Bacaj (Migration)

[2022] AATA 3873

Bacaj (Migration) [2022] AATA 3873 (26 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kristjan Bacaj

REPRESENTATIVE:  Mr Lochlan Reef MacNicol (MARN: 2117075)

CASE NUMBER:  2117918

HOME AFFAIRS REFERENCE(S):          BCC2020/2598573

MEMBER:Denis Dragovic

DATE:26 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.

Statement made on 26 October 2022 at 9:43am

CATCHWORDS

MIGRATION – cancellation – Bridging B (Class WB) visa – Subclass 020 (Bridging B) visa – Federal Circuit Court remittal – risk to the health and safety of the Australian community – applicant charged with criminal offences – applicant’s criminal charges reduced – seeking further studies – Australia based family members – work for one employer over 6 months – three year waiting period – contribution to the Australian community – decision under review affirmed       

LEGISLATION

Controlled Substances Act 1984 (SA), s 33
Migration Act 1958, ss 48, 116, 140, 198, 359, 501
Migration Regulations 1994, Schedule 2 050.511; Schedule 4 Public Interest Criterion 4013; Schedule 8 Condition 8547; r 2.43

CASES

Singh v MIBP [2020] FCA 783

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 28 January 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 020 (Bridging B) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) Regulation 2.43(oa), which reads:

   in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))

3. The delegate found that there were grounds for cancelling the visa on the basis of the applicant having been convicted and sentenced to 11 months and 7 days—suspended, for the following offences:

   ·Cultivate A Commercial Quantity of Controlled Drug - Basic,

   ·Traffic In Large Commercial Quantity Of Controlled Drug,

   ·Cultivate A Commercial Quantity Of Controlled Plant - Basic

   ·Possess Prescribed Equipment/Interfere With Electricity Supply Without Authority.

4. The matter is before the Tribunal because of a court order quashing the decision for the reason of:

   The first respondent concedes that the decision of the second respondent is affected by jurisdictional error because the second respondent failed to consider a claim made by the applicant, namely, that he did not breach visa condition 8547 (Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]).

5. The applicant appeared before the Tribunal on 29 August 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

7. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Procedural matters

8. On the Tribunal’s file was a s 375A non-disclosure certificate. The applicant’s representative had made submissions to the previous Tribunal in response to the validity of the certificate. The submissions argued that the certificate was not valid because there was a lack of specificity on how the documents’ non-disclosure would be in the public interest. The matter was raised at this Tribunal’s hearing at which point I acknowledged that the previous submissions had been read and asked for any further submissions. No additional submissions were made.

9. To determine whether there is public interest in non-disclosure it is necessary to have regard to the material subject to the certificate.[1] Of the four documents behind the certificate there were two types of information.

   [1] Singh v MIBP [2020] FCA 783 at [55]–[59].

10. The first being referrals between sections within the Department of the applicant’s case, which has no public interest for non-disclosure nor is there any information within them provided ‘in confidence’. At the hearing I provided a detailed description of the nature of these documents and noted that nothing adverse arises from them.

11. The second type was of speculation relating to any relationship between the applicant and organised crime. As it was speculative the delegate did not refer to it and it did not form a part of the reason for the cancellation. Nevertheless, this information was put to the applicant at this Tribunal’s hearing in a manner described further below.

12. I find that the certificate’s description of why it would be in the public interest for the second type of document not to be disclosed, namely, ‘prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance’, is sufficient. As the public interest reason was specified, the reason given is a public interest reason, portions of the material behind the certificate fall within the stated public interest reasons outlined in the certificate, and other aspects of the certificate were not in dispute, I find the certificate to be valid.

13. No witnesses appeared at the hearing, but letters were provided to the Department and Tribunal throughout the process of responding and appealing the cancellation. These letters have been considered where relevant below. The letters included:

    ·Courtney Ryan, girlfriend of the applicant’s brother

    ·Natalina Bacaj, sister

    ·Josephine Daidone, customer and friend

    ·Theo Boundris, President, West Adelaide Raptors football club

    ·Walter Caruso, former employer

    ·Craig Zubrinich, commercial cookery lecturer

    ·Daniella Suarez, owner of Antica pizzeria and current employer

    consideration of Claims and evidence

14. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(g) regulation 2.43(oa). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

15. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(oa) is relevant and specifically the question is whether the applicant has been convicted of an offence against a law of the Commonwealth, a State or Territory.

16. The applicant’s submissions noted that the Department’s notice of intention to consider cancellation had incorrectly listed the four convictions. It was put that the four were initial charges of which three were withdrawn leading to the applicant being convicted of Cultivate A Commercial Quantity Of Controlled Plant-Basic.

17. As it is not in dispute that the applicant has been convicted, albeit it on one count not three, I am satisfied that the ground for cancellation in s 116(1)(g) reg 2.43(oa) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

18. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. Instead, the Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

19. The applicant claims that his purpose to stay in Australia is to complete his studies to become a chef which in turn will allow him to work as an executive chef in Europe. At the hearing he explained that he is currently studying commercial cookery. He said that he has completed a Certificate III and IV in commercial cookery and is now completing a Diploma in Hospitality and Management. These studies are part of a single course. The applicant said that his course will be completed in November 2022.

20. The applicant provided a letter of confirmation of enrolment from Clayton College showing that the applicant is enrolled through to 13 November 2022 when he is anticipated to finish his studies.

21. I noted that the applicant is currently holding a Bridging Visa E under which he is continuing to study despite his Bridging Visa B, which is under consideration in this case, being cancelled. I asked the applicant how his Bridging Visa B being reinstated would change his ability to fulfill his ambition to complete his studies considering that his Bridging Visa E is allowing him to continue his studies. The applicant requested an adjournment, which was granted for five minutes.

22. Upon return, the applicant explained that if he had to apply for a visa in the future for a return to Australia it wouldn’t be granted due to having his visa cancelled. As this is not related to the applicant’s purpose of his stay, I consider it further below under a different heading.

23. The applicant also noted that he hopes to stay close to his family. Cancellation of this visa will not impact his ability to remain close to his family in the short term as the applicant will remain on a Bridging Visa E associated with a student visa application, but it will limit the applicant’s ability to apply for other visas while onshore (s48, PIC4013) and hence limit his ability to stay close to his family in the long term.

24. The representative speculated that a decision on the student visa is being held up until such time as this matter is concluded. He submitted that were this visa cancelled then the Department would in quick succession refuse the student visa which would in turn give the applicant 35 days to leave. Putting aside such speculation, as no probative evidence was provided to support the claim, affirming the cancellation of this visa leaves the applicant with only one pathway upon which he may remain in Australia to complete his studies and that is the pending student visa application.

25. Accepting that there is a real possibility that the Department may finalise the student visa at any time in the future, were this Tribunal to affirm the cancellation of the bridging visa the applicant would have 35 days from the time of the Minister refusing to grant the student visa (cl 050.511) through to when he would have to depart Australia. As the 35 days extends beyond the period of his enrolment the applicant could finish his studies regardless of the outcome of this decision.

26. Alternatively, while the Department may not grant the applicant a student visa as he would be affected by PIC4013, which precludes applicants who have had their visa cancelled from being granted a visa for three years after the cancellation, the applicant may choose to claim compassionate and compelling reasons for why this criterion should be waived (Schedule 4: 4013(1)(b)). This process would involve further consideration and as such the 35-day departure deadline on the Bridging Visa E would not be activated until this was resolved.

27. The applicant did not provide any other specific reasons for his travel and stay in Australia.

28. The applicant provided some loosely defined interest in potentially pursuing further studies. He said that there are courses available for various specialisations in the cooking field. He said that he has started looking at some of these courses such as cake making and cooking meats or the making of various doughs.  Due to s48, which limits the applicant to a limited range of visas that he can apply for while onshore, he would be unable to apply for further educational visas. But the applicant can be granted a visa while offshore after a three-year exclusion period arising from PIC4013.

29. In considering the weight I place on the purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia I note that he is close to the Australia based members of his family and that cancellation will limit his ability to have a physical presence in their lives for at least three years. I also recognise that the applicant’s primary purpose of staying in Australia is to finish his studies, which I found would be achieved regardless of the outcome of this decision as noted above. As for his future studies, the applicant has not identified a specific course or applied for one and noting the very limited thought given to such a pathway, this carries little weight. Overall, I place some weight against cancellation for these reasons.

    The extent of compliance with visa conditions

30. There has been some dispute over the issue of whether the applicant had complied with his visa conditions. I asked the applicant whether he understood that this was an issue to which he responded that he was aware.

31. The applicant held a Bridging Visa B from 5 July 2018 to 28 January 2021. A condition imposed on the applicant was 8547.

32. In submissions it was argued that the applicant had mistakenly understood that he was subject to condition 8105 – the condition that he work no more than 40 hours per fortnight, instead of 8547 which is that the ‘holder must not be employed by any 1 employer for more than 6 months, without the prior permission in writing of the Secretary.’[2]

    [2] >

    It is not in dispute that the applicant had worked for Buna Painting from the date of grant of the Bridging Visa B until early January 2019 – a period of about seven months – and for Caruso Homes from 13 January 2020 until 11 October 2020 – a period of eight months.

33. As such it appears that the applicant had breached condition 8547 while on his Bridging Visa.

34. I put to the applicant that he should have been aware and was ultimately responsible for adhering to the conditions on his visa. He said that he was confused with all of the regulations and was under stress at the time, which I accept and give some consideration to.

35. The applicant’s representative made a submission to this Tribunal in writing regarding the non-compliance. As it provides a succinct summary of the argument as well as the background, I have extracted it in full below:

    I provide below an excerpt from submissions we made to the Tribunal on 25 June 2021 addressing this question. I note that the Tribunal’s failure to consider the following was the reason for the remittance of its decision from the Federal Circuit Court.

    The applicant’s Bridging Visa B granted 5 July 2018 was subject to condition 8547 only. Condition 8547 requires that a visa holder only work for up to 6 months for any one employer subject to certain circumstances.

    I note that the applicant mistakenly understood that he was subject to condition 8105 – the condition that he work no more than 40 hours per fortnight. The applicant therefore ensured that he complied with condition 8105 for the duration of the time he spent on the Bridging Visa B.

    The applicant worked for Buna Painting from the date of grant of the Bridging Visa B until early January 2019 – a period of about seven months – and for Caruso Homes from 13 January 2020 until 11 October 2020 – a period of eight months.

    During the hearing for this matter on 15 June 2021 Senior Member Millar stated that she considered the fact of the apparent breach to be a reason, or part of a reason, why the Tribunal may affirm the decision under review for the purpose of s359AA Migration Act 1958. On that basis, I acknowledge that the applicant’s Bridging Visa B was subject to condition 8547 but submit that certain circumstances existed in the applicant’s employment with both Buna Painting and Caruso Homes that meant he did not breach condition 8547 during the relevant periods of employment.

    In changes to the policy considerations of condition 8547 announced by the Treasurer on 27 September 2016, and which entered effect on 27 March 2017 and since reissued in their current version on 18 October 2019, visa holders subject to condition 8547 are permitted to work for a single employer for up to 12 months provided the work is undertaken in different locations and work in any one location does not exceed 6 months.

36. I have had the opportunity to review the history of condition 8547 and have not found any such changes. Instead, as I noted at the hearing, it appears that the changes the representative is referring to are related to the Working Holiday Visa only and not in the form of changes to the condition but rather changes to the description of the Working Holiday program on the Department’s website and presumably its policy. As the condition was on the applicant’s Bridging Visa B and not a Working Holiday Visa, any changes to a policy related to another visa is irrelevant.

37. This was discussed at the hearing and further submissions were allowed. The representative submitted in a post hearing package the reference to Government policy pertaining to condition 8547, specifically Migration Regulations - Schedules > Schedule 8 Condition 8547 6-month work limitation from PAM-3.

38. I note that this policy guidance on condition 8547 specifically references Working Holiday Makers. It does so at the beginning in mentioning the related framework documents as being subclass 417 and 462 visas, which are working holiday visas, and it mentions it at the beginning of the section the applicant’s representative quotes by stating, ‘Policy intends that WHMs should…’. This nuanced policy application of condition 8547 is specific for working holiday visas. There is no reason to assume that this interpretation of policy should be applied to other visas.

39. As the applicant breached the conditions on his visa, despite being confused due to stress at the time, I place some weight in favour of cancelling this visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

40. The applicant noted that hardship will arise from having a cancelled visa including being prevented from reapplying for a visa within three years, being barred from applying for other visas while onshore and having it on his record.

41. The relevant provisions from which the applicant’s concerns arise for being prevented from reapplying for a visa within three years are PIC 4013 and 4014.

42. PIC 4013 applies if the person has previously had a cancelled visa and as such was this cancellation to be upheld the applicant would be bound by PIC 4013.

43. The applicant’s representative in post-hearing submissions added PIC 4014 as a criteria which will apply to the applicant. PIC 4014 states:

    (4)  Subject to subclause (5), a person is affected by a risk factor if the person left Australia as:

    (a)  an unlawful non-citizen; or

    (b)  the holder of a Bridging C (Class (WC), Bridging D (Class WD) or Bridging E (Class WE) visa.

    (5)  Subclause (4) does not to apply to a person if:

    (a)  the person left Australia within 28 days after a substantive visa held by the person ceased to be in effect; or

    (b)  a bridging visa held by the person at the time of departure was granted:

    (i)  within 28 days after a substantive visa held by the person ceased to be in effect; or

    (ii)  while the person held another bridging visa granted:

    (A)  while the person held a substantive visa; or

    (B)  within 28 days after a substantive visa held by the person ceased to be in effect.

1. The applicant’s substantive visa, a TZ-417 visa, ceased on the 1 December 2017. The applicant’s first bridging visa was granted on the 29 September 2017. The applicant subsequently held another bridging visa valid through to 28 January 2021. At this stage the applicant did not hold a visa. He reacquired a bridging visa, the current Bridging Visa E, on the 10 March 2021. This gap triggers PIC 4014(5)(b)(ii) as the applicant was not granted the Bridging Visa E while ‘the person held another bridging visa granted.’

2. The consequences of these two public interest criteria for the applicant are that PIC4013 prevents the grant of a vias for a period of three years after a cancellation and PIC4014 prevents the grant after three years of the last departure from Australia.

3. Regarding PIC 4013, the applicant’s visa was cancelled on the 28 January 2021 and as such the three years would end on 28 January 2024 was this decision to affirm the delegate’s cancellation. This is approximately 15 months away.

4. Regarding PIC 4014, the applicant’s departure would trigger the three year count down and as such it would be a full three years.

5. In the interim, there is an alternative option that allows both public interest criteria to be waived, and that is if there are compelling and compassionate reasons. For example, if the applicant needed to visit his family in Australia, he could apply for the conditions to be waived.

6. I place little weight against the cancellation of the visa for the reasons of the activation of PIC 4013 and 4014. While the bar from being granted a visa for up to three years may cause the applicant some hardship, it is not clear from the applicant’s evidence what the motivation for him to return to Australia is other than to be close to his family. His future study ambitions are vague, and his career ambition was stated as returning to Europe to work as an executive chef.  

7. In considering his concern of hardship arising from being barred under s 48 of the Act from applying for another visa while onshore, I note that he has not explained which visa this would be or what pathway he would seek to pursue such that he would require another visa. Considering that the applicant is within weeks of concluding his studies and has not as yet identified a future study pathway, I conclude that this has not been considered a serious option by the applicant. Instead, it is a vague claim that I give little weight against cancellation as the applicant has clearly explained repeatedly that his ambition was and continues to be to pursue a career as a chef in Europe.

8. The applicant’s third concern arose from having a cancellation on his record. He said that this will be a part of the Department’s reasoning when considering another application. I accept that a cancellation will be known to the Department, but I do not accept it as having an impact beyond what the law prescribes which is covered by the PIC 4013, 4014 and s48 bar.

9. The applicant explained that his sister has a 2-year-old child and as the child’s uncle and god father he has a role to play. He said that they are a very close family and that he communicates with his sister every day and sees them nearly every day. The applicant explained that his sister and brother who are in Australia are both on temporary visas. His sister is studying and is on a student visa while his brother has applied for a partner visa. As the applicant noted, it is uncertain what his siblings will do in the future, nevertheless, I acknowledge that being unable to remain alongside them for a period will have some impact.

10. The applicant has another sister who has three children and lives in Denmark and parents who live in Turin. He said that he misses them but equally loves those of his relatives who are here. Regarding the children in Denmark, the applicant said that he hasn’t seen the third child as the child was born 18 months ago, but he has seen the others in Italy when he was there four years ago.

11. The partner of the applicant’s brother, Courtney, wrote in her submission that she wants the applicant to play a role as an uncle to her children in Australia. I note that this appears confusing as he has said that he aspires to become an executive chef in Europe and as such would not be a presence to her children in Australia. The witness not being present at the hearing, I put my concerns to the applicant, who responded that he doesn’t know what will happen in the future and that his brother could move to Europe. I acknowledge that there is a degree of uncertainty considering that the applicant’s brother is awaiting the outcome of a partner visa.

12. The applicant’s representative submitted a further concern:

    I note that Australian visa applicants must answer the following question by way of making ‘character declarations’ on Australian visa applications: “has any applicant ever been removed, deported or excluded from any country (including Australia)?” It is reasonable to assume that many other countries would have equivalent questions in their visa application process and that to answer ‘yes’ would, at least to some extent, prejudice that application.

13. While other countries may have similar questions, the applicant is an Italian citizen and as such can travel within the Schengen Zone without passport controls. That allows him movement throughout most of Europe including to visit his other family members in Denmark. The applicant has not expressed a desire to travel elsewhere. He has expressly stated his ambition of working in Europe.

14. Overall, I acknowledge that the applicant will face some hardship was his visa to be cancelled, in part as a result of the immediate impact arising from being separated from his family as well as in the near term as he would be unable to apply for a visa to return to Australia for at least 3 years (unless there were compelling or compassionate reasons). In addition, if he wanted to travel outside of the Schengen Zone he may encounter some difficulties in accessing a visa. I note that the applicant has family in Europe and would not be returning to live alone or without support. I note that he will be returning with the qualification he had sought and the English language skills he had placed a high value on. As such I find that during a forced separation from the job market in Australia and while being away from his Australia based family members the applicant will suffer some limited degree of hardship and as such I place only limited weight against cancellation.  

    Circumstances in which ground of cancellation arose

15. The applicant has claimed that his uncle’s passing, his need for money and a lack of knowledge of the illegality of growing large quantities of cannabis are all relevant to the circumstances in which the ground of cancellation arose.

16. On 30 January 2019 the applicant was charged with the offence of Cultivate a Commercial Quantity of Controlled Plant – Basic (s33B(2) Controlled Substances Act 1984 (SA)). He was remanded in custody for the charges on 2 September 2019 but released on 5 September 2019 upon entering a Bail Home Detention Order. No breaches were recorded so on 14 January 2020 his Bail Home Detention Order was cancelled.

17. On 20 October 2020, the applicant pleaded guilty to the offence and was sentenced to imprisonment for 11 months and 7 days, with the sentence being fully suspended upon entering a 2-year $1000 bond.

18. The applicant provided some background to the offending. He explained that he would attend to the cannabis plants 2-3 days a week. He described the set up in the house as including a substantial amount of hydroponic equipment. The applicant said that he had been watering the plants for a period of 4-5 months prior to his arrest.

19. The applicant said at the hearing that he knows that cannabis is not a good thing and that it is an illegal substance that could be harmful to people. He wrote in his submission from the year 2020 that he thought he would only be liable for a fine. At the hearing he said that it was only after he was arrested that he realized that it was a serious crime. The applicant acknowledged at the hearing that he knew before his arrest that drugs can be harmful. He said that he was going through a dark period in his life when he took the role. He claims that he was told that everyone uses marijuana.

20. The applicant said that they told him that growing up to 18 plants was legal, regardless, he knew that it was illegal to have 50 which is the number he was tending to. I asked about the law in Italy. He said that in Italy marijuana is legal medicinally but not recreationally.

21. The applicant wrote in his submission that ‘because I was living in a slightly expensive area I was not able to pay all the fees, bills and rent, so financially I was not in a very good situation.’ I put to him that it’s hard for me to put much weight on that as he could have moved to a less expensive area. He said that it was difficult to find other accommodation because he didn’t have references as he was now. I put to him that at the time of his offending he had been in Australia a few years and as such he wasn’t new to Adelaide and would have been able to build upon this to find some cheaper housing option. In response he reverted to the claim that it was difficult as he didn’t have references.

22. I asked if the applicant had sought advice regarding the job of watering cannabis plants from his family whom he had described as being close and in particular his brother who he claimed he was particularly close to. He said that he hadn’t.

23. The applicant described his uncle’s passing as having influenced the circumstances in which the ground for cancellation arose. The applicant said that his uncle had committed suicide and that his passing was unexpected. He said that it was a very stressful period especially as he didn’t have a chance to see him before he passed away nor a chance to see his mother after her brother’s passing. The applicant said that he was close to his uncle. He said that he lived near him as a child when they were in Albania and he would see him every day. Even when in Italy, he said that they would see each other. When his family moved to Italy the applicant claimed that his uncle helped them financially.

24. Supporting these claims was a letter from Josephine Daidone, a customer for whom he undertook a painting job and someone he subsequently got to know well. She explained how the applicant had been under a lot of stress following the passing of his uncle, who she described ‘like a father to him.’ Ms Daidone identified herself as a nurse who had formerly worked in corrections and as such understood the nature of the challenges faced by the applicant.

25. In considering the applicant’s claims of the circumstances that influenced his offending I find that the concerns over the cost of rental in a more expensive area carries limited weight. I do not accept that after having lived in Australia for a few years that he could not find cheaper accommodation which didn’t require a reference such as a shared house. I acknowledge the challenges that the passing of his uncle would have presented on him and what appears to be tied with this, a sense of responsibility to provide some form of financial support to his family. While trying times can lead to bad decisions being made, decisions that he would not otherwise make, this is balanced by the need for the applicant to bear responsibility for his choices including not engaging with the people closest to him to seek advice. Similarly, while the applicant was facing a dark period in his life and was misled in some regards to the law in South Australia, ultimately ignorance can only mitigate responsibility to a certain degree. Overall, I place limited weight against cancelling the visa based upon the circumstances in which the ground of cancellation arose.

    Past and present behaviour of the visa holder towards the department

26. There is no evidence before the Tribunal that would indicate the applicant had acted in any manner towards the Department such that it would be adverse to him in this matter. Nevertheless, this is a basic expectation of all visa holders. For this reason, I place little weight against cancelling the visa.

    Whether there would be consequential cancellations under s 140

27. There are no consequential cancellations were the applicant’s visa to be cancelled as such I find that this matter is neutral.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

28. The cancellation of the applicant’s Bridging Visa B would not lead to the applicant being unlawful or liable to detention because he is the holder of a Bridging Visa E which has allowed him to remain in the community. As such, were this visa to be cancelled the applicant would not be unlawful and liable to detention and removal.

29. Detention is not a possible consequence of cancellation unless the applicant chooses to refuse to return to Italy in which case the applicant would be detained for a limited period of time until he can be forcibly removed.

30. There are provisions within the act that will prevent the applicant from making a further visa application onshore, namely the s48 bar which has been discussed above.

31. As the possibility for being unlawful, liable to detention and removal is very narrow and dependent upon the choices the applicant makes and subsequent to other visa outcomes and considering that weight has already been placed on the impact of s 48, overall, I place limited weight against cancelling the applicant’s visa.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

32. There are no international obligations that would be breached were the applicant’s visa to be cancelled. For this reason, I find that this consideration is neutral.

    Any other relevant matters

33. The applicant expressed remorse at the hearing. He has continued his studies and claims to have avoided further involvement with the people who gave him the role of watering the cannabis plants.

34. In the letters of support the applicant submitted there is a mention by the authors that he has expressed remorse to them. I give particular weight to the letter by Daniela Suarez, who explained that she had previously worked for eleven years as a social worker and as such has some experience in assessing those who she described as having ‘true understanding of their offence and behaviour’. She assessed the applicant as being genuinely remorseful. I place some weight against cancelling the applicant’s visa for the reason of taking some responsibility for his mistake.

35. The applicant said at the hearing that his family in Australia are positive elements in his life. He said that he is regularly in touch with his brothers and sisters. He said that they all have had a hard life and are supportive of him remaining. I acknowledge the positive impact his family has on the applicant’s behaviour but note that it appeared to have been lacking when the applicant was in a ‘dark place’ and committed the offences. Overall, I place limited weight against cancelling the visa for the reasons of the support he can turn to from his Australia based family.

36. The applicant claims to be in a job that benefits the Australian community. He currently works in two restaurants, both under a single owner. Letters in support of the applicant by his current and past employers included references to the skills shortage in their sectors. He works in the hospitality field which is experiencing a shortfall of workers. The applicant donates blood and plasma every one or two months or when they call. The last time he did so was the week prior to the hearing. The applicant has submitted evidence that he is well integrated into the community including for example playing soccer and volunteering at West Adelaide Raptors FC. Overall, considering the benefit to the Australian community that the applicant has made and continues to make through his work and voluntary activities, I place some weight against cancelling the visa.

37. I now turn to the purpose of the government’s introduction of reg 2.43(oa) which was elaborated on in the explanatory statement accompanying the bill.

    These amendments to the Migration Regulations are complementary to the Act and provide my department with the necessary legislative and regulatory tools to meet the Government's commitment to protecting the community from the risk of harm by non-citizens, and maintaining the integrity of the Migration programme.

    Australia's temporary visa framework provides non-citizens with the ability to remain in Australia for a particular duration and purpose. Temporary migration provides a range of mutual benefits to Australia and non-citizens by providing, for example: Australian businesses with access to a temporary skilled and unskilled workforce; young people.

    With the ability to work and travel around Australia; and overseas students with the ability to undertake study in Australia. Visas granted under these programmes are done so with the expectation that the visa holder will make a positive contribution to Australian society, respect community values, and obey Australia's laws. These amendments to the Migration Regulations are in that context.

38. I note that the applicant has been convicted of a crime that accrued a suspended sentence of 11 months and 7 days. The sentencing remarks state that ‘Offences involving the production of drugs, including cannabis, are serious. The implications that those offences can have on the general community can be far-reaching and harmful’. I note that the purpose of reg 2.43(oa) is to protect the community from the risk of harm by non-citizens and to maintain the integrity of the migration program. The nature of these remarks and the sentence the applicant received suggests that the applicant’s actions are strongly incongruent with the expectations of visa holders following the introduction of clause (oa).

39. Conversely in another section of the magistrate’s sentencing remarks it is noted:

    There is much that can be said on your behalf, and much of what can be said has been set out in the various references that have been put before me…You come before this court with no prior convictions. You are a man of previous good character involved in an offence at the lower end of the scale, with the rest of your life ahead of you.

40. I note that the applicant has provided both an Australian and Italian certificate showing that he has no other convictions.

41. While the applicant has expressed remorse, I am not convinced that he is not without risk of once again seeking a means of funding his life in Australia in a way which would create some level of risk to the community, albeit it small as a result of the support he has established and lessons he has learned. I am also cognizant of the ramifications to the migration program, specifically a loss of confidence in the manner of operation of Australia’s migration program, were someone who has been involved in a drug offence to be able to hold onto their visa despite there being provisions that allow for the visa’s cancellation. But as noted above, the sentencing judge did acknowledge the applicant’s otherwise unblemished record and good character, which I also acknowledge. Overall, when considering the matters under the heading, ‘any other relevant matters’, I place considerable weight in favour of cancelling the applicant’s visa.

42. Considering the circumstances as a whole, I conclude that the visa should be cancelled

    decision

43. The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.

    Denis Dragovic
    Deputy President