Dominic Pesamino and Minister for Immigration and Citizenship
[2013] AATA 90
•21 February 2013
[2013] AATA 90
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Number | 2012/5665 |
| Re | Dominic Pesamino |
| APPLICANT | |
| And | Minister for Immigration and Citizenship |
| RESPONDENT |
DECISION
| Tribunal | G. D. Friedman, Senior Member |
| Date | 21 February 2013 |
| Place | Melbourne |
The Tribunal affirms the decision under review.
.........................[sgd]...............................................
G. D. Friedman, Senior Member
MIGRATION – New Zealand citizen - Cancellation of Special Category (Temporary) visa - Convictions for causing serious injury and other offences - Character test - Exercise of discretion – Decision under review affirmed
Migration Act 1958 ss 499(1), 499(2A), 501(2), 501(6), 501(7)
Direction [No. 55] – Visa Refusal and Cancellation under s 501
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198
Re Pesamino and Minister for Immigration and Citizenship [2010] AATA 704
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
REASONS FOR DECISION
G. D. Friedman, Senior Member
21 February 2013
Dominic Pesamino is a citizen of New Zealand who was born in Samoa in 1987 and arrived in Australia with his family on 22 December 2004 on a Class TY Subclass 444 Special Category (Temporary) visa. He has been living in Australia since then. On 21 June 2010 a delegate of the respondent found that Mr Pesamino did not pass the character test due to his criminal record in Australia, and decided to exercise the discretion to cancel his visa. Mr Pesamino sought review and on 15 September 2010 the Tribunal set aside the decision and substituted a decision that the visa be re-issued (Re Pesamino and Minister for Immigration and Citizenship [2010] AATA 704). On 4 December 2012 a delegate of the respondent found that Mr Pesamino did not pass the character test due to his criminal record in Australia, and decided to exercise the discretion to cancel his visa. Mr Pesamino seeks review of that decision.
LEGISLATIVE BACKGROUND
Under s 501(2) of the Migration Act 1958 (the Act) the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that the person passes the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds in s 501(6)(a)-(d) is met. Section 501(6)(a) of the Act provides:
(a) the person has a substantial criminal record (as defined by subsection (7));
…
Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Under s 499(1) of the Act the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply.
On 25 July 2012 the Minister, exercising powers under s 499(1) of the Act, issued Direction [no.55] – Visa Refusal and Cancellation under s 501 (Direction 55) which came into operation on 1 September 2012. The Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under s 501 of the Act, including the exercise of the discretion to decide whether a non-citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.
Paragraph 7 of Direction 55 sets out how to exercise the discretion and paragraph 8 requires decision-makers to take into account the primary and other considerations relevant to the individual case. Paragraph 8(4) of Direction 55 states that primary considerations should generally be given greater weight than the other considerations.
ISSUES
The issues before the Tribunal are:
Does Mr Pesamino pass the character test? If not:
How do the primary considerations and other considerations apply to Mr Pesamino?
Should the discretion to cancel the visa be exercised?
DOES MR PESAMINO PASS THE CHARACTER TEST?
Mr Pesamino has the following criminal history:
| Court | Date | Offence | Court Result |
| Melbourne Magistrates Court | 9 February 2006 | Theft | On all charges: Convicted. Community Based Order for 12 months to perform 75 hours. |
| Fail to Produce Valid Ticket on Request Refuse/Fail to Comply with Request | On all Charges: Convicted. No penalty imposed. | ||
| Sunshine Magistrates Court | 1 September 2006 | Breach of Community Based Order Imposed on 9 February 2006 Re: Theft Fail to Answer Bail (3 Charges) | Breach proven. On each charge: 4 months Detention in a Youth Training Centre |
| Melbourne County Court | 12 October 2006 | Armed Robbery | Convicted. Youth Training Centre for 18 months. Pay compensation $271.95 |
| Melbourne County Court | 15 May 2009 | Armed Robbery | Imprisonment 32 months. Pay compensation $190. |
| Intentionally Cause Injury | Imprisonment 12 months | ||
| Robbery (2 charges) | On each charge: Imprisonment 6 months concurrent. | ||
| Theft-From Shop | Imprisonment 14 days concurrent. | ||
| Heidelberg Magistrates Court | 30 September 2009 | Assault Police | Imprisonment 1 month concurrent |
| Use Threatening Words in Public Place | Imprisonment 14 days concurrent | ||
| Drunk in a Public Place | Convicted. No penalty imposed. | ||
| Sunshine Magistrates Court | 26 March 2012 | Robbery Intentionally Cause Injury Assault In Company | On all charges: Imprisonment 15 months concurrent. Pay Compensation $250. |
Mr Pesamino is currently serving his sentence of imprisonment and will be eligible for parole in April 2013. He conceded, and the Tribunal finds, that he does not pass the character test.
HOW DO THE PRIMARY AND SECONDARY CONSIDERATIONS APPLY TO MR PESAMINO?
Assessment of primary considerations
The four primary considerations are set out in paragraph 9(1) of Direction 55:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The strength, duration and nature of the person’s ties to Australia;
(c) The best interests of minor children in Australia; and
(d) Whether Australia has international non-refoulement obligations to the person.
(a) Protection of the Australian community from criminal or other serious conduct
Paragraph 9.1(1) of Direction 55 states that, when considering the protection of the Australian community, decision-makers should have regard to the principle that:
... the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 9.1(2) states that decision-makers should also give consideration to:
a) The nature and seriousness of the person’s conduct to date; and
b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.
a) The nature and seriousness of Mr Pesamino’s conduct
Paragraph 9.1.1(1) of Direction 55 lists a number of factors that must be taken into account in considering the nature and seriousness of the criminal offending or other conduct to date:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.
In her sentencing remarks in the Magistrates Court of Victoria on 26 March 2012 the Magistrate noted that on 19 March 2011 Mr Pesamino (who was on parole having been released from prison in 2010) with four others, approached a person seated on the platform of a railway station and, without provocation, punched the victim in the head, stealing his mobile telephone and wallet. The victim was hospitalised and sustained swelling and bruising to the face and lips. The incident was captured on CCTV and shows the victim being terrorised by Mr Pesamino and his co-offenders over a 20-minute period, and the Magistrate described the incident as a cowardly and unprovoked attack. She sentenced Mr Pesamino to 15 months’ imprisonment with a non-parole period of nine months.
On 15 May 2009 in the County Court of Victoria Mr Pesamino was sentenced to 32 months’ imprisonment (with a minimum of 12 months) for armed robbery and intentionally cause injury. The sentencing Judge explained that Mr Pesamino and four co-offenders assaulted an unsuspecting passenger on a metropolitan train using a wooden stick, causing injuries to the victim’s lips and teeth, requiring stitches and resulting in a permanent scar. On 12 October 2006 in the County Court of Victoria Mr Pesamino was sentenced to 18 months’ incarceration in a Youth Training Centre for armed robbery following threats made to the proprietor of a liquor store during an armed robbery.
b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
The most serious of Mr Pesamino’s crimes were committed against vulnerable members of the community, as the offences were unprovoked attacks on innocent members of the community.
c) Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
Mr Pesamino has not been placed in immigration detention as he is still serving his sentence of imprisonment.
d) The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s501(6)(b) or (d), or is not of good character under s501(6)(c) is considered to be serious;
The conduct by Mr Pesamino in committing the crimes is serious.
e) The sentence imposed by the courts for a crime or crime;
In respect of the more serious offences Mr Pesamino was sentenced on 26 March 2012 to imprisonment for 15 months with a minimum of nine months, and on 15 May 2009 to 32 months with a minimum of 12 months.
f) The frequency of the person's offending and whether there is any trend of increasing seriousness;
Mr Pesamino commenced offending at the age of 18 years, which was about 13 months after his arrival in Australia, and he has served several terms of imprisonment for violent offences since then.
g) The cumulative effect of repeated offending;
Mr Pesamino’s latest Court appearance in March 2012 continued a pattern of violent offending that has resulted in terms of imprisonment.
h) Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
There is no material to suggest that Mr Pesamino provided false or misleading information to the Department.
i) Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person’s migration status (noting that the absence of a warning could not be considered to be in the person's favour);
There is no record that Mr Pesamino has re-offended after receiving a formal warning from immigration authorities, although after his successful application to the Tribunal in 2010 he would have been aware of the consequences of further offending.
j) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
All of Mr Pesamino's offences were committed in Australia.
Conclusion regarding the seriousness of the offences
The Tribunal concludes that the offences are very serious.
b) The risk to the Australian community should Mr Pesamino commit further offences or engage in other serious conduct
Paragraph 9.1.2 of Direction 55 states:
(1) In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct;
Taking into account the nature of the prior convictions for offences involving violence against innocent members of the community, there would be significant harm to individuals or the Australian community should Mr Pesamino engage in further criminal or serious conduct.
b) The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the person reoffending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In a written statement dated 14 January 2013 Mr Pesamino stated that while in prison he has commenced a six-month Intensive Violence Intervention Program to address his violent behaviour and has already gained insight into the effect of his upbringing on his use of violence. He said that he has learnt about different strategies to deal with problems and to manage emotions such as anger. He said that he wants to give to the community rather than take, and that he will not re-offend. Although the sentencing Magistrate referred to CCTV footage of the 2011 incident and stated that Mr Pesamino’s account of being an innocent victim himself was plainly wrong, he told the Tribunal that he did not commit the offence, despite pleading guilty and despite conceding in his written statement that he responded violently to the situation.
The sentencing Magistrate noted that since Mr Pesamino’s release from prison in 2010 he reported that he no longer used drugs and had moderated his drinking after completing various drug and alcohol programs. He had been attending Open Family on a regular basis for support and counselling. In 2009 the sentencing Judge stated that…any assessment of your prospects for rehabilitation must be guarded and must be done with some caution.
A report by Corrections Victoria dated April 2012 using the Victorian Intervention Screening Assessment Tool (VISAT) concluded that Mr Pesamino was at a high general risk of re-offending, which was similar to previous assessments in 2009 and 2010. In its 2010 decision the Tribunal stated that it had heard evidence from a psychologist, a social worker and Mr Pesamino’s mother to the effect that Mr Pesamino was likely to mature further, become more responsible and was motivated not to re-offend, particularly as he had recently re-established a relationship with his daughter. However despite these factors Mr Pesamino did re-offend in a way that was similar to previous offences through unprovoked violence against an unsuspecting member of the public.
In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81 Davies J held that even if the risk of recidivism is not high, it will strongly support deportation (or visa cancellation) when recidivism, if it does occur, may cause great harm. In Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 the Full Court of the Federal Court held that a real risk of recidivism is one that is not far-fetched or fanciful, and can include a low or minimal risk.
The Tribunal takes into account that in his statement dated 14 January 2013 Mr Pesamino expressed remorse for his criminal activities, and acknowledged that his behaviour has hurt his victims and their families. He said that his girlfriend of nearly three years is a positive influence and is supportive of him. However neither she nor any family members lodged any written material in support of his application, and they were not able to prevent him from re-offending. Mr Pesamino said that he is not receiving any counselling and has not had contact with the psychologist or social workers who gave evidence on his behalf in 2010. Mr Pesamino has a pattern of offending which has not changed, despite several periods of imprisonment and despite undertaking courses and programs designed to control his violence. The Tribunal also takes into account the findings of several VISAT reports which assessed his risk of re-offending as high.
On the basis of all the material, the Tribunal finds that Mr Pesamino's risk of re-offending is high.This, together with the finding that the offences and the nature of his conduct are extremely serious, leads the Tribunal to conclude that the first primary consideration weighs strongly in favour of cancellation of the visa.
(b) The strength, duration and nature of the person’s ties to Australia;
Paragraph 9.2.1 of Direction 55 states that the decision-maker must have regard to the following:
a) How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
i. Less weight should be given where the person began offending soon after arriving in Australia; and
ii. More weight should be given to time the person has spent contributing positively to the Australian community
Mr Pesamino was born in Samoa and at the age of 16 years he moved to New Zealand for several months before the family re-located to Australia in 2004 when he was aged 17 years and eight months, so only a small portion of his formative years was spent in Australia. His first conviction occurred thirteen months after his arrival and he has continued to re-offend. There is no material before the Tribunal to indicate that Mr Pesamino has contributed positively to the Australian community.
b) The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Mr Pesamino has adoptive parents and four adoptive siblings, all of whom live in Australia. At the Tribunal hearing in September 2010 his mother expressed support for him, but she did not lodge any documents in support of his current application. Mr Pesamino stated that his parents were aware of the hearing but had other commitments. He also conceded that he has not been in contact with family members (with the exception of one brother who was present at the hearing) for about eighteen months. No family members have visited him during his current term of imprisonment. He stated that he has been in a relationship for nearly three years and that his girlfriend has been supportive. They have a son who was born in February 2012, about one month before he began his term of imprisonment. Mr Pesamino produced records of outgoing telephone calls and visits to the prison, which he said demonstrate that he has had regular contact with his girlfriend and his son.
The Tribunal takes into account that Mr Pesamino was aged almost eighteen years when he arrived in Australia. There is little evidence of employment or positive contribution to Australia. On the available material the Tribunal concludes that Mr Pesamino has some ties to Australia, having lived here for eight years, having a girlfriend, two children and some extended family, although there has been little contact with family members in the past eighteen months.
In all the circumstances this primary consideration weighs neither in favour of, nor against, cancellation of the visa.
(c) The best interests of minor children in Australia
Mr Pesamino told the Tribunal that there are two minor children in Australia whose best interests will be significantly affected by the cancellation of his visa. His daughter is aged almost five years and lives with her mother, who is no longer in a relationship with Mr Pesamino. He told the Tribunal in 2010 that he had little contact with his daughter for the first two years of her life but that he had arranged with the child’s mother for him to develop a fatherhood role. At the hearing of the current application he stated that his most recent contact with his daughter was in 2011. Unlike the situation in 2010, the child’s mother did not provide any supporting documents and did not attend the hearing.
In relation to his son (who is nearly one year old), Mr Pesamino stated that he sees the child regularly and is determined to play a meaningful role in the child’s life. He said that when he is released on parole his girlfriend needs him to be present to help with the care of their son. He maintained that his girlfriend had filed a statement in support of his application but neither the Tribunal nor the respondent had any record of such a document. She did not attend the hearing.
Despite assurances given in 2010 about renewing his relationship with his daughter, Mr Pesamino has had no contact with her since 2011 and appears not to have contributed in any significant way to her upbringing or development. The effect on his daughter of his removal from Australia would appear to be minimal. The Tribunal takes into account that Mr Pesamino has expressed a desire to play an important role in his son’s life and has had contact when his girlfriend has brought the child to visit him in prison. There would be some impact on such a young child if Mr Pesamino were removed because physical contact could not continue as Mr Pesamino has stated that his girlfriend would not re-locate to New Zealand. On balance, in relation to Mr Pesamino’s son the Tribunal finds that this primary consideration weighs slightly against cancellation of the visa.
(d) Whether Australia has international non-refoulement obligations to the person.
Paragraph 9.4(1) of Direction 55 states:
In cases where claims which may give rise to international non-refoulement obligations [relating to returning persons who may face risks of a type set out in various international treaties] are raised by the person or are clear from the facts of the case, they must be given consideration if the person is in Australia.
Mr Pesamino did not make any claims which require assessment in relation to Australia's international non-refoulement obligations, nor are any claims apparent from the material available to the Tribunal. Consequently the Tribunal finds that this primary consideration weighs neither in favour of, nor against, cancellation of the visa.
Assessment of other considerations
Paragraph 10(1) of Direction 55 provides a list of non-exhaustive other considerations that must be taken into account where relevant:
a) Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
Mr Pesamino admitted that he is not close to his immediate family (apart from one brother) and has had no contact with them for some time. Consequently if he departs from Australia the effect on his immediate family would be minimal. In respect of his girlfriend and son Mr Pesamino told the Tribunal that if forced to return to New Zealand he …would lose everything that I value and my purpose in life, which is to be with my family. This would be devastating and would hurt me mentally and emotionally. This would also be the case for my girlfriend. The Tribunal accepts from the prison records that Mr Pesamino’s girlfriend has visited him and spoken to him regularly by telephone since his most recent imprisonment, and that their relationship is current. Although there is no supporting material from her the Tribunal accepts that she would not wish to re-locate to New Zealand if Mr Pesamino is removed from Australia, so the Tribunal concludes that cancellation of Mr Pesamino’s visa would have an adverse effect on his girlfriend and his son living in Australia.
b) Impact on Australian business interests
There does not appear to be any impact on Australian business interests of cancellation of Mr Pesamino’s visa.
c) Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
A decision not to cancel Mr Pesamino's visa may have an adverse impact on members of the Australian community, including victims of his criminal behaviour and family members of victims, who might fear that he would re-offend.
d) The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) taking into account:
i. The person’s age and health;
ii. Whether there are substantial language or cultural barriers; and
iii. Any social, medical and/or economic support available to them in that country.
Mr Pesamino told the Tribunal that he would face extreme impediments if removed to New Zealand because he has no close relatives in that country (or Samoa). He said that he intends to seek employment as a bricklayer when he is released from prison, but stated that his prospects of finding employment in New Zealand would be poor.
The Tribunal takes into account that Mr Pesamino lived in New Zealand for only a short period when he was an adolescent. He has a limited education and would face challenges in beginning a new life in that country. His girlfriend is unlikely to re-locate to New Zealand with their son. However he is a young person in apparent reasonable health. As New Zealand has a similar culture and society to Australia, there would be no serious language or cultural barriers facing him if he was to return there. Basic social, medical and economic support available to New Zealand citizens would apply to him, and he would be free to return to Samoa where he lived until his adolescence. On balance, the Tribunal finds that Mr Pesamino would not face significant impediments in establishing himself in New Zealand.
Conclusion regarding other considerations
The Tribunal accepts that there would be an adverse impact on Mr Pesamino’s girlfriend and son in Australia if he is removed. However Mr Pesamino would be able to establish a new life for himself in New Zealand and seek employment in that country, and there would be minimal impact on his immediate family. The Tribunal concludes that the other considerations weigh neither in favour of, nor against, cancellation of the visa.
SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?
The Tribunal has concluded that the first primary consideration concerning protection of the Australian community weighs strongly in favour of cancellation, and the second primary consideration concerning Mr Pesamino’s ties to Australia weighs neither in favour of, nor against, cancellation. The third primary consideration concerning the interests of minor children weighs slightly against cancellation and the fourth primary consideration concerning international obligations weighs neither in favour of, nor against, cancellation.
The Tribunal has concluded that the other (not primary) considerations weigh neither in favour of, nor against, cancellation, and the Tribunal takes into account that, generally, other considerations should be given less weight than that given to primary considerations.
After considering all the circumstances of the primary considerations and the other considerations the Tribunal finds, especially in respect of the seriousness and violent nature of the offences, Mr Pesamino’s offending history, particularly since the Tribunal’s decision of September 2010, and the high risk of re-offending, that the factors in favour of cancellation of the visa outweigh the factors against cancellation, so the discretion to cancel the visa should be exercised.
DECISION
The Tribunal affirms the decision under review.
| I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member |
.............................[sgd]...........................................
Associate
Dated 21 February 2013
| Date of hearing | 19 February 2013 |
| Applicant | In person |
| Advocate for the Respondent | Mr M Kochardy |
| Solicitors for the Respondent | Litigation and Opinions Branch, Department of Immigration and Citizenship |
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