Perenise and Minister for Immigration and Citizenship

[2011] AATA 816

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 816

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/3757

GENERAL ADMINISTRATIVE DIVISION		)
Re		MATEO PERENISE

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Senior Member S E Frost

Date18 November 2011  

PlaceSydney

Decision The decision under review is affirmed.  

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

S E Frost
  Senior Member

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – Cancellation of visa - character test -  substantial criminal record – exercise of discretion to cancel applicant’s visa – application of Minister’s Direction - protection of the Australian community - seriousness and nature of relevant conduct – risk conduct may be repeated – best interests of children – Cancellation affirmed.

RELEVANT ACTS

Migration Act 1985, Ss 499, 500, 501

Direction [No.41] – Visa refusal and cancellation under s501

REASONS FOR DECISION

18 November 2011 Senior Member S E Frost  

1.      The object of the Migration Act 1958 (the Act) is to “regulate, in the national interest, the coming into, and presence in, Australia of non‑citizens”.  To advance that object, the Act in s 4 provides for:

(a)visas permitting non-citizens to enter or remain in Australia; and

(b)the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted.

2.      For the last seven and a half years Mateo Perenise, who is a non-citizen, has been permitted to remain in Australia because he has held a Class TY Subclass 444 Special Category (Temporary) visa. 

3.      Mr Perenise’s entitlement to remain in Australia was removed in August 2011, when a delegate of the Minister decided to cancel Mr Perenise’s visa under s 501(2) of the Act. 

4.      The circumstance that triggered the cancellation decision was the fact that Mr Perenise does not pass the character test in s 501(6) of the Act. 

5.      Mr Perenise accepts that he does not pass the character test, because he has what s 501(7) of the Act describes as a substantial criminal record.  He also accepts that the delegate had a discretion to cancel the visa under s 501(2) of the Act.  But he says that the discretion should not have been exercised the way it was.  He says that, taking into account the factors that must be considered in the exercise of the discretion, the visa should not have been cancelled.  He has therefore applied to this Tribunal for review of the cancellation decision.

Background

6.      Mr Perenise was born in Samoa in 1984. 

7.      In 1998, his biological parents took him, with his two brothers, from Samoa to New Zealand to be adopted by a family acquaintance.  He was raised in New Zealand by that family acquaintance.  He refers to her as his stepmother.

8.      In 1999, when he was fourteen years old, his stepmother brought him and his brothers to Australia.  At that stage it was intended that they would all live here permanently.  Mr Perenise was enrolled in the local high school.  He did not finish high school, but left part way through Year 10, in 2000.

9.      The stepmother was apparently physically abusive and violent towards the boys.  In late 2000 there was what Mr Perenise describes as an “episode of violence” towards Mr Perenise’s younger brother.  The incident was reported to the police and she was charged with assault.  The Department of Community Services removed the younger brother from her care and placed him with a foster family.

10.     Apparently to avoid facing court on the assault charge, the stepmother returned to New Zealand with Mr Perenise and the older brother.  Mr Perenise describes his family life in New Zealand after this time as “abusive physically, emotionally, and verbally”.  He says that he spent most of his late teenage years avoiding his stepmother’s abuse.

11.     In 2004, when he was 19 years old, he came back to Australia by himself.  In his affidavit he said that this was to get away from his stepmother’s abuse, and suggested that it was with the intention of living in Australia on a permanent basis.  However, in oral evidence before me, he said that he came to Australia in May 2004 to see his brother, spent two weeks here and then decided he should leave his stepmother and come to Australia permanently.  He returned to New Zealand, packed up his things and came back to Australia ten days later.  That version is consistent with the record of his movements into and out of Australia in Exhibit R1.  In any event, he has been in Australia continuously since June 2004, and has not at any stage since then gone back to New Zealand.

12.     On his arrival in June 2004 he moved in with his aunt and uncle and their children in Dee Why.  His affidavit evidence was to the effect that he has lived with them ever since, but that is plainly not correct.  Cross-examination revealed that he lived with his aunt and uncle only for about four weeks.  He then lived with his younger brother’s foster mother, Lucy Tui, from about July 2004.

13.     At some time in the second half of 2005 (Mr Perenise suggests it was in October but it was probably somewhat before then), Mr Perenise met Sophia Edwards.  Sophia is the daughter of Harry Edwards, who owns a business where Mr Perenise had been employed as a welder since 2004.  He worked with Mr Edwards until 2006.  After that he worked as a furniture removalist, and then from about the middle of 2008 he got another job as a welder.

14.     Mr Perenise’s relationship with Sophia developed.  He moved in with her while she was living with her parents, and in May 2006 Sophia gave birth to their son.  She has since had a second child to Mr Perenise – a daughter, who is now a little over 18 months old.

15.     In the meantime Mr Perenise was getting into trouble with the law. 

16.     In March 2005 he was convicted in Manly Local Court on a charge of larceny, the offence having been committed on 5 December 2004, six months after his arrival in Australia.  He was placed on a 12 month good behaviour bond.

17.     On 21 December 2005 Mr Perenise was charged with common assault.  A further assault charge was laid on 12 January 2006, together with a charge of contravening an Apprehended Domestic Violence Order (ADVO).  He was convicted on all counts on 18 January 2006, fined $300 on the first assault charge, $500 on the second one, and on the ADVO matter he was given a further 12 month good behaviour bond. 

18.     On 27 February 2006 (that is, while both good behaviour bonds were still in force), Mr Perenise was charged with assault occasioning actual bodily harm and a further contravention of an ADVO.  In October 2006 he was convicted on both counts and sentenced to six months in prison.

19.     Meanwhile, on 29 September 2006, he had been sentenced in the District Court to 18 months in prison for robbery, with a concurrent term of 12 months for “aggravated enter dwelling in company”.  The sentencing judge said this (G-docs, pp. 60-61):

7.        In relation to the robbery offence, at about 4.20pm on Tuesday 18 April 2006 the offender was at a bus stop on the main road in Dee Why.  He was in the company of two other men and a woman.  He was extremely intoxicated.  He demanded money from the victim, who was minding his own business at the bus stop.  When the victim refused, the offender continued to press him for money and started patting him down.  The offender then took hold of the headphone cord of an iPod which the victim had on his person.  When the victim resisted, the offender threatened to “roll” the victim.  The offender seized the iPod.  He continued to demand money.  The victim continued to assert that he had no money.  The offender told the victim to “Stop lying or I’ll come back and shoot you”.  He directed the victim to go across the road and withdraw money from an ATM.  The victim refused.  The offender threatened the victim with a clenched fist, saying “Do you want me to hit you?  Give me some money.”  The demands continued until the offender’s companion decided to walk away.  The offender left, apparently reluctantly, saying “If I see you again, I’ll stab you in the throat with a knife and kill you.”

8.        The victim went to the Dee Why police station.  The accused had been reporting to that police station in relation to the February 2006 matters and, when he attended to report on bail for those matters, he was arrested in relation to the robbery.  The offender made admissions in relation to all offences.  As I have indicated he entered a plea of guilty at the earliest reasonable opportunity.

20. The judge’s sentencing remarks confirm, at [9], that Mr Perenise’s assault convictions, referred to in [17] of these reasons, were in relation to the assault of his girlfriend, Sophia Edwards. It is most likely that she was also the victim of the “assault occasioning actual bodily harm” offence referred to in [18].

21.     He was released from prison on parole in February 2007 but because of a breach of his parole conditions he was imprisoned again in May 2007.  He was released in August 2007, again subject to parole supervision, which he satisfactorily completed in February 2008.

22.     There is a conviction recorded in April 2009 on a charge of “destroy or damage property up to $2,000” in respect of which Mr Perenise was placed on a further good behaviour bond, this time for six months.

23.     In June 2010 Mr Perenise entered Ms Edwards’ home (in breach of an ADVO, but possibly with the consent of Ms Edwards).  He admitted to the Tribunal that he was drunk at the time, and that he had been smoking marijuana.  They got into an argument, he assaulted her and damaged some of her property.  The police were called; he was charged with three counts of common assault, one count of assault occasioning actual bodily harm, four counts of contravene ADVO and one count of destroy or damage property.  He was convicted and sentenced to 18 months in prison, with a non-parole period of nine months. 

24.     At [59] of his affidavit (Exhibit A2), Mr Perenise acknowledged the criminal record that I have summarised above (plus an additional conviction in January 2007 for “maliciously destroy or damage property”; no penalty imposed), and continued:

61.      In relation to the Criminal Record, my violence has been only towards Sophia and I have completely changed from being a violent partner.  I have changed my behaviour towards Sophia totally and I only want to be a good partner and father.

62.      The other offences that I have committed were under the influence of drugs and alcohol and in the company of people who were a bad influence on my life.  I have no involvement with any of these things any more.

Imprisonment 2010 and 2011

63.      During my imprisonment at St Heliers Correctional Centre in Muswellbrook, NSW, I attended and completed the following programs:

(a)Domestic Abuse Program – [completion certificate annexed];

(b)Getting SMART Addictive Behaviours Program – [completion certificate annexed];

(c)Four competency units of the NSW Certificate I in Access to Work and Training – [completion certificate annexed];

(d)12 Step Drug and Alcohol Program – [completion certificate annexed];

(e)Enough is Enough Anti Violence Program – [completion certificate annexed];

(f)Work in building maintenance at the prison.

64.      I took many drug tests while I was in prison, and passed them all.

65.      I stayed out of trouble while I was in prison, and had no misdemeanours or reprimands for bad behaviours.

66.      I stayed in constant contact with Sophia and my children during this time.  Sophia arranged for [our son] to call me every day when he gets home from school.  [He] is a great talker and I looked forward to speaking with him at 3.30pm every day.

67.      I still speak with Sophia and [our son] at least every day, and often multiple times per day, since I have my own mobile phone.

68.      I also have maintained good contact with my [younger brother], and my auntie and uncle, and we phone each other several times per week.

Reviewing the cancellation decision

25.     Section 499(1) of the Act empowers the Minister to give written directions to a person or body having functions or powers under the Act.  Provided the directions are not inconsistent with the Act or the regulations, the directions must be complied with: s 499(2) and (2A).

26.     The Minister has made a relevant written direction.  It is Direction [no.41] – Visa refusal and cancellation under s 501.  Direction [41] is binding on the Tribunal: see paragraph 5.2(1) and the definition of “decision-maker” in paragraph 6(1). 

27.     Paragraph 5.1 of Direction [41] is in the following terms:

5.1  Objectives

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

(2)In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens. 

(3)The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.

28.     Part 2(A) of the Direction deals with the application of the character test in s 501(6) of the Act.  I have already noted that Mr Perenise accepts that he does not pass the character test.  I formally find that Mr Perenise does not pass the character test because he has a substantial criminal record (s 501(6)(a)), as a result of:

·his having been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)); and

·his having been sentenced to 2 or more terms of imprisonment where the total of those terms is 2 years or more (s 501(7)(d)).

29.     As a result, the discretion to cancel Mr Perenise’s visa under s 501(2) of the Act is enlivened. 

30.     In considering whether to exercise that discretion (Part 2(B) of the Direction), I must take into account the primary considerations (which are in paragraph 10 of the Direction), and I am also instructed that “[t]he other considerations (defined in paragraph 11) should be taken into account where relevant” (my emphasis): paragraph 9(1).  In either case, though, whether in respect of primary considerations or other considerations, I “should only take into account directly relevant considerations”: paragraph 9(2).

The primary considerations

31.     The primary considerations are, relevantly:

(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) ...

Protection of the Australian community

32.     There are two aspects to be considered here – the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.

33.     The Direction notes at paragraph 10.1.1(1) that “crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community”.  Crimes involving violence against vulnerable persons are “especially abhorrent to the whole community”.

34.     The offences of assault and robbery are specifically listed in the Direction as “serious” offences.  There is no doubt that Mr Perenise’s criminal history presents a picture of repeated serious criminal conduct.

35.     It is of particular concern that there is a pattern of violent behaviour towards his domestic partner.  I infer from Mr Perenise’s record that an ADVO was first taken out against him on Ms Edwards’ behalf in December 2005 or January 2006.  There have been several instances of contravention of these orders.  Although he notes in Exhibit A1 that there is currently no ADVO in place (it “was made by Manly Local Court in late 2009 and has since expired”), I gain no comfort from that fact since he has been continuously in custody (or else in immigration detention) since the middle of 2010.

36.     Of a different character to the domestic violence, but also of considerable concern, is the violent behaviour involved in the robbery offence in April 2006.  The sentencing judge noted that Mr Perenise was “extremely intoxicated” at the time of the offence, and it is clear that alcohol or drug use, or both, have been a factor in much of Mr Perenise’s criminal behaviour.  He has also had problems with anger management.

37. Mr Perenise says he has changed. It is certainly to his credit that he undertook the various courses while he was in prison in 2010 and 2011: [24] of these reasons. But he has not been able to demonstrate whether he would be able to put this learning into practice, because he was placed into immigration detention on his release from prison. His rehabilitation therefore remains untested.

38.     Ms Edwards is the person most at risk if Mr Perenise’s visa is not cancelled.  Although there is no suggestion that Mr Perenise has been violent towards the children, Ms Edwards had sufficient insight to realise that her son has suffered as a result of Mr Perenise’s conduct – not only has he witnessed at least some of the violence toward his mother and the consequences of it; there is also the disruption to his life caused by moving around from one residence to another, into and out of women’s refuges and of course his father’s incarceration and the turmoil that that will have caused.  The son has exhibited behavioural problems and he, like his mother, has had to undergo counselling.

39.     While Ms Edwards acknowledged that Mr Perenise “has been good with the kids”, she was frank enough to volunteer that she does not want her daughter to go through the same things that her son has gone through.  If Mr Perenise were to stay in Australia, then Ms Edwards has indicated (as she has in the past) that she does not want to maintain an intimate relationship with Mr Perenise – so that, at least for a time, his contact with her would be restricted to the times when he collects the children and returns them in accordance with his access entitlements.  Ms Edwards told the Tribunal that “he has to prove himself” before the relationship could progress beyond that.

40.     As far as the risk of recidivism is concerned, I note Mr Perenise’s expressions of remorse for the past and good intentions for the future.  I also note that he has said that sort of thing before.  In July 2007, when the Department of Immigration notified Mr Perenise of its intention to consider cancelling his visa (the Department eventually decided not to cancel the visa at that time), he wrote (Exhibit R4):

I am writing this letter to say to the Australian community that I am sorry for what I did and to show that I am a different person after my time in jail.

...

Since I came to jail I realise that I did not know how to make friends because all I wanted to do is get away from my step mum.  In jail I have worked hard and know how important it is to keep the rules – the law.  I am so sorry that it took coming to jail for me to see how much I need to do about my relationship with my own family.  I will work hard to understand myself and my partner’s needs.  So I will with my partner attend to counselling so that we can be good parents for our son.  I know now that I have a family that I love here in Australia and they are waiting for me.  They are the friends I was looking for.

I am going to change my life around because I have already made the biggest mistake of my life.  First I will do anger management to take away the anger that I came here with from my step mum.  And I will do all the counselling I can do to help me to change myself to become a better person to my partner and son and also the Australian community.  I apologise to the Australian community for what I have done in the past.  Plus I want to show the Australian community that I can be trusted to stay in Australia after my time here in jail.

...

41.     Since 2007, with the exception of the minor offence in April 2009, the only criminal conduct on his record is the assault and ADVO breach in June 2010, with Ms Edwards the victim.

42.     I am satisfied that the risk of a repeat of the type of serious criminal conduct perpetrated against victims other than Ms Edwards is low, provided he stays away from alcohol and drugs (as he categorically told the Tribunal he would) and provided he is more discriminating about the company he keeps.  Mr Perenise does appear to have recognised the negative influence of his former circle of acquaintances and seems to have found some friends who are supportive of him.  He has also established a connection with the Assemblies of God Church.

43.     However, as for the risk of further criminal conduct directed towards Ms Edwards, I am not at all so satisfied.  Their relationship was described by a Parole Officer in March 2010 (G-docs, p. 104) as “at times turbulent and volatile”.  Her future welfare is heavily dependent on the success of the rehabilitation program Mr Perenise undertook during his most recent period of imprisonment.  In short, he would need to have conquered not only his alcohol and drug misuse, but also his tendency to engage in domestic violence.  That is a tall order for a person who has committed to such an outcome in the past but has failed to achieve it, and who now commits to it without any identifiable support network of family and friends to monitor and encourage his behaviour.  I consider this aspect of support from family and friends to be critical to the success of the transition to the freedom of life in the general community from the heavily controlled environment of prison (where Mr Perenise’s behaviour has been, by all accounts, quite satisfactory).

44.     Admittedly, there is a letter of support from Mr Perenise’s uncle and aunt (with whom Mr Perenise lived for a short time after his arrival in Australia in 2004).  The uncle, Mua’au Lopati, also attended the Tribunal and answered questions put to him by Mr Leerdam, who appeared for the Minister.  Mr Lopati’s knowledge of Mr Perenise’s criminal record appears sketchy.  His and his wife’s letter to the Tribunal is one of hope for the future rather than a ringing endorsement of their nephew.  They also appear to have had little to do with Mr Perenise over the last several years and it is not clear how they might be able to influence his behaviour in the future.

45.     Other people who might have spoken to the Tribunal in support of Mr Perenise, but did not do so, are Sophia’s parents.  Mr Perenise explained that Mr Edwards had liked him in the beginning, but he said “I let Harry down … He wants me to change.”

46.     Mr Perenise mentioned in his affidavit (Exhibit A2) that his brother had offered to write a letter of support and to provide oral evidence to the Tribunal.  He did not do so.  Mr Perenise’s affidavit also indicated that he was “especially close” to a number of relatives in Australia, including Lucy Tui, Tulo Paese and Pat Paese.  None of these people provided any material to the Tribunal in support of Mr Perenise.

47.     There are at least some favourable indications from the most recent report of the Parole Service in relation to Mr Perenise, dated 29 June 2011 (G-docs, pp. 100-102).  The report includes the following:

Mr Perenise commenced the Domestic Abuse Program on 4 January 2011 and completed the program on 18 February 2011; service records noted positive involvement and participation throughout program.  Further, he participated and completed the Getting smart Program on 16 February 2011.  His performance and participation in the Getting smart Program was noted as having been positive and that he ‘presented with a clear understanding of that programs concepts’.

48.     Of course, that does not mean that he is able to translate an understanding of those concepts into actual positive behaviour.

49.     Finally, I take into account, as paragraph 10.1.2(2) of the Direction requires me to do, the fact that Mr Perenise has in the past committed offences while subject to the terms of a good behaviour bond, committed offences while on bail and breached various ADVOs.  That is a factor that is “to be considered as particularly relevant to this assessment”.

50.     Taking all of these matters into consideration, I am satisfied that there is a risk that Mr Perenise’s violent treatment of Ms Edwards may be repeated, and that as a result, the protection of the Australian community from serious criminal or other harmful conduct is likely to be compromised if Mr Perenise were to remain in Australia.  Mr Perenise’s conduct weighs strongly against allowing him to remain in Australia.

Whether Mr Perenise was a minor when he began living in Australia

51.     Mr Perenise “began living in Australia” in 1999, at the age of 14.  It would not be accurate to regard his initial period in Australia as merely a “visit” because, as I have found, the intention was to live here permanently.  But circumstances changed, and his stepmother took him back to New Zealand after only about ten months.  By then he had turned 15.  He was 19 by the time he came back in 2004.

52.     It is not the case that Mr Perenise spent his “formative years” in Australia, which is the enquiry posed by paragraph 10.2 of the Direction.  In relation to the exercise of the discretion under s 501(2), this factor is neutral.

The length of time that Mr Perenise has been ordinarily resident

53.     Paragraph 10.3 of the Direction says 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”.

54.     Mr Perenise’s criminal activity commenced six months after his arrival in Australia in 2004.  This factor is not favourable to him.

The best interests of the children

55.     The best interests of each child must be considered individually: Direction, 10.4.1(3).  Nevertheless, there is nothing to indicate that their interests do not coincide.

56.     Mr Perenise’s son is now five and a half years old.  He has not spent much time with his father because:

·Mr Perenise has been in prison for much of that time; and

·when Mr Perenise has not been in prison, he has lived separately from Ms Edwards and the children.

57.     Mr Perenise’s daughter is four years younger than her brother and has hardly had any contact with her father at all.  Mr Perenise was taken into custody when his daughter was two months old and he has been there ever since.

58.     When not incarcerated, it seems that Mr Perenise has access to the children at weekends.

59.     Ms Edwards said in her statement (Exhibit A3):

[My son] would benefit from having his dad close by as he really loves his dad and enjoys doing physical things, playing games, drawing pictures, going fishing, going to the beach and learning how to swim.  His dad would also be able to attend school events e.g. sport carnivals and parent days, and participate in that side of [his] life.

My daughter […] needs to have the opportunity, like her brother […] to get to know her dad so that she can grow up knowing that there are two parents that love her and are truly concerned for her health and wellbeing and her overall mental and emotionally (sic) development.

60.     She also said in her statement:

I feel that if Mateo is granted a stay in Australia, he will be able to offer support and help me with raising [the children] providing that he was drug and alcohol free.

61.     Mr Leerdam asked her:

What would your action be if he was not drug and alcohol free?  Would you give him access to the children?

62.     She answered in one word: “No”.

63.     There is a general presumption that a child’s best interests will be served if the child remains with its parents: Direction, 10.4.1(4).  However, in my view that presumption is displaced in this case.

64.     The son has witnessed his father’s violence towards his mother and this has almost certainly been a contributor to his behavioural problems.  Furthermore, my finding that there is a risk of further violent conduct towards the children’s mother carries with it a corresponding risk of the children’s exposure to such conduct.  That is enough to displace the presumption.

65.     Having taken into account all relevant factors in paragraph 10.4.1(5) of the Direction, I am satisfied that the best interests of the children do not weigh in favour of allowing Mr Perenise to remain in Australia.

Other considerations

66.     I must take into account all other relevant considerations, although as paragraph 11(2) of Direction [41] indicates, they should “generally” be given less weight than the primary considerations.

67.     Mr Perenise has built some relationships in Australia, and has established some ties to the Australian community, but they could hardly be described as extensive.  The closest personal relationship he has developed has been with Ms Edwards, and that relationship has been described by others as “turbulent” and “volatile”.  At one stage they lived together, but that is not possible at the moment – first, because the courts have directed that they not live together; and second, because Ms Edwards says that she does not want to have that type of relationship with Mr Perenise “for now”.  But there appears to be genuine love and affection between them and they both seem to hope that there is a future for them together.

68.     Beyond that, there are the relatives to whom Mr Perenise referred in his affidavits (see [46] of these reasons) but, as I have already indicated, those relationships do not seem particularly strong.  Mr Perenise himself has made reference to his past difficulty in making friends ([40] of these reasons).

69.     Mr Perenise claims a willingness to provide some financial support to Ms Edwards but it would not be accurate to describe her as financially dependent on him.  No doubt she would appreciate whatever financial support he might be able to provide, but she has had to get by for extended periods in the past, when he has been in prison, without any financial contribution from him for the support of her household.

70.     Mr Perenise also says that he is hopeful of obtaining employment as a welder with his most recent employer in Brookvale.  It is likely that he would find it somewhat easier to get a job in Sydney than in New Zealand.  That is not because of some special qualification requirement in New Zealand but because he has no network there on which he might rely to secure employment.  Indeed, he appears to have no family ties or even any acquaintances in that country, where (although he is a citizen) he has spent only about five years of his life.  He has not contacted his stepmother since he left New Zealand in 2004 and nor has he had any contact with his older brother who has apparently maintained a relationship with her.  His age and good health are no impediment to obtaining employment.

71.     But these factors, while I take them into account, do not weigh sufficiently in his favour so as to overcome the significant balance against him as a result of the primary considerations.  That is despite the fact that Mr Perenise may experience some hardship being separated from his family and with his limited ties to New Zealand.

72.     I conclude on the basis of the totality of these considerations that it is appropriate to cancel Mr Perenise’s visa.

73.     Accordingly the decision under review is affirmed.

I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member S E Frost.

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

Date of Hearing  10 November 2011
Date of Decision  18 November 2011
Counsel for the Applicant         L J Byrne
Solicitor for the Applicant          Salvos Legal Humanitarian
Solicitor for the Respondent     L Leerdam, DLA Piper