Murillo Casseres (Migration)

[2023] AATA 2569

Murillo Casseres  (Migration) [2023] AATA 2569 (30 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jorge Eliecer Murillo Casseres

REPRESENTATIVE:  Mrs Aishwarya Somal

CASE NUMBER:  2204818

HOME AFFAIRS REFERENCE(S):          BCC2021/1569811

MEMBER:James Lambie

DATE:30 June 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Statement made on 30 June 2023 at 2:42pm

CATCHWORDS

MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – applicant convicted of several offences – compelling need – Australian citizen child – family medical issues – best interests of the child – decision under review set aside

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 189, 198
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 March 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) on the basis that prescribed grounds for cancellation applied. 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 15 December 2022 and 28 February 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

4. The applicant was represented in relation to the review. 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 set aside.

   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) and reg 2.43(1)(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?

   s 116(1)(g) - prescribed ground

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

   In the case of a visa 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 he conviction and regardless of the penalty imposed (if any)).

8. Mr Casseres first entered Australia as the holder of a Visitor (subclass 600) on 24 June 2014, in order to visit his fiancée, Margaret.  On 29 December 2014, he applied for a Combined Partner (Subclass 309/100) visa, sponsored by Margaret.  He was granted a Partner (Provisional) (subclass 309) visa on 12 April 2016.  Mr Casseres and Margaret have an Australian citizen son, ‘A’, born 2 January 2017.

9. Mr Casseres has been convicted of the following offences:

Date	Court	Offence	Result
24 January 2019	Burwood Local Court	Stalk/intimidate intend fear physical etc harm (domestic)	Conditional release order without conviction 12 months
24 January 2019	Burwood Local Court	Stalk/intimidate intend fear physical etc harm (domestic)	Conditional release order without conviction 12 months
24 January 2019	Burwood Local Court	Stalk/intimidate intend fear physical etc harm (domestic)	Convicted. Conditional release order 12 months
24 January 2019	Burwood Local Court	Stalk/intimidate intend fear physical etc harm (domestic)	Convicted.  Conditional release order 12 months.

1. The applicant told the Tribunal that he acknowledged and accepted that this criminal history amounts to grounds for cancellation.  He agreed that it was not in issue that he had been convicted of offences against the law of New South Wales.

2. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) and reg 2.43(1)(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

3. 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’.

4. The Tribunal has the following material before it:

   ·Department of Home Affairs file BCC2021/1569811, including material provided on Mr Casseres’ behalf;

   ·Written submissions from Mr Casseres’ representatives dated 12 December 2022, including:

   oHis identity documents;

   oCompleted forms 80 and 956 provided to the Department of Home Affairs;

   oMaterial relating to the care and support of A;

   oMaterial relating to the relationship between Mr Casseres and Margaret;

   oDocuments relating to the applicant’s criminal history;

   oLetters of support and other material relating to Mr Casseres’ circumstances, including:

   §Letter of support from Silvia Damiano;

   §Letter of support from Margaret O’Brien;

   §Letter of support from German Matger;

   §GP referral – mental health plan;

   §Statutory declaration of Ivannia Menna;

   §Statutory declaration of Luke Italiano;

   §Statutory declaration of Carlos Agamez;

   §Statutory declaration of Camilo Munoz;

   §Statutory declaration of Oscar Salamanca;

   §Statutory declaration of Judy Saad;

   §Statutory declaration of William Caro;

   §Work testimonial – HiPages;

   §Work testimonial – Airtasker;  and

   §Psychiatric referral.

   oDocuments relating to Mr Casseres’ volunteering activity

   oDocuments relating to Mr Casseres’ education and vocational training;

   oMr Casseres’ taxation records;

   oVisa grant letters;

   oMargaret’s medical records;

   oSubmissions provided to the Department dated 16 July 2021;

   oMr Casseres’ statutory declaration of 7 July 2021.

   ·Written submissions from Mr Casseres’ representatives dated 22 February 2023, including:

   oMr Casseres’ collated Westpac and Commonwealth Bank statements from 31 December 2018 to 30 November 2022; and

   oStatutory declaration of Silvia Damiano dated 22 February 2023

   ·     Post-hearing submissions from Mr Casseres’ representatives dated 28 March 2023, including:

   o   A bundle of photographs and social media posts;

   o   Mr Casseres’ statutory declaration dated 25 March 2023;

   o   Statutory declaration of Patricia White dated 24 March 2023;

   o   A bundle of screenshots relating to communications between Mr Casseres and Margaret relevant to care arrangements for A;  and

   o   Annotated financial records.

5. I have considered all of this material for the purposes of the discretionary factors.

   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

6. Mr Casseres was granted a subclass 309 visa on 12 April 2016.  The evidence is that the relationship underlying the partner visa application ceased in about March 2021;  however, Mr Casseres intends to proceed with application by reason of being the father of an Australian citizen child with Margaret.

7. I am satisfied that Mr Casseres’ travel to Australia was consistent with the purpose of the visa.  I accept his evidence that his continuing stay in Australia is to remain with A and to provide support to Margaret for the provision of A’s care.  I consider it highly relevant that Margaret was diagnosed with cancer in 2017, undergoing 6 months of chemotherapy, a double mastectomy, 6 weeks of radiation, a hysterectomy and additional oral chemotherapy.  She has reasonable and justifiable fears that her cancer may return.

8. In his statutory declaration of 7 July 2021, Mr Casseres said:

   Despite our relationship history, including the … domestic dispute that has left me with an unwanted criminal offence, Margaret and I remain focused on what is best for [A].  Even though it has been difficult, we have put our differences aside to find a way to amicably remain in close contact for our son [A].  He is the most important person.

   Margaret and I have agreed on some rules and modes of engagement so that [A] can grow up having his mum and dad as part of his life, even though we are living separately.

   Margaret and I have both moved to Queensland to be closer to her immediate family in the Gold Coast, so that Margaret can have additional support.  We are now living close to each other so that we can organise fortnightly visits for my son.  I also aim to see him once a week for dinner after work.

   We both love our son very much. He is the priority in this whole matter, and I request that the case officer bears weight to my relationship with [A] in considering the cumulative circumstances of this application.

9. In her statement of 15 May 2021, Margaret said:

   It is now clear … that we are better as co-parents and friends and that we should no longer live together or be partners.  I know this affect his visa in Australia and this concerns me as [A and Mr Casseres] are very close … and they have spent a lot of time together over his short life due to my time in hospital and treatment and work trips et.  He has been a very hands-on father and deserves the opportunity to see him grow up.  Most importantly to me, [A] deserves to have a father that is present in his life.

10. Margaret is significantly older that Mr Casseres (he was born in 1994, she in 1977) and it is clear to me that a recurrence of her illness, were Mr Casseres not to remain in Australia, would have a very significant impact on A.  At the hearing, Mr Casseres expressed genuine and deep concern for A’s welfare were he not in Australia to provide support and care for him. In my view, this constitutes a compelling need for Mr Casseres to remain in Australia and is a matter to which I attach significant weight.

    The extent of compliance with visa conditions

11. There is no information before the Tribunal to indicate that Mr Casseres has not complied with the conditions applicable to his Partner (Provisional) visa or the other visas he has held.  I give this a small degree of weight in favour of his application.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship) by cancellation

12. As indicated above, both Mr Casseres and Margaret have relocated to Queensland to facilitate their co-parenting arrangements for A.  He has started his own small business as a handyman.

13. In his statutory declaration of 7 July 2021, Mr Casseres said:

    I want to have the opportunity to stay in Australia so I can continue to be a father to my beautiful son.  I would be absolutely devastated, and my son would have a negative psychological impact, if we are separated.  We share an incredibly special bond.  My son is quite attached to me as I have substantially cared for him, and we have spent so much time together since his birth …

    I do not want my son to experience growing up without a father.  This has happened to me dues to my own father’s death when I was four years old … I cannot bear the thought of being separated from him.  This causes me a lot of anxiety, fear, sadness and loss of sleep every day.

    In addition to this … it is dangerous and almost impossible for [A] and his mother to travel outside of Australia for the indefinite future if was forced to return to my home country and they wished to be able to visit me.  I wouldn’t want my son or Margaret to be in any danger.  Colombia is in an exceedingly difficult situation at the moment … so this would mean that if I had to go back to my home country, I would not be able to see my son for many years.

14. In her statement of 15 May 2021, Margaret said:

    I worry that any departure or absence of his father would have a profound psychological effect on [A] and that would be a challenge for him the rest of his life. At [then] four years old he wouldn’t understand the reason he could not see his father and we are not in the financial position to visit him in Colombia regularly.

    I also worry that if my cancer returns that [A] will be without a parent in Australia and don’t want him having to move to Colombia – a country where he doesn’t know and is still very dangerous.

15. In her statutory declaration of 26 May 2021, Mrs Christian Ivannia Mena, consultant psychologist, said:

    During our first consultation, I had the opportunity to see Mr Casseres interact with his 4 year old son towards the end of the session … I was able to witness first hand the close connection Mr Casseres has with his son and the protective and nurturing quality of his parenting style This was reflected in his demeanour, tone of voice and choice of word when interacting with his son at a time when the young boy felt agitated.  This experience appears to be consistent with Mr Casseres’ disclosures pertaining to the importance of his role as a father, his devotion to his son and wanting to be a positive and stable parent.

16. The evidence available to the Tribunal suggests that Margaret, with her superior earning capacity, is responsible for the bulk of A’s financial support. He does not make formal child support payments. Nevertheless, Mr Casseres’ annotated financial statements indicate that his expenditure on A’s care and support is significant considering his means. I am satisfied that cancellation of the visa, in addition to causing financial hardship to Mr Casseres in terms of the business he has established, would reduce the means of support to A. 

17. Of more importance is the following matter raised by Margaret in her statement:

    We have agreed to a custody arrangement that puts [A’s] needs at the centre of our approach … This arrangement will also allow me to continue my full-time work whilst caring for my son.  I have a very busy and growing organisation employing 14 people and I would be unable to run this as a single parent without support.

18. The evidence is that Margaret’s parents are in their 70s and that alternative family support is not available.  It was submitted, and I accept, that cancellation of the visa would have negative financial implications for Margaret and A.

19. In view of the evidence presented, I am satisfied that cancellation of the visa would cause financial, emotional and psychological hardship to Mr Casseres and A, and likely negative emotional and financial difficulties for Margaret.  These are matters to which I attach significant weight.

    The circumstances in which the ground of cancellation arose

20. Mr Casseres accepts responsibility for his actions which gave rise to the prescribed grounds of cancellation.  He has made his own claims to have been the victim of domestic violence in his relationship with Margaret but does not claim them as justification for his own actions.

21. Both Margaret and Mr Casseres have given evidence to the effect that the incidents the subject of the charges and convictions arose during an acutely stressful period in their lives.  In her statement, Margaret said:

    We were both frustrated and very affected by my illness.  These strong emotions led to disagreements and a domestic dispute.  One day, I called the police and he was charged with intimidation because he had thrown a few things against the wall during a dispute.

    I must make the point that he was never physically violent to me or my son and this situation occurred due to the intense pressure we were both under.

    The lawyers recommended he pleaded guilty and he was given a two year good behaviour bond which he has followed to the letter.

    After many conversations and apologies, Jorge and I continued living together with focus or co-parenting [A] especially through Covid-19 and wanting both to remain close to him.

22. Mr Casseres acknowledges that grounds for cancellation did not arise from circumstances that were beyond his control.  The fact that he was convicted of offences against the law of NSW, and that these were domestic violence offences, are matters which must be given significant weight against his application.

    The past and present behaviour of the visa holder towards the department

23. The delegate noted that Mr Casseres had been cooperative and prompt in his dealings with the Department and accorded this factor a little weight. I came to a similar conclusion.

    Whether there would be consequential cancellations under s 140

24. There are no dependent visa holders in this case, and therefore the question of consequential cancellations does not arise. No weight is given to this factor.

    Whether there are mandatory legal consequences of cancellation

25. If the visa is cancelled, Mr Casseres will become an unlawful non-citizen, and he may be detained under section 189 and removed under section 198 of the Act.  He would also be subject to section 48 of the Act which may prevent him from applying for certain visas while in Australia, and he may also be affected by the PIC 4013 criterion which limits the grant of further temporary visa for a specified period.

26. It is noted that Mr Casseres’ Partner (subclass 100) visa application is still pending before the department and that, in the event of cancellation of the subclass 309 visa, he would be eligible to apply for a Bridging E visa pending determination of the subclass 100 visa.  This introduces further levels of complexity and uncertainty to his visa status and is a matter to which a degree of weight is given in favour of his application.

    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

27. Although Mr Casseres has raised the current conditions in Colombia as a matter of concern, he has not suggested that Australia’s non-refoulement obligations are invoked by the cancellation decision.

28. I have given careful consideration to Australia’s international obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC).

29. Under the ICCPR, Australia has an obligation not to arbitrarily interfere with unity of the family.  However, this does not amount to an absolute right to enter or remain in a country of which they are not a national:  States may lawfully require non-citizens within their territory to depart.  Further, I do not consider visa cancellation by reason of criminal convictions to be an arbitrary interference with the unity of the family.

30. However, in relation to the obligation in the CRC to ensure that, in all actions concerning children, the best interests of the child are a primary consideration, I have come to the conclusion that the best interests of A would be adversely affected by cancellation.  In particular, I am persuaded that, given Margaret’s age and health history, there is a significant risk that A’s parenting and welfare might be placed in jeopardy by cancellation of Mr Casseres’ visa.  The reasons for this view are given at paragraphs 19 and 28 above.  For the reasons in paragraph 35 above, I am not convinced that the possibility of a Bridging E visa as an interim measure provides adequate security against those concerns.

1. Taking all of the discretionary factors into account, I have concluded that the particular circumstances of this family unit outweigh the considerations in favour of cancellation.

2. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

   DECISION

3. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

   James Lambie
   Senior Member