Matthews and Minister for Immigration and Citizenship

[2011] AATA 548

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION

[2011] AATA 548

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/2093

GENERAL ADMINISTRATIVE DIVISION		)
Re		Michael James Matthews

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date10 August 2011

PlaceSydney

Decision The decision under review is affirmed.

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

Mr R P Handley
  Deputy President

CATCHWORDS

IMMIGRATION – visa cancellation – Direction 41 - character test – substantial criminal record – primary considerations – protection of the Australian community –  seriousness and nature of the conduct – risk that the conduct may be repeated – length of time ordinarily resident in Australia prior to engaging in criminal activity – other considerations - family ties, the nature and extent of any relationships – links to the country to which they would be removed – hardship likely to be experienced by the person or their immediate family members – level of education – whether the person has been formally advised in the past of conduct that brought the person within deportation provisions – decision under review affirmed.

RELEVANT ACT

Migration Act 1958 (Cth): s 501

CITATIONS

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

OTHER AUTHORITIES

Direction [no. 41] - Visa Refusal and Cancellation under section 501

REASONS FOR DECISION

10 August 2011 Mr R P Handley, Deputy President

1.      Mr Matthews has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel his visa on the ground that he does not pass the character test because of his substantial criminal record.

BACKGROUND

2.      Mr Matthews was born in New Zealand in January 1983 and is a New Zealand citizen.  He first arrived in Australia on 30 October 2004 at the age of 21 and was granted a Class TY subclass 444 Special Category (Temporary) visa permitting him to reside in Australia.  He has not departed Australia since.  Mr Matthews is single and has no children.  He has family in both Australia and New Zealand.

3.      Mr Matthews has a criminal history in New Zealand between July 2000 and September 2004 comprising five traffic offences, including driving with more than the prescribed level of alcohol in his blood, and six other offences, including “obstruct/hinder police”, disorderly behaviour, theft of motor vehicles, failure to answer bail and shoplifting, for which offences he was in each case fined and, in the case of the traffic offences, disqualified from driving. 

4.      In Australia, Mr Matthews’ first convictions were on 8 February 2006 in Waverley Local Court, for common assault and four driving related offences including driving with more than the prescribed level of alcohol in his blood.  He was fined and given an 18 month good behaviour bond.  On 11 July 2006, Mr Matthews was convicted of driving while disqualified and driving with more than the prescribed level of alcohol in his blood, for which he received two community service orders that, as Judge Flannery noted (see below), Mr Matthews failed to commence.

5.      On 16 April 2006, Mr Matthews was involved in an aggravated assault on a taxi driver and the taking and driving away of his taxi.  Mr Matthews pleaded guilty to these offences and, on 8 June 2007, he was sentenced by Judge Flannery in the District Court of NSW to terms of imprisonment, respectively, of 27½ months with a non-parole period of 12 months, and 21½ months with a non-parole period of 12 months, to be served concurrently, and the terms of imprisonment to be served by way of periodic detention.  He was released on parole on 14 June 2008. 

6.      On appeal against sentence brought by the Director of Public Prosecutions, the Court of Criminal Appeal found that Judge Flannery had not taken into account “the fact that the respondent [Mr Matthews] was on conditional liberty [the good behaviour bond imposed on 8 February 2006] at the time he committed the offence for the purpose of ascertaining the objective seriousness of the offence”: R v Matthews [2007] NSWCCA 294, at [32]. The Court found, at [34], that the Judge gave undue weight to “the subjective features” of Mr Matthews and “less than appropriate weight” to the fact that he was on a good behaviour bond at the time of committing the offence. However, the Court was satisfied that to impose a full-time custodial sentence at the time of the appeal (18 October 2007) was inappropriate because Mr Matthews had been released from full-time incarceration, was remorseful, was serving periodic detention, was attending counselling, had given up alcohol, had his gambling under control, had a full-time job in which he was impressing his employers, and “appears to be well on the way to rehabilitation”.

7.      On 14 June 2007, in Central Local Court, Mr Matthews was convicted of four offences: driving with more than the prescribed level of alcohol in his blood, driving while disqualified, failure to appear in relation to a bail undertaking, and larceny.  He was sentenced to 78 days imprisonment in respect of each offence. 

8.      On 25 June 2009, in the Beenleigh Magistrates Court, Mr Matthews answered charges of wilful damage, unlawful entry of motor vehicle and stealing.  No conviction was recorded but he was ordered to perform 80 hours community service and placed on probation for 12 months.  On 9 July 2010, Mr Matthews having breached the probation order, the Court revoked the order and fined him $1,000.

9.      On 21 December 2009, in the Muswellbrook Local Court, Mr Matthews was sentenced to six months imprisonment (commencing 14 June 2007, expiring 13 December 2007) for the offence of ‘break and enter building’. 

10.     On 24 August 2010, in the District Court of Queensland, Judge Rackemann sentenced Mr Matthews to five years imprisonment, with a partial suspension of the sentence after one year and three months, for the offences of break and enter property, robbery with actual violence and unlawful use of a motor vehicle, to which Mr Matthews had pleaded guilty.  At the time of sentencing, Mr Matthews had already served 141 days in custody.  He was therefore discharged from prison on 6 July 2011, there being a further three years and nine months during which the remainder of his sentence is suspended.  At the time he was discharged from prison, he was, however, taken into immigration detention and transferred to the immigration detention centre at Villawood.

11.     The Tribunal has also been provided with records from the Queensland Department of Transport and Main Roads detailing eight traffic offences committed by Mr Matthews in Queensland over a period of two years from May 2008 to May 2010, including one offence of driving with more the prescribed level of alcohol in his blood.

12.     By letter dated 30 November 2007, the Department of Immigration and Citizenship (the Department) notified Mr Matthews that any further criminal convictions or misconduct could result in consideration being given to the cancellation of his visa.

13.     By letter dated 25 October 2010, the Department notified Mr Matthews of its intention to consider cancellation of his visa and invited him to respond.  Mr Matthews responded on 29 October 2010 and also completed a Personal Details Form for the Department.  In letters dated 26 November 2010 and 4 February 2011, the Department invited Mr Matthews to comment on further information it had obtained in relation to his case.

14.     On 24 May 2011, a delegate of the Minister decided to cancel Mr Matthews’ visa and he was notified of this by letter dated 25 May 2011.  On 31 May 2011, Mr Matthews applied to the Tribunal for a review of the decision.

RELEVANT LAW AND POLICY

15. Section 501(2) of the Migration Act1958 (Cth) (the Act) provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”. Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.

16.     Mr Matthews has been sentenced to terms of imprisonment of more than 12 months on two occasions, detailed above.  Thus, he does not pass the character test.  It was therefore open to the Minister to cancel Mr Matthews’ visa.  In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa Refusal and Cancellation under section 501 of the Act (Direction No 41).  Direction No 41 contains a number of ‘primary’ and ‘other’ considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.

17.     The ‘primary’ considerations in Direction No 41 are set out in paragraph 10(1):

10.The primary considerations

(1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:

(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).

(Original emphasis.)

18.     These considerations are elaborated on by a range of factors to which regard must be had.  There are also a number of ‘other’ considerations that, where relevant, must be taken into account but, generally, in accordance with Direction No 41 paragraph 11(2), they should be given less weight than the ‘primary’ considerations.  Those ‘other’ considerations are discussed below.

Primary Considerations

19.     The ‘primary’ considerations relied upon by the Minister in Mr Matthews’ case are the protection of the Australian community, and the length of time he was ordinarily resident in Australia prior to engaging in criminal activity.

the protection of the australian community

20.     Direction No 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated.

The seriousness of the conduct

21.     With regard to the seriousness of Mr Matthews’ conduct, the Tribunal notes that “Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community” (paragraph 10.1.1(1) of Direction No 41).  Among the examples of offences and conduct that are considered serious listed in paragraph 10.1.1(2) of Direction No 41 are assault, aggravated assault and robbery.  Mr Matthews has been convicted of the offences of common assault, aggravated assault, larceny, stealing, and robbery with actual violence.

22.     Paragraph 10.1.1(3) of Direction No 41 states that “The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community”, and regard must be had to the number and nature of offences, the period between offences and the time elapsed since the most recent offence.  Among the factors to be considered pursuant to paragraph 10.1.1(4) are any judicial comments made about the person, parole assessments and any relevant mitigating factors.

23.     In sentencing Mr Matthews in the District Court of NSW on 8 June 2007, Judge Flannery noted that Mr Matthews had pleaded guilty to the offences charged.  Her Honour described how Mr Matthews and an acquaintance got into the back of a taxi at 1.30am on 16 April 2006.  When the taxi driver stopped and asked for the fare, “the offender put his arms around his neck and held onto him”.  Mr Matthews demanded the money the driver had in his top pocket, pushed the driver out of the driver’s side door, and drove off in the taxi.  Her Honour found that:

… the offence was not planned …There were no threats, there was a minimum degree of violence.  The taxi driver said in his statement that he was not hurt or injured in anyway, but he was scared.

24.     Judge Flannery was obviously impressed by Mr Matthews’ evidence as to his rehabilitation and also noting that he had not incurred any disciplinary charges while in prison and was not considered a management issue.  She assessed him as suitable for periodic detention although, as noted above, the Court of Criminal Appeal took a different view, drawing attention to the vulnerability of taxi drivers and the fact that Mr Matthews was subject to a good behaviour bond at the time he committed the offence. 

25.     In oral evidence to the Tribunal, Mr Matthews admitted that he had lied to Judge Flannery about his rehabilitation.  He lied when he told the Judge that he had not smoked cannabis since arriving in Australia.  He also lied in his affidavit dated 12 September 2007, filed in the Court of Criminal Appeal, when he said he had not consumed any alcohol or smoked any cigarettes since his arrest on 29 March 2007 and, since then, had only gambled once ($5.00).  Essentially, he said what he thought the courts wanted to hear in the hope of being given a lighter sentence.

26.     In sentencing Mr Matthews on 24 August 2010, Judge Rackemann described how, when Mr Matthews entered the factory in the hope of stealing something, he had confronted a staff member who was in the process of locking up, and:

.. grabbed her with both your hands around her face and shoulders, pulled her towards you and then pushed her to the ground.

Not content with this, you got onto her and held her down.  In addition you covered her mouth with your hand and repeatedly threatened to kill her, whilst asking for her pin number.  You then demanded that she give you her rings and you did, in fact, take them.  When the complainant screamed, you put your hand even tighter on her mouth.  The complainant felt as if she was losing her breath, and was about to pass out.

27.     Mr Matthews then grabbed her bag which included her credit cards and the keys to her car in which he drove away.  His Honour said the offence would have been extremely frightening for the complainant and it was apparent from her victim impact statement that she had suffered “significant ongoing trauma”.  While Judge Rackemann noted that the offence was opportunistic and not pre-planned, he also noted Mr Matthews’ “woeful criminal history, and the fact that these offences were committed only a short time after you were given the benefit of a probation order”.  Recognising the seriousness of the offence, the Judge sentenced Mr Matthews to five years imprisonment of which three years and nine months was suspended.

28.     Mr Matthews, who is the third of six children and the oldest son, told me of his upbringing in a family where violence and abuse was commonplace, and he also described this in his statement dated 17 July 2011.  (The abuse and violence Mr Matthews’ experienced as a child was also confirmed by his oldest sister, his younger sister and other relations who provided letters of support for him.)  He said his father was a hard man who gave him countless beatings, even for trivial mistakes.  When Mr Matthews was about seven or eight, the family moved to a farm where his parents relied on growing and selling marijuana for their income.  It was Mr Matthews’ job as a child to water the marijuana plants.  He started smoking marijuana at the age of about eight and selling it at school because his parents did not give him any pocket money. 

29.     Mr Matthews said his father was killed in an accident when Mr Matthews was aged 13 and, while he was relieved the violence would stop, he was also devastated.  His mother started drinking a lot “and was hardly ever around for us”.  Eventually, his uncle took him and his three younger siblings in and, after Mr Matthews left school (where he had been very disruptive) at the age of about 15, he worked with his uncle who was a truck driver.  However, his uncle was killed when he was crushed by a truck and Mr Matthews and his three siblings returned to live with their mother.  Mr Matthews said his mother still neglected them, and after a while, he went to live with one and then other different relatives. 

30.     Mr Matthews acknowledged that as a young man in New Zealand he got into trouble, but said none of it was very serious.  He came to Australia after one of his friends was killed by members of the Black Power gang and Mr Matthews was called as a witness in the court proceedings that followed.  He became concerned for his safety and, on the advice of his mother, flew to Australia where one of his older sisters was already living.  He started gambling about six to eight months after arriving.  When he was employed and earning, he would drink at the pub and gamble his wages away. 

31.     Mr Matthews said even when he had lost all his money, he still wanted more money to gamble.  Both the serious offences for which he has been convicted occurred when this had happened – he had been at the pub, lost all his wages and was on his way home.  Both offences were unplanned and were spur of the moment decisions.  In the case of the taxi driver, Mr Matthews had intended to get the taxi home and not pay but, when he leant over to give the driver directions, he saw bank notes in the driver’s top pocket and this is what led to him committing the offence.  In the case of the woman whom he assaulted in the factory, he was walking home from the pub along a street with industrial buildings after having lost all his money when he noticed the factory was open and decided to go in and see what he could steal.  When he encountered a woman inside, he panicked, swore at her, put his hand over her mouth to stop her screaming, then demanded the rings he saw on her hand and the cards in her wallet, and left in her car. 

32.     At that time, he was on probation for driving offences for which he was convicted in Queensland, living in a boarding house in Kingston, west of Brisbane, and earning “good money”, usually $900 to $1,000 per week.  But he would still gamble his earnings away and then try and find some more money.  Essentially, he was oblivious to his problem.

33.     With regard to his other convictions, Mr Matthews noted that the larceny conviction on 14 June 2007 was the consequence of his trying to steal the charity donation box at a ‘KFC’ at either Marrickville or Dulwich Hill which proved to be attached to the till.  He was on bail in relation to the taxi-driver offences at the time and when he went to report at the police station in accordance with his bail conditions, he was arrested and remanded in custody.  Mr Matthews thought the incident involved in the break and enter offence for which he was convicted on 21 December 2009 took place on New Year’s Day 2008, because nearly two years had passed since he had committed the offence and he thought he had got away with it.  He had looked over a fence, seen a window open, climbed through the window and stolen a phone and laptop computer which he pawned. 

34.     Mr Matthews also acknowledged his poor driving record.  He said that when he was in the low security prison (Cessnock Correctional Centre) in Muswellbrook in 2009 he completed a responsible driving course which he found very valuable.  While there, he also completed the “Best Bet” course targeting problem gambling.  Mr Matthews said it was this course that, for the first time, opened his eyes to his gambling addiction.   

35.     An overview of Mr Matthews’ substantial criminal record indicates a significant number of relatively minor offences and several very serious offences involving violence, although not premeditated.  The serious offences, together with the other stealing and break and enter offences, do appear to be connected with his gambling addiction.  With regard to other mitigating factors, I note that Mr Matthews comes from a violent and abusive home background in which he and his younger siblings appear to have been severely neglected by their parents.  Use of alcohol and drugs was commonplace.  After Mr Matthews’ father died, he lived with various relatives and his evidence and that of his siblings suggests his home life was often unsettled. 

The risk that the conduct may be repeated

36.     With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of Direction No 41 requires that consideration be given to Mr Matthews’ previous general conduct and total criminal history and, in particular, to any recent history of convictions, evidence of rehabilitation and evidence as to whether he has breached any judicial orders, including bail and parole orders. 

37.     There is no record of Mr Matthews committing any disciplinary offences while in prison.  He said he has completed two courses while in prison at Cessnock Correctional Centre: a responsible driving course, which he found valuable, and the “Best Bet” program.  He was very sceptical about the latter at first, but after the first week when he started talking with other participants about their problems, he began to think about addressing his problem, and the course provided useful information about relapse plans and where to go to get ongoing support.  Mr Matthews said nothing really started changing in his life until he completed this course.  He will never gamble again – it is just too damaging.  Of the addictions, gambling is under-rated by comparison to drugs and alcohol which are the primary focus in prison.

38.     I note Mr Matthews has not undertaken any drug and alcohol programs, but he said that gambling is his principal problem.  He did, nevertheless, acknowledge that alcohol and drug use just exacerbated his gambling problem and that he needs help with “his issues”.  Mr Matthews said he has not used marijuana since being imprisoned.  He told me that he is 60% sure that he does not want to consume alcohol again.  However, he also acknowledged that he has not yet confronted the temptations that will exist when he is released into the community.  He will seek help when he is released into the community, whether this is in Australia or New Zealand, and now knows how to go about getting appropriate help.

39.     With regard to employment in prison, Mr Matthews said that while he was at Brisbane Correctional Centre, he managed to secure prison employment and move quickly up the pay scale.  He said he should have no difficulty obtaining work on his release into the community.  He has his truck driver’s licence, a forklift licence, a chainsaw ticket, a dogging and rigging ticket, and both a blue card, allowing him to work on construction sites, and a white card, certifying that he has completed an occupational health and safety course.  Mr Matthews said he has worked in a variety of employment and has never claimed social security benefits either in New Zealand or Australia.  Mr Matthews’ eldest sister stated that he has “an excellent work ethic”.

40.     Mr Matthews said if he is allowed to stay in Australia and is released into the community, he could probably find work through two of his uncles, one of whom drives a truck for a garbage company and the other who is a removalist.  Moreover, he has been guaranteed work by a previous employer in Queensland.  He said he has also discussed the possibility of starting up a business with his sister, who has had the idea of providing a driver service for those who have drunk too much alcohol and need someone to drive their car home. 

41.     Mr Matthews said he has changed.  He is aware of his past irresponsible and destructive behaviour and the effect it has had on innocent people, for which he is very remorseful. He is sick of being locked up where he is no good to anyone and he wants to get his life sorted out.  He would like to return to Queensland and live with his cousin and his younger brother who is still recovering from a serious car accident and needs his support and guidance.  He wants to pay off his fines and debts and save for a place of his own.  He will attend Gamblers Anonymous meetings, seek other professional help for his problems, and surround himself with positive people.  He will try and regain the trust of his former girlfriend, with whom he hopes to be reconciled.  They are now back in touch on a daily basis, currently by phone and through Facebook.  She is a good influence on him and wants him to get the help he needs.  

42.     Mr Matthews has a history of breaking judicial orders: the conditions of a good behaviour bond, community service orders, bail conditions, and the conditions of parole.  As he frankly acknowledged, he has also in the past lied to the courts where he has believed it to be to his advantage in securing a lighter sentence.  Since arriving in Australia, he has a consistent history of offending, albeit one that appears to be associated with a gambling addiction, particularly when under the influence of alcohol.  His ability to avoid further gambling and the use of alcohol and illicit drugs is as yet untested.

43.     I am satisfied from Mr Matthews’ evidence and the letters of support from members of his family that he has good qualities.  Amongst other things, his siblings spoke of his kindness and his good work ethic, and I formed the impression that he was frank in giving evidence at the hearing.  He also now has greater insight into his problems and appreciates that he needs professional help in resolving them.  He has begun the process of rehabilitation.  However, at this stage it is not clear whether, when released into the community, he will resist the temptation of using alcohol and illicit drugs, which may in turn tempt him into gambling once again.  In my view, there is still a moderate risk of his reoffending and, given his past history of serious offences, failure to comply with judicial orders and lying to the courts, he therefore represents a risk to the Australian community.  Thus, the first primary consideration favours the cancellation of Mr Matthews’ visa.

length of time ordinarily resident

44.     The second primary consideration relevant in Mr Matthews’ case - the length of time he has been ordinarily resident in Australia – is further explained in paragraph 10.3(1) of Direction No 41.  This states that “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”. 

45.     Mr Matthews arrived in Australia at the age of 21 on 30 October 2004 and his first conviction in Australia was just over 15 months later, on 8 February 2006, in Waverley Local Court.  This is a relatively short time after arrival and, as Justice Rares recognised in Rosson v Minister of Immigration and Citizenship (2011) 191 FCR 390; [2011] FCA 194, the Tribunal is also entitled to take into account that Mr Matthews was an adult at the time he arrived in Australia, albeit that the evidence suggests he was immature. This primary consideration favours the cancellation of Mr Matthews’ visa.

OTHER CONSIDERATIONS

46.     As noted above, Direction No 41 states that ‘other’ considerations, where relevant, must be taken into account but, generally, should be given less weight than ‘primary’ considerations.  Relevant ‘other’ considerations in Mr Matthews’ case specifically referred to in the Direction are his family ties and the nature and extent of his relationships with those in the Australian community, his age, his health, his links with New Zealand, the hardship that may be experienced by both Mr Matthews and his immediate family members in Australia, his level of education, and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.

47.     Mr Matthews said that of his five siblings, his two older sisters and one younger brother are living in New Zealand, as is his mother with whom he has been getting on better lately.  He admitted that she wanted him to return to New Zealand to look after her and she has said she also wants to start a business.  She lives in Kaitaia in the far north of the North Island and Mr Matthews’ younger brother lives with her.  His oldest sister also lives in Kaitaia.  Mr Matthews’ other older sister lives in Kerikeri, to the south-east.  Mr Matthews said if he has to return to New Zealand he would probably go to Auckland, where he has friends and where there are more opportunities for employment, or Tauranga, to the south-east.

48.     Mr Matthews’ younger sister is living in Australia, as is one of his younger brothers, who is living in Brisbane and still recovering from a serious road accident.  Mr Matthews said he wants to provide support for his brother, with whom he is currently in contact almost daily using Facebook.  His brother is not working at present.  Mr Matthews said he has not set a good example for his brother in the past and wants to point him in the right direction.  Mr Matthews does not know whether, if he has to return to New Zealand, his brother would also do so.  They have not discussed it, but his brother is still currently awaiting further surgery in Brisbane.  I note that apart from the need for further surgery, there is no evidence to indicate why Mr Matthews’ brother, who is a New Zealand citizen, could not also return there.  Mr Matthews has other relatives and friends in Australia but also has other relatives and friends in New Zealand. 

49.     Among the letters of support for Mr Matthews was a letter from his former girlfriend.  She stated that she has been “extremely hurt by Michael in the past, left with debt and emotional scars” but still thinks there is “good” in him.  In her view, he is growing up, has changed and wants to move forward.  Mr Matthews said while they had no contact while he was in prison, they are now in contact daily and he hopes that if he can bring her to trust him, they may be able to reconcile, in which case he can see himself spending the rest of his life with her.  If he has to return to New Zealand, they would remain in contact but he does not think she would move there.  She is well-established in Brisbane.  At the time he was sentenced by Judge Flannery on 8 June 2007, she was pregnant with their child but later miscarried.

50.     As stated above, Mr Matthews is aged 28 and appears to be in good health.  He has various skills qualifications that would appear to be transferable to New Zealand and he acknowledged that while he wants to remain in Australia, he would not have any trouble finding work in New Zealand. 

51.     Finally, with regard to the relevant ‘other’ considerations, I note that by letter dated 30 November 2007, Mr Matthews was formally advised that any further criminal convictions or misconduct could result in consideration being given to the cancellation of his visa.

Conclusion

52.     I am satisfied that the two relevant primary considerations, the most significant here being the protection of the Australian community, both favour the cancellation of Mr Matthews’ visa.  As stated above, there is still a moderate risk of Mr Matthews reoffending and he therefore represents a risk to the Australian community.  While the other primary consideration, the length of time Mr Matthews was ordinarily in Australia before offending, also favours cancellation of his visa, it is of lesser significance here.

53.     With regard to the ‘other’ considerations, while Mr Matthews would obviously prefer to remain in Australia, for him to return to New Zealand would not, in my view, result in either him or his family experiencing major hardship.  However, regrettably, it is likely to affect his ongoing relationship with his former girlfriend.  I note that Mr Matthews has family and friends in New Zealand, and his evidence indicates he should not experience difficulty in obtaining employment there.  Finally, I have noted that Mr Matthews has, in the past, received a formal warning from the Department about his conduct.

54. Having had regard to both the primary and other considerations, my overall conclusion is that these considerations favour exercising the discretion in s 501(2) of the Act to cancel Mr Matthews’ visa.

Decision

55.     The decision under review is affirmed.

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.

Signed: ............[sgd]..................................................................
  Associate

Date of Hearing  3 August 2011
Date of Decision  10 August 2011
Counsel for the Applicant  R Nair
Solicitor for the Applicant  Legal & Company
Solicitor for the Respondent  DMJ McLaren, Sparke Helmore