Bacaj (Migration) - [2021] AATA 4134

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 affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 359A
Migration 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 225
STATEMENT 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bacaj (Migration)

Details

AGLC: Bacaj (Migration) [2021] AATA 4134
Case: [2021] AATA 4134
Decision Date: 10 August 2021

CaseChat Overview and Summary

This matter concerned an appeal by Mr Bacaj against the decision of the Tribunal to affirm the cancellation of his Subclass 020 (Bridging B) visa. The cancellation was based on Mr Bacaj's conviction for cultivating a commercial quantity of a controlled plant.

The primary legal issue before the Tribunal was whether, in the exercise of its discretion, it should affirm the cancellation of Mr Bacaj's visa, given that the ground for cancellation did not mandate mandatory cancellation under section 116(3) of the Migration Act 1958 (Cth). The Tribunal was required to consider all relevant circumstances, including those raised by Mr Bacaj and departmental policy.

The Tribunal acknowledged that Mr Bacaj had been convicted of an offence that constituted a ground for visa cancellation under regulation 2.43(oa) of the Migration Regulations 1994. While Mr Bacaj presented evidence of his family ties in Italy and Denmark, his lack of a criminal record in Pistoia, Italy, and his employment history, the Tribunal found that these factors did not outweigh the seriousness of his offending. The Tribunal noted that Mr Bacaj's initial purpose for travel to Australia was temporary, and he had been in Australia for over four and a half years, with a prior student visa application having been refused on the basis of not being a genuine temporary entrant.

Ultimately, the Tribunal affirmed the decision to cancel Mr Bacaj's Subclass 020 (Bridging B) visa, concluding that the factors favouring Mr Bacaj did not outweigh his offending conduct.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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 MillarSenior Member

Ratio Decidendi

Legal Principle Established

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.