Bacaj (Migration)
[2021] AATA 4134
•10 August 2021
Bacaj (Migration) [2021] AATA 4134 (10 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Kristjan Bacaj
CASE NUMBER: 2101252
HOME AFFAIRS REFERENCE(S): BCC2020/2598573
MEMBER:Kate Millar
DATE:10 August 2021
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.
Statement made on 10 August 2021 at 12:48pm
CATCHWORDS
MIGRATION – cancellation – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – validity of s.375A certificate – ground for cancellation – convicted of an offence – cultivating a commercial quantity of a controlled plant – consideration of discretion – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 116, 359AMigration Regulations 1994 (Cth), r 2.43
CASES
Burton v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1455
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
On 20 October 2020, Mr Bacaj was convicted of one count of cultivating a commercial quantity of a controlled plant and sentenced to a term of imprisonment of 11 months and 7 days. The term of imprisonment was suspended with a bond of $1,000 for two years.
As a result of this conviction, Mr Bacaj’s Subclass 020 (Bridging B) visa was cancelled on 28 January 2021 under s.116(1)(g) of the Migration Act 1958 (the Act).
It is not in dispute that Mr Bacaj has been convicted of an offence, what remains to be determined is whether his visa should be cancelled.
Mr Bacaj, who is a citizen of Italy, held the Subclass 020 visa pending the outcome of his application for a student visa, which had been remitted to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs for reconsideration by this Tribunal (differently constituted) on 7 May 2020.
Mr Bacaj appeared before the Tribunal on 15 June 2021 to give evidence and present arguments and was represented by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CERTIFICATE ISSUED UNDER S.375A OF THE ACT
The Department file included a certificate issued under s.375A. A certificate validly issued under s.375A requires the Tribunal to do all things necessary to ensure the document or information is not disclosed to anyone other than a member of the Tribunal constituted for the purposes of the particular review.
A copy of the certificate was provided to Mr Bacaj, who was invited to comment on the validity of the certificate.
In response, it was submitted on behalf of Mr Bacaj that the certificate does not specify the public interest reason which justifies disclosure of the information or documents to the AAT member only and relies on obiter comments of Justice Wilcox in Burton v Minister for Immigration and Multicultural and Indigenous Affairs[1] (Burton).
[1] [2005] FCA 1455 at [42]
The s.375A certificate specifies that disclosure of particular documents other than to the Administrative Appeals Tribunal would be contrary to the public interest because:
(a) [it could] prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance
(b) where information was provided ‘in confidence’, the provider of the information has not consented to the disclosure of the information to the review applicant.
Burton states the public interest reason must be specified in the certificate itself. In this case, the certificate specified the public interest reason the information should not be disclosed.
The Tribunal is satisfied that a public interest reason has been specified, that the reason specified is a public interest reason, and that the material the subject of the certificate falls within the stated public interest reasons.
As a result, the Tribunal is satisfied the s.375A certificate is validly issued and prevents it from disclosing information specified in the documents covered by the certificate. The Tribunal considers the material covered by the certificate was speculative or hypothetical and relates to third parties. It did not have further regard to this information.
The Tribunal is mindful that this does not excuse it from its obligations under s.359A of the Act to disclose information that would be the reason, or part of the reason for affirming the decision under review.
CONSIDERATION OF CLAIMS AND EVIDENCE
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. This includes the ground set out at s.116(1)(g) of the Act that a prescribed ground for cancelling the visa applies to the visa holder.
The prescribed grounds include those found at r.2.43(oa) of the Migration Regulations 1994 (the Regulations) that, in the case of the holder of a temporary visa, the Minister is satisfied that the holder has been convicted of an offence against the law of the Commonwealth, a State or Territory, regardless of whether they held the visa at the time of the conviction and regardless of the penalty imposed.
Mr Bacaj has been convicted of one count of cultivating a commercial quantity of a controlled plant, and a ground to cancel his visa exists. As this 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
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has considered the circumstances of this case, including matters raised by Mr Bacaj, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
Mr Bacaj was born in Albania and claims to have fled from Albania to Italy as a refugee. He and his family have Italian citizenship, and his parents live in Turin in Italy. His brother is a temporary resident in Australia. His sister is also a temporary resident in Australia with her partner and child, and he has another sister living in Denmark.
Mr Bacaj provided a National Police Certificate from Australia dated 25 April 2021 to show he has been convicted of one offence the subject of his visa cancellation, and a document that appears to be from the District Attorney’s Office in Pistoia, Tuscany, Italy that he does not have a criminal record. Another document dated 12 November 2020 from the Ministry of Justice, states “Do not results Criminal Pendents”. He provided other documents that were not in English, and the Tribunal is unable to rely on them to any great extent. However, the Tribunal is satisfied that Mr Bacaj does not have a criminal history in Pistoia.
Mr Bacaj provided a letter from Mr Walter Caruso, a director of Caruso Homes dated 10 June 2020 stating Mr Bacaj works for him as a part-time painter and has a good work ethic. Mr Caruso states he requires Mr Bacaj’s ongoing assistance as a part-time painter, particularly during the COVID-19 pandemic, and his business would suffer if he was no longer able to work for him and would cause disruption and stress. At hearing, Mr Bacaj said he ceased working for Mr Caruso in September 2020 and has been working as a chef since then.
The purpose of the visa holder’s travel to and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
Mr Bacaj arrived in Australia on a Subclass 417 working holiday visa on 1 December 2016. The purpose of this visa is to allow him to travel and stay in Australia for 12 months. He subsequently applied for a student visa. The original purpose of his travel to Australia was to visit temporarily. This is now four and a half years ago.
Mr Bacaj applied for a student visa on 29 September 2017. His student visa was refused by a delegate of the Minister on the basis that he was not a genuine temporary entrant as required by cl.500.212 of the Regulations. This decision was set aside by this Tribunal (differently constituted) and remitted for reconsideration by the Minister. It has not yet been reconsidered.
In support of the contention that he is in Australia for the purpose for which his visa is sought, Mr Bacaj submits he has fulfilled the enrolment and attendance requirements to maintain his student status. He provided:
· An overseas student health cover verification letter dated 10 March 2021 from Bupa.
· A confirmation of enrolment for a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management.
· A letter from Clayton College stating he commenced a Certificate III in Commercial Cookery on 2 November 2020 with an expected completion date of 31 October 2021. The letter states it does not confirm attendance or course completion. It is stated Mr Bacaj has paid $6,866 in fees up to 25 June 2021 and a further $2,285 remains to be paid.
· A Diploma of Leadership and Management conferred by Ironwood Institute on 12 June 2019.
· A statement of attainment for a Certificate III in Spoken and Written English conferred 10 August 2018.
In his previous statements, Mr Bacaj refers to coming to Australia due to the economic conditions in Italy at the time and the difficulty with his expenses exceeding his income. He refers to the economic hardship the family experienced on arriving in Italy, and that he had to work to assist in supporting the family so he could attend school.
The sentencing remarks of Magistrate Dixon state Mr Bacaj had a challenging childhood and early years, and to the credit of his parents and himself has been able to extricate himself from difficult and dangerous personal circumstances and ultimately set up life in Australia, despite hurdles that had been put in place by the non-recognition of his trade and initial difficulties with language.
The comments of Magistrate Dixon were put to Mr Bacaj under s.359AA of the Act. As it applies to the purpose of travel and stay in Australia, it was put to him that he had “set up life in Australia” and this is inconsistent with the temporary nature of a working holiday visa or a student visa.
In a statutory declaration provided after the hearing, Mr Bacaj said he did not tell the Magistrate he intended to remain in Australia at the end of his studies, and that he thought it was clear he wanted to complete his studies and return to be an executive chef in Europe. He states he thinks the Magistrate understood this and that the Magistrate’s intention was to say he had set up his life in Australia to conclude his studies.
Having considered Mr Bacaj’s response, the Tribunal finds the comments of the Magistrate are not sufficiently conclusive to establish Mr Bacaj is in Australia other than for the purpose he states, which is to continue his study. As it is to be expected a visa holder will be in Australia for the purpose for which the visa is granted, this is a neutral consideration.
Mr Bacaj stated he needs to remain in Australia to continue his studies and to support his sister who has had a child. Mr Bacaj told the Tribunal his sister is also supported by her husband and Mr Bacaj’s brother who are in Australia. His sister holds a temporary student visa. She provided a statement dated 29 June 2020 that her support is her family, and especially Mr Bacaj who supports her emotionally and financially.
While the Tribunal does not doubt Mr Bacaj’s sister values his support, she has other support available to her from her husband and another brother in Australia. His sister is also a temporary visa holder and is able to return to Italy to access family support.
Mr Bacaj provided a letter from Ms Josephine Daidone dated 2 July 2020 which was provided for the purposes of sentencing. This letter states Mr Bacaj struggled financially but has since sought financial assistance from his family overseas who regularly send him money to help with his studies. At hearing, Mr Bacaj says he currently works part time and is living with his brother who helps him financially. The Tribunal finds he is not able to provide significant financial support for his sister.
The Tribunal does not consider Mr Bacaj’s support of his sister establishes that he has a compelling need to remain in Australia.
The Tribunal considers the purpose of his travel and whether there is any compelling need to remain in Australia is neutral in this matter.
The extent of compliance with visa conditions
The bridging visa under consideration is a Bridging Visa B which was granted 5 July 2018 and ceased on 28 January 2021 when his visa was cancelled. This visa had condition 8547 attached, which requires that he is not employed by any one employer for more than 6 months, except with the prior permission in writing of the Secretary.
Mr Bacaj gave evidence that he worked for Buna Painting for approximately one year, undertaking 6 months of full-time work and 6 months of part-time work. He also gave evidence he worked for Caruso Builders after he returned from Italy in August 2018 until September 2020. He has worked as a chef for Sapora Dolce since September 2020.
It was put to Mr Bacaj under s.359AA of the Act that information from the Department’s movement records showed that condition 8547 was attached to his working holiday visa and his subsequent bridging visas. Condition 8547 states:
The visa holder must not be employed by any 1 employer for more than 6 months, without the prior permission in writing of the Secretary.
Further particulars were provided at the request of his representative, which were:
· The Subclass 020 visa granted 5 July 2018 and ceasing 28 January 2021 was subject to condition 8457.
· A previous Subclass 010 visa BVA granted 29 September 2017 and ceasing 5 July 2018 was also subject to condition 8547.
· The working holiday Subclass 417 visa on which he arrived in Australia on 1 December 2016 and which ceased 1 December 2017 was subject to conditions 8547 and 8548.
Mr Bacaj was provided with additional time after the hearing to confer with his representative and provide any additional submissions on whether he had complied with the conditions of his visa.
The submissions provided directly contradict his oral evidence, and state he worked for Buna Painting from the date of grant of the Bridging Visa B until early January 2019, a period of approximately 7 months, and worked for Caruso Builders from 13 January 2020 until 11 October 2020, a period of approximately 8 months.
Mr Bacaj stated at hearing he worked for Buna Painting for a year, with 6 months full-time and 6 months part-time work from June 2017 to June 2018. It was explained to him this was a concern as information from the Department was that condition 8547 was attached to the visa he held in this time. It seems from his response that he considered the period started again on the grant of his bridging visa.
A further letter from Mr Caruso states Mr Bacaj worked for him from 19 January 2020 until 1 November 2020. A further statutory declaration from Mr Bacaj states he worked there from 13 January 2020 until 11 October 2020.
As Mr Bacaj was also studying in this time, with his English qualification conferred before he returned to Italy in August 2018, and a Diploma of Leadership and Management conferred 12 June 2019, the Tribunal errs on the side of caution and finds that he has had some non-compliance with the conditions of his visa.
Mr Bacaj states this was because he thought the conditions of his visa were the same as a student visa in that he was limited to 20 hours per week of work and that he had complied with what he thought were the requirements at the time.
Mr Bacaj has failed to comply with the condition of his visa, albeit not to a large degree. It is for Mr Bacaj to be familiar with the conditions of his visa. At the least has shown a lack of care in confirming the conditions on his visa, and this weighs in favour of cancelling his visa.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
It was submitted by Mr Bacaj’s representative that Mr Bacaj would be indefinitely detained if his visa is cancelled and that the personal cost of detention would be disproportionate to his offending. The representative refers to Hands v Minister for Immigration and Border Protection.[2] This involved the cancellation of a special category visa for a New Zealand citizen who had been in Australia from the age of 3 years. Contrary to these submissions, there is no indication that Mr Bacaj would be indefinitely detained, as he said he would return to Italy if his visa is cancelled. The circumstances are also considerably different to those in Hands as Mr Bacaj came on a temporary visa for a working holiday and then applied for a student visa.
[2] [2018] FCAFC 225
Mr Bacaj focusses on the loss of the opportunity to complete his studies in examining the hardship it would cause him if his visa is cancelled. He says he is currently studying a Certificate III in Commercial Cookery and anticipates he will complete this in the next month. He plans to complete a Certificate IV in Commercial Cookery in June 2022 and then a Diploma of Hospitality and Management in November 2022. He says he is meeting the fees for his course through his part-time employment as a chef and with the financial assistance of his brother, who is in Australia on a working holiday visa.
The Tribunal accepts that if his visa is cancelled, he will lose the opportunity, at least in the near future, of completing his studies in Australia. Further detail on the consequences of cancelling his visa are detailed below. If he returns to Italy he will return with some skills in construction and in commercial cookery, as well as working experience in this area that may assist him in pursuing his goal of working in this field in Europe.
If Mr Bacaj returns to Italy he will be separated from his brother and his sister who are temporary residents in Australia, as well as his sister’s child. The Tribunal accepts separation from his siblings and his sister’s new baby will cause him some emotional hardship. As his siblings also hold temporary visas, the Tribunal does not consider this will result in permanent separation from his siblings, or that they would unable to keep in contact with each other. Separation from his sister’s newborn child is also considered further below.
In his statement to the Department dated 15 December 2020, Mr Bacaj states he does not know what will happen to him because the situation with coronavirus is bad in Italy. He states his parents live in Turin which had been badly hit and live in a small apartment, and he does not know where he would live or how he would support himself. Mr Bacaj has returned to Italy since his arrival in Australia and states he will return to Italy if his visa is cancelled. He will return with qualifications in English, Leadership, experience in construction and studies towards and work experience in cooking. He does not have any health conditions and is 30 years of age. He arrived on a temporary visa and had applied for a temporary visa.
The Tribunal considers he has skills and experience that would enable him to seek work. As he arrived on a temporary visa and has applied for a temporary visa, it is reasonable to expect him to have planned for his return. The Tribunal acknowledges there is a risk of coronavirus, however this risk exists no matter where the person is currently living.
The circumstances in which ground of cancellation arose
The Tribunal obtained from the Magistrates Court a copy of Magistrate Dixon’s remarks on penalty dated 20 October 2020. Mr Bacaj pleaded guilty to one count of cultivating a commercial quantity of a controlled plant.
This states that a townhouse was found to have 50 cannabis plants within it, and a number of items found in the townhouse and the observations of people attending the townhouse implicated Mr Bacaj. It was not challenged by the Crown that Mr Bacaj was involved as a lesser role player in the cannabis production. Magistrate Dixon states:
You were in effect at the lowest end of the hierarchy of people involved in this particular enterprise, and indeed I am told, and I accept for the purposes of imposing penalty, that your role was to check up on the plants from time to time and water them. You were paid $100 each time you checked and watered the plants.
In his statement dated 15 December 2020, Mr Bacaj states at the time of the offence he was under a lot of pressure as he had been waiting for a long time for the application for review of the refusal of his student visa to be heard, and could only work 20 hours per week. He also states he was dealing with the death of his uncle. He states he had a chance to make more money by watering cannabis plants at a house.
He provided the statement that he provided to the Magistrates Court detailing the difficulties the family faced trying to leave Albania and enter Italy and live in Italy as illegal residents. They gained documents but found the situation difficult financially, and he had to find a job and help his family financially so he could finish high school.
From 2008 he and his father were unemployed, and his mother had to support the family financially until she had hip surgery and was unable to work. Mr Bacaj found work as a door to door seller of frozen food. His income was not enough to meet expenses, so he decided to apply for a working holiday visa. When he arrived, he decided to change to a student visa because he wanted to study and could not do this in Italy and to further his goal to be an executive chef in Europe. He decided to come to Australia on a working holiday visa and on arrival decided to change to a student visa. He started an English course.
At the time Mr Bacaj was not, in fact, limited to working 20 hours per week, although states this was his understanding from his migration agent.
In a statutory declaration dated 19 March 2021, Mr Bacaj states he came to Australia as Italy was in economic crisis and he was not working as much. He states he wanted to come to Australia to improve his English, find a job and to get a Diploma in Cookery to help him when he goes back to Italy. He states he started having financial difficulties when he was working part time after he applied for the student visa and was living in a slightly expensive area.
Mr Bacaj said one day he was talking to a guy from the Albanian community at the beach and was offered a job watering the plants. He said he did not initially realise he was referring to cannabis, but later did. He states he was told that it was legal to have up to 18 plants and it was common in Australia to grow plants in their backyard. He states he was told if you had more than 18 plants at worst he would get a fine. He states he was hesitant at first but was becoming desperate as his visa had not been granted and he was not working much.
He claims he was going through a difficult time in his life with the death of an uncle and he could not return to Italy to say goodbye and was under financial strain. He states he has always tried to support his family and his sister was pregnant at the time.
Mr Bacaj states he is ashamed of himself and has never before been involved in crime. He states he is trying to show he has learned his lesson and he is not a risk to the community. He is trying to integrate into the community and meet new people, and volunteers at the local soccer club.
Mr Bacaj states his offending occurred as he was under financial pressure and was unable to return to Italy following the death of his uncle. He states he was struggling to pay his school fees as well as his other expenses, and because his sister was pregnant at the time.
The Tribunal does not consider Mr Bacaj’s difficulty early life, or his difficult financial or personal circumstances justify or excuse his involvement in criminal activity in cultivating a commercial quality of a prohibited plant. While he now lives with his brother, and says his brother provides financial support, he will continue to be under financial pressure as a student in Australia. He will also face difficult personal circumstances such as the death of extended family members from time to time. The Tribunal finds this factors weighs in favour of cancelling his visa.
The past and present behaviour of the visa holder towards the Department
Mr Bacaj referred in several statements to the Department and to the Tribunal that he was told that there was no offence involved if there were under 18 cannabis plants. This creates a somewhat misleading impression that there was only a small quantity of plants involved in his offending.
It was put to Mr Bacaj under s.359AA of the Act that the sentencing remarks of Magistrate Dixon was that the offending involved some 50 plants. A copy of the sentencing remarks was provided to Mr Bacaj after the hearing.
In his statutory declaration provided after the hearing, Mr Bacaj states he had never attempted to say there were only 18 plants at the house when he was arrested, and he did not say this in his criminal trial. He agrees there were probably around 50 plants and this is significantly more than 18 plants and he should have been smart enough to stop his involvement when the number of plants became so high. He states he was under financial and personal pressure and was not thinking properly about the consequences.
The Tribunal acknowledges he did not state the offending only involved 18 plants, however the way in which this information is put creates a misleading impression about the degree of his offending that does not match the seriousness of the offence for which he was convicted or the sentence imposed. This conduct results in this consideration weighing slightly in favour of cancelling his visa.
Whether there would be consequential cancellations under s.140
There are no consequential cancellations that would occur, and this consideration does not apply in this case.
Whether there are mandatory legal consequences of the cancellation
Mr Bacaj’s substantive visa application is a Subclass 500 (Student) visa. The requirements for this visa include that he meets public interest criterion 4013 (PIC 4013). PIC 4013 requires that where a person who is affected by a risk factor, the application is made more than 3 years after the cancellation of the visa unless there are compelling reasons that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa within 3 years after the cancellation determination.
A person is affected by a risk factor if a visa they held has been cancelled under s.116 of the Act because the Minister was satisfied that a ground prescribed by r.2.43 of the Regulations was found to exist.
It follows that if Mr Bacaj’s Subclass 020 (Bridging) visa is cancelled, this will lead to the refusal of his Subclass 500 (Student) visa unless he can establish that the 3-year period should not apply.
In addition, there are limited other visas for which he can apply if his visa is cancelled (s.48 of the Act and r.2.12 of the Regulations). The type of visa for which he could apply does not include a student visa.
If the visa is not cancelled, this allows consideration of Mr Bacaj’s substantive visa application. His substantive visa application is for a Subclass 500 (Student) visa. Another requirement for the grant of this visa is that he meets PIC 4001 (cl.500.217(1)). This in turn requires him to meet the character test or for the Minister to decide not to refuse the visa despite not being satisfied he meets the character test.
The character test is not defined in the Regulations, however the reference to the character test is taken to be a reference to s.500(6) of the Act.[3]
[3] Awa v MIMIA (2002) 189 ALR 328 at [11] and SZLDG v MIAC (2008) 166 FCR 230 at [86]. Expressions used in a legislative instrument have the same meaning as the enabling legislation unless the contrary intention appears: s.13(1)(b), Legislative Instruments Act 2003 (Cth).
The sentence imposed on Mr Bacaj, being 11 months and 7 days is less than the 12 months specified to meet the definition of subintimal criminal record,[4] in which case his visa would be cancelled by operation of law.
[4] s.501(6)(a) of the Act
However, there are two other components of the character test that may apply. The first is the Minister reasonably suspects the person is associated with a group or organisation involved in criminal conduct (s.501(6)(b) of the Act), and that having regard to the person’s past and present criminal and general conduct the person is not of good character (s.501(6)(c) of the Act).
This application is not about whether Mr Bacaj meets the character test. However, the overall effect of the legislative scheme is that if his visa is cancelled, his Subclass 500 visa will be refused. If his visa is not cancelled, his Subclass 500 visa application may still be refused under the character provisions, however this is a matter that would be decided by the decision maker for the Subclass 500 visa.
In submissions, Mr Bacaj’s representative referred to the possibility of Mr Bacaj being in immigration detention until his student visa was decided if his visa was cancelled. At hearing, Mr Bacaj said he would return to Italy if he does not hold a visa, and the possibility of him being in immigration detention does not apply. As he may qualify for a further BVE if he is making arrangements to leave Australia and COVID-19 prevents him doing so, the Tribunal does not accept he would necessarily be in immigration detention.
Overall, this weighs slightly in favour of not cancelling his visa.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
In submissions to the Department, it was stated cancellation of Mr Bacaj’s visa would be a breach of Article 9 of the International Covenant on Civil and Political Rights (ICCPR) as he would be subject to arbitrary detention if his visa is cancelled.
Article 9 states, among other things:
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
Detention of a person who is a non-citizen who does not have a visa is liable to be detained under s.189 of the Act. This is a ground established by law, and does not infringe Art. 9 of the ICCPR.
It was also submitted removal of Mr Bacaj would be a breach of Australia’s non-refoulement obligation because Italy had found him to be a refugee. Mr Bacaj is a citizen of Italy. It is not suggested he would return to Albania, or that he could not enter and reside in Italy as a citizen of Italy.
Mr Bacaj said there was no reason he could not return to Italy, and that while it would not be his choice, he could return. He also stated that if his bridging visa is cancelled, he will return to Italy pending the determination of his application for a student visa.
Mr Bacaj’s sister had a child in 2020. If he is removed from Australia, he will be separated from his sister’s child. He did not raise the best interests of the child in evidence or in submissions. The baby is a newborn, and his sister has the support of her husband and Mr Bacaj’s brother. Mr Bacaj is not a primary carer for the child. His siblings and the child are temporary residents in Australia, and they will be reunited if they return to Italy. The Tribunal finds that it is in the child’s interests to have contact with Mr Bacaj, however this only weighs slightly in favour of not cancelling his visa.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The visa under consideration is a bridging visa, and this requirement does not apply.
Nevertheless, Mr Bacaj has provided a letter dated 5 March 2020 from the West Adelaide Raptors Football Club stating he is a current player, and volunteers during training sessions. He has a brother and a sister in Australia who are both temporary visa holders, and his sister has a baby.
Other relevant factors
Mr Bacaj states he knows that if he is involved in any other offending, he will have no chance to stay in Australia. He also states he now has financial support from his brother and lives with his brother. A support letter provided by a friend to the Magistrates Court states he approached family members in Italy for financial assistance.
The Tribunal acknowledges these factors lower his risk of reoffending. However, it remains concerned about his reckless attitude towards understanding the conditions of his visa and the laws of Australia.
CONCLUSION
Mr Bacaj came to Australia on a temporary working holiday visa. He has committed a criminal offence while in Australia. This offence was a serious offence, cultivating a commercial quantity of a controlled plant, and resulted in a sentence of a term of imprisonment of 11 months and 7 days. While the sentencing Magistrate states he had a minor role in this operation and suspended the sentence without imposing supervision on his bond, committing an offence while on a temporary visa is a serious matter. While in Australia Mr Bacaj has failed to comply with the conditions of his visa.
Mr Bacaj can return to Italy and states he intends to do so if his visa is cancelled. His parents live in Italy and he has returned to Italy since arriving in Australia. If he leaves Australia he will be unable to complete his studies in Australia. However, he has obtained qualifications and experience in Australia and is able to seek work with these additional qualifications and experience.
Mr Bacaj has a brother, a sister and his sister’s child in Australia who are also on temporary visas. He says he will return to Italy if his visa is cancelled, and this will result in him being separated from his family members. He says he will not have anywhere to live and is concerned about coronavirus and the economic situation in Italy.
While there are factors that weigh in Mr Bacaj’s favour, the Tribunal is not satisfied any of the factors raised by Mr Bacaj outweigh his offending and has concluded his visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.
Kate Millar
Senior Member
0
4
0