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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Matthews and Minister for Immigration and Citizenship

Details

AGLC: Matthews and Minister for Immigration and Citizenship [2011] AATA 548
Case: [2011] AATA 548
Decision Date: 10 August 2011

CaseChat Overview and Summary

The case of Matthews and Minister for Immigration and Citizenship was before the Administrative Appeals Tribunal, concerning the cancellation of a visa under Direction 41. The appellant, Matthews, faced visa cancellation due to a substantial criminal record, leading to concerns about the protection of the Australian community. The Tribunal was tasked with determining whether the primary considerations of the character test were met, as well as assessing the relevance of other factors such as family ties and hardship.

The legal issues at the heart of the case revolved around whether the Minister's decision to cancel Matthews' visa was justified under the Migration Act. Specifically, the Tribunal needed to examine if the character test criteria were met, including the seriousness and nature of the conduct, the risk of reoffending, and the length of time Matthews had lived in Australia before engaging in criminal activity. Additionally, the Tribunal considered other relevant factors such as Matthews' family ties, the nature of his relationships, his links to the country of removal, and the potential hardship for him and his family.

The Tribunal found that the Minister's decision to cancel Matthews' visa was well-founded. The Tribunal was satisfied that the primary considerations of the character test were met, as Matthews had a substantial criminal record that posed a significant risk to the Australian community. The Tribunal also considered the other factors but found them to be less compelling in the face of the substantial criminal record. The Tribunal concluded that the decision to cancel the visa was reasonable and affirmed the decision under review.

Accordingly, the Tribunal upheld the Minister's decision, affirming that the visa cancellation was justified under the Migration Act. The Tribunal's reasoning was based on the substantial criminal record and the risk it posed, along with the other considerations that, while relevant, did not outweigh the primary character test criteria. The decision highlights the importance of the character test in visa cancellation cases and the weight given to criminal conduct in such assessments.

Orders

Orders of the court

The decision under review is affirmed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		Michael James Matthews