AILEPATA PAESE and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2011] AATA 793
•10 November 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 793
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/3538
GENERAL ADMINISTRATIVE DIVISION ) Re AILEPATA PAESE Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date10 November 2011
PlaceSydney
Decision The Tribunal affirms the decision under review.
..................[sgd].........................
Ms G Ettinger
Senior Member
CATCHWORDS
IMMIGRATION – Visa cancellation – character test – substantial criminal record – whether Tribunal should exercise discretion in favour of the Applicant pursuant to s 501 of the Migration Act 1958 – Applicant had been received warning in 2007 – application of Direction [41] issued under s 499(1) of the Migration Act 1958 – primary considerations – protection of the Australian community – risk of recidivism – length of time that a person has been ordinarily resident in Australia before offending – interest of children – other considerations – decision under review affirmed.
Migration Act 1958 (Cth)s 501
Direction [no. 41] - Visa refusal and cancellation under s 501
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390
Shi v Migration Agents Registration Authority (2007) 158 FCR 525
REASONS FOR DECISION
10 November 2011 Ms G Ettinger, Senior Member SUMMARY
1. Mr Aliepata Paese has applied to this Tribunal for review of the decision of a delegate of the Minister for Immigration and Citizenship (the Respondent in these proceedings), dated 17 August 2011 to cancel his Class TY Subclass 444 Special Category (Temporary) visa.
2. The visa was cancelled because Mr Paese does not pass the character test as a result of his substantial criminal record, pursuant to section 501(6) of the Migration Act 1958, (the Act). In considering his application, the Tribunal may nevertheless exercise a discretion in his favour following the application of Direction [no. 41] – Visa refusal and cancellation under s 501 (Direction [41]), because ultimately it must make the correct or preferable decision.
3. Mr Paese told me that he felt he should remain in Australia because he has an 11 year old son born in the UK to Ms Anglish, who now resides here, he has his ageing mother, and siblings, and his whole family here. He told me that a lot has changed since he has been incarcerated, that he has grown up, and that he always wanted to be a father.
4. Mr Paese also told me that he had done various courses while incarcerated. I have noted them in the paragraphs which follow.
5. Ms Collins, who represented the Minister, submitted that Mr Paese committed offences very shortly after he arrived in Australia as a 21 year old, and has continued to offend. She submitted that Mr Paese has committed serious offences, does not pass the character test, and has breached court orders. She submitted that consideration of Direction [41], leads to the inevitable conclusion that Mr Paese should be returned to New Zealand, and that the Minister’s decision should be affirmed.
6. I noted that Daniel Mifsud, a solicitor contacted the Tribunal with regard to representing Mr Paese at this hearing, but that he neglected to apply for legal aid to do so, and was not prepared to otherwise appear. I note however that Mr Paese benefited from the pro bono advice Mr Prince, a solicitor, gives in migration matters at the Tribunal.
7. I am satisfied from the evidence before me that Mr Paese does not pass the character test pursuant to the legislation. I have considered the primary considerations and also the other considerations contained in Direction [41], and I am satisfied that the correct or preferable decision is that the discretion should not be exercised in Mr Paese’s favour, and the Minister’s decision to cancel Mr Paese’s visa should be affirmed. My reasons follow.
BACKGROUND
8. Mr Paese was born in Samoa in 1978, moved to New Zealand with his family when he was a child, and first came to Australia for a short time in 1993, then aged 15. He returned to New Zealand, and returned to live here in 1999, aged 21 years. Various family members were already living in Australia at that time.
9. Mr Paese told me that he completed the equivalent of year 10 at school in New Zealand, and found work in paid employment in Australia as soon as he arrived. He emphasised that he always worked (when he was not incarcerated).
10. Mr Paese acknowledged that he had a criminal record in New Zealand, and that he came to Australia to make a fresh start. The document at G20/156-157 indicates that Mr Paese had convictions in New Zealand in 1995, 1996 and 1998. They ranged over theft, careless or inconsiderate driving, common assault, unlicensed possession and other offences associated with a firearm, driving with excess of PCA and others. The sentences ranged from incarceration to community service, and disqualification from driving. Mr Paese was convicted and given a three year sentence for firearm offences in 1995.
11. Mr Paese’s first criminal conviction in Australia was on 14 March 2000 for driving with middle range PCA only some months after arriving in Australia in 1999. Further convictions occurred from 2003 as shown in the table below. I am concerned that they became more serious as the years went by.
12. Mr Paese’s most serious convictions, as indicated by a description of the violence involved, and prison sentences imposed, were on:
·27 February 2004, for malicious wounding in company, and robbery with aggravation for which he received a five year sentence with three years and three months non-parole; and
·13 February 2009, for break, enter and steal – burglary for which he received a sentence of five years and seven months with a three year and 10 month non-parole period.
13. Mr Paese said that he pleaded guilty to the break, enter and steal charge because he did not want to implicate his nephew who had been present. He said that he was only present at the scene of the crime because he wanted to prevent it happening. However, because he was on parole at the time, he was automatically breached.
14. Mr Paese told me that although he used some marijuana, and other drugs such as speed, cocaine and ecstasy occasionally, he was not a regular drug user. He said however that he drank alcohol to excess, particularly in times when he felt troubled, because that numbed pain.
15. As to his personal circumstances; Mr Paese has an 11 year old son. He gave a history of both families’ unaccepting attitudes to the pregnancy in his statement which was before me as Exhibit A1. As a result, Ms Elizabeth Anglish, then 18, was taken to the UK by her father, to where her mother lives, and where she gave birth to their child. Her evidence was that she returned to Australia some years ago, and that Mr Paese was always in her mind. However, she did not know where to find him, and over the course of years, married and now has two further children aged 10 and six. The marriage has since ended, and although she is not yet divorced, she sought out Mr Paese through his relatives, and has known his whereabouts since 2009. He told me that she looked him up in May this year, and that since then she has visited with their child almost every weekend. Ms Anglish said that when released from prison, Mr Paese would be living with her.
16. I noted however, that when completing a ‘Personal Details Form’ on 20 February 2011, Mr Paese nominated Ms Tia Rowe as his de facto. His explanation to me was that Ms Rowe is an old friend, and in order to be able to obtain personal details such as his whereabouts when he was moved to different prisons, Ms Rowe had to be nominated in that way. Mr Paese added that this was before Ms Anglish returned into his life in May 2011.
17. I noted that, in addition to the other offences, Mr Paese has also recorded offences while incarcerated. I noted the ‘Pre Release Report’ dated 12 September 2006 in relation to the 2004 conviction, concluded: Release to parole is therefore not recommended, and: The inmate has persistently minimised, externalised and justified his offences, has demonstrated no commitment to addressing his offending behaviour and has continued to display his violence even in the custodial setting. In that report Mr Paese is shown to have incurred the following custodial charges:
· 14 August 2006 fail prescribed urine test
· 3 November 2004 drugs in urine (cannabis)
· 3 November 2004 possession of drug implement
· 3 November 2004 damage property
· 7 October 2004 damage property
· 19 July 2004 possession of drug implement
· 28 December 2003 smoke in non-smoking area
18. The most recent ‘Probation and Parole Service’ report is dated 11 August 2011. It lists the following misconduct in prison since he re-entered on 13 January 2008:
·7 June 2008 fail urine test
·9 November 2008 fail prescribed urine test
·20 January 2010 ref/fail supply urine sample
·5 December 2010 disobey direction
·4 April 2011 fail comply Correctional Centre routine
·9 April 2011 fail urine test
19. The Report concluded: … given Mr Paese’s poor response in custody, this Service holds concerns about the offender’s forthcoming willingness and ability to successfully adapt to lawful community life on his release from custody. … Mr Paese has demonstrated that even under close scrutiny, whilst in custody, and despite undertaking studies to prepare him for the ‘fitness industry’ and making comments about living healthy he has continued to indulge in drug taking.
20. In reply to my questions regarding the taking of drugs while incarcerated, Mr Paese told me that the drugs he took were prescription pain killers.
LEGISLATIVE CONTEXT
21. The relevant legislation in this matter is the Migration Act 1958. I am also required to apply Direction [41] as relevant. Section 501(2) states that the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test, and the person does not satisfy the Minister that he or she passes the character test. Section 501(6) 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) 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. Clearly both situations apply to Mr Paese.
22. Direction [41], which is made pursuant to section 499 of the Act, is applied if exercising the discretion where a person has been held to fail the character test in section 501 of the Act. In relation to the character test, events leading up to the date of the decision of the Tribunal may be taken into account (Shi v Migration Agents Registration Authority (2007) 158 FCR 525).
23. Having reviewed the offences with which Mr Paese has been charged, those of which he was convicted, and the sentences which followed, which far exceed the minimum contemplated in section 501(7) of the Act, I am satisfied that the Applicant does indeed not pass the character test. I am mindful also that the crimes which Mr Paese committed, and of which he has been convicted such as assault, robbery with aggravation, malicious wounding in company, and break, enter and steal have been very serious.
24. I am mindful that the Objectives of Direction [41] as set out in paragraph 5, are, pursuant to paragraph 5.1(1) to regulate, in the national interest, the coming into, and presence in Australia of non-citizens. Paragraph 5.1(2) states that:
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.
25. Direction [41] contains a number of primary considerations and other considerations to which the Tribunal must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
26. The primary considerations in Direction [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).
…
27. There are also a number of other considerations that, where relevant, must be taken into account, but, generally, in accordance with Direction [41], paragraph 11(2), they should be given less weight than the primary considerations. Both the primary considerations and other considerations are discussed in regard to Mr Paese’s situation in the paragraphs which follow.
PRIMARY CONSIDERATIONS
28. The relevant primary considerations to be considered in Mr Paese’s case are the protection of the Australian community, assessed by considering the seriousness and nature of his relevant conduct, and the risk that that conduct may be repeated. Also relevant is that Mr Paese was 21 years old, when he arrived in order to make his home here, and the length of time he had been ordinarily resident in Australia prior to engaging in criminal activity. I noted that Mr Paese’s first conviction in Australia was in March 2000, only a few months after arriving in 1999. The best interests of any relevant child or children (Mr Paese has a child and Ms Anglish, the mother of that child, has two other children), and any other international obligations (not relevant in this case), are also primary considerations which I address in the paragraphs below.
Protection of the Australian Community
29. The primary consideration, protection of the Australian community has been broken down into consideration of the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.
Seriousness and nature of the conduct
30. With regard to the seriousness and nature of Mr Paese’s conduct, I note that paragraph 10.1.1(1) states that Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. A non-exhaustive list of offences and conduct are given in paragraph 10.1.1(2). I am mindful that Mr Paese has, among others, been charged with, and found guilty of assault, robbery with aggravation, malicious wounding in company, and break, enter and steal. Details of the offences are in the table which follows. I am mindful that crimes involving violence or the threat of violence are of particular concern to the welfare and safety of the Australian community.
31. A list of Mr Paese’s convictions in Australia follows.
Offence Date of sentence Sentence Break enter and steal – Burglary 13 February 2009 5 years and 7 months (3 years and 10 months non parole period) Inmate possess mobile phone/sim card 28 September 2004 2 months Malicious wounding in company 27 February 2004 5 years (3 years and 3 months non parole) Robbery with aggravation 27 February 2004 5 years (3 years and 3 months non parole) Break & enter building & steal – two charges 3 August 2004 On each charge imprisonment for 6 months Assault officer in execution of duty (2 counts) 8 August 2003 2 months Drive conveyance taken without consent of owner 8 August 2003 6 months Common assault 8 August 2003 3 months Fail/refuse to undergo breath analysis 8 August 2003 7 days and 2 years driving disqualification Never licensed person drive vehicle on road 8 August 2003 Sentenced to Rising of the Court and 3 years driving disqualification Use offensive language in/near public place/school 8 August 2003 Fined $200 Negligent driving (2 counts) 8 August 2003 Fined $200 Drive with middle range prescribed concentration of alcohol 14 March 2000 Fined $750 and 6 months driving disqualification
32. As can be seen from the table above, Mr Paese commenced offending in 2000, months after his arrival in 1999 to live in Australia. He has acquired a significant criminal history in New Zealand, and in Australia. Mr Paese’s criminal activity in Australia escalated, and on 27 February 2004, he was sentenced to five years with a three year and three month non-parole period for malicious wounding in company, and robbery with aggravation.
33. Judge Nield, in sentencing Mr Paese on 27 February 2004 for aggravated robbery on 9 July 2002, and malicious wounding on 10 February 2003, noted that Mr Paese’s upbringing was what might be called normal, until he became aware unexpectedly, that he was adopted. His Honour noted also that Mr Paese was significantly affected by the prolonged suffering and death of his adoptive father.
34. Judge Nield also commented on reports of a psychologist, psychiatrist and pre-sentence report which referred to Mr Paese’s use of alcohol and drugs. I am mindful that before me, Mr Paese denied his drug use was other than on a casual basis.
35. Judge Nield also noted that Mr Paese was dealt with for eight offences in New Zealand, and, by the time he saw Mr Paese, nine offences in Australia, noting that six of the offences involved the use of violence, and three, dishonesty.
36. His Honour noted that the offence of robbery was aggravated because Mr Paese had used violence on the victim, inflicting actual bodily harm. His Honour stated:
At about 11.35pm on 9 July 2002 Mr Lloyd withdrew money from his account using an ATM ... Mr Lloyd was grabbed from behind by the offender, punched to the ground and kicked when he was on the ground. The offender demanded that Mr Lloyd give him “all” that he had with him. (G10/106)
37. Judge Nield also referred to a malicious wounding offence involving Mr Paese in company, on 10 February 2003 as follows:
At about 9.30pm on 10 February 2003 Mr Weekes, who occupied a home unit with his friend, Mr Scott Perry, opened the home unit’s front door after hearing someone knocking on it. After opening the door, he was confronted by [co offender] and the offender, both of whom he knew, and he was attacked by both of them and knocked to the floor of the home unit. Then, when lying on the floor, he was repeatedly punched and kicked by [co offender] and he was threatened but not punched or kicked by the offender. (G10/107)
38. Mr Paese describes his malicious wounding offence in a handwritten letter to a parole officer (undated although filed alongside other documents to the same parole officer dated August 2006).
A few days later, a few of my mates and I were at my place having a few drinks and Russel’s name came up and the fact that he sold heroin to one of my mate’s little brother. My mate (AJ) and I said That’s it. We’ve had enough. So we went to his house with the intention of talking to him. When we got there he started acting all hard and tough. Before I knew it I gave Russel a beating plus his bodyguard friend who was there. When they questioned him He told the police I robbed him. (Exhibit R2)
39. Judge Nield referred to aggravating features of the offence, being a breach of court orders. I noted that the sentence given by Judge Nield on 27 February 2004 was five years with a non-parole period of three years and three months.
40. Then on 13 February 2009, Mr Paese was sentenced to five years and seven months with a three year and 10 month non-parole period which he is currently still serving for a break, enter and steal offence in company with other men committed on 10 January 2008.
41. I noted Mr Paese’s comment that he pleaded guilty because he did not want to identify his nephew who had been involved. He said that he actually went to the premises to stop the offence being committed, but because he was at the scene of the crime, and on parole at the time, he was automatically arrested.
42. Judge Marien SC noted that, while there was violence inflicted on the occupants of the house broken into by the Applicant and two co-offenders on 10 January 2008, the Crown accepted the Applicant’s guilty plea to a lesser charge of break enter and steal. His Honour addressed the seriousness of the Applicant’s offence in his sentencing remarks:
The offence of break enter and steal, particularly in a private dwelling is a serious offence indeed. Although it is principally a property offence, when an offender breaks into a private dwelling for the purpose of stealing property, the loss of material possessions is only part and often a minor part of the reason why domestic burglary is a serious offence ... That an intruder should break in or enter for his or her own dishonest purposes leaves the victim with a sense of violation and insecurity…
In my view the break enter and steal offence committed by Mr Paese and [co-offender] falls at the midrange of objective seriousness for such an offence of break enter and steal. I come to that view because although a relatively small amount of money was stolen, there was a high degree of force used to enter the premises and also the manner in which the offender’s entered the premises was highly threatening and menacing.
43. Interestingly, and in contrast to the support Mr Paese seemed to presently have with family members attending at the Tribunal and giving evidence on his behalf, Judge Marien stated on 13 February 2009: Unfortunately the offender does not have contact with his family members and the Probation Service was unable to make contact with any of them.
44. The G-documents, at page 150, indicate that the Court of Criminal Appeal dismissed Mr Paese’s appeal to it on 2 September 2010.
45. I have already noted that in addition to the offences mentioned above, Mr Paese has a history of breaching bail and court orders, and offences in prison, including testing positive for drugs.
46. Notwithstanding Mr Paese told me he did not take drugs, and that his results of drug tests in prison were due to taking prescription drugs, it is worth noting from the data I have, that Mr Paese failed the prescribed urine tests back in 2004 and 2006 as well as twice in 2008, with the latest being on 9 April 2011.
47. In considering the protection of the Australian community per Direction [41], I have dealt with the seriousness and nature of the relevant conduct by Mr Paese as discussed in the paragraphs above. I have noted that not only has his criminal behaviour been consistent, and repetitive, it stretches back to the age of 17 in New Zealand, and re-commenced only months after his arrival in Australia. It has escalated in severity over time. There is no doubt that Mr Paese’s offences have been serious, as reflected in the violence involved, and the custodial sentences he has received.
48. Mr Paese has demonstrated anti-social characteristics, and demonstrated his disregard for authority which is reflected in the continuing offences of breaching bail, and offences while incarcerated.
49. In conclusion, with regard to the protection of the Australian community; Mr Paese’s serious offences as described above, and his history of offending and re-offending, as well as his attitude to authority and lack of remorse, as recorded in reports by parole officers, weigh strongly against Mr Paese remaining in Australia.
Risk of the conduct being repeated
50. I next moved to consider the risk of the conduct being repeated. Paragraph 10.1.2 of Direction [41] requires that in assessing the risk that the conduct may be repeated, consideration should be given to Mr Paese’s 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.
51. In that regard, I am mindful of Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493, where the Full Federal Court held that a real risk of recidivism is one which is not far-fetched or fanciful, and can include a low or minimal risk. The Respondent contended that based on Mr Paese’s history of criminal conduct, there is a real risk that he will return to criminal behaviour.
52. I noted also that Davies J sitting as President of this Tribunal in Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81 stated:
The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to offend again ... [a]nd even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.
53. I am mindful in considering Justice Davies’ comments in Re Stone that many of Mr Paese’s offences involved violence and harm to his victims.
54. I note that Mr Paese’s criminal history has been continuous, and demonstrates an increase in severity over time. As indicated above, Mr Paese was first convicted of an offence in Australia in March 2000, a few months after arriving in 1999, then aged 21. He has continued to commit crimes, including assault, robbery with aggravation, malicious wounding in company, and break, enter and steal. He has also breached court orders, and committed offences in prison as noted in the table above.
55. I noted that Mr Paese was on parole at the time of the 2008 offence. Judge Marien SC said on 13 February 2009:
As to his prospects of rehabilitation, there is an absence of material before me upon which I could conclude that those prospects are favourable. In his evidence before me he did say that he is sorry for what happened, that he knows that his victims must have been scared and that he accepts full responsibility for his actions. However his record and the fact that he re-offended so soon after being released to parole indicate that any assessment of his prospects of rehabilitation must be guarded.
56. It is remarkable that on 10 January 2008, the day Mr Paese committed the most recent offence for which he was sentenced to prison for five years and seven months, he stated to his parole officer that his commitment to his family was his motivation not to re-offend (Exhibit R3).
57. In relation to warnings; I am mindful that Mr Paese was, in a letter from the Department of Immigration and Citizenship dated 29 May 2007, (before his parole in December 2007), given a formal warning regarding cancellation of his visa due to his criminal record. That letter told him that it had been decided not to do so on this occasion, but that:
Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered. (The statement was emphasised in bold type)
58. When given an opportunity to respond to the possibility of a visa cancellation, Mr Paese wrote stating:
I have taken all the necessary measures to help me upon my release. I am attending counselling and other programs like, Choosing Non-Violence, Enough is Enough, AOD Rehabilitation programs with the Phoenix Group in Gaol. These programs will help me deal with situations in my life that I was not equipped to deal with. I want to get my life back on track and give something back to the community but most of all, I want to re-establish my relationship with my family, especially my son.
59. Ms Collins submitted that little weight should be given to these statements by the Applicant, and that the Tribunal should take a cautious approach in assessing the Applicant’s risk of recidivism. She submitted that there is a real risk the Applicant will reoffend on the basis of his behaviour both in a custodial setting and within the broader community.
60. As noted above, the ‘Pre Release Report’ dated 12 September 2006 in relation to the 2004 conviction itemised offences Mr Paese committed in custody, and concluded: Release to parole is therefore not recommended, and: The inmate has persistently minimised, externalised and justified his offences, has demonstrated no commitment to addressing his offending behaviour and has continued to display his violence even in the custodial setting.
61. The most recent ‘Probation and Parole Service’ report is dated 11 August 2011. It listed misconduct in prison since Mr Paese re-entered on 13 January 2008, which I have referred to in the paragraphs above. The Report concluded: … given Mr Paese’s poor response in custody, this Service holds concerns about the offender’s forthcoming willingness and ability to successfully adapt to lawful community life on his release from custody. … Mr Paese has demonstrated that even under close scrutiny, whilst in custody, and despite undertaking studies to prepare him for the ‘fitness industry’ and making comments about living healthy, he has continued to indulge in drug taking.
62. Clearly neither report was supportive as to the risk of Mr Paese not re-offending.
63. Taking into account all the evidence and submissions, I am not satisfied that the risk of Mr Paese again engaging in criminal conduct in Australia, is low. His pattern of criminal conduct has been continuous from the age of 17 years, and has escalated in seriousness. Several of the crimes have involved violence. The overall risk of Mr Paese re-offending is a real one. In considering the risk that the conduct may be repeated, I must be mindful of Mr Paese’s previous general conduct and total criminal history, including his conduct in prison. Neither shows a pattern of any commitment by Mr Paese to improving himself. Notwithstanding that he did courses prior to his release on the last occasion to prepare him for release, he still committed a crime within weeks of his release on parole.
64. I am satisfied from the evidence that paragraph 10.(1)(a), of the primary considerations, being the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes of violence is likely to be compromised by Mr Paese, if he were to remain in Australia. Detailed consideration of the first primary consideration leads me to the conclusion that Mr Paese’s conduct weighs strongly against him remaining in Australia.
Whether the person was a minor when they began living in Australia
65. The next primary consideration relevant in Mr Paese’s case relates to a person being a minor when he/she first began living in Australia. Direction [41], paragraph 10.2(1) states:
If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
66. As Mr Paese was 21 years old when he arrived in Australia and had completed his schooling and established social and employment links in New Zealand by that time, consideration of this primary consideration weighs in favour of visa cancellation (Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390).
Length of time ordinarily resident in Australia prior to engaging in criminal conduct
67. The third primary consideration, that is the length of time Mr Paese had been ordinarily resident in Australia prior to engaging in criminal conduct, is further explained in paragraph 10.3(1) of Direction [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.
68. As already stated above, Mr Paese arrived in Australia to live, as a 21 year old in 1999, and only months later, he had already commenced with criminal behaviour. He was convicted of a driving offence in March 2000.
69. Unfortunately, as indicated in the paragraphs above, Mr Paese’s criminal conduct continued, and escalated over the years. The criminal conduct engaged in so soon after arriving in Australia, and the conduct which followed weigh against him remaining in Australia.
International obligations
70. Direction [41] requires regard to be had to relevant international obligations, including but not limited to:
(a)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(b)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).
71. The best interests of the child or children are a primary consideration. Mr Paese has an 11 year old son. He came to the Tribunal with his mother to give evidence in support of Mr Paese, and I have before me a statement from the child as Exhibit A2, and from his mother, Ms Elizabeth Anglish, as Exhibit A3. He said relevantly:
I don’t want him to go I want him to come home and be my dad and to come watch me play sports like my friends dads do. I love my dad and my mum and I want them to be happy cause my Mum is always happy when she is with him and when they talk on the phone. Please let him stay here because I want him to be able to play with me and to look after us all.
72. Ms Anglish was 18 years old and pregnant with Mr Paese’s son when she was taken to the UK by her father. She returned to Australia, and has been here since June 2001. Ms Anglish married after she returned to Australia, and has two other children, aged ten and six. She told me that efforts to locate Mr Paese were unsuccessful until she found out his whereabouts via his relatives in 2009, and then contacted him in May 2011.
73. Ms Anglish, who separated from her husband in 2009 but is not yet divorced, says that since May she has visited Mr Paese almost every weekend with their son. She said that the other children reside with her too, but that there are no formal custody orders in place at the moment. Mr Paese told me that he wants to support his son and be a father to him. Mr Paese did not mention the other two children in his evidence, but I understand he has met them. There is no evidence that he has provided financial support to his son or the other children.
74. Ms Anglish told me that if Mr Paese were to be returned to New Zealand, she would not be able to join him. She said that she could not leave Australia because the father of her other children would not allow her to take them to another jurisdiction. She considered Mr Paese would be a father to all three of the children, and that the Applicant, she and the three children would suffer hardship if Mr Paese were not permitted to remain in Australia.
75. Initially it was thought that Ms Tia Rowe and her daughter were to be considered in the context of the interests of the child in this matter. Mr Paese wrote in his ‘Personal Details Form’ dated 20 February 2011 that Ms Rowe was his de facto, and that he planned on release from prison, to marry her. That was before Ms Anglish came back on the scene in May 2011. At the hearing Mr Paese said that Ms Rowe was just a friend. At the hearing I had no evidence from Ms Rowe, and I have not taken her or her child’s interests into account in coming to a decision in this matter.
76. I understand that it is of course Mr Paese’s wish that he remain in Australia. However, having weighed up the seriousness and nature of the Applicant’s conduct, and his pattern of offending and re-offending which indicates a real risk of recidivism, the best interests of his son, and Ms Anglish’s other two children, and the protection of the Australian community, I am satisfied that considerations of the protection of the Australian community outweigh the other primary considerations.
77. There are no international obligations which weigh towards Mr Paese remaining in Australia.
OTHER CONSIDERATIONS
78. Direction [41] states that other considerations, where relevant, must be taken into account but, generally, should be given less weight than the primary considerations. Relevant considerations in Mr Paese’s case are the nature and extent of his relationships with those in the Australian community, his age, level of education, health, his links with New Zealand, what hardship he may suffer, and the fact that he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.
79. I have discussed Mr Paese’s family ties in the paragraphs above. I am mindful that Ms Anglish and their son, say they will miss him if the decision that he return to New Zealand is upheld. There is also the welfare of her other two children to consider. I note that Ms Anglish and Mr Paese only knew each other for a short time more than 11 years ago. However, if Mr Paese is not permitted to remain in Australia he will miss the opportunity of being involved in a reunion with Ms Anglish and their son. Both have expressed a wish to be together. However, the relationship has yet to develop outside the prison setting.
80. Ms Anglish has said that she would not be able to join Mr Paese in New Zealand because of her obligations in regard to her other two children in Australia. Her evidence was that although she is not yet divorced, and there is no Family Court Order in place, the father of her other two children would not permit her to move away from Australia.
81. Other persons who have expressed a wish to see Mr Paese remain in Australia and be with them, and with his son, and who say they will miss him, are his mother, Ms Rosa Paese, Mr Paese’s niece whose statement is Exhibit A4, and Ms Lovey Sila, his sister, whose statement is Exhibit A5. I also had an unsigned and undated statement expressing support from Mr Jesmin Sila, and a signed and dated statement of Tulo Sila, both nephews who did not give oral evidence at the hearing.
82. There was a statement of Misinimese and Sheridan Poulava with a fax date of 19 January 2007, members of Christian City Church, made in support of Mr Paese when the cancellation of his visa was previously under consideration.
83. Mr Paese’s age, health and level of education can be taken into account in coming to a decision. He is currently 33 years old, completed year 10 in New Zealand, has been in employment, and will be able to work and make a new life for himself in there, where he resided from childhood to the age of 21. No health issues aside from some drugs and alcohol have been mentioned in regard to Mr Paese in these proceedings. As noted above, he was formally warned he may not be permitted to remain in Australia if he continued to offend. Nevertheless as also noted above, he has expressed a wish to be with Ms Anglish, and a father to his 11 year old son.
84. I am satisfied that whilst the support of family offers some weight, a consideration of these other considerations, including a consideration of the situation of Ms Anglish and her children, does not outweigh the weight of the primary consideration, being the protection of the Australian community. I am satisfied that the protection of the Australian community would be compromised by Mr Paese remaining in Australia. I am not satisfied that Australia should bear the cost, and the real risk of him re-offending here.
CONCLUSIONS
85. There is no disagreement, and I have concluded in the paragraphs above that Mr Paese does not pass the character test. I then moved to consider the discretion in Direction [41]. My first task was to weigh up the primary considerations to which I am required to give greater weight.
86. Not surprisingly Mr Paese and those who supported him wanted him to remain in Australia, while the Respondent contended that the evidence surrounding the primary considerations, particularly the protection of the Australian community weighed heavily in favour of the cancellation of Mr Paese’s visa. In the paragraphs above, I have considered the arguments and the submissions of both parties.
87. I have noted among other matters, that Mr Paese was on parole at the time of the 2008 offence. Judge Marien SC, in sentencing comments made on 13 February 2009, was not prepared to be positive when commenting on Mr Paese’s rehabilitation:
As to his prospects of rehabilitation, there is an absence of material before me upon which I could conclude that those prospects are favourable. In his evidence before me he did say that he is sorry for what happened, that he knows that his victims must have been scared and that he accepts full responsibility for his actions. However his record and the fact that he re-offended so soon after being released to parole indicate that any assessment of his prospects of rehabilitation must be guarded.
88. An important primary consideration is of course the welfare of Mr Paese’s son, and ultimately Ms Anglish’s other two children. I have found that whilst the consideration regarding children is of great concern, in this case the primary consideration of protection of the Australian community (Mr Paese’s serious record of crime, and the real risk of recidivism), outweigh any other primary considerations which I must take into account.
89. In terms of the relevant other considerations, to which I am required to give less weight; in my view, Mr Paese’s family ties in Australia are the most relevant of the other considerations in this case. His family say they will miss him.
90. However, he told me that he has always (when not incarcerated), been employed. I am satisfied that will stand him in good stead when he is repatriated to New Zealand as he will be able to find work.
91. I am satisfied that Mr Paese does not pass the character test as a result of his substantial criminal record, and his past and present criminal conduct. As noted in the paragraphs above, I have made an assessment of the primary considerations and the other considerations in accordance with Direction [41] in regard to Mr Paese. I am satisfied that the discretion in section 501 of the Act should not be exercised in the Applicant's favour. Having weighed up all the considerations, I am satisfied that the decision of the Minister to cancel Mr Paese’s visa should be affirmed.
DECISION
92. The Tribunal affirms the decision under review.
I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed: .....................................[sgd]...........................................
AssociateDate of Hearing31 October 2011
Date of Decision 10 November 2011
The ApplicantSelf Represented
Respondent’s SolicitorMs A Collins, Minter Ellison
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