Matthews and Minister for Immigration and Citizenship

[2010] AATA 1014

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1014

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4269

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DWAYNE MATTHEWS

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date16 December 2010   

PlaceSydney

Decision The decision under review is affirmed.

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

Ms N Bell, Senior Member   

CATCHWORDS – Citizenship – cancellation of visa – not of good character - substantial criminal record - protection of the Australian community – family ties and relationships

Migration Act 1958

REASONS FOR DECISION

Ms N Bell, Senior Member

1. Mr Dwayne Matthews is a citizen of New Zealand, born on 20 September 1990. He arrived in Australia on 28 February 2008 on a temporary visa. He was 17 years and 5 months old. On 22 April 2010 he was convicted of robbery in company, committed on 11 February 2009. He was sentenced to 2 years and 11 months imprisonment, with 1 year and 6 months non parole. At the time of the commission of the offence Mr Matthews had been in Australia for one year. He was recently released from gaol and is now detained at Villawood Detention Centre following the Minister’s decision to cancel his visa on the grounds that Mr Matthews did not satisfy the character test set out in section 501 of the Migration Act 1958.

2.       Mr Matthews was unrepresented at the Tribunal’s hearing.  He provided no statements, of his own or of others, and no documentary evidence of any kind.  He gave oral evidence.

3. Section 501(2) of the Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test”. Section 501(6) of the Act provides that a person does not pass the character test if the person has a “substantial criminal record”.  “Substantial criminal record” is defined in section 501(7) of the Act as, among other things, having been sentenced to a term of imprisonment of 12 months or more. There is no dispute that on 22 April 2010, Mr Matthews was convicted of robbery in company and was sentenced for a term greater than 12 months. It therefore follows that he does not pass the character test.

4.       The discretion of the Minister to cancel Mr Matthews’ visa is thus enlivened.  In exercising the discretion, the decision maker must apply Ministerial Direction No. 41 on Visa Refusal and Cancellation under section 501 of the Act. This Direction superseded Direction 21 and came into effect on 15 June 2009.  The Direction 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.

5.       The primary considerations in the Direction are:

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).

6.      These considerations are elaborated on by a range of factors to which regard must be had. The additional “other” considerations contained in the Direction are indicated by the headings that appear below.

primary considerations

7.      The primary consideration most relevant to Mr Matthews’ circumstances, given his convictions for violent crimes, is the protection of the Australian community.  The only one of Australia’s international obligations that arises is that under the International Convention on the Rights of the Child.  Mr Matthews is the father of a two year old son.  Mr Mathews himself is no longer a minor.

protection of the australian community

8.      The Direction provides further guidance to decision makers in assessing the level of the risk of harm to the community by identifying as factors relevant to that assessment the seriousness and nature of the conduct and the risk that the conduct may be repeated.

9.      As to the seriousness of the conduct, I note that the crime for which Mr Talbot was incarcerated, namely robbery, falls within the list of crimes set out in the Direction and described as serious.  I note the description of the circumstances of the offence in the sentencing judge’s remarks:

In short, at about 1.30am on 11 February 2009 the offender and approximately three other young persons loitered in Diment Way, Hurstville. Diment Way is a pedestrian walkway which runs between Forest Road and Cross Street. At about 1.45am Guo Shen (“the victim”) entered the walkway from Forest Road and when he was about halfway along the walkway he was approached by a male who struck in the face. The victim as a consequence of the blow lost his glasses. The victim fell to the ground and in his own words “Felt that there was more than one person kicking and beating me”.

Fortunately for the victim a police office [sic], Inspector Cunningham observed the victim being punched and kicked on the ground. Inspector Cunningham went to the aid of the victim and the four persons decamped from the scene. Two of the persons, being young persons, namely Kelly Shortland and Jesse Phelan, were apprehended by police near the scene of the attack. The offender was pursued into Butler Road, Hurstville where he was detained. Police observed a wallet in the vicinity of the offender. The wallet contained various forms of identification in the name of the victim and approximately $2,440.00 in cash.

10.     Mr Matthews pleaded guilty to the offence.  I also note that Solomon J described the offence as “serious”, but that he was not satisfied on the facts that Mr Matthews in any way struck the victim or that he approached him before he was struck by one of the assailants.  His Honour also considered the offence was unplanned and impulsive.

11.     While his Honour appeared to be under the impression that Mr Matthews had no prior criminal record, he has the following convictions from New Zealand:

Conviction date	Offence date	Charge	Sentence
11 May 2006	13 March 2006	Unlawfully in enclosed Yard or Area	Admonished and discharged
7 July 2005	23-25 November 2004	2 x Burgles (Oth Prop)  ($500-$5000) By Night	Social welfare Supervision for 6 months
7 July 2005	21 February 2005	Burgles (Oth Prop) ($500-$5000) By day	Social welfare Supervision for 6 months
7 July 2005	9 January 2005	Burgles (Oth Prop) ($500-$5000) By day	Social welfare Supervision for 6 months
7 July 2005	2 January 2005	Burgles (Oth Prop) (Over $5000) By Night	Social welfare Supervision for 6 months
7 July 2005	2 January 2005	2 x Burgles (Oth Prop) (Over $5000) By Night	Social welfare Supervision for 6 months

12.     I note that Mr Matthews failed to disclose these New Zealand convictions on his incoming passenger card when he entered Australia.  He said the reason for this was his honest belief that they would be expunged when he reached the age of 17.  He said that he had been told this by a judge.

13.     I am satisfied that, particularly in the context of Mr Matthew’s convictions in New Zealand, the offence committed by him in Australia was serious.  This is so notwithstanding Solomon J’s comments that Mr Matthews appears not to have struck the victim and that the crime was unplanned.

14.     His Honour also noted that Mr Matthews gave evidence that at the time of the offence he was drunk and that he was a regular binge drinker.  At the hearing before the Tribunal, Mr Matthews said he has had this pattern of drinking since he was 15 years old: drinking to excess on the weekends and whenever he had money.

15.     As to the risk of the conduct being repeated, I note Solomon J’s remark that Mr Matthews was remorseful and recognises that he has brought shame on his family.  His Honour considered that Mr Matthews has good prospects for rehabilitation.  He said that “alcohol is an important question for the offender” and considered that if he remains sober there is little chance of him reoffending.

16.     Mr Matthews gave evidence that he had been given a place in an alcohol and drug rehabilitation course when he was at Long Bay gaol.  However, he said that on the second day he was ejected from the course.  When asked why he was ejected he said it was probably because he was laughing.  I note that he referred to the course as “that stupid thing” and expressed frustration that it had taken 9 months for him to be given a place in it.  He said he did not approach the course facilitator to ask her if he could be readmitted because he considered he would not be able to change her mind and so there was no point.  This was so even though he saw her at intervals and chatted with her.  He said his solicitor attempted on his behalf to get him a place in a course at one of the prisons he was later transferred to, but had no success.

17.     

Mr Matthews gave evidence that he has not had a drink since he was incarcerated, including the time after his release and before his detention.  He said he was living, after release from gaol, with his sister and she would only have him if he promised not to drink.  He said he was refraining from alcohol so that he had a place to stay.  The outstanding question is whether he will drink in the future.  He was frank in answer to this and said he will probably consume alcohol in the future but said he would not drink to excess and never drank to excess “by choice” in the past.  Rather, he said, it was the crowd he was with that made him feel compelled to drink more.  He said he has not seen those friends since he went to gaol. 

Mr Matthews said that having everything taken away from him has changed his attitude to drinking and he thinks he will not drink to excess in the future.  He said he doesn’t see the point now in getting “blind drunk”.

18.     

I note the comment by Solomon J about the centrality of alcohol to

Mr Matthews’ offence and the likelihood of reoffending and I also note Mr Matthews’ apparent failure to take drug and alcohol rehabilitation seriously. It follows that I must conclude that there is no immediate prospect of rehabilitation and there is no evidence, except for the assertion of Mr Matthews of short term abstinence, of rehabilitation already achieved.  There is a real risk that the conduct may be repeated.  Even though Mr Matthews said he has had a change of attitude after having been incarcerated, I consider that the continuing risk is substantial.

19.     The consideration of the protection of the Australian community weighs heavily in favour of cancelling Mr Matthews’ visa.

whether a minor when began living in Australia

20.     Mr Matthews was 17 years and 5 months old when he arrived in Australia.  The vast majority of his formative years were spent in New Zealand.  It follows that, while this consideration weighs slightly in his favour, its impact is marginal.

length of time resident in australia prior to criminal activity

21.     Mr Matthews was resident in Australia for just a year before he committed the crime for which he was convicted.  No favourable consideration arises from this short period of time in Australia.

international obligations

22.     The only international obligation relevant to Mr Matthews’ circumstances is the Convention on the Rights of the Child.  Mr Matthews has a son who was born two months before he was incarcerated.  The best interests of this child must be taken into consideration.  In so doing I am mindful of the considerations and factors set out in paragraph 10.4.1.  I note there is no evidence of the child having been subject to abuse, neglect or trauma.

23.     Mr Matthews said that he wishes to have a relationship with his son. He said that his son and his son’s mother, a New Zealand woman with Australian citizenship, visited him more than 10 times while he was incarcerated.  He conceded that his son does not recognise him and that he thinks his grandfather is his father.  He said that he saw his son every week before he was incarcerated but that his son and his son’s mother went to New Zealand in the week before his incarceration.  Mr Matthews said she had been talking about going but did not tell him she had decided to go.  He said he was not financially supporting his son before he went to gaol.  His son’s mother has full custody of his son.  She and Mr Matthews have never lived together.

24.     Mr Matthews said that when he was released from gaol he did not support his son or see him but tried to arrange to give money to his son’s mother on one occasion.  He said the money was not accepted.  He said he has never discussed the care and support of his son with his son’s mother.  He also said she is not happy with him at the moment because he has been in prison.

25.     Mr Matthews said that if he stayed in Australia he would like to see his son on the weekends and expects that his son’s mother would be happy with that.  He said that his son’s mother now has a boyfriend and he expects that this man plays a role in his son’s life.

26.     I am mindful of Mr Mattews’ son’s very young age (two years) and the distant relationship they have had.  He was only two months old when Mr Matthews was incarcerated, has seen him sporadically while he was imprisoned and on just one occasion when he was released.  Mr Matthews admits that his son does not recognise him as his father and instead is attached to the people in his household.

27.     It may be that his son’s mother will allow Mr Matthews to see his son but it is clear that he will not play a full parental role.  Rather, he plans to see his son on the weekends. However, he has made no arrangements about this or about the financial support he might give to his son.  He admits that his son’s grandfather plays a significant role in his son’s life and expects that the mother’s boyfriend will as well.  There is no suggestion that his son would move to New Zealand if Mr Matthews is deported.

28.     The only detriment to his son, if Mr Matthews were to be deported, would be that he would be deprived of a relationship with his father.  However, that relationship has never really developed.

29.     While this consideration weighs against cancellation, but I consider that Mr Matthew’s son’s interests are only minimally affected and considerably less weight should be given to this consideration than to that of the protection of the Australian community.

other considerations

family ties and relationships

30.     Mr Matthews’ sister, her husband and her four children are in Australia and he says he is close to his sister.  He also has an uncle and some cousins living here.  He is no longer in a relationship with his son’s mother.

31.     This consideration weighs slightly against cancellation.

age

32.     Mr Matthews is a young man of 20.  There is no consequence of his age that weighs either for or against cancellation.

Health

33.     There is no evidence of ill health for Mr Matthews.  This consideration is neutral.

links to new Zealand

34.     Mr Matthews’ parents and other siblings live in New Zealand.  He said that each of his parents came to Australia to visit him when he was incarcerated.  He also has other family there.  He said the reason he left New Zealand was that he thought there were better opportunities in Australia and made the decision to come here on the spur of the moment.  He lived in New Zealand for most of his life.

35.     This consideration weighs in favour of cancellation.

Hardship

36.     There was no evidence before the Tribunal of hardship that would be experienced by Mr Matthews or by members of his family in Australia were he to be deported.  Mr Matthews said only that if he were to return to New Zealand it would be a “last resort”.

37.     This consideration is neutral.

level of education

38.     Mr Matthews said he left school in Year 10.  He appeared to be reasonably articulate and able to put arguments on his own behalf.  He appeared to be reasonably confident and not intimidated by the process of the hearing.  He appeared to grasp the significance and meaning of the proceedings.

39.     This consideration is neutral.

formal advice

40.     Mr Matthews received no formal advice by an officer of the Department of Immigration and Citizenship about the conduct that has brought him within the deportation provisions of the Act.  This consideration weighs marginally against cancellation.

the balance of considerations

41.     Of the primary considerations, the protection of the Australian community weighs heavily in favour of cancellation of Mr Matthews’ visa, while the remainder, including the best interests of Mr Matthews’ son, weigh only slightly against.

42.     Of the other considerations, family ties and the failure to receive formal advice weigh slightly against cancellation.  Links to New Zealand weigh in favour of it.  The remainder of the other considerations have neutral effect.

43.     On balance, I consider that the weight of considerations, particularly in relation to the primary consideration of protection of the community, is in favour of cancellation.

Decision

44.     The decision under review is affirmed.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

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

Date of Hearing  6 December 2010
Date of Decision  16 December 2010
Advocate for the Applicant        Unrepresented
Solicitor for the Respondent      Mr Gregory Johnson, DLA Phillips Fox Lawyers