ELO CARRASCO (Migration)

[2022] AATA 3673

ELO CARRASCO (Migration) [2022] AATA 3673 (12 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alejandro Humberto ELO CARRASCO

CASE NUMBER:  2212888

HOME AFFAIRS REFERENCE(S):          BCC2019/971440

MEMBER:Jason Pennell

DATE:12 September 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 12 September 2022 at 11.20am

CATCHWORDS

MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applicant charged with an offence – supplying a prohibited drug – partner relationship ceased – financial hardship – decision under review affirmed          

LEGISLATION

Crimes Act 1900 (NSW), s 193C
Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25
Migration Act 1958, ss 48, 116, 140, 189, 499; Ministerial Direction 63
Migration Regulations 1994, r 2.43

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 1 September 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s.116(1)(g) of the Act on the basis that the applicant had breached one of the prescribed conditions pursuant to Reg 2.43(p)(ii) of the Act, namely that the applicant ‘has been charged with an offence against the law of the Commonwealth, a State, a territory or another country.’[1] The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   [1] Regulation 2.43(P)(ii) of the Act.

3. The applicant appeared before the Tribunal on 9 September 2022 to give evidence and present arguments. At the time of the hearing the applicant was held in immigration detention. As such the Tribunal exercised its discretion to conduct the hearing via M.S. Teams, determining it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

consideration of Claims and evidence

1. 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) and Reg 2.43(p)(ii) of the Act. 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.

Applicant’s background

1. The applicant was born on 29 March 1969 in Los Nadis, Chile. The applicant’s mother passed away approximately six years ago. The applicant’s father continues to live in Constitución, Chile. The applicant’s evidence was that his father is a retired handyman. His evidence was that his father had recently suffered a suffered a brain haemorrhage.

2. The applicant claimed that he had three brothers and a sister. The applicant’s eldest brother died in a motor accident. His remaining brothers and sister continue to live in Chile and help care for his father.

3. The applicant did not complete his schooling in Chile, having completed up to the equivalent of year 8.

4. The applicant’s evidence was when he left school he worked as a motor mechanic. Initially the applicant worked for various workshops and eventually commenced his own business. His evidence was that in or about 2008/2009 he completed a mechanics course in Chile for the purposes of obtaining his partner visa to travel to Australia.

5. In or about 1991 (at the age of 22 years) the applicant was married. His evidence was that he was married for approximately 8 or 9 years and was subsequently divorced in or about 2000. As a result of his marriage the applicant has a son who remains living with his mother in Santiago Chile. The applicant’s evidence is that his son is about to attend university and he wishes to remain in Australia for the purposes of working to help pay for his sons university education.

6. The applicant’s evidence was that he subsequently married an Australian woman in Chile (‘the applicant’s second wife’). He claims that they lived together in Chile for approximately 10 years during which time they owned and operated a hostel business which ran into financial difficulties. As a result, he and his second wife moved to Australia looking for better work prospects. Approximately 8 months after the applicant arrived in Australia his relationship with his wife failed and they separated. 

7. After separating from his second wife, the applicant worked for a tyre retailer for approximately six months in Queensland selling and repairing tyres. He then returned to Sydney where he worked as a mechanic repairing and maintaining machinery for a fertilizer manufacturing business for approximately four 4 years. The applicant then worked in an Italian restaurant and as a painter. 

8. The applicant’s evidence was that he was charged with the offences in circumstances where he was taking drugs on a recreational basis. He was attending electronic parties on a regular basis at which he was taking MDA. He claims that during one party he was approached by a girl who asked if he could supply her 10 capsules. The applicant subsequently supplied further capsules of the drug to the girl on several occasions. The applicant claims he was tricked as the girl turned out to be an undercover policewoman. Nevertheless, the applicant admitted that he had been charged with offences including possession and supplying drugs. His evidence was that he pleaded guilty to the charges and received a custodial sentence.

Does the ground for cancellation exist?

s 116(1)(g) - prescribed ground

1. 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(p)(ii) of the Act is relevant.

16.Reg 2.43(p)(ii) of the Act states:

‘(p) in the case of the holder of a subclass 050 Bridging (General) visa or a Subclass 051 (Bridging (Protection Visa Applicant) visa- that the Minister is satisfied that the holder:

(ii)     has been charged with an offence against the law of the commonwealth, a State, a Territory, or another country.’

17.In this case the applicant has been charged with the following offences (‘the offences’):

(a)Section.25 of the Drug Misuse and Trafficking Act 1985 (NSW) - The Supply of a prohibited drug. Sections 25 (i) states that ‘a person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence.’ (eight charges).

(b)Section 25A (1) of the Drug Misuse and Trafficking Act 1985 (NSW)– offence of supplying prohibited drugs on an ongoing basis. Section 25A(i) states ‘a person who, on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence.’ (one charge)

(c)Section 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) - Possession of prohibited drugs. Section 10(1) states that a ‘person who has a prohibited drug in his or her possession is guilty of an offence.’

(d)Section 193C of the Crimes Act 1900 (NSW) - Dealing with property suspected of being proceeds of crime. Section 193C(2) states:

‘A person is guilty of an offence if--

(a)the person deals with property, and

(b)there are reasonable grounds to suspect that the property is proceeds of crime, and

(c)at the time of the dealing, the value of the property is less than $100,000.’

1. The applicant was served with a Notice of Intention to Consider Cancellation (NOICC) dated 26 February 2019 alleging that he had been charged with the offences in breach of section 116(1)(g) of the Act. The NOICC was served on the applicant by hand at a time when he was in criminal custody and had been refused bail. The NOICC invited the applicant to make comment on the delegate’s intention to consider cancelling his Bridging E (subclass 050) visa granted on 2 August 2010. The applicant replied to the NOICC at the delegate’s interview conducted on 26 February 2019. The delegate’s reasons for decision refer to the fact that at the interview the applicant confirmed that he had been charged with the offences and that he did not dispute the grounds for cancellation of his visa.

2. On 1 September 2022 applicant was served with the Notification of Cancellation (NOC) of his Bridging visa under section 116 of the Act by hand.

3. At the hearing, the applicant’s evidence to the Tribunal was that he had been charged with the offences referred to in the NOICC. The applicant’s evidence was that he pleaded guilty to the charges and was sentenced four years in jail. He stated that he served two years in jail together with a period of two years of good behaviour. The applicant currently remains in immigration detention.

4. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) and Reg 2.43(p)(ii) of the Act 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

1. In considering whether a Bridging E visa should be cancelled based on the prescribed grounds in reg 2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s 499 of the Act. This Direction requires the Tribunal to consider specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.

2. The primary considerations are:

   ·the Government’s view that the prescribed grounds for cancellation at reg 2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and

   ·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

3. The secondary considerations are:

   ·the impact of a decision to cancel the visa on the family unit.

   ·the degree of hardship that may be experienced by the visa holder if the visa is cancelled.

   ·the circumstances in which the ground for cancellation arose.

   ·the possible consequences of cancellation; and

   ·any other matter considered relevant.

4. The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources. The Tribunal has also 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.

1. The applicant initially arrived in Australia on a tourist visa on 29 June 2006. The applicant remained in the country for approximately two of months before returning to Chile on 27 December 2006.

2. The applicant’s evidence was that travelled to Australia with his second wife for financial reasons after the failure of their hostel business. As a result, on 22 October 2008 the applicant made application to the department for a Partner (Migrant) (Class BC) visa. The applicant then travelled to Australia on 29 April 2009 on a Partner (309 Provisional) visa. On 25 May 2010 the delegate refused to grant the applicant a Partner visa. The applicant was granted a Bridging E (subclass 050) visa on 2 August 2010.

3. On 14 July 2010 the applicant made application to the Migration Review Tribunal (MRT) for a review of the delegates decision to refuse to grant him a Partner visa. The application for review was dismissed by the MRT on the basis that he had not applied for the review within the prescribed period and as such it did not have jurisdiction in the matter. The applicant’s evidence was that he had arranged for a representative known to the applicant as Ramon Gonzales, to help him with his visa status. The applicant’s evidence was that he had attended a Tribunal hearing with Mr Gonzales, but Mr Gonzales had subsequently disappeared having taken the applicant’s money and all his documents. Nevertheless, the applicant’s evidence was that he was not aware of any pending proceedings in the Tribunal or any other court in relation to any visa application made on his behalf. 

4. The applicant and his second wife separated approximately six months after his arrival in Australia. Accordingly, it appears the basis upon which the applicant had applied for the Partner visa was no longer relevant. The applicant has remained in Australia without making any further application for a substantive visa to allow him to remain in the country. In the absence of any appeal against the MRT decision that it did not have jurisdiction in relation to his application for review or any further application for a substantive visa having been made by the applicant there appears to be no basis for the applicant’s bridging visa.The Tribunal places some weight on this factor in favour of cancelling the applicant’s visa.

The extent of compliance with visa conditions

1. The delegate notes that the applicant has complied with his visa conditions. There is no evidence that the applicant has been in breach of his visa conditions save for the basis upon which the delegate has cancelled the applicant’s visa. The Tribunal places some weight on this consideration in favour of the applicant.

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

1. The applicant’s evidence was that he would suffer psychological damage if his visa was cancelled because he wanted to stay in Australia. The  applicant did not specify  how he would be psychologically damaged as claimed. In addition, he did not present to the Tribunal any medical report or any independent evidence in relation to his mental health or the impact cancelling the applicant’s visa would have upon his mental health. The applicant did state that he is not an evil person and that he was remorseful for this action. He claimed that he paid a heavy price for his actions and that he did not deserve to have his visa cancelled and to be forced to return to Chile. The Tribunal accepts that the applicant is not an evil person and that he had paid a heavy price as a result of his criminal proceedings. In addition, it accepts that he is remorseful for his actions The Tribunal accepts that he will be disappointed and frustrated if his visa is cancelled. However, the applicant did not present any evidence by which the tribunal would consider the applicant would be psychologically damaged as claimed in the event his visa is cancelled.  As such based on the applicant’s own evidence the Tribunal does not  accept that he will be psychologically damaged if his visa is cancelled. 

2. The applicant’s evidence was that he has a son in Chile who is due to attend university. The applicant claims that his son has forgiven him for his mistakes and that his son has provided him great comfort and support while he was in jail.  The applicant’s evidence was that he wanted to stay in Australia to be able to work for the purposes of helping fund his son’s education in Chile. He claims that he would suffer great hardship if his visa is cancelled as he will not be able to earn the same income in Chile to be able to pay for his sons’ education.

3. The applicant accepted and confirmed to the Tribunal that he has no further family in Australia. He separated from his wife in Australia 8 months after his arrival and that has no further family in Australia. Nevertheless, the applicant claimed that he has nothing left in Chile. He claimed that he had no remaining contacts and no family support. He claimed that if he was forced to return to Chile he would be forced to ‘start from scratch again.’ As a result, he would find it difficult to find work and would likely remain unemployed.

4. The Tribunal accepts that the applicant would experience hardship upon his return to Chile due to a lack of immediate contacts to re-establish himself upon his return.  . His mother has passed away and his father in very ill and is in need of care. Nevertheless, the applicant has skills as a mechanic which he has applied in both Chile and Australia. He has shown himself to be hardworking and resourceful with a strong work ethic which will enable him to earn an income in Chile. The Tribunal accepts that he may be able to earn more money in Australia to help support his son’s education. However, the Tribunal finds that any hardship he may suffer upon her return to Chile because of not being able to earn enough money or as a result of his lack of contacts would be limited and able to be overcome because of his own resourcefulness and his ability to apply himself to the task at hand. As such, the Tribunal gives this consideration no weight in the applicant’s favour.

Circumstances in which ground of cancellation arose.

1. The circumstances in which the cancellation arose are detailed above. The Tribunal accepts that the applicant’s evidence that he and his wife separated approximately 8 months after their arrival in Australia. Consequently, the applicant’s application for a Partner visa was refused by the delegate. The applicant was granted the Bridging visa on a temporary basis for the purposes of allowing him to remain in the country lawfully while making arrangements to leave the country, finalise any outstanding immigration matter or  to wait for any pending immigration decision.  The applicant’s evidence was that he currently has no outstanding immigration matters and is not waiting for any pending immigration decision.  Accordingly, there remains no basis upon which the applicant can maintain his Bridging visa. The Tribunal places some weight on this factor in favour of cancelling the applicant’s visa.

Past and present behaviour of the visa holder towards the department

1. The delegate’s decision states that the applicant was uncooperative with department officers by refusing to sign paperwork and receive a document notifying him of the MRT’s no jurisdiction decision in relation to his application for review of his Partner visa application. Nevertheless, the applicant’s behaviour toward the Tribunal was courteous and respectful. He provided his evidence in a clear and truthful manner. The Tribunal places little weight in favour of the applicant in relation to this consideration.

Whether there would be consequential cancellations under s.140

1. The circumstances of this case are such that no person’s visa would be consequentially cancelled under s.140 of the Act. The Tribunal places no weight on this consideration.

Any mandatory legal consequences,

1. The applicant was granted a Bridging visa E in association with the lodgement and consideration by the department of his Partner visa application. A decision by the Tribunal affirming the delegate’s decision would mean that the applicant’s Bridging visa would cease. The applicant is currently in detention. Nevertheless, if the applicant’s Bridging visa is cancelled, he would become an unlawful non-citizen and may be liable to remain in detention under s.189 of the Act. The applicant has no other pending visa applications. As such if the Tribunal affirms the delegate’s decision, the applicant may be affected by s.48 of the Act. The Tribunal gives this consideration no weight by reason of the fact it is a matter of the operation of the Act.    

Any international obligations.

1. There is no information which indicates that Australia’s international obligations are engaged in this case. As such the Tribunal gives this consideration no weight.  

Other relevant matters.

1. The Tribunal is not aware of any other relevant matter in this case.

CONCLUSION

1. Therefore, having considered all the circumstances, the Tribunal concludes that the visa should be cancelled.

2. The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Jason Pennell
Senior Member

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