two separate occasions:

    He first contacted the service in February of 2009 and participated in three session [sic] of counselling/support.  Mr Matthews again made contact with EDAS in 2005 where he had four sessions.  The service would be more than happy to assist Mr Matthews any time in the future if he is motivated to do so.

24. The delegate of the Minister decided that Mr Matthews had not satisfied the delegate that he passed the character test but decided not to exercise the discretion under section 501(2) of the Act to cancel the visa. The delegate hand wrote on the decision the following:

    Mr Matthews must understand there is a limit to what the community will accept.  His behaviour is very close to the limit.  He must address his heroin addiction, find a job and make a productive life.  Unless he heeds this warning he will put at risk his right to live in Australia.

25. The Tribunal asked Mr Matthews at this hearing whether he remembered receiving the notice of the decision, and whether he remembered the handwritten comment of the delegate, and Mr Matthews said he did.

26. Regrettably, Mr Matthews did not heed the warnings given by Judge Smallwood and the suspension of the bulk of his sentence, provided he was of good behaviour.  In May 2005 he was back before the Court and was found to have breached community based orders in regard to using a drug of dependence.  In December 2005 he was again back before the Court and convicted of aggravated burglary and intentionally destroying property.  In October 2006 he was again before the Court and convicted of another count of burglary and one of theft.  In September 2008 he was convicted of possessing a controlled weapon without excuse and assault with a weapon, and theft.  In February 2011 he was convicted of a further count of theft.

27. The Tribunal views these further offences very bleakly, especially in the context that Mr Matthews had been given an opportunity by Judge Smallwood to reform his behaviour and, in the decision of the Immigration Minister’s delegate, he knew that he had become perilously close to losing his visa in July 2006 and must not engage in further unlawful conduct, without imperilling his right to remain in Australia.  Three months later he was back before the Magistrates’ Court.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2)

28. The Applicant’s solicitor made particular submissions to the Tribunal about Tanielu. To a certain extent, that judgment is not on point, because Her Honour was considering a judicial review of a decision where the Minister had acted personally to cancel a visa. The Tribunal does not have that function, and to the extent that Mr Melasecca may have disagreed with some remarks of the delegate, the Tribunal makes the point that its task is to conduct a merits review of the reviewable decision according to the Act and the Direction. However, to the extent that Mr Melasecca focussed on the importance of the likelihood of the Applicant committing further offences, as opposed to the possibility, the Tribunal agrees that is a correct emphasis.

29. Mr Melasecca drew the Tribunal’s attention to Mr Matthews’ conduct while incarcerated, the fact that he has been chosen to undertake tasks of trust in the prison environment and that he has spent his time productively improving his qualifications.  The Tribunal was impressed with the number of TAFE units that Mr Matthews has undertaken and believes this is substantially to his credit.  Mr Matthews told the Tribunal that, when he became eligible for parole at the earliest date set by Judge Tinney, he was invited to apply, but he declined because he wanted to work through the possible visa consequences that might come into play.  The Tribunal accepts this evidence.

30. Mr Cunynghame submitted that, while it was not the Respondent’s submission, it was open to the Tribunal to conclude that there may be a low risk of Mr Matthews re-offending.

31. The Tribunal notes that before the Tribunal (G18, p 111) was a letter from Gaye White, Senior Clinician, Caraniche psychology, at Loddon Prison dated 6 June 2017.  Ms White recorded that Mr Matthews had attended, at the date of that letter, 90 hours of individual counselling.  Mr Melasecca submitted that this evidence from a medical professional should carry strong weight in indicating the willingness of Mr Matthews to respond to the challenges faced by his drug addiction. 

32. Mr Matthews himself wrote in a statement in May 2013 (G12, p 104):

    I have completed violence programs, participated in course thru education centres provided by TAFE.  Also I have completed drug and alcohol programs and still participate in 1 on 1 counselling sessions at the moment.  I know I’ve had issues with drugs and Xanax have always brought me back to jail.  The differences I have made I now believe I am a stronger person.  From not wanting help to being able to ask for it, I now possess tools that can help me in life.  I have the ability to recognize future risks, possible relapse situations and have learnt new coping strategies which I did not have, nor learn when I was younger.  I also have the ability to identify future threats and how to assess and react at these situations.  I’m a lot more mature in my decision making and put it into practice while in jail, preparing for life outside in the Australian community if given the opportunity.  I was last released from jail January 18^th 2008 and was in the community four years before relapsing because I didn’t have the tools I now have to identify the problems and avoid such circumstances which I know I can do.

33. Taking into account the Applicant’s earnestness about working at strategies to better equip him on release from custody and his creditable behaviour while in prison, together with the proof of comprehensive engagement with counselling and the completion of a number of courses with the aim of modifying tendencies to criminal behaviour, the Tribunal does not accept the written submissions from the Respondent that there is a “very high risk” of the Applicant re-offending.

34. However, the Tribunal is obliged to consider the nature of the harm to individuals should the non-citizen engage in future conduct.  Mr Matthews has said, and his family confirmed, that he would be able to live back in the family home on release.  However, his evidence at the hearing was that he has lived with his family for most of his life, except for brief periods living away when he was in a former relationship.  This fact did not have any noticeable positive impact on either Mr Matthews’ offending or the upward trend of seriousness in nature of that offending.  Evidence was also given that a job was waiting for him on release, with his former employer who also employs his brother.  However, unusually for a drug-taking offender in Mr Matthews’ circumstances, he has a good work record, as Judge Tinney noted, but seems to have been able to separate this from his drug-taking and the offending he undertook to fund it.  This work history also did not appear to have a major effect on his criminal conduct

35. While his conduct in prison since 2012 weighs in favour of Mr Matthews, the fact that he had a clear warning of the consequences of re-offending in 2006 and chose to ignore that, weighs heavily against him.  While the Tribunal accepts he has undertaken 90 hours of counselling in prison, on the evidence he has a history of being unable to engage in such support when out in the community, even when he was in his 20s and mature enough to know better.  The Tribunal therefore concludes that there is a risk of re-offending and, given the violent nature of a number of his crimes against people, in particular the unlawful assault against the innocent Mr Davis, any such risk of this type of offending recurring is unacceptable.

36. This primary consideration weighs against revoking the mandatory cancellation of Mr Matthews’ visa.

    Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 13.2)

37. At the time of the 2006 decision by the delegate to exercise the discretion not to revoke Mr Matthews’ visa, he was in a relationship with a woman who had a young child.  The child was not the biological son of the Applicant but it was accepted that he fulfilled a parental role at that time.  Mr Matthews gave evidence at this hearing that, while he is on friendly terms with his former partner, he is no longer in a relationship with her.  None of Mr Matthews’ siblings, now, are minors.

38. There was no other evidence brought forward by parties that there are any minor children who should be taken into account in this review, so the Tribunal finds that this consideration is not relevant in this review.

    Primary consideration: Expectations of the Australian community (paragraph 13.3)

39. The Australian community is, by definition, made up of individuals with widely different views, so determining what those expectations are, as a necessary requirement of the Direction, should be done guardedly.  It is reasonable to assume that the Australian community expects members of the community, whether citizens or non-citizens, to abide by and respect our laws.  With that, the Tribunal considers that the Australian community is supportive of courts having at their disposal a range of penalties to apply according to the nature of the offence, the age of the offender, the offender’s criminal history and any mitigating circumstances.  While it may be accepted that drug-taking played a major factor in Mr Matthews’ offending, that is not something that can be viewed as exculpatory.  I consider that the Australian community, if informed about Mr Matthews’ criminal history, would note not only that early penalties on him were aimed at correcting his behaviour, but that he did not respond positively to those sanctions, and indeed breached several non-custodial orders imposed by the Courts.  That a number of Mr Matthews’ crimes have been crimes against the person, would also, in the Tribunal’s view, be counted strongly against him by fair-minded members of the community. 

1. Mr Matthews is a non-citizen who has previously been considered for visa cancellation but who was allowed to retain his visa with a warning about future criminal conduct, and who then participated in a particularly violent and unprovoked attack on an innocent man with whom he had no prior connexion, leaving the victim with serious injuries.  I find that the fair-minded member of the Australian community would take a dim view of this conduct.

2. The Tribunal finds this consideration, coupled with the betrayal of trust previously extended to Mr Matthews, weighs heavily against revoking the mandatory cancellation of his visa.

   Other consideration: International non-refoulement obligations (paragraph 14.1)

3. The parties did not make any submissions on this consideration, and the Tribunal finds, having considered the contents of paragraph 14.1 of the Direction, that this consideration is not relevant in this matter.  The Applicant is a citizen of New Zealand and, in the absence of other evidence, the provisions of the international treaties set out in 14.1(1) of the Direction are not engaged.

   Other consideration: Strength, nature and duration of ties (paragraph 14.2)

4. As mentioned above, Mr Matthews has resided in Australia since 1989.  His mother lives here, and he has three brothers who live here, all of whom are Australian citizens.  He began offending in 1998 when he appeared before the Children’s Court, aged just 15.  He has made a positive contribution to the Australian community in his work, and seems to have held certain positions of responsibility in a number of jobs when gainfully employed.

5. There was ample written and oral evidence from Mrs Matthews and Mr Colt Matthews that they would be significantly affected should Mr Matthews not be able to remain in this country.  The Tribunal accepts this evidence and, on balance, finds that this consideration weighs in favour of revoking the mandatory cancellation of Mr Matthews’ visa.

   Other consideration: Impact on Australian business interests (paragraph 14.3)

6. This consideration was not the subject of submissions by parties.  While it is accepted that Mr Matthews has developed a range of skills in the construction trade, the Direction states that this consideration should only generally be given weight where non-revocation would significantly compromise the delivery of a major project or an important service in Australia, which is not the case here.

   Impact on victims (paragraph 14.4)

7. There was scant information on how the victims of Mr Matthews’ criminal conduct in the past would be affected by a decision not to revoke his visa.  Mr Matthews said he did not know the store assistant who was the victim of the armed robbery he committed in 2004, and he did not know Mr Davis until the night of the 2012 attack in Mr Davis’s home.  Judge Tinney refers to a victim impact statement in his sentencing remarks and the effect on Mr Davis in terms of his hand injury, but that document was not before the Tribunal.  Owing to this dearth of information, the Tribunal finds that this consideration weighs neither for nor against revoking the mandatory cancellation of Mr Matthews’ visa.

   Other consideration: Extent of impediments if removed (paragraph 14.5)

8. The Direction requires the decision-maker to consider what impediments a non-citizen may face if removed from Australia to his or her home country in establishing themselves there and maintaining basic living standards (in the context of what is generally available to other citizens of that country).  The Direction requires that the non-citizen’s age and health, any language or cultural barriers and what social, medical or economic support is available in that country.

9. In terms of New Zealand, the Tribunal finds that the society of that country is very similar to Australia’s.  Mr Matthews would not face any significant language or cultural barriers if repatriated.  He is a young, healthy man who has, notwithstanding his criminal offending, acquired valuable practical skills in a number of trades during his work placements, and has enhanced those skills by his diligence with technical education courses through Bendigo TAFE.  This work experience and these skills are to Mr Matthews’ advantage in his employability, especially in the building and construction industry.  In terms of his struggles with diabetes, there is evidence that this has settled down as he has got older and has learned to manage the condition better and the Tribunal considers that he would have similar access to insulin and other healthcare through New Zealand’s public health system, as in this country.

   Conclusion

10. The Tribunal concludes that the nature and seriousness of Mr Matthews’ offending, and the fact that there is some risk of reoffending, weigh against revoking the mandatory cancellation of his visa.  These considerations outweigh the considerations in this matter that might weigh in his favour or weigh neutrally.  The Tribunal is not bound only to consider the stipulations framed in the Direction and also takes into account, as set out above, the fact that Mr Matthews knew his visa had been in danger of cancellation before and also knew that on that occasion the discretion had been exercised in his favour with the injunction that he cease his record of offending.  That he did not heed that warning is to be lamented, and has led to an outcome that no doubt will have a significant effect on the Applicant and his family.  But the conclusion of the Tribunal is that refusal to revoke mandatory cancellation of the Applicant’s visa is the correct decision in law and the preferable decision in terms of the discretion available to the decision maker.

    DECISION

11. The reviewable decision is affirmed.

78.     I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 25 June 2018

Date of hearing:	12 June 2018
Advocate for the Applicant:	Mr Rob Melasecca
Solicitors for the Applicant:	Aila Rose Melasecca Barristers & Solicitors
Advocate for the Respondent:	Mr Adam Cunynghame
Solicitors for the Respondent:	Sparke Helmore