Goli (Migration)

[2019] AATA 886

Goli (Migration) [2019] AATA 886 (4 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Leke Goli

CASE NUMBER:  1827785

HOME AFFAIRS REFERENCE(S):           BCC2018/3974397

MEMBER:Denis Dragovic

DATE:4 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 04 February 2019 at 7:58am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – convicted of an offence against a law of a State – consideration of discretion – partner of primary visa holder – degree of hardship –wife yet to complete her studies – separation of the family unit – mental health issues – children’s education – transition between two different education systems – lack of remorse – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 September 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) and Regulation 2.43(1)(oa) on the basis that he was convicted of cultivating a commercial quantity of controlled plant and sentenced to nine months imprisonment (suspended sentence). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 7 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Alessia Goli, the daughter of the applicant and Suzana Lukaj, the wife of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

6. 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). 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?

7. 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 r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant:

   (oa)  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));

8. The applicant confirmed that he had been convicted of the offence of cultivate a commercial quantity of controlled plant and sentenced to 9 months imprisonment (suspended sentence) and a two year bond under Community Corrections supervision.

9. For this reason the Tribunal is satisfied that the ground for cancellation in s.116(g) 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

10. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. 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 to and stay in Australia

11. The reason the applicant came to Australia was to support his wife study for a business degree. The applicant came as a partner to his wife’s student visa. The family, including two children, arrived in August 2014. The applicant’s wife began by studying English and then transferred to a bachelor’s degree. She has nearly completed two years of a three year Bachelor of Business at Kaplan Business School.

12. The applicant also added that a secondary purpose was for their children to experience a different culture and learn English.

13. The applicant claimed that both him and his wife were born in Albania and didn’t have the opportunity to study there. When they moved to Italy they had children which also prevented them from pursuing studies.

14. The purpose of the visa holder’s travel to Australia was to accompany his wife who was studying. A secondary purpose was related to their children’s experiences. The applicant’s wife has one year remaining. The children have lived here four years and have experienced Australia extensively. I give some weight against cancelling the applicant’s visa on the basis of the primary purpose for his travel to Australia, namely his wife’s education, not being fully completed.

    The extent of compliance with visa conditions

15. There is no evidence before me to suggest that the applicant has not complied with his visa conditions. I note that this is a basic expectation of all visa holders and as such give little weight against cancelling the applicant’s visa.

    The degree of hardship that may be caused to the visa holder and any family members

16. The applicant argued that they had made considerable sacrifices and spent a lot of money to allow his wife and the children to study here in Australia. His children are used to life here and have made friends in Australia. I asked if his visa was to be cancelled why the children and mother can’t stay in Australia while he returns to Italy. He explained that his wife would not be able to take the children to school on her own and to work while studying (she works in a restaurant). I clarified that his eldest daughter is over 18 and has finished school and can find her own way around. He clarified that he was referring only to his son.

17. I noted to the applicant that he came to Australia on a temporary visa which allows for someone to stay temporarily and as such his children were never intending to remain in Australia. He responded that he had made sacrifices to get here and the least one could do was to allow his children to finish their studies.

18. I put to him that he had previously submitted evidence to the Department regarding his wife suffering depression and anxiety. He agreed. I put to him that if his visa issue was resolved by cancellation and his family returned to Italy then there wouldn’t be the source of the mental health problems his wife is encountering. The applicant said that if his wife was to return she would not finish her business course. I asked if there is a reason why she can’t study in Italy. He said that there is no reason other than having started here.

19. I heard from the wife on this matter. She said that she applied for a visa to go to business school concurrently alongside studying English. She said that the syllabus is different in Italy making it difficult for her to continue studies there. I put to her that there are many people who study a year abroad. I said that the time abroad she had here studying business is not detrimental to her. She said that they spent a lot of money here. I asked why she couldn’t remain in Australia while he returned. She said that she is dependent upon him to look after the children while she studies. I put to them that he could take the children back to Italy while she finishes her course—a period of just over one year. They responded that such a move would destroy the family unity and would lead to her suffering further depression and anxiety.

20. We discussed the specific hardship that the children may face. It was claimed that the daughter would be at a loss because she likes school here and gets along well with her friends, enjoys the lifestyle and culture. Similarly the son has lots of friends. It was also claimed that the daughter would have to re-do four years of high school. They claimed that if she had been studying for four years then she would have a diploma in Italy, but here she doesn’t have anything. I put to them that she has a high school certificate. They claimed that the applicant’s daughter wouldn’t be able to find a job just on a high school certificate. The applicant’s wife said that there are many people with university degrees and are unemployed so how could her daughter expect to get a job. She explained a two stream secondary school system in Italy in which there are institutes that provide training certifications for various jobs or alternatively there is a high school stream, lycea, which requires that she specializes in something that then leads to university studies. The applicant’s wife claimed that the money spent here would be thrown in the bin because her daughter would have to do further study to specialize at an institute. She acknowledged that her daughter could be accepted into universities but that would require her to do further studies. I put to her that she wants to study accounting at a university here and there she would be able to study accounting, and asked what the difference was. She responded that she would have to do different subjects than to what she studies here.

21. We discussed the situation of the applicant’s son who is 10 years. He speaks Italian. I asked what hardship he would face if the applicant’s wife chose to go back because her husband’s visa was cancelled. She responded that her child wants to stay here, that he has adapted to his life style here and he is writing in English. It’s not just as if he could go into the fifth grade when he returns, he would probably have to go back a grade or two, she added.

22. I asked about the applicant wife’s mental health. I noted the reference to anxiety in the doctor’s report is driven by visa uncertainty which if the visa issue was settled would be resolved. The applicant’s wife said that her anxiety is to do with her family. If his visa was cancelled it would not stop her anxiety.

23. The applicant’s daughter also provided evidence. She said that her parents have suffered for their two children to have a better future and opportunity to study. She went to primary school in Italy and reaffirmed her mother’s explanation of the two stream high school system in Italy.

24. I asked the daughter if she had done any research on how to access university in Italy to which she responded that she had not. I put to her the following information:

    To apply to a laurea (equivalent to bachelor degree) program, you must hold a secondary school qualification released after a minimum of 12 years of schooling (overall).

    It verifies the validity of it and can allow access to first cycle programs if:

    ·It is the official final secondary school leaving certificate/ the first and second cycle university qualifications from the relevant foreign system;

    ·qualification that allows entry to comparable first cycle program (ex. academic) in the relevant foreign system; qualification that allows entry to comparable second or third cycle program in the relevant foreign higher education syste

    ·qualification obtained after an itinerary of at least 12 years of schooling;

    Universities and Higher Education Institutions are entitled to officially recognize international qualifications.[1]

    [1] Study in Italy, Recognition of Qualifications, accessed on 29 January 2019

25. I put to her that I can’t accept her claims based upon this information. I asked that the applicant provide evidence of their claims in a post-hearing submission. In the post-hearing statutory declaration the applicant stated that he has heard of anecdotal evidence while an internet article was submitted which appeared to be a blog by a student describing the differences between Australian schools and Italian schools. It does not engage with the question of whether the applicant’s daughter will be able to transition to a university.

26. I accept that the applicant’s children will be unhappy about returning to Italy. I find that the daughter will not suffer a setback due to having completed her high school certificate. I accept that the son may need to repeat a year or undertake accelerated Italian classes to be able to participate at an equivalent year level. This will undoubtedly be a burden to him but not hardship by any measure. The wife can choose to remain in Australia and complete her studies or return with her husband. She has just over a year remaining. If she chose to remain the separation from the family would amount to a low level of hardship arising from separation of the family and the need to finance her remaining studies through the 20 hours of work she is legally allowed to undertake. If this is not possible or she chose not to complete her studies here and pursue alternative options in Italy I find that it would similarly amount to a low level of hardship. I find that the applicant himself does not face any hardship upon return other than what may arise from a sense of having failed his family, which I find would not amount to more than a low level of hardship. I acknowledge that the applicant’s wife has struggled with mental health issues as diagnosed by her general practitioner. The applicant’s wife has stated that it arises from the family while the general practitioner noted that cancelling the applicant’s visa will lead to increased anxiety for her. While I accept that she will face increased anxiety because of a cancellation I do not accept that the wider family issues upon which her mental health issues arise will be adversely impacted by this decision. Overall, I find that the cancellation of this visa will lead to a low level of mental health hardship upon the wife. Overall, I find that the applicant and his family will face low levels of hardship based upon a cancellation and as such I give this little weight against cancelling the applicant’s visa.

    The circumstances in which the ground for cancellation arose

27. The applicant explained that he was trying to find a job and through the process got involved with a group of Italian men. His job was to cut grass two or three times a month. He would just cut the grass. It would take him about 1 hour to 2 hours at a time. He would do it in the morning or in the afternoon.

28. He claims that he did not know that there were drug plants on the property. I read to him from the court’s judgement he had submitted (Tribunal file f.10): ‘On 1 July 2015 in the early hours of the morning police were watching a house at Newton. After they had been watching the house for an hour or so, the police entered it. They found you inside.’ I put to him that if they were watching the house since the early hours of the morning and found him inside his story of being a gardener does not add up. The applicant responded that his employer had said that he would go to the bank to get him some money and asked him to wait in the house. I put to him that it was ‘early hours’ in the morning. He said that he thought it was in the afternoon or maybe the record is wrong. In a post hearing statutory declaration submission the applicant maintained that he was arrested in the afternoon and not the morning.

29. The judge who had access to the evidence concluded, ‘in return for some payment you attended the house on at least one occasion to protect the crop for those who were growing it.’ I put to him that that is the conclusion the judge made. He added that it is correct, as he accepted the version on the advice of his solicitor as it was put to him that it would cost more to keep going with his case. In the post hearing statutory declaration the applicant maintained that he did not have the money to afford a lawyer and as such accepted guilt but maintains his innocence.

30. The representative noted that in the sentencing remarks the judge noted that the applicant’s conviction was ‘towards the lowest level of seriousness.’

31. The applicant claims that he was not aware of the drug crop and he claims that the court record is incorrect. The representative made the case that because the allegations against him ‘were never proven in a Court to Law…the Tribunal should give him the benefit of the doubt.’ While I accept that the evidence was not tested, the fact that he was charged, pled guilty and was sentenced is sufficient reason to give greater weight to the court’s decision than to the applicant’s untested claims. It is possible that the sentencing record incorrectly records the evidence but without further evidence to support this claim I give greater weight to the court’s record. As such I do not give the benefit of the doubt to the applicant and instead accept the outcome of the legal process. For that reason I note his lack of remorse for his actions. I acknowledge the representative’s comment that the judge’s sentencing remarks indicated that his crime was towards the lowest end of seriousness. Overall I find that the circumstances which led to the ground for cancellation are not a mitigating factor and as such give considerable weight in favour of cancelling the applicant’s visa.

    The visa holder’s past and present behaviour towards the department (for example, whether they have been truthful and cooperative in their dealings with the department).

32. There is no evidence before me or reason to believe that the applicant has not acted appropriately in his past and present behaviour towards the department. I note that this is a basic expectation of all visa holders and as such I give this little weight against cancelling the visa.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

33. I find that there are no other persons in Australia whose visas would or may be cancelled under s.140. As such I have not weighted this criteria.

    Whether there are mandatory legal consequences to a cancellation decision

34. There is no possibility of indefinite detention. I have no information before me that would suggest that Australia’s protection or non-refoulment obligations may be engaged if the applicant’s visa was cancelled and he was required to return to Italy.

35. Other relevant international obligations arise from the concept of family unity which the representative noted. While the Convention on the Rights of the Child does state that children have the right to live with their parents and that they should not be separated against their will, in Article 9(4) there is specific reference to circumstances of ‘deportation’. In Article 10 further guidance is given on what considerations need to be made by the state in such circumstances.

36. If I were to accept the applicant and the witness’ claims that they will not separate the family then there are no matters that arise from the Convention on the Rights of the Child arising from family unity principles nor are there any arising from the principles of best interests of the children as I find no differentiation in the children’s interests whether they live in Italy or Australia.

37. Alternatively, if the applicant’s wife chose to remain in Australia along with the children or vice versa the children were to leave with the applicant there is no reason to believe that the Convention and specifically the considerations that should be taken into account by the state would be breached by the Australian government if the applicant was to be deported, nevertheless, I acknowledge that the interests of the children would be affected by any separation. Considering the limited time frame that any such separation would entail, that it is not a breach of international obligations but acknowledging any separation, however limited in time, doesn’t serve the best interests of the child, overall, I give little weight against cancelling the applicant’s visa.

1. Upon cancellation the applicant would become an unlawful non-citizen and liable to be detained under s.189 and subsequently removed. If his visa is cancelled he will be limited in the scope of other visas that he can apply for and may be subject to a three year exclusion under PIC 4013. The applicant has not applied for any other visa. I give this little weight against cancelling the applicant’s visa.

2. I acknowledge the applicant’s submissions claiming good character as put forward by the representative as well as a purported employer. While the applicant may well be considered by some to be of good character and I acknowledge the submissions, overall in this regard, I give little weight against cancelling the applicant’s visa as his good character has been severely diminished by his conviction and lack of remorse.

3. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

   DECISION

4. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

   Denis Dragovic
   Senior Member